State v. Anderes
| Decision Date | 24 March 2015 |
| Docket Number | 2015 Unpublished Opinion No. 431,Docket No. 41744 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. LEIGH BROOKS ANDERES, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Lynn G. Norton, District Judge.
Judgment of conviction and order of restitution, affirmed.
Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
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Leigh Brooks Anderes was convicted of battery of a parole officer and three drug offenses. On appeal, she argues that the prosecutor made improper comments during closing argument and that the district court erred when awarding restitution.
Anderes was charged with battery of a parole officer, Idaho Code § 18-915(2); possession of drug paraphernalia, I.C. § 37-2734A; and two counts of possession of a controlled substance, I.C. § 37-2732(c). The State also filed an Information Part II, alleging that Anderes was a persistent violator of the law.
At trial, the State presented evidence showing that Anderes went to the probation and parole office in Boise and met with her parole officer, Martinez. Once there, the officer found drugs and drug paraphernalia in Anderes' purse. Martinez asked officer Kightlinger to assist him in serving an agent's warrant. The officers then told Anderes that she was going to be arrested. Martinez left the office to get a car to transport Anderes to jail, leaving Kightlinger and Anderes alone in the office. At that point, Anderes began gathering up her personal property, but Kightlinger instructed her to put the items back down and to turn and face the office wall. She initially complied with the order and turned, but shortly thereafter she grabbed her purse and charged at Kightlinger. Kightlinger grabbed Anderes, and both of them fell to the ground outside of the office. They struggled for some time before other officers arrived and got physical control of Anderes. In the struggle, Kightlinger's finger, leg, and shoulder were injured.
Anderes admitted that she attempted to run away from Kightlinger, but she denied charging him. She testified that Kightlinger grabbed her as she was running away. Anderes pointed out that Kightlinger was a large man and that she was a smaller woman. In closing argument, counsel argued that the jury should find Anderes' story credible because charging the much larger person would have been futile, and running away would have been marginally more likely to succeed.
After closing argument, the jury returned a guilty verdict on each of the charges, and Anderes admitted that she was a persistent violator.
On appeal, Anderes argues that the prosecutor committed misconduct during closing argument and that the district court erred in awarding restitution for certain medical expenses incurred by Kightlinger.
Anderes argues that certain statements made by the prosecutor at closing argument amounted to misconduct. She contends that the prosecutor vouched for the credibility of witnesses and impermissibly described Anderes as a liar.
Closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence.Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides have traditionally been afforded considerable latitude in closing argument to the jury and are entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144 Idaho at 86, 156 P.3d at 587. However, closing argument should not include counsel's personal opinions and beliefs about the credibility of a witness or the guilt or innocence of the accused. Phillips, 144 Idaho at 86, 156 P.3d at 587. See also State v. Garcia, 100 Idaho 108, 110-11, 594 P.2d 146, 148-49 (1979); State v. Priest, 128 Idaho 6, 14, 909 P.2d 624, 632 (Ct. App. 1995); State v. Ames, 109 Idaho 373, 376, 707 P.2d 484, 487 (Ct. App. 1985). A prosecuting attorney may express an opinion in argument as to the truth or falsity of testimony or the guilt of the defendant when such opinion is based upon the evidence, but the prosecutor should exercise caution to avoid interjecting his or her personal belief and should explicitly state that the opinion is based solely on inferences from evidence presented at trial. Phillips, 144 Idaho at 86 n.1, 156 P.3d at 587 n.1. The safer course is for a prosecutor to avoid the statement of opinion, as well as the disfavored phrases "I think" and "I believe" altogether. Id.
Anderes concedes that she made no contemporaneous objection to the prosecutor's closing argument at trial. Consequently, we will reverse only if Anderes demonstrates that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
Anderes argues that numerous comments by the prosecutor in closing and rebuttal amounted to impermissible vouching. The State argues that these comments were proper inferences from the record.
Given the testimony adduced at trial, closing argument focused on the difference between Kightlinger's testimony, in which he said that Anderes charged him, and Anderes' testimony, in which she said that she tried to run and was grabbed by Kightlinger. Consistent with this approach, the prosecutor began by explaining that the jury could review the evidence and conclude that a witness was more credible or less credible and give more weight to the more credible testimony.
Although Anderes cites numerous allegedly improper statements, we need not discuss each of them because a few examples are sufficient to demonstrate the general nature of the arguments made in closing. In each portion of the argument that Anderes describes as misconduct, the prosecutor combined an argument explaining why the jury should conclude that a particular witness was credible with an unqualified statement that Kightlinger was credible. For example, the prosecutor argued that because one witness was unfamiliar with the other witnesses he had no discernable bias or incentive to lie. In the next sentence, the prosecutor stated that the witness was "very credible." In another passage the prosecutor asked a rhetorical question, "Is Robert Kightlinger credible?" and answered her question by saying "Absolutely." She then gave several reasons for that conclusion: his testimony was corroborated by other witnesses, his demeanor and other nonverbal communications did not indicate deceit, and he had no preexisting bias or motive to lie.
In rebuttal, the prosecutor said, That statement was followed by an argument supporting that view. Earlier, Anderes had argued that Kightlinger was not credible because a prudent person would not charge a parole officer who is much larger than herself and presumably trained to resist force. The prosecutor responded by arguing that Kightlinger's version was credible because a large officer, who has been trained to resist force, would be reluctant to admit that he had been "beat up" by a much smaller woman.
As stated above, closing argument should not include counsel's personal opinions and beliefs about the credibility of a witness or the guilt or innocence of the accused. Phillips, 144 Idaho at 86, 156 P.3d at 587. In particular, a prosecutor should not imply that he or she has access to "information corroborating the [witness's] testimony that was unknown to the jury" or "personally vouch[] for the credibility" of a witness. State v. Timmons, 145 Idaho 279, 289, 178 P.3d 644, 654 (Ct. App. 2007). Conversely, it is proper for a prosecutor to argue that a person is credible or not credible when that argument "is based solely on inferences from evidence presented at trial." Sheahan, 139 Idaho at 280, 77 P.3d at 969. In cases distinguishing impermissible vouching from proper comments on the evidence, we have held that the phrases "I think" and "I believe" are disfavored and we have encouraged prosecutors to "explicitly state that the opinion [regarding credibility] is based solely on inferences from evidence presented at trial." Timmons, 145 Idaho at 288-89, 178 P.3d at 653-54; see also State v. Wheeler, 149 Idaho364, 369, 233 P.3d 1286, 1291 (Ct. App. 2010) ().1
In this case, the prosecutor never implied that she had access to information that was unknown to the jury, nor did she imply that she, personally, would vouch for a witness's veracity. Instead, each statement regarding credibility was connected to evidence for the jury's consideration. In our view, the statements regarding credibility were thesis statements in larger arguments that were proper when considered as a...
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