State v. Branigh

• Decision Date: 17 July 2013
• Docket Number: No. 36427.,36427.
• Citation: 155 Idaho 404,313 P.3d 732
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff/Respondent/Cross–Appellant, v. Leotis B. BRANIGH, III, Defendant/Appellant/Cross–Respondent.

155 Idaho 404

313 P.3d 732

STATE of Idaho, Plaintiff/Respondent/Cross–Appellant,

v.Leotis B. BRANIGH, III, Defendant/Appellant/Cross–Respondent.

No. 36427.

Court of Appeals of Idaho.

July 17, 2013.

Review Denied Dec. 9, 2013.

Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

LANSING, Judge.

Leotis B. Branigh, III appeals from his conviction for first degree murder. He contends that the district court erred by denying his motion to suppress records of his cell phone activity, including text messages, that were obtained by the State from his Kansas cell phone provider; by overruling his trial objection to evidence derived from those records; by overruling his objection to three photographs of the decedent's injuries; and by denying his motion for a new trial premised upon new evidence about a State's witness that was suppressed by the prosecutor. He also asserts that the prosecutor committed misconduct during closing argument by referring to facts not in evidence and failing to correct false testimony.

I.BACKGROUND

In October 2007, Michael Johnston, the victim in this case, was residing with his ex-wife, Desiree Anderson, as the two were attempting a reconciliation. During the period when Anderson and Johnston were estranged, Anderson had engaged in a romantic relationship with Branigh. When Anderson attempted to break off her relationship with Branigh, he did not accept that decision. He was upset and at times threatened to do physical harm to Anderson. During the afternoon of October 1, 2007, Branigh came to the home that Anderson shared with Johnston and pounded on the front door. Anderson called 911, and Branigh left after police arrived.

On that same day, at about 10:20 in the evening, Johnston was shot and killed outside of his Lewiston home. Responding officers spoke to several eyewitnesses who said the shooter was driving a white car. Officers also spoke with Anderson, who told the officers that Branigh had exchanged numerous text messages with her and with Johnston immediately prior to the shooting. Some of the text messages between her and Branigh were stored on her cell phone, which she read to an officer and which were later photographed and admitted at trial. The messages revealed, generally, that Branigh was upset and was making veiled threats toward Johnston.

Branigh's white Camaro (well known to the police) was quickly spotted in the city by two patrol officers riding in a single vehicle. The police vehicle's emergency lights and siren were activated, but Branigh refused to stop and a high-speed chase ensued. The chase ended when Branigh's rear tire was flattened by shots fired by one of the officers. Branigh was charged with first degree murder.

The police obtained a search warrant from a Nez Perce County magistrate to obtain release of Branigh's electronically-stored cell phone records, including a log of phone contacts and the text messages between Branigh and Anderson and between Branigh and Johnston during a period surrounding the shooting. The police faxed the warrant to Branigh's Kansas-based cell phone provider (Sprint), which produced the records to the police. Branigh moved to suppress those records. The district court initially granted the motion, but on the State's motion for reconsideration, changed its ruling and denied suppression.

At trial, Branigh represented himself, with an attorney appointed to assist him. Branigh objected to admission of the Kansas cell phone records and the text messages found on Anderson's cell phone. He also objected to the admission of three emergency room photographs of the victim. The court overruled all of these objections. The State's final witness was a jailhouse informant named Stephen Peak, who testified to several incriminating statements allegedly made by Branigh while the two were housed together in the Nez Perce County jail. The jury returned a guilty verdict.

Thereafter, Branigh filed a motion for a new trial, contending that the prosecutor had failed to disclose information about Peak that could have been used to impeach him. The district court denied the motion. Branigh appeals, challenging the aforementioned district court rulings and contending that the prosecutor committed misconduct by stating facts not in evidence during his closing argument and by failing to correct Peak's allegedly perjured testimony.

II.ANALYSIS

A. Motion to Suppress the Sprint Cell Phone Records

Branigh's suppression motion asserted that the State's acquisition of his cell phone records from Sprint violated safeguards afforded by the Fourth Amendment to the United States Constitution and Article I, § 17 of the Idaho Constitution. Both the Fourth Amendment and Article I, § 17 prohibit unreasonable searches and seizures by the government. A search that is conducted without a warrant is unreasonable per se unless it falls within one of the well-defined exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454–55, 91 S.Ct. 2022, 2031–32, 29 L.Ed.2d 564, 575–76 (1971) ; State v. Simmons, 120 Idaho 672, 676, 818 P.2d 787, 791 (Ct.App.1991).

Branigh argued to the district court that the Sprint records were illegally obtained because Idaho law enforcement officers had no authority to serve and execute a search warrant at Sprint's headquarters in Kansas.

The district court initially granted the motion.¹ The court held that Branigh had established a constitutionally-protected privacy interest in the records because of Sprint's privacy policy and that the search warrant was unlawfully executed in violation of Idaho Criminal Rule 41(a) as then in effect. The State filed a motion to reconsider, asserting that the Federal Stored Communications Act, 18 U.S.C. § 2701, et seq. authorized nationwide service of the Idaho warrant. On reconsideration, the district court agreed that the federal statute authorized the out-of-state service of the warrant and therefore reversed its earlier ruling on the suppression motion.

On appeal, Branigh abandons his argument below that the warrant was illegally served or executed by the officer and now argues that by issuing a warrant to obtain the records located in Kansas, the magistrate court exceeded its authority under I.C.R. 41(a). At the pertinent time, that rule authorized the issuance of a search warrant "by a district judge or magistrate within the judicial district wherein the property or person sought is located...." Branigh contends that because the records sought were not within the magistrate's judicial district, the magistrate court was "without jurisdiction" to issue it. Branigh reasons that the warrant was therefore void and the subsequent search was effectively conducted without a warrant and was ipso facto violative of both Article I, § 17 of the Idaho Constitution and the Fourth Amendment. Although this question of the magistrate's jurisdiction to issue the warrant is not an issue that was raised by Branigh below, because he presents it as a challenge to the magistrate court's subject matter jurisdiction and because the district court raised the application of I.C.R. 41(a), we will address the issue on appeal. See State v. Lundquist, 134 Idaho 831, 835, 11 P.3d 27, 31 (2000) ; State v. Peterson, 153 Idaho 157, 160, 280 P.3d 184, 187 (Ct.App.2012) ; State v. Diggie, 140 Idaho 238, 240, 91 P.3d 1142, 1144 (Ct.App.2004).

1. Privacy interest

We begin with the State's contention on appeal that Branigh lacks standing to seek suppression because he had no reasonable expectation of privacy in the records stored by his service provider, Sprint. The Fourth Amendment and Article I, § 17 prohibitions against unreasonable searches are not implicated unless the person invoking their protection had a "justifiable," "reasonable," or "legitimate expectation of privacy" that was invaded by the government action. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226 (1979) ; State v. Thompson, 114 Idaho 746, 749, 760 P.2d 1162, 1165 (1988). See also Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641 (1980) ; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) ; State v. Wright, 153 Idaho 478, 489, 283 P.3d 795, 806 (Ct.App.2012). A defendant attempting to suppress evidence bears the burden to show such a privacy interest and, thus, "standing" to challenge a search. State v. Holland, 135 Idaho 159, 162, 15 P.3d 1167, 1170 (2000) ; State v. Bottelson, 102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981).²

Branigh's Sprint records at issue here consist of two components: a log of telephone numbers to and from which Branigh sent or received calls or texts, and the content of text messages between Branigh and Anderson, and between Branigh and Johnston, from days before the shooting until shortly thereafter. These two components are subject to differing privacy concerns, and the state and the federal constitutions may diverge on whether a privacy interest exists as to the telephone log.

As to that component of the Sprint records that shows only telephone numbers from which Branigh made and received communications, it appears that Branigh has no privacy interest protected by the Fourth Amendment in view of the United States Supreme Court's decisions in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), and Smith, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220. In Miller, the Supreme Court held that the defendant had no expectation of privacy in his bank's business records of his deposits and, therefore, no interest protected by the Fourth Amendment. The Court stated:

This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed

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