State v. Gerardo

• Decision Date: 07 January 2009
• Docket Number: No. 33450.,33450.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Frank GERARDO, Defendant-Appellant.
• Court: Idaho Court of Appeals

205 P.3d 671

147 Idaho 22

STATE of Idaho, Plaintiff-Respondent, v. Frank GERARDO, Defendant-Appellant.

No. 33450.

Court of Appeals of Idaho.

January 7, 2009.

Review Denied April 16, 2009.

Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Dennis A. Benjamin argued.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

LANSING, Chief Judge.

Frank Gerardo appeals from his convictions for burglary and attempted robbery, with a sentence enhancement for use of a firearm. He contends that the district court made errors in the evidentiary phase of the trial, that the trial evidence was insufficient to sustain the jury's finding that he was one of the perpetrators, that the district court made multiple errors in instructing the jury and that the court erred in denying Gerardo's post-trial motion to correct an illegal sentence. We affirm the convictions for attempted robbery and burglary, but vacate the portion of Gerardo's sentence that was imposed for the firearm enhancement.

I. BACKGROUND

On January 24, 2006, three masked men wearing dark clothing, one with a blue bandana, entered the Lotus Garden restaurant brandishing firearms. They demanded money from the owner, Hong Ha, and Ha's daughter, Karen, and threatened to shoot them if they did not comply. When the men realized that Hong's wife was on the telephone with the police in another portion of the restaurant, they fled the building, got into a white Pontiac Grand Prix, and sped away.

The police soon located the automobile, and a high-speed chase ensued during which one or more of the Pontiac's occupants shot at the pursuing officers. The chase ended when the Pontiac's driver lost control and drove into an irrigation canal. The vehicle occupants fled on foot and avoided immediate apprehension. A short time later, however, Keith Ogburn was found lying in a field and was taken into custody. Johnny Gonzalez was arrested after he was discovered hiding in the weeds on the bank of the canal. He was sporting a blue bandana around his neck. About two and one-half hours after the search was initiated, Gerardo was seen walking down a residential street near the crash scene and was also arrested. All three of the men were wearing dark clothing and were cold, muddy and wet from the waist down.

The three men were indicted for burglary, Idaho Code section 18-1401, and attempted robbery, I.C. §§ 18-6501, -306, and the indictment sought an enhancement of their burglary sentences for use of a firearm in the course of that crime, I.C. § 19-2520.¹ The three men were tried together and none of them testified.

Hong Ha and Karen Ha testified that three gun-toting men had entered the restaurant, and no evidence of a fourth man was ever presented. However, through cross-examination of the officers who pursued the Pontiac, Gerardo attempted to show the possibility that the getaway car may have contained more than three men because the officers could not see how many persons were in the car. This cross-examination raised a potential defense that although Gerardo was in the car, he had not entered the restaurant to participate in the burglary and robbery. As a result of this cross-examination, the district court instructed the jury that Gerardo would be guilty if he was found to have aided or abetted a crime.

Gerardo was found to be guilty of both felonies and subject to the sentence enhancement for use of a firearm. The district court imposed a unified sentence of ten years with five years determinate for burglary, a consecutive unified sentence of fifteen years with seven and one-half years determinate for attempted robbery, and a separate, consecutive unified sentence of fifteen years with seven and one-half years determinate for the firearm enhancement. Gerardo subsequently filed a motion to vacate the firearm enhancement, contending that it was illegal because the jury was erroneously instructed regarding the enhancement. The district court denied the motion.

Gerardo appeals, asserting several trial errors and error in the denial of his motion to eliminate the sentence enhancement.

II. ANALYSIS

Gerardo asserts that the district court made several errors in the admission of evidence or failure to strike evidence at trial. We will consider each of these separately and then determine whether any errors, when considered cumulatively, necessitate a reversal of Gerardo's convictions.

A. Evidentiary Issues

1. Co-defendant Gonzalez's statement of his residence address

When booked following their arrest, Gerardo and Gonzalez gave the same residence address on 21st Avenue South in Nampa. Gerardo filed a motion in limine to exclude Gonzalez's booking statement regarding his address on the ground that it was inadmissible hearsay as to Gerardo. The district court overruled the hearsay objection, stating that the two men's statements were non-hearsay admissions of a party opponent. Gerardo claims error, arguing that Gonzalez's statement was inadmissible hearsay when used against Gerardo.

An out-of-court statement admitted for the truth of its content is hearsay, Idaho Rule of Evidence 801(c), and hearsay is not admissible except as provided by the Rules of Evidence. I.R.E. 802. However, a party's own out-of-court statement does not constitute hearsay when proffered against that party. I.R.E. 801(d)(2).² The district court's ruling that Gonzalez's statement of his residence address was an admission of a party opponent when proffered against Gerardo was incorrect. Subject to exceptions that are not pertinent here, a nonjudicial statement is admissible under Rule 801(d)(2), only as against the party who made the statement or on whose behalf it was made. I.R.E. 801(d)(2); Sammis v. Magnetek, Inc., 130 Idaho 342, 350-51, 941 P.2d 314, 322-23 (1997). Therefore, the State was entitled to introduce Gonzalez's statement to prove its case against Gonzalez, but as to Gerardo, the statement was hearsay. No hearsay exception was identified either during the trial or on this appeal that would make Gonzalez's statement to the booking officer admissible against Gerardo.

On appeal, the State argues that both men's out-of-court statements providing a common address were not hearsay because they were not offered to prove the truth of the statements — that the men lived at a certain address. Rather, the State asserts the evidence served a non-hearsay purpose, because both men giving the same address was circumstantial evidence of a link between them, regardless of whether the stated address was their true address. This may be so, see State v. Agundis, 127 Idaho 587, 593-94, 903 P.2d 752, 758-59 (Ct.App.1995), but the district court never indicated that it was admitting Gonzalez's statement against Gerardo for this limited purpose and, if it had, Gerardo would have been alerted to the opportunity to request a limiting instruction, restricting the jury's use of this evidence to this limited purpose. See I.R.E. 105;³ Cook v. Skyline Corp., 135 Idaho 26, 32-33, 13 P.3d 857, 863-64 (2000); State v. Cordova, 137 Idaho 635, 641, 51 P.3d 449, 455 (Ct.App. 2002). Because the district court did not admit the evidence for a limited purpose, we conclude that Gonzalez's statement was erroneously admitted at trial against Gerardo for the truth of the matter asserted, i.e., that Gonzalez lived at that address.

2. Gonzalez's statement regarding disposal of the guns

The prosecutor asked a testifying police officer what Gonzalez had said at the scene of his arrest about the location of the guns. Gerardo made a hearsay objection. The district court overruled the objection, stating that the testimony was not hearsay. The officer then testified that Gonzalez "advised that there were no guns on the scene that they had been thrown out of the window." Gerardo asserts error in the admission of this evidence.

The district court erred for the reasons identified in the preceding section. The State suggests that this evidence was not hearsay because it was not offered to prove the truth of Gonzalez's statement but, rather, for the non-hearsay purpose of explaining the officers' subsequent actions of searching for the guns along the route of the high-speed chase. Again, because the district court did not indicate that it was admitting Gonzalez's statement against Gerardo for this limited purpose, which would have notified Gerardo of the possibility of a limiting instruction, we cannot sustain the admission of the statement on the ground now urged by the State. Because the district court did not admit the evidence for a limited purpose, Gonzalez's statement was erroneously admitted at trial against Gerardo for the truth of its content.

3. The prosecutor's "testimony" in front of the jury

Gerardo next contends that the district court erred by denying his motion to strike a statement made by the prosecutor in the presence of the jury. On direct examination, victim Hong Ha testified that when the intruders fled, he followed them out of the restaurant and saw them enter an automobile, and that he could see there was no fourth person waiting in the car. On cross-examination by Gerardo, Ha admitted that he had not previously told any investigating officer or anyone from the prosecutor's office that he had seen the perpetrators get into the vehicle. At this point in defense counsel's cross-examination, the prosecutor interrupted and stated in front of the jury:

I'll represent to the court and counsel that I interviewed Mr. Ha for the first time in my office in the last few days. I asked him, at that time, whether he saw or was in a position to see the persons who left the restaurant go into the car. And he indicated to me, at that time, that he was in a position to see that. So, I had heard that before. I heard counsel ask him had he ever said that to law enforcement or a prosecutor. I was present when he told me a couple of days ago,...