State v. Hillenbrand, 031519 IDCCA, 45657

Docket Nº:45657
Opinion Judge:HUSKEY, JUDGE.
Party Name:STATE OF IDAHO, Plaintiff-Respondent, v. JOSEPH J. HILLENBRAND, Defendant-Appellant.
Attorney:Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
Judge Panel:CHIEF JUDGE GRATTON AND JUDGE BRAILSFORD CONCUR.
Case Date:March 15, 2019
Court:Court of Appeals of Idaho
 
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STATE OF IDAHO, Plaintiff-Respondent,

v.

JOSEPH J. HILLENBRAND, Defendant-Appellant.

No. 45657

Court of Appeals of Idaho

March 15, 2019

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Christopher S. Nye, District Judge.

Judgment of conviction, affirmed in part and vacated in part; and case remanded.

Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy Appellate Public Defender, Boise, for appellant.

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

HUSKEY, JUDGE.

Joseph J. Hillenbrand appeals from the district court's judgment of conviction. He argues the district court: (1) abused its discretion by allowing a portion of an officer's testimony that lacked foundation and relevance; (2) abused its discretion by allowing an officer to testify that the State did not disclose as a witness before trial; (3) committed reversible error by denying Hillenbrand's motion for a mistrial after an officer testified that Hillenbrand faced a felony charge; and (4) abused its discretion by ordering fifty additional hours of community service beyond the statutory minimum without substantial and competent evidence. The judgment of conviction is affirmed in part and vacated in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Testimony at trial was as follows. After observing a vehicle with its taillight out, Officer Childers stopped the vehicle. Officer Childers asked the driver, Hillenbrand, and the front seat passenger for their identification. Hillenbrand handed his driver's license to Officer Childers, but had trouble locating his registration and proof of insurance as he looked through a pile of papers in the vehicle. Officer Childers noticed Hillenbrand began to get nervous. As Officer Childers asked Hillenbrand where he had come from and where he was going, Hillenbrand became more anxious and nervous. After Officer Childers asked Hillenbrand if he had any drugs in the car, Hillenbrand became extremely nervous. Officer Childers told Hillenbrand he would be walking his drug dog around the vehicle. He gave Hillenbrand more time to look through his paperwork as he walked back to his patrol vehicle.

Officer Schouman arrived at the scene and spoke with Officer Childers as Officer Childers walked back to his patrol vehicle. Officer Childers asked Officer Schouman to run Hillenbrand and the passenger's identification cards. Around this time, Officer Otto arrived at the scene and stood by the passenger side of Hillenbrand's vehicle. Officer Childers then ran his drug dog around the vehicle. The dog alerted on the driver's door.

Officer Childers returned the drug dog to his patrol vehicle and came back to the driver's side of Hillenbrand's vehicle together with Officer Schouman. Officer Childers told Hillenbrand his drug dog had alerted on the vehicle and asked Hillenbrand to step out. Hillenbrand became very frantic and immediately started digging underneath his seat. Officer Childers opened the driver's door, grabbed Hillenbrand, and told him to step out of the vehicle. The passenger, in response to a command from Officer Otto, calmly put and kept his hands on the dashboard while Hillenbrand kept digging. After more prompting, Hillenbrand got out of the vehicle. Officer Otto also had the passenger get out of the vehicle. During this time, Officer Coronado arrived on the scene.

Officer Schouman searched the vehicle. He retrieved a clear plastic baggie containing a white crystal substance from under the driver's seat, which Officer Childers suspected to be methamphetamine. The substance was initially tested by Officer Coronado and a lab test later identified the substance as methamphetamine. Hillenbrand was arrested and taken into custody.

Hillenbrand testified he was not aware of the methamphetamine found underneath his seat and that it was not his. He also testified that he appeared nervous during the encounter because he has a severe anxiety disorder.

The State charged Hillenbrand with felony possession of methamphetamine. Roughly five months before trial, the State made three separate disclosures regarding witnesses it would call. The first two disclosures listed Officers Childers, Schouman, and Coronado, as well as "ANY OTHER WITNESS LISTED IN THE REPORTS." The third disclosure was the same as the first two including the phrase "ANY OTHER WITNESS LISTED IN THE REPORTS," but added an employee of the Idaho State Forensics Lab as a State's witness. Five days before trial, the State filed a witness and exhibit list, indicating which officers it intended to call as witnesses at trial, which listed the four witnesses from the third disclosure, but did not list Officer Otto or include the language that the State would call "ANY OTHER WITNESS LISTED IN THE REPORTS." The day after the trial began, the State filed another discovery response that listed the same four State witnesses but did not include Officer Otto. It also included, as did the prior discovery responses, the phrase "ANY OTHER WITNESS LISTED IN THE REPORTS" under the "State Witnesses" section. At trial, the State called the four witnesses it had disclosed in the witness list: Officers Childers, Schouman, and Coronado and the Idaho State Forensics Lab employee. In addition, the State also called Officer Otto, who had not been disclosed on the State's witness list.

During the cross-examination of Officer Childers, Hillenbrand's attorney began a line of questioning about Hillenbrand's nervousness and how nervous typical individuals act during an investigation. During the questioning, Hillenbrand's attorney asked, "Would you agree that an individual can become typically nervous when suddenly asked about something like drugs for example?" Officer Childers responded, "The majority of people that I speak with, I would--if I were to give you a number if that's what you're wanting, 80 percent do not get that nervous about it." Hillenbrand's attorney did not object to or move to strike the response but continued questioning the officer about the stop. Hillenbrand's attorney then asked, "But you would agree that suddenly being asked about drugs is certainly something that you've encountered people becoming nervous on?" Officer Childers replied, "Some people have, yes."

On re-direct examination, the State returned to the topic of nervousness: STATE: And one of the questions the defense attorney asked you was what percentage of people become nervous when you ask them about drugs.

DEFENSE: Objection. Misstates the question.

COURT: I'll allow it. Go ahead and answer.

CHILDERS: Most people become somewhat nervous about it but they don't get a heightened nervous about it. I'll ask 90 percent of the people that I conduct a traffic stop with depending on their answers of where they're coming and going from.

STATE: Could you expand on that just a little bit? So what percentage becomes extra nervous when you ask them about drugs?

DEFENSE: Objection. Foundation. Relevance.

STATE: She opened the door, Your Honor.

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