State v. Jeske
| Decision Date | 08 March 2019 |
| Docket Number | Docket No. 45989 |
| Citation | 436 P.3d 683,164 Idaho 862 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho Plaintiff-Respondent, v. Jeffrey Allen JESKE, Defendant-Appellant. |
State Appellate Public Defender's office, Boise, for appellant. Brian R. Dickson argued.
Idaho Attorney General's office, Boise, for respondent. Theodore S. Tollefson argued.
Jeffrey Allen Jeske (Jeske) appeals from his conviction of felony driving under the influence (DUI). Jeske contends the district court erred when it made two evidentiary rulings: the first when it allowed the deputy prosecutor to comment on his refusal to consent to a blood draw to test it for alcohol; the second regarding testimony of uncharged misconduct. Jeske also alleges the district court erred when it allowed the State to amend the charges against him the morning of the trial and in refusing to give a requested jury instruction. Finally, Jeske asserts that the cumulative error doctrine requires his conviction to be vacated. For the reasons set forth in this opinion, we reject Jeske's arguments and affirm the district court's judgment.
Shortly before midnight on January 12, 2016, a Coeur d'Alene police officer, Caleb Hutchison (Officer Hutchison), noticed a Dodge Dakota pickup traveling on Sherman Avenue with only one working headlight. Officer Hutchison effected a traffic stop. The pickup was being operated by Jeske. When Officer Hutchison got to the truck, Jeske's response was delayed. When asked for his driver's license, Jeske told Officer Hutchison he did not have one. When asked why not, he rubbed his thumb and forefinger together.1 Jeske fumbled with other paperwork, dropping the truck's registration at one point.
According to Officer Hutchison: Jeske's speech was marked by slurring and mumbling; Jeske's eyes were glassy and he had what the officer described as a "thousand yard" stare; and, he had a lethargic expression and was "excessively relaxed."
Because Officer Hutchison suspected Jeske of driving under the influence, he asked Jeske to step out of the truck and perform field sobriety tests. Jeske ultimately complied with the request to get out of the truck; however, he refused to comply with the field sobriety tests. During his interaction with Jeske, Officer Hutchison purportedly noticed the slight odor of alcohol2 and that Jeske was unsteady on his feet. After continued refusal to perform the tests, Jeske turned away from the officer, placed his hands behind his back, and asked the officer to place him under arrest. At that time, the officer arrested Jeske and drove him to the Kootenai County Jail.
At the jail, Officer Hutchison asked Jeske to perform a breath alcohol test. Jeske refused. After refusing to take the breath test, Officer Hutchison asked Jeske if he would submit to a blood test. Jeske remained silent in response to the officer's request. Upon receiving no response, the officer obtained a search warrant from a magistrate judge. The warrant authorized a blood draw, which was effected by a nurse at Kootenai Medical Center.
On January 13, 2016, the State filed a criminal complaint, charging Jeske with felony driving under the influence in violation of Idaho Code section 18-8004.3 The Criminal Complaint alleged that Jeske had been impaired while driving under the influence of alcohol. No mention was made of the impending results of the blood draw Jeske had undergone earlier that same day. On February 5, 2016, Jeske waived his preliminary hearing. On February 8, 2016, the State filed the original Information, charging Jeske with felony DUI under an impairment theory, making no mention of the blood draw performed on January 13. The blood draw results were received by the State on February 24, 2016. The test showed Jeske's blood alcohol content to be 0.182, more than twice the per se limit of .08. The State shared the results of the test with Jeske's counsel the same day.
On June 6, 2016, the morning of Jeske's jury trial, the State moved to amend the Criminal Information to include the per se theory, to allege Jeske had been operating a motor vehicle with a blood alcohol content above the statutorily proscribed level of 0.08.4 The district court granted the motion to amend and the case proceeded to trial that same day.
The jury found Jeske guilty of driving under the influence. In a proceeding following the jury's verdict, the judge concluded Jeske had been found guilty of felony DUI twice within the preceding fifteen years, which rendered the DUI he committed on January 12, 2016, a felony. In addition, the district court found Jeske's sentence was also subject to statutory enhancement.
Jeske filed a timely appeal. The Court of Appeals affirmed the district court's judgment and Jeske's conviction. Jeske petitioned this Court for review which we granted.
"When reviewing a case on petition for review from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the decision of the trial court." State v. Schmierer , 159 Idaho 768, 770, 367 P.3d 163, 165 (2016). "Constitutional issues are pure questions of law over which this Court exercises free review." Estrada v. State , 143 Idaho 558, 561, 149 P.3d 833, 836 (2006). The decision to permit an amendment to a charging document is a matter within the discretion of the trial court. State v. Severson , 147 Idaho 694, 708, 215 P.3d 414, 428 (2009).
When reviewing the trial court's evidentiary rulings, this Court applies an abuse of discretion standard. State v. Anderson , 162 Idaho 610, 614, 402 P.3d 1063, 1067 (2017). When reviewing a lower court's decision for an abuse of discretion, this Court must analyze "whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason." Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) (citing Hull v. Giesler , 163 Idaho 247, 250, 409 P.3d 827, 830 (2018) ).
During Jeske's interaction with Officer Hutchison, he was asked to undergo the following tests: field sobriety tests; a breath alcohol test; and, after having refused to undergo the first two, a blood alcohol test. During the last, he remained silent.
On the first day of trial, Jeske moved to have various portions of the officer's video recording redacted. Specifically, Jeske sought to have his refusal to engage in the tests sought by Officer Hutchison redacted. The trial judge rejected his efforts stating, "the refusals to engage in the field sobriety test [sic], the breathalyzer, and to submit to a blood draw goes to consciousness of guilt. " (Italics added.)
Jeske contends on appeal that his Fourth Amendment rights were violated when the trial judge allowed testimony to be presented regarding his refusal to submit to a blood draw. Jeske relies on State v. Christiansen , 144 Idaho 463, 470, 163 P.3d 1175, 1182 (2007) for the proposition that a prosecutor may not constitutionally comment on a defendant's invocation of his Fourth Amendment rights.
The State concedes that commenting on a defendant's exercise of a constitutional right is improper; however, the State maintains Jeske did not make a proper objection specific to the blood draw and therefore whatever error was not preserved. As an alternative, the State argues that if preserved the error was harmless.
"This Court will not consider issues raised for the first time on appeal." State v. Garcia-Rodriguez , 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (citation omitted). However, if the issue was argued to, or decided by, the district court it can form the basis for review by this Court. State v. DuValt , 131 Idaho 550, 553, 961 P.2d 641, 644 (1998). "Th[is] Court recognizes a distinction between issues not formally raised below and issues that ‘never surfaced’ below." Kolar v. Cassia Cty. Idaho , 142 Idaho 346, 354, 127 P.3d 962, 970 (2005).
Here, even though Jeske's counsel did not explicitly mention the blood draw at one point in time, the judge specifically identified the blood draw in her ruling. The district court stated, "the refusal ... to submit to a blood draw goes to consciousness of guilt." (Italics added.) Consequently, the issue regarding Jeske's refusal to submit to the blood draw was ruled on, preserved, and will be addressed in this appeal.
The State acknowledges that the trial judge specifically ruled on the propriety of commenting on the blood draw; however, it next argues the judge's ruling was superfluous and unnecessary, citing State v. Abdullah , 158 Idaho 386, 482–83, 348 P.3d 1, 97–98 (2015). In Abdullah , this Court held that because the defendant withdrew his motion, the district court's ruling was not necessary and did not form the basis of appeal. Id. This case is not analogous to Abdullah. Here, defense counsel continued to argue against the admission of all three of Jeske's test refusals, including the blood test. Consequently, it cannot be said that the issue was intentionally...
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