State v. Lovelass

• Decision Date: 23 July 1999
• Docket Number: No. 24404.,24404.
• Citation: 133 Idaho 160,983 P.2d 233
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Keith Allen LOVELASS, Defendant-Appellant.
• Court: Idaho Court of Appeals

983 P.2d 233

133 Idaho 160

STATE of Idaho, Plaintiff-Respondent, v. Keith Allen LOVELASS, Defendant-Appellant.

No. 24404.

Court of Appeals of Idaho.

July 23, 1999.

David A. Frazier, Coeur d'Alene, for appellant.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen, argued.

SCHWARTZMAN, Judge.

A jury found Keith Lovelass guilty of possession of a controlled substance, methamphetamine, in violation of I.C. § 37-2732(c)(1). On appeal, Lovelass argues that his conviction should be reversed for the following reasons: (1) the trial judge abused his discretion by questioning Lovelass in the jury's presence; (2) the prosecutor engaged in misconduct; and (3) trial counsel rendered ineffective assistance. Alternatively, Lovelass argues that if none of the preceding errors constitute reversible error, the totality of the errors require reversal of his judgment of conviction pursuant to the cumulative error doctrine. For the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 11:00 p.m. on February 3, 1997, Coeur d'Alene patrol Officer Patrick Sullivan was driving northbound on Fifteenth Street when he observed a Chevrolet Camaro driving southbound toward him. The vehicle had no front license plate and the driver's window and rear window were covered with frost. Officer Sullivan stopped the vehicle for these violations and discovered that Lovelass was the driver.

Officer Sullivan approached Lovelass and asked him for his registration, driver's license and proof of insurance. The officer discovered that Lovelass had a warrant outstanding for his arrest. Lovelass was arrested and pursuant thereto, a search of the Camaro was conducted by Officer Sullivan and Coeur d'Alene Police Officer Doug Demetre. During the course of the search, Officer Sullivan found silver spoons, a steak knife and a black measuring spoon on the back seat and floorboard of the passenger's side of the Camaro. He also found a small piece of plastic containing a white substance on the center console next to the gearshift and retrieved four syringes from underneath the dashboard. Subsequent testing confirmed that the white substance was methamphetamine.

On April 16, 1997, a criminal information was filed charging Lovelass with felony possession of a controlled substance (methamphetamine), I.C. § 37-2732(c)(1). Lovelass entered a plea of not guilty and a jury trial was held August 5-6, 1997. Following closing argument, the jury began its deliberations. After a few hours, the jury foreman sent a note to the judge informing him that the jury was split eleven to one in favor of guilt. The foreman asked how the jury should proceed. The judge informed the attorneys that he would tell the jury to review instruction number twelve¹ and continue deliberations. The attorneys agreed and the jurors were so informed. Shortly thereafter, the jury returned a verdict finding Lovelass guilty of possession of a controlled substance. Lovelass appeals.

II. ANALYSIS

A. The Trial Judge Did Not Commit Fundamental Error By Questioning Lovelass In The Presence Of The Jury

1. Court's questioning

During the trial and in the presence of the jury, the trial judge exercised his discretion to interrogate Lovelass² pursuant to Rule 614(b) of the Idaho Rules of Evidence. Rule 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Lovelass argues that the trial judge exceeded his I.R.E. 614(b) authority and abused his discretion by questioning Lovelass in an accusatory manner in the jury's presence. To understand Lovelass's challenge to the court's questioning, it is necessary to evaluate the questions posed by the court in the context of Lovelass's and Officer Sullivan's testimony.

Lovelass testified that at the time the Camaro he was driving was pulled over by Officer Sullivan, he had possessed the car for five minutes and was unaware of the presence of drugs therein. According to Lovelass, he had agreed to exchange his Eagle for Cal Lane's Camaro and he was finalizing this agreement the night of his arrest. Lovelass also testified that he had possessed the Camaro between Thanksgiving and Christmas, but that Lane had taken the vehicle back before Christmas. On direct examination by the prosecutor, Officer Sullivan testified with regard to the vehicle's contents at the time of Lovelass's arrest as follows:

Q Officer, were there any other items or did you observe anything else about the interior of this vehicle that drew your attention when you conducted your search?

A Yes, there was.

Q What was that?

A There was a large amount of things inside the vehicle. It was full.

Q What do you mean?

A There was [sic] all different kinds of things. There were stereo components, tools, clothes, [a] big box full of cassette tapes.

Q By tools, what do you mean?

A Tools, hand tools, not anything large, but crescent wrenches, socket sets, and screwdrivers, hammers, and those type of things.

Q Tools one would use to work on an automobile?

A Yes.

Q As opposed to power tools?

A Correct.

On cross-examination, the prosecutor questioned Lovelass about his employment as an automobile mechanic from December 1996 through February 1997. Lovelass testified that he worked as an auto mechanic sporadically throughout this period.

Q Well, let me just ask you this, Mr. Lane (sic): How is it that you can perform these automotive repairs on these vehicles without that Camaro when your tools were scattered all over the Camaro?

A They weren't in the Camaro.

Q Oh. So is Officer Sullivan lying when he testifies that the tools were all over the Camaro, the mechanical tools?

A No, he wasn't.

On redirect examination, defense counsel clarified:

Q The tools that were found in the back of the Camaro, were those yours?

A Yes, they were.

Q Okay. Why did you put them in the Camaro?

A Because we took them out, we cleaned out the Eagle, and just throwed [sic] the stuff in Cal's station wagon and took it and throwed [sic] it in the hatch of the Camaro.

Q Were those your only tools?

A No.

Q You had other tools to work with?

A Yes. I have two sets of tools, yes.

At the conclusion of Lovelass's testimony, the trial judge engaged Mr. Lovelass in the following colloquy:

Q I'm going to exercise my 614 prerogative. I'm a little lost. Perhaps my notes are incorrect or perhaps there's too much noise. Maybe I didn't hear you, but on cross examination by Mr. Baughman you testified that the—your tools were not in the Camaro?

A No, I did not. They were my tools.

Q That's not what you—and now you say they were, but you're saying—in answer to Mr. Baughman's question, you did not tell us that your tools were not in the Camaro that night?

A I told him that they were.

Q Well, I'll leave that up to the jury to determine or recall what his testimony was on cross examination by Mr. Baughman.

Mr. Baughman, do you wish to further recross now or not?

A [Mr. Baughman] I have nothing in light of the court's questions.

At the conclusion of Lovelass's testimony, the jurors were excused and the court made the following statement with respect to his questioning of Lovelass:

In fairness, I'm going to request that our court reporter sometime soon when she has a chance, go back and review the cross examination of Mr. Lovelass by Mr. Baughman. My notes state these tools were not in the Camaro on February 3. That is my recollection. That is what I wrote down. If I am incorrect, I will so advise the jury of the fact that I mistakenly iterated the evidence. But that's my recollection, that is what I have down.

Mr. Baughman: If you are correct, will you so advise the jury?

The Court: No. I'll just leave it up to them. I just told you that that's what my notes show and I said in front of the jury. They will have to refresh their own memories.

So, if you'd do that, madam clerk, I would appreciate it.

It does not appear from the record that the issue was ever raised again or revisited during the trial by the judge, defense counsel or the prosecutor.

In Milton v. State, 126 Idaho 638, 888 P.2d 812 (Ct.App.1995), this Court elucidated the permissible scope of judicial questioning pursuant to I.R.E. 614. Such questioning cannot express approbation for or prejudice toward one party. Id. at 642, 888 P.2d at 816.

Any implication of the court's opinion or impression of the case, whether real or imagined by the jury, may influence the jury in its deliberation on the ultimate question of guilt. There is also a risk that the jury will attach undue significance to the subject matter of the court's questions, for if the court thinks the issue important enough to inquire further of the witness, why should not the jury?

Id. A court's questioning pursuant to Rule 614 is necessarily limited to clarification of evidence, controlling the presentation of evidence, the prevention of undue repetition of testimony, and to limit counsel to evidentiary rulings. Id. Subsection (c) of Rule 614 provides that a defendant may object to a court's questioning either "at the time of interrogation or at the next available opportunity when the jury is not present." No objection was ever made by Lovelass to the court's questioning. Where a defendant fails to voice such an objection at trial, however, this Court will only review a judge's questioning for fundamental error. See, e.g., State v. Gray, 129 Idaho 784, 798, 932 P.2d 907, 921 (Ct.App.1997)

("A fundamental error may be reviewed on appeal even absent a timely objection.").

Lovelass argues that the court's questions constituted an attempt to impeach him and because neither an objection nor jury instruction could remove the prejudice resulting therefrom, the questioning constitutes fundamental error that requires reversal of his conviction. Fundamental error has been defined as error that: "(1) goes to the foundation or basis of a defendant's rights, (2) goes to the...