State v. Miller, 031519 IDSCCR, 46517

Docket Nº:46517
Opinion Judge:BURDICK, CHIEF JUSTICE.
Party Name:STATE OF IDAHO, Plaintiff-Respondent, v. GREGG JAMES MILLER, Defendant-Appellant.
Attorney:Eric D. Frederickson, State Appellant Public Defender, Boise, for appellant. Maya P. Waldron, Deputy State Public Defender argued. Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgenson, Deputy Attorney General argued.
Judge Panel:Justices BRODY, BEVAN, STEGNER and MOELLER, CONCUR.
Case Date:March 15, 2019
Court:Supreme Court of Idaho
 
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STATE OF IDAHO, Plaintiff-Respondent,

v.

GREGG JAMES MILLER, Defendant-Appellant.

No. 46517

Supreme Court of Idaho

March 15, 2019

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Steven Verby, District Judge.

Eric D. Frederickson, State Appellant Public Defender, Boise, for appellant. Maya P. Waldron, Deputy State Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgenson, Deputy Attorney General argued.

BURDICK, CHIEF JUSTICE.

In an appeal arising out of Kootenai County, Gregg James Miller challenged his convictions for injury to a child and felony eluding. As to the injury to a child conviction, Miller argued the jury instruction, combined with the prosecutor's closing argument, created a fatal variance with the information. Miller also argued the prosecutor committed prosecutorial misconduct during closing arguments by appealing to the emotions, passions, and prejudices of the jury, and by misstating the evidence. Miller appealed his judgment of conviction and sentence to the Court of Appeals, which affirmed. Miller timely filed a petition for review which this Court granted. We affirm the district court's judgment of conviction and clarify the fundamental error doctrine articulated in State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 2016, Miller's wife, Rochelle, called police after she and Miller had a verbal dispute that resulted in Miller driving off aggressively with the couple's minor son, S.A.M., in the car. Officer Sanchez arrived at the Millers' home and was speaking with Rochelle when Miller drove near the house. Rochelle pointed out Miller's vehicle, and Officer Sanchez walked towards his patrol car, at which time Miller quickly reversed his vehicle and drove away. Officer Sanchez began to pursue Miller and activated his siren and overhead lights. Miller drove away quickly and Officer Sanchez estimated Miller was driving 40 miles-per-hour in a 15 miles-per-hour zone. Miller drove past a number of pedestrians near the roadway. Miller eventually stopped his vehicle in a field and S.A.M. exited the vehicle and ran to a nearby residence. Miller exited the vehicle and started walking away from Officer Sanchez. Miller was then ordered to the ground at gunpoint and arrested.

Miller was charged with felony eluding a police officer pursuant to Idaho Code section 49-1404(2) and misdemeanor injury to a child pursuant to Idaho Code section 18-1501(2). Miller's trial counsel did not object to the proposed jury instructions. A jury convicted Miller on both counts, and he was sentenced to a term of four years, one year fixed, for the eluding charge, and was given credit for time served for the injury to a child charge. Miller appealed to the Court of Appeals, alleging two instances of fundamental error. State v. Miller, No. 45028, 2018 WL 3413827, at *1 (Idaho Ct. App. July 13, 2018). First, he argued there was a fatal variance between the information and jury instructions, and second, he argued the prosecutor committed misconduct. Id. The Court of Appeals affirmed the conviction and sentence. Id. This Court granted Miller's petition for review.

II. ISSUES ON APPEAL

1. Whether the jury instructions, when combined with the prosecutor's statement in closing argument, constituted a fatal variance from the information.

2. Whether the prosecutor committed prosecutorial misconduct during closing arguments.

III. STANDARD OF REVIEW

"In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Schall, 157 Idaho 488, 491, 337 P.3d 647, 650 (2014) (quoting State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007)). "Where a defendant alleges that a constitutional error occurred at trial, we must first determine whether a contemporaneous objection was made." State v. Bernal, 164 Idaho 190, 193, 427 P.3d 1, 4 (2018) (quoting State v. Hall, 163 Idaho 744, 766, 419 P.3d 1042, 1064 (2018). "If the alleged error was not followed by a contemporaneous objection, it must be reviewed under the fundamental error doctrine." Id. (citing State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010)).

We have previously stated that in order to obtain relief under the fundamental error doctrine: (1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.

Perry, 150 Idaho at 226, 245 P.3d at 978. However, based on the application of Perry in the years that have followed the decision, as well as oral arguments made by appellate counsel in this case, we wish to take this opportunity to clarify Perry.

First, we address the second prong of Perry that states "the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision." Id. We reemphasize that in order to satisfy this prong of Perry a defendant bears the burden of showing clear error in the record. This means the record must contain evidence of the error and the record must also contain evidence as to whether or not trial counsel made a tactical decision in failing to object. If the record does not contain evidence regarding whether counsel's decision was strategic, the claim is factual in nature and thus more appropriately addressed via a petition for post-conviction relief. As the Court of Appeals observed, when stating the second prong of Perry is satisfied, appellant's counsel often contends "it is clear from the record that the failure to object was not tactical" and that "failing to object could not have benefitted the defendant." Miller, No. 45028, 2018 WL 3413827, at *4 n. 2. However, neither of those statements demonstrates that it is clear that the record contains evidence that the failure to object was a tactical decision. Thus, we clarify that whether trial counsel made a tactical decision in failing to object is a claim that must be supported by evidence in the record. Appellate counsel's opinion that the decision could not have been tactical does not satisfy the second prong of Perry.

Next, we clarify the third prong of Perry that states "the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings." Perry, 150 Idaho at 226, 245 P.3d at 978. In dicta that followed the holding in Perry, this Court articulated that, as to the third prong, the defendant bears the burden of showing there is a "reasonable possibility" that the error affected the outcome of the trial. Id. In the years following Perry, we have cited both the "error affected the outcome" and the "reasonable possibility" language when discussing the third prong of Perry.

See e.g., Bernal, 164 Idaho at 193, 427 P.3d at 4. However, the "reasonable possibility" language has resulted in confusion among litigants as to what standard applies, with some parties arguing the standard should be the same "reasonable probability" standard applicable in ineffective assistance of counsel cases. See Strickland v. Washington, 466 U.S. 668, 694 (1984); Marr v. State, 163 Idaho 33, 37, 408 P.3d 31, 35 (2017). We take this opportunity to clarify that the third prong of Perry requires that the defendant demonstrate that the clear error in the record-i.e., the error identified in the first and second prongs-actually affected the outcome of the trial proceedings. Whether the error affected the trial proceedings must be clear from the appellate record. In so requiring, we note that the words "reasonable possibility" are no longer appropriate or descriptive of the third prong of Perry.1

IV. ANALYSIS

A. Whether the jury instruction, in conjunction with...

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