State v. Ozuna
| Decision Date | 04 February 2020 |
| Docket Number | Docket No. 46318 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. JANELL OZUNA, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Karel A. Lehrman, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Bradly S. Ford, District Judge.
Judgment of conviction for felony possession of methamphetamine and misdemeanor possession of drug paraphernalia, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy Appellate Public Defender, Boise, for appellant. Jenny C. Swinford argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
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Janell Ozuna appeals from her judgment of conviction entered upon the jury verdict finding her guilty of possession of methamphetamine and possession of drug paraphernalia. Ozuna argues that it was misconduct for the State to comment on her silence and to elicit inadmissible testimony during trial and that the prosecutorial misconduct rose to the level of fundamental error. Because fundamental error did not occur, we affirm the district court's judgment of conviction.
An officer responded to a disturbance and contacted Ozuna, who was standing on the sidewalk in front of her residence. As the officer spoke with Ozuna, the officer noticed Ozuna was holding a pair of gloves and a glass methamphetamine pipe with burn marks. During the conversation, the glass pipe fell out of Ozuna's hand and broke on the ground. Ozuna said "Oh," looked at the pipe, looked back at the officer, and then continued the conversation. The officer explained to Ozuna that the officer saw the pipe fall and hit the ground, and he arrested Ozuna. The State charged Ozuna with felony possession of a controlled substance, methamphetamine, Idaho Code § 37-2732(c)(1), and misdemeanor possession of drug paraphernalia, I.C. § 37-2734A.
Prior to trial, the district court instructed the State that two of the officer's statements in the probable cause affidavit were inadmissible and the officer was not to testify to those statements. The statements from the probable cause affidavit were: (1) the officer said he identified Ozuna due to previous contacts with her; and (2) the officer said he transported Ozuna to the police station so detectives could speak with her about an ongoing investigation. The State confirmed it discussed those areas of testimony with the officer, and the officer was aware those two subjects were not to be mentioned during trial.
Nonetheless, when the officer testified at trial about the identification of Ozuna, the officer stated: Ozuna's counsel did not object to this testimony.
Ozuna also testified at trial. She explained she was outside her house picking up garbage when she picked up a pair of gloves. Ozuna testified the gloves did not belong to her and were not in her yard. She also testified she never looked inside the gloves, had never seen the gloves before, and had no knowledge of the pipe within the gloves until the pipe dropped onto the ground. During cross-examination, Ozuna was asked if she said anything to the officer such as, "That's not mine," and Ozuna responded, "Later sometime." Aside from telling the officer the pipe was not hers, Ozuna did not offer any additional explanation about how she came to possess the gloves and the methamphetamine pipe.
The jury found Ozuna guilty of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. The district court sentenced Ozuna to five years, with one year determinate, and retained jurisdiction. Ozuna timely appeals.
Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). However, when a defendant alleges that a constitutional error occurred at trial and the alleged error was not followed by a contemporaneous objection, the claim of error must be reviewed under the fundamental error doctrine. State v. Miller, 165 Idaho 115, 119, 443 P.3d 129, 133 (2019). In order to obtain relief under the fundamental error doctrine, the defendant must demonstrate three things. First, the defendant must show that one or more of the defendant's unwaived constitutional rights were violated. Id. Second, the error must be clear and obvious, meaning the record must demonstrate evidence of the error and evidence as to whether or not trial counsel made a tactical decision to not object. Id. Third, the defendant must demonstrate that the error affected the defendant's substantial rights, which means the error identified in the first and second prongs of the test actually affected the outcome of the trial. Id. at 119-20, 443 P.3d at 133-34.
Ozuna claims fundamental error occurred and argues the State committed misconduct in two ways: first, by eliciting testimony and commenting on Ozuna's silence to prove her guilt and second, by eliciting testimony from the officer in contravention of the district court's order.
Ozuna argues it was misconduct for the State to use her silence in order to prove guilt because it violated her unwaived constitutional right to remain silent and right to a fair trial. In response, the State claims Ozuna cannot show fundamental error. The State asserts Ozuna's argument is fundamentally flawed because in order to assert a claim that her Fifth Amendment rights were violated, Ozuna had to invoke her Fifth Amendment rights during questioning, which she did not do.
The Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, Section 13 of the Idaho Constitution, guarantee a criminal defendant the right not to be compelled to testify against himself. This guarantee also bars prosecutors from commenting on a defendant's invocation of his or her right to silence. Griffin v. California, 380 U.S. 609, 613-14 (1965). Commenting on a defendant's refusal to answer questions or provide information canconstitute an impermissible comment on a defendant's silence. See State v. Galvan, 156 Idaho 379, 385, 326 P.3d 1029, 1035 (Ct. App. 2014).
Under the Fifth Amendment, whether and to what extent the State can comment on the defendant's silence depends on whether the defendant was in custody and whether Miranda1 warnings were given. For example, where the defendant's silence occurs in a pre-custody, pre-Miranda circumstance, a witness who desires the protection of the privilege against self-incrimination must claim it at the time he relies on it. Salinas v. Texas, 570 U.S. 178, 182-83 (2013). In Salinas, the Supreme Court held that the prosecutor's use of Salinas' noncustodial, pre-Miranda silence did not violate the defendant's Fifth Amendment rights. Salinas, 570 U.S. at 191.
However, a different outcome may result where the defendant's silence occurs during either a post-custody, pre-Miranda interrogation or during a post-custody, post-Miranda interrogation. Silence that occurs during a post-custody, pre-Miranda setting may be used by the State for impeachment, but not solely as evidence of guilt. State v. Parker, 157 Idaho 132, 147, 334 P.3d 806, 821 (2014). Silence that occurs post-custody and post-Miranda cannot be used by the State for any purpose. Parker, 157 Idaho at 147, 334 P.3d at 821.
Here, Ozuna directs this Court to four instances of alleged misconduct: one in opening statement, one in direct examination, one in cross-examination, and one in closing argument. In its opening statement, the State explained that Ozuna was placed under arrest by the officer. The State provided the following explanation regarding Ozuna's arrest:
During direct examination, the State asked the officer about the events and Ozuna's reaction. Ozuna argues "the prosecutor committed misconduct by implying guilt from silence" during the following exchange:
Ozuna argues the State was also improper to use silence to imply guilt during the cross-examination of Ozuna. Ozuna cites to the following exchange:
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