State v. Poland

• Decision Date: 05 May 1989
• Docket Number: No. 17169,17169
• Citation: 116 Idaho 34,773 P.2d 651
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Martha POLAND, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 651

773 P.2d 651

116 Idaho 34

STATE of Idaho, Plaintiff-Respondent, v. Martha POLAND, Defendant-Appellant.

No. 17169.

Court of Appeals of Idaho.

May 5, 1989.

Charles B. Lempesis and Theodore L. Rupp, Post Falls, for defendant-appellant.

Jim Jones, Atty. Gen., Peter C. Erbland, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

The appellant, Martha Poland, was found guilty by a jury of voluntary manslaughter for stabbing Jeffrey Lowery to death in Spirit Lake, Idaho. At her trial, Poland claimed she had acted in self-defense and in defense of Lowery's father, Don. At the sentencing hearing, Poland orally moved for a new trial. The court took the motion under advisement, pending preparation of a partial transcript of the trial testimony, and proceeded with sentencing. The court imposed an indeterminate term of two years in the custody of the Board of Correction. However, the court decided also to retain jurisdiction for 120 days in order to receive and consider reports of Poland's progress and evaluation by the Board and, in addition, the court suspended execution of the judgment and sentence until the motion for new trial had been decided. Several months later, the court entered an order denying the new trial motion, lifted the stay of execution of the sentence and directed that Poland be delivered by the sheriff to the state penitentiary. Poland appealed following entry of that order. The district court then entered an additional stay of execution of the judgment and sentence pending the resolution of this appeal.

Poland challenges the fairness of her trial in several respects. However, we conclude that only one of her challenges need be discussed, inasmuch as we find it dispositive of the appeal. ¹ The issue concerns reference during Poland's trial to her refusal to answer questions in a post-arrest interview by a prosecutor's agent. Poland asserts this error warrants reversal of the judgment of conviction and entitles her to a new trial. For reasons explained below, we agree with Poland's contention.

Before discussing the issue raised by Poland in this appeal, we must address a threshold question posed by the state concerning the extent of our review. The state urges that this appeal should be limited only to a review of the trial court's discretionary decision not to grant Poland's motion for a new trial. The state suggests that such an approach is appropriate because Poland did not appeal from the judgment of conviction within the forty-two day period allowed by I.A.R. 14(a) after the judgment was entered; but, instead, appealed from the order denying her post trial motions, entered approximately nine months after the judgment of conviction.

We are not persuaded by the state's contention and we will consider this case as a direct appeal from the judgment of conviction. We do this for the following reasons. Rule 14 of the Idaho Appellate Rules provides that:

The [forty-two day period of] time for an appeal from any criminal judgment, order or sentence in an action is terminated by the filing of a motion within fourteen (14) days of the entry of the judgment which, if granted, could affect the judgment order or sentence in the action, in which case the appeal period for the judgment and sentence commences to run upon the date of the clerk's filing stamp on the order deciding such motion.

Here, although Poland's motion for a new trial was not filed in a documentary form with the district court, the motion was made on the record in open court, was argued, and was considered by the trial judge at the same hearing when the judgment of conviction was pronounced. The judge took the motion under advisement and suspended execution of the judgment of conviction in the meantime. Had the motion been granted, it clearly would have affected the judgment and sentence in this case. In our view, Poland's motion for a new trial extended the time for appeal from the judgment, consistent with the purpose and intent of Rule 14. After the motion was decided by the trial court, the notice of appeal was filed. The notice specified the order from which the appeal was being taken--an order which included denial of the motion for new trial, denial of a timely motion under I.C.R. 35 to reconsider the sentence, and lifting the stay of execution of the sentence. In this regard, I.A.R. 17(e) provides that:

The notice of appeal shall designate the final judgment, order or decree appealed from which shall be deemed to include, and present on appeal:

. . . . .

(B) All final judgments, orders and decrees entered prior to the judgment, order or decree appealed from for which the time for appeal has not expired, ...

In light of these rules, we conclude that this appeal permits review of the issues raised by Poland with respect to her judgment of conviction.

We turn now to the salient issue on this appeal. Poland asserts that her right to due process and right not to incriminate herself were violated when the prosecutor elicited from a witness, Jack Pintler, the fact that Poland had declined to answer questions and had terminated an investigatory interview conducted after her arrest and after she had been given her Miranda warnings. However, no objection was asserted during the trial to Pintler's revelations. As a general rule, in the absence of a timely objection to an alleged error at trial, the reviewing court will not consider such alleged error on appeal. State v. Estes, 111 Idaho 423, 725 P.2d 128 (1986). Nonetheless, a failure to interpose an adequate objection to an alleged error at trial will not bar appellate review in a criminal case if the alleged error constitutes a "fundamental error." State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). Fundamental error is an "error which so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his constitutional right to due process." State v. Koch, 115 Idaho 176, 178, 765 P.2d 687, 689 (Ct.App.1988). We believe that Poland has raised such an issue with respect to the prosecutor's elicitation of testimony about her post-Miranda silence. When the state calls attention to a defendant's post-Miranda silence, thereby risking an unfavorable inference of guilt in violation of the United States and Idaho Constitutions, this action warrants review under the fundamental error rule. State v. White, 97 Idaho 708, 551 P.2d 1344 cert. denied, 429 U.S. 842, 97 S.Ct. 118, 50 L.Ed.2d 111 (1976). We therefore will review the subject as a fundamental error notwithstanding the lack of an objection to the testimony, at trial.

The witness, Pintler, was the prosecuting attorney's investigator who conducted an interview with Poland after she was advised of her Miranda rights. ² Poland contends that the prosecutor improperly sought to use her post-Miranda silence to raise an inference of guilt against her and to impeach her credibility. Poland submits she was denied a fair trial, due to this testimony, in violation of the fifth and fourteenth amendments to the United States Constitution and in violation of Art. I, Sec. 13 of the Idaho Constitution. We agree. Our Supreme Court has held that "if a prosecutor is allowed to introduce evidence of silence, for any purpose, then the right to remain silent guaranteed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d...