State v. Precht, Docket No. 34864 (Idaho App. 11/3/2008)
| Decision Date | 03 November 2008 |
| Docket Number | Docket No. 34864. |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. RODNEY DEAN PRECHT, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Juneal C. Kerrick, District Judge.
Judgment of conviction for misdemeanor driving under the influence, affirmed.
Wiebe & Fouser, Canyon County Public Defender; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for appellant. Thomas A. Sullivan argued.
Hon. Lawrence G. Wasden, Attorney General; Ann Wilkinson, Deputy Attorney General, Boise, for respondent. Ann Wilkinson argued.
Rodney Dean Precht appeals from the district court's appellate decision affirming his judgment of conviction for misdemeanor driving under the influence. Precht claims evidence was improperly admitted at trial and that the prosecutor made improper statements during closing argument. Although we conclude that prosecutorial misconduct occurred in the closing argument, we deem the errors harmless and therefore affirm the judgment of conviction.
At approximately 9:30 p.m. on a June evening, Precht was driving on a road near Caldwell when he pulled to the side of the road, apparently to send a text message on his cell phone. An off-duty officer driving his personal vehicle drove by and, upon seeing Precht sitting in his car with his head down, became suspicious that Precht was a drunk driver who had passed out. The officer then saw that Precht was driving away. The officer telephoned for backup and followed Precht until Precht stopped his car. Precht appeared to the officer to be intoxicated, but he refused requests to take any field sobriety tests. After an on-duty officer arrived, Precht was arrested and placed in the patrol car, where he began insulting the arresting officer with a range of vulgarities. Precht's insults, which ranged from the mildly offensive to explicitly vulgar, were captured on videotape.
After being charged with misdemeanor driving under the influence (second offense), Idaho Code section 18-8004, Precht filed a motion in limine to prevent introduction of the videotape at trial. He argued that this evidence of his vulgarity was irrelevant or, alternatively, that its relevance was substantially outweighed by the danger of unfair prejudice. The magistrate denied the motion, and the videotape was played to the jury at trial.
On appeal, Precht challenges the denial of his motion in limine. He also contends that the prosecutor made several statements during closing argument at Precht's trial that amounted to prosecutorial misconduct and necessitate a new trial.
Precht asserts the vulgar comments he made to the arresting officer were irrelevant or, even if marginally relevant, should have been excluded under Idaho Rule of Evidence 4031 because they carried a risk of unfair prejudice that substantially outweighed any probative value. Questions concerning the relevance of evidence are matters of law that we review de novo, but other issues on the admissibility of evidence are reviewed for an abuse of discretion. State v. MacDonald, 131 Idaho 367, 369, 956 P.2d 1314, 1316 (Ct. App. 1998). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." I.R.E. 401. Even relevant and otherwise admissible evidence may be excluded if the trial court concludes, in the exercise of its discretion, that the evidence's probative value is substantially outweighed by the danger of unfair prejudice. I.R.E. 403; State v. Winn, 121 Idaho 850, 853, 828 P.2d 879, 882 (1992); State v. Enno, 119 Idaho 392, 405-06, 807 P.2d 610, 623-24 (1991); State v. Hawkins, 131 Idaho 396, 402, 958 P.2d 22, 28 (Ct. App. 1998).
We find no error in the magistrate's determination that Precht's insulting statements were relevant to demonstrate his level of intoxication. An officer testified at Precht's trial that slurred speech and sudden belligerence or use of obscenity are indicators that an individual is under the influence of alcohol. Even without that testimony, it would have been within the common knowledge of jurors that intoxication can diminish inhibitions and magnify this sort of brutish behavior. Precht's diatribe was thus probative to show he was under the influence of alcohol.
We likewise find no abuse of discretion in the district court's application of the I.R.E. 403 balancing test—finding that the probative value of this evidence was not substantially outweighed by a danger of unfair prejudice. We considered a similar question in State v. Floyd, 125 Idaho 651, 873 P.2d 905 (Ct. App. 1994), where the defendant challenged the admission of an audiotape recording of vulgar statements he made in describing his sexual encounter with a woman whom he was eventually convicted of having kidnapped and raped. We there stated:
Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to the party's case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to suggest decision on an improper basis. Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981). The fact that Floyd's choice of words in his statement were crude, vulgar and potentially offensive to a jury is not in and of itself sufficient reason to exclude Floyd's uncoerced statement to law enforcement investigators. "Certainly that evidence was prejudicial to the defendant, however, almost all evidence in a criminal trial is demonstrably admitted to prove the case of the state, and thus results in prejudice to a defendant." State v. Leavitt, 116 Idaho 285, 290, 775 P.2d 599, 604 (1989). As to Floyd's argument that the state could have elicited the same information through [a detective's] testimony, we conclude that the state is not obligated to present evidence which has a lesser impact.
Id. at 654, 873 P.2d at 908. Although some of Precht's statements were crude and offensive, the very belligerence and lack of self-control that they expressed had probative value, and the magistrate did not abuse its discretion in admitting them.
Precht asserts that a number of statements made by the prosecutor during closing argument amount to prosecutorial misconduct. Objection to some of these was made at trial, while others were not met with an objection. This Court does not ordinarily address an issue that was not preserved for appeal through an objection in the trial court. State v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct. App. 1997). We may consider error in a criminal case, however, even though no objection was made at trial, if it rises to the level of fundamental error. Fundamental error is error that goes to the foundation or basis of a defendant's rights or goes to the foundation of the case or takes from the defendant a right that was essential to his or her defense and which no court could or ought to permit the defendant to waive. State v. Babb, 125 Idaho 934, 940, 877 P.2d 905, 911 (1994); State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989); State v. Nevarez, 142 Idaho 616, 623, 130 P.3d 1154, 1161 (Ct. App. 2005). Prosecutorial misconduct during closing argument, to which no contemporaneous objection was made, rises to the level of fundamental error when it is calculated to inflame the minds of jurors and arouse prejudice or passion against the defendant, or is so inflammatory that the jurors may be influenced to determine guilt on factors outside the evidence. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003). See also State v. Timmons, 145 Idaho 279, 287, 178 P.3d 644, 652 (Ct. App. 2007) (citations omitted). Even when prosecutorial misconduct constitutes fundamental error, however, the conviction will not be reversed if that error is harmless. Prosecutorial misconduct constitutes harmless error if the appellate court can conclude, beyond a reasonable doubt, that the result of the trial would not have been different absent the misconduct. Id.
Precht first argues that several of the prosecutor's comments were designed to shift the burden of proof from the State and encourage the jurors to require Precht to prove his innocence. There are few principles more fundamental in criminal law than that which requires the State to carry the burden of proving a criminal defendant's guilt beyond a reasonable doubt, a principle that is grounded in the Due Process Clause of the Fourteenth Amendment. In re Winship, 397 U.S. 358, 361-64 (1970). Therefore, Precht's assertion that the prosecutor's comments were aimed at shifting this burden of proof raises an issue of fundamental error reviewable on appeal despite the absence of an objection to some of them below.
We consider first a statement that gives us little reason for pause— We do not agree with Precht's assertion that this comment was an impermissible attempt to shift the burden of proof to Precht. It is not improper for a prosecutor to suggest that a defendant's refusal to take a sobriety test indicates awareness of intoxication. This is analogous to using evidence that a defendant evaded authorities in order to show the defendant's consciousness of guilt. See State v. Hargraves, 62 Idaho 8, 19-20, 107 P.2d 854, 858 (1940) (); State v. Friedley, 122 Idaho 321, 322-23, 834 P.2d 323, 324-25 (Ct. App. 1992) (...
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