State v. Stefani

• Decision Date: 21 December 2005
• Docket Number: No. 31227.,31227.
• Citation: 132 P.3d 455,142 Idaho 698
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Corey E. STEFANI, Defendant-Appellant.
• Court: Idaho Court of Appeals

132 P.3d 455

142 Idaho 698

STATE of Idaho, Plaintiff-Respondent, v. Corey E. STEFANI, Defendant-Appellant.

No. 31227.

Court of Appeals of Idaho.

December 21, 2005.

Review Denied April 5, 2006.

COPYRIGHT MATERIAL OMITTED

Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

LANSING, Judge.

Corey E. Stefani appeals his conviction for possession of methamphetamine, asserting that his trial was infected by prosecutorial misconduct, that the court gave an erroneous jury instruction, and that there was insufficient evidence to support the guilty verdict. We find no error and therefore affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

While police were conducting a routine investigation of a traffic accident, a bystander informed them that Stefani, a passenger in one of the vehicles, was behaving strangely. According to the bystander, before police arrived at the scene, Stefani paced nervously and then walked to a nearby garbage can and plunged his arm into it. The bystander said Stefani had not casually discarded something, but had inserted his arm up to his shoulder and appeared to be moving things inside the trash can. An officer consequently searched the garbage can and found a small glass pipe. A later test revealed that there was methamphetamine residue in this pipe. The police also patted Stefani down for weapons and found in his clothing a second pipe used for smoking marijuana. Based on the pipe with methamphetamine residue found in the garbage can, Stefani was charged with possession of methamphetamine, Idaho Code § 37-2732, and ultimately was convicted following a jury trial.

Stefani contends that two errors occurred during the trial. First, he says the prosecutor committed misconduct by commenting on Stefani's silence when he was confronted with the methamphetamine pipe. Second, he argues that the court improperly instructed the jury that the State need not prove that Stefani knew the substance he possessed was methamphetamine. Lastly, Stefani asserts that the trial evidence was insufficient to support a finding of guilt.

II. ANALYSIS

A. The Prosecutor's Comment on Stefani's Silence

Stefani argues that the prosecutor committed misconduct during rebuttal closing argument by commenting on Stefani's silence when police confronted him with the methamphetamine pipe.

Although Stefani posits error only on the rebuttal closing argument, the subject of Stefani's silence concerning the methamphetamine pipe arose several times throughout the trial. In the State's case-in-chief, an officer testified, without defense objection, that when the officer asked Stefani if the methamphetamine pipe belonged to him, Stefani did not answer but merely looked away. Defense counsel developed the point on cross-examination of the officer in an effort to support Stefani's assertion that the pipe was not his:

Defense Counsel: Make it perfectly clear. Mr. Stefani did not say that [the methamphetamine pipe found in the trash] was his?

Officer: That's correct.

Defense Counsel: He denied that?

Officer: He deny—he didn't deny it. He—

Defense Counsel: He just didn't say anything, correct?

Officer: Didn't say anything, correct.

....

Defense Counsel: He didn't deny possession of [the second marijuana pipe found in his clothing], did he?

Officer: No, he did not.

Defense Counsel: In fact, he freely admitted that was a pipe and it was on him?

Officer: That's correct.

Later, Stefani himself testified that during the police investigation he took responsibility for the marijuana pipe but told police that the methamphetamine pipe did not belong to him. Thus, he developed a defense that, having admitted ownership of the marijuana pipe, if the methamphetamine pipe had been his, he would have admitted that also. Then, in rebuttal closing argument, the prosecutor made the following statement:

One of the things to consider about Mr. Stefani's actions at the scene. I believe the testimony of the officer was that, I think, they at least tried to show to Mr. Stefani, show him the pipe or ask him about it, and Mr. Stefani wouldn't look at it. Wouldn't answer or anything like that. And that's—if you were confronted, if somebody walked up to you and said hey, you just dropped this meth pipe out of your pocket or something like that you would probably go around and go what, what are you taking about. That's not mine. I don't do anything like that.

But he didn't say anything like that at the scene. I think the officer said he just looked away. Just looked away. Why would you do that if it wasn't yours. Why wouldn't you say that's not mine. The marijuana pipe is mine, but that's not mine. We didn't hear that.

Stefani's counsel objected to this argument on the ground that it was an impermissible comment on Stefani's exercise of his right to remain silent. The district court effectively sustained the objection, saying, "Well, there isn't any obligation of a defendant to speak. So maybe we could go on to another point." Defense counsel did not ask for a corrective instruction, but stock jury instructions informed the jury that counsel's arguments do not constitute evidence and that they were not to consider a statement if the judge had sustained an objection to it.

Stefani contends that the prosecutor's comment was so prejudicial that it was not remedied by the judge's ruling and the related jury instructions. We recently articulated the governing law on this point in another case where the defendant contended that unfair prejudice from prosecutorial misconduct could not be undone, even where an objection was sustained and a curative instruction was given. In State v. Sanchez, Docket No. 30202, 2005 WL 2456751 (Ct.App. Oct.6, 2005), we said:

Prosecutorial misconduct may so infect the trial with unfairness as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109, 97 L.Ed.2d 618, 630 (1987). To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial. Id.....

... Prosecutorial misconduct rises to the level of fundamental error only if the acts or comments constituting the misconduct are so egregious or inflammatory that any ensuing prejudice could not have been be remedied by a curative jury instruction. State v. Smith, 117 Idaho 891, 898, 792 P.2d 916, 923 (1990); State v. Lovelass, 133 Idaho 160, 167, 983 P.2d 233, 240 (Ct.App. 1999). The rationale of this rule is that even a timely objection to such inflammatory statements would not have cured the inherent prejudice. State v. Brown, 131 Idaho 61, 69, 951 P.2d 1288, 1296 (Ct.App. 1998).

Our inquiry is, thus, two-tiered. We first determine whether the prosecutorial conduct complained of was improper. State v. Reynolds, 120 Idaho 445, 448, 816 P.2d 1002, 1005 (Ct.App.1991). If we conclude that it was, we then consider whether such misconduct prejudiced the defendant's right to a fair trial or whether it was harmless. Id. Where the appellate court is able to declare that, beyond a reasonable doubt, the jury below would have reached the same result had the misconduct not occurred, the error is deemed harmless. Id. at 451, 816 P.2d at 1008.

A defendant's decision to exercise his or her right to remain silent, whether before or after arrest and Miranda warnings, cannot be used for the purpose of inferring guilt. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, 110 (1965); State v. Strouse, 133 Idaho 709, 713-14, 992 P.2d 158 162-63 (1999); State v. Moore, 131 Idaho 814, 820, 965 P.2d 174, 180 (1998); State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055 (1983); State v. White, 97 Idaho 708, 715, 551 P.2d 1344, 1351 (1976); State v. Lopez, 141 Idaho 575, 577, 114 P.3d 133, 135 (Ct.App. 2005); State v. Kerchusky, 138 Idaho 671, 677, 67 P.3d 1283, 1289 (Ct.App.2003). Nevertheless, a defendant who elects to waive this right and testify at trial may be impeached with evidence of his or her pre-arrest, pre-Miranda silence. Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86, 95 (1980); Moore, 131 Idaho at 820-21, 965 P.2d at 180-81. Where a defendant testifies to an exculpatory version of events and claims to have told the same version to police upon arrest, evidence of post-arrest silence may be used by the prosecution to contradict the defendant's version. Doyle, 426 U.S. at 619 n. 11, 96 S.Ct. at 2245 n. 11, 49 L.Ed.2d at 98 n. 11. See also State v. Dougherty, 142 Idaho 1, 4, 121 P.3d 416, 420 (Ct.App.2005) (evidence of defendant's silence admissible to rebut his testimony that law enforcement did not give him a chance to tell his side of the story).

Evidence of a defendant's pre-Miranda silence can also be used more broadly, not just to directly contradict a defendant's testimony that he spoke to police, but to more generally impeach a story the defendant has told on the witness stand. Jenkins, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). In Jenkins, a defendant on trial for first degree murder testified that the killing was in self defense. On cross-examination of the defendant, the prosecutor elicited admissions that the defendant had not immediately reported to the police the alleged occurrence in which the defendant defended himself from an attack and that he had, rather, waited two weeks before reporting the matter to authorities. Through cross-examination and closing argument, the prosecutor attempted to impeach the defendant's credibility by suggesting that he would have spoken out sooner if he had killed in self defense. The United States Supreme Court held...