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[W] State v. Wheeler

February 26, 2010; withdrawn and opinion filed April 9, 2010


Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. John P. Luster, District Judge.

The opinion of the court was delivered by: Gratton, Judge

2010 Opinion No. 11

Judgment of conviction for felony driving under the influence, affirmed.

Shawn Thomas Wheeler appeals his conviction for driving under the influence, Idaho Code §§ 18-8004(1)(a), 8005(5) with enhancement. We affirm.


Trooper Jeff Jayne, of the Idaho State Police, received a report that Wheeler was intoxicated and riding his motorcycle on the highway. Trooper Jayne, joined by Lieutenant Jim Drake, observed Wheeler in a rock quarry and determined to monitor him for a period of time. Thereafter, Wheeler, according to the testimony of Trooper Jayne, Lieutenant Drake and an independent witness, rode his motorcycle on the highway. Wheeler turned off the highway onto a privately-owned and abandoned section of highway where he was stopped by Trooper Jayne. A blood test, taken on site, later revealed a blood alcohol content of 0.31. Wheeler's motion to suppress the results of the blood draw was denied by the district court. Wheeler was found guilty by a jury of driving under the influence in violation of I.C. § 18-8004(1)(a) and was found by a bench trial to be a persistent violator under I.C. § 18-8005(5). Wheeler appeals.


Wheeler claims that his conviction should be reversed and remanded for a new trial because of prosecutorial misconduct and failure to suppress the results of the blood draw. Wheeler contends prosecutorial misconduct occurred because Trooper Jayne falsely testified, without correction by the prosecutor, and that the prosecutor vouched for Trooper Jayne in closing arguments. Wheeler claims the results of the blood test should have been suppressed because he revoked his statutory consent, the circumstances of the blood draw were unreasonable, and the trial court denied the motion based upon false testimony by Trooper Jayne.

A. Prosecutorial Misconduct

While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he or she is nevertheless expected and required to be fair. State v. Field,144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id. A fair trial is not necessarily a perfect trial. Id.

When there is no contemporaneous objection, a conviction will be reversed for prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in fundamental error. Id. Prosecutorial misconduct 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. Kuhn, 139 Idaho 710, 715, 85 P.3d 1109, 1114 (Ct. App. 2003). However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is harmless. Field,144 Idaho at 571, 165 P.3d at 285. The test for whether prosecutorial misconduct constitutes harmless error is whether the appellate court can conclude, beyond a reasonable doubt, that the result of the trial would not have been different absent the misconduct. State v. Pecor, 132 Idaho 359, 368, 972 P.2d 737, 746 (Ct. App. 1998).

When the defendant did not object at trial, our inquiry is, thus, three-tiered. See Field,144 Idaho at 571, 165 P.3d at 285. First, we determine factually if there was prosecutorial misconduct. If there was, we determine whether the misconduct rose to the level of fundamental error. Finally, if we conclude that it did, we then consider whether such misconduct prejudiced the defendant's right to a fair trial or whether it was harmless.

1. False Testimony

Wheeler argues that "the prosecutor committed misconduct by continuing to allow the police officer to submit false testimony." The State cannot convict a person with testimony known to be false or allow the testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959).*fn1 A defendant establishes a Napue violation upon showing: (1) the testimony was false; (2) the prosecutor knew or should have known it was false; and (3) the testimony was material. Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006). Wheeler claims Trooper Jayne gave false testimony at the preliminary hearing, at the suppression hearing, and at ...

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