Appeal from the District Court of the Second Judicial District, State of Idaho, Clearwater County. Hon. John H. Bradbury, District Judge.
The opinion of the court was delivered by: Perry, Judge Pro Tem
Judgment of conviction for arson in the first degree, conspiracy to commit arson in the first degree, and insurance fraud, affirmed.
Theresa Norton appeals from the judgment of conviction entered upon a jury verdict finding her guilty of arson in the first degree, Idaho Code §§ 18-802 and 18-204, conspiracy to commit arson in the first degree, I.C. §§ 18-802 and 18-1701, and insurance fraud, I.C. § 41- 293(1) (a). We affirm.
I.FACTS AND PROCEDURAL BACKGROUND
In January 2009, Norton purchased a house in Pierce, Idaho, for $85,000. She obtained an insurance policy with Safeco, in the amount of $240,000 for the house; $180,000 for personal property; and $24,000 for outbuildings. At the time the house was purchased, Norton was living in Kamiah with her mother, three sons, and grandfather. Norton began remodeling the Pierce house, moved in some items, and planned to move in permanently in June of 2009 after her children finished school for the year.
On April 8, 2009, the Pierce Fire Department responded to a call that a fire had occurred at Norton's residence in Pierce. When the fire department entered the residence, they noticed a slashed couch in the living room area and concluded that the fire had started on a bed in the living area in the basement. Based upon the situation, the fire chief called the State Fire Marshal's Office. The fire marshal determined that the fire likely occurred the day before the fire department was called; that the fire started on the bed; that a plastic gas cap was found; that it was likely that an accelerant, such as gasoline, was used; that the smoke pattern indicated that the door at the top of the stairs leading into the basement was shut at the time of the fire; that the cover to the attic space had been removed; and that had the door not been shut, a flume effect would have likely occurred causing the house to be completely destroyed.
The fire marshal ruled out any possibilities of an accidental fire and concluded that the fire was intentionally set. Sergeant Mitchell Jared, of the Clearwater County Sheriff's Office, testified that he also responded and that when he arrived Norton told him that she suspected her husband, Daryl, had started the fire. Tracy Johnson, a special investigator with Safeco who investigates potential insurance fraud claims, testified that Norton advised Safeco immediately that she suspected her soon-to-be ex-husband as starting the fire. Johnson testified that Norton felt very strongly that Daryl had set the fire.
During the course of the investigation, Sergeant Jared interviewed Norton several times about her activities on April 7, 2009, the day investigators believed the fire started. Sergeant Jared also interviewed Jason Stacy, a friend of Norton's, who had helped her with some remodeling, as well as moving things into the Pierce house. Both Norton and Stacy insisted that Stacy was in Kamiah between 5:00 and 7:00 p.m., but witnesses placed him in Pierce at that time. After further interrogation, Stacy ultimately confessed to starting the fire at Norton's request.
Norton was arrested and charged with arson in the first degree, conspiracy to commit arson in the first degree, and insurance fraud. The jury convicted her on each charge. The district court imposed a unified sentence of five years, with one and one-half years determinate. Norton appeals.
Norton raises eight issues on appeal. Five of those issues involve allegations of fundamental error. Specifically, she asserts that the State failed to provide notice of its intent to introduce other acts evidence pursuant to Idaho Rule of Evidence 404(b); that the State introduced large amounts of other acts evidence in violation of the Idaho Rules of Evidence; that the State introduced an interrogation transcript into evidence in violation of the Idaho Rules of Evidence; that the admission of a police officer's testimony regarding truthfulness violated her right to a fair trial; and that the prosecutor committed misconduct by introducing inadmissible evidence and by making improper opening and closing arguments. She also argues that the district court erred in denying, in part, her motion in limine, as well as in denying her motion for a mistrial. She further contends that the cumulative effect of all of the trial errors and prosecutorial misconduct requires reversal. We address each of these contentions in turn.
The general rule in Idaho is that an appellate court will not consider an alleged error on appeal in the absence of a timely objection at trial. State v. Thompson, 132 Idaho 628, 634, 977 P.2d 890, 896 (1999). The Idaho Supreme Court recently explained the purpose of the contemporaneous objection requirement and why appellate courts generally do not consider alleged errors not preserved through an objection at trial, as follows:
"This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the [trial] court the opportunity to consider and resolve them." Puckett v. U.S., --- U.S. ----, ----, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009). Ordinarily, the trial court is in the best position to determine the relevant facts and to adjudicate the dispute. Id. "In the case of an actual or invited procedural error, the [trial] court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome." Id. Furthermore, requiring a contemporaneous objection prevents the litigant from sandbagging the court, i.e., "remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor." Id.
State v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010).
"[W]hen an error has not been properly preserved for appeal through objection at trial, the appellate court's authority to remedy that error is strictly circumscribed to cases where the error results in the defendant being deprived of his or her Fourteenth Amendment due process right to a fair trial in a fair tribunal." Perry, 150 Idaho at 224, 245 P.3d at 976. Such cases invoke the doctrine of fundamental error, which is "grounded in a criminal defendant's due process right to a fair trial." State v. Kelly, 106 Idaho 268, 277, 678 P.2d 60, 69 (Ct. App. 1984). As such, the exception to the general rule that appellate courts will not consider alleged errors not preserved through an objection at trial arises in criminal cases where the appellant demonstrates fundamental error. See State v. Adams, 147 Idaho 857, 861, 216 P.3d 146, 150 (Ct. App. 2009). In order to raise a claim of fundamental error that may be considered for the first time on appeal:
[T]he defendant bears the burden of persuading the appellate court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision); and (3) was not harmless. If the defendant persuades the appellate court that the complained of error satisfies this three-prong inquiry, then the appellate court shall vacate and remand.
Perry, 150 Idaho at 228, 245 P.3d at 980.
Norton claims that a number of evidentiary errors occurred at trial and that "a trial as infected with inadmissible evidence as this trial is not a fair trial." She argues that these errors violated her right to due process and, as such, constitute fundamental error that should be reviewed on appeal. Accordingly, Norton requests that this Court address over thirty alleged errors, address them again in the context of prosecutorial misconduct, and then classify them all as fundamental error such that they can be reviewed on appeal.
Norton lists approximately twenty-eight instances of alleged fundamental error contending that the State inappropriately introduced evidence of other crimes, wrongs, or acts in violation of I.R.E. 404(b). Norton contends that fundamental error applies in two ways to the evidence of other acts. First, she argues that the introduction of inadmissible evidence resulted in an unfair trial in violation of her state and federal constitutional rights to due process. Second, she claims that the introduction of such inadmissible evidence without notice, without limiting instructions, and for improper purposes constitutes prosecutorial misconduct. We conclude that Norton has failed to demonstrate that the introduction of the allegedly inadmissible evidence violated "one or more of [her] unwaived constitutional rights."*fn1 Perry, 150 Idaho at 228, 245P.3d at 980.
Norton identifies the constitutional violation at issue here as a violation of her due process right to a fair trial in a fair tribunal. In essence, Norton claims that the violation of an Idaho Rule of Evidence, specifically I.R.E. 404(b), amounts to a violation of her due process right to a fair trial in a fair tribunal. However, the requirements set forth in I.R.E. 404(b), regarding admissibility and notice, are not of constitutional import. Rather, they are required by a rule of evidence. Norton contends that not only did the challenged evidence violateI.R.E. 404(b), but that it was not relevant under I.R.E. 401 and, therefore, inadmissible underI.R.E. 402. She also contends that even if the evidence were relevant, it still should have been excluded pursuant to I.R.E. 403 because its probative value is substantially outweighed by the danger of unfair prejudice. The Court in Perry stated that "where . . . the asserted error relates not to infringement upon a constitutional right, but to violation of a rule or statute . . . the 'fundamental error' doctrine is not invoked." Perry, 150 Idaho at 226, 245 P.3d at 978. The alleged errors raised on appeal here are all grounded in the Idaho Rules of Evidence. This Court will not entertain attempts to characterize alleged evidentiary errors, to which no objection was made at trial, as a due process violation of the right to a fair trial in a fair tribunal. "Appellate review of a claimed error to which no objection was made in the trial court on the basis that it constituted fundamental error is the exception, not the rule, and the fundamental error doctrine is not a mechanism for criminal defendants to obtain judicial review of every plausible claim of trial error." Adams, 147 Idaho at 861, 216 P.3d at 150.
We also note that Norton provides little analysis for each of the alleged errors. Instead, she identifies several alleged errors, lumps them together, and attempts to argue that the admission of such a large amount of bad acts evidence resulted in a violation of her due process right to a fair trial. While she also argues cumulative error, her primary argument groups several of the alleged errors together. This Court will not pore through a trial transcript and evaluate each question and answer in order to determine whether there is objectionable material, let alone add them up and analyze them as a collective due process violation. As noted above, one of the purposes of the contemporaneous objection requirement is to avoid such a result. See Perry, 150 Idaho at 224, 245 P.3d at 976 (the limitation on appellate-court authority to address issues not objected to at trial "serves to induce the timely raising of claims and objections, which gives the [trial] court the opportunity to consider and resolve them," as the trial court is ordinarily "in the best position to determine the relevant facts and to adjudicate the dispute"). Norton has failed to establish a violation of one or more of her unwaived constitutional rights and, therefore, has not demonstrated fundamental error.*fn2
Finally, we note that the Idaho Supreme Court, employing the pre-Perry definition of fundamental error, addressed a similar argument as that presented on appeal with respect to alleged I.R.E. 404(b) errors, in State v. Cannady, 137 Idaho 67, 44 P.3d 1122 (2002). The Court concluded that "[a]n abuse of discretion in admitting evidence is a trial error and does not go to the foundation of the case or take from the defendant a right which was essential to his defense." Id. at 72-73, 44 P.3d at 1127-28. The Court rejected the invitation to address the issue because there was no objection and the admission of the evidence did not constitute fundamental error. Id. See also State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995) (concluding that the defendant failed to object to the challenged evidence on the basis of I.R.E. 404(b) at trial and that the alleged error in admitting the testimony did not rise to the level of fundamental error); State v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct. App. 1997) (applying Johnson and concluding that where the defendant fails to object at trial under I.R.E. 404(b), the trial court's admission of the evidence does not rise to the level of fundamental error). Employing the new definition of fundamental error, as set forth in Perry, does not demand a different result and, therefore, we will not address the issue further.
2. Statements on credibility
Norton contends that the admission of the investigating officer's testimony allegedly commenting on the truthfulness of other witnesses, i.e. Stacy and Norton, violated her due process right to a fair trial. She argues that because credibility determinations are for the jury to make, statements by one witness regarding the truthfulness of another witness are prohibited. She also asserts that admission of testimony from one witness as to whether another witness is telling the truth may violate the defendant's "fundamental right to a fair trial."
Norton challenges two statements made by the investigating officer, Sergeant Jared. With respect to the first statement, the prosecutor asked a question regarding the interrogation of Stacy. Jared testified immediately following Stacy's testimony, and the prosecutor's question referred to that previous testimony, as follows:
[Prosecutor]: . You indicated and we've heard some testimony about
Jason Stacy, in essence, cracking and telling you the story
[Prosecutor]: All right. Was that before or after the arrest ...