Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge. Judgments of conviction for possession of methamphetamine and marijuana, affirmed.
The opinion of the court was delivered by: Gutierrez, Judge
In this consolidated appeal, Adam R. Pullin appeals from his judgments of conviction. Case No. 37155 involves convictions for possession of methamphetamine and marijuana in which Pullin challenges the use of an instruction given to the jury. Case No. 37156 involves a conviction for possession of methamphetamine in which Pullin challenges the use of evidence admitted under Idaho Rule of Evidence 404(b). For the reasons set forth below, we affirm.
In Case No. 37155, Pullin was charged with one count of felony possession of methamphetamine, Idaho Code § 37-2732(c)(1), and one count of misdemeanor possession of marijuana, I.C. § 37-2732(c)(3). In Case No. 37156, Pullin was charged with one count of felony possession of methamphetamine, I.C. § 37-2732(c)(1). The cases were tried onconsecutive days before the same judge with different juries, and shared a sentencing hearing. Pullin was found guilty by the juries and convicted as charged in both cases. Pullin appeals.
With regard to Case No. 37155, Pullin argues that the district court improperly instructed the jury to continue deliberations after the jury stated that it could not reach a verdict, and misled the jury when it told the jury that its option was to continue deliberating either that day or another day, and did not inform the jury of the consequence of a hung jury. With regard to Case No. 37156, Pullin argues that evidence was improperly admitted under I.R.E. 404(b) when the state failed to give the required notice.
A. Dynamite Jury Instruction
Pullin asserts for the first time on appeal that the undue pressure on the jury to reach a verdict violated his constitutional rights. Pullin argues that the undue pressure occurred when the district court gave the jury a dynamite instruction.*fn1 Generally, Idaho's appellate courts will not consider error not preserved for appeal through an objection at trial. State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995). However, even in cases where an error has not been properly preserved through objection at trial, an appellate court may remedy that error where the error is so fundamental that it results in the defendant being deprived of his Fourteenth Amendment due process right to a fair trial in a fair tribunal. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). Recently, in State v. Perry, 150 Idaho 209, 226-28, 245 P.3d 961, 978-80 (2010), the Idaho Supreme Court clarified the analysis applicable to unobjected to fundamental error, stating that:
If the alleged error was not followed by a contemporaneous objection, it shall only be reviewed by an appellate court under Idaho's fundamental error doctrine. Such review includes a three-prong inquiry wherein the 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. Id. at 228, 245 P.3d at 980.
Pullin argues that the district court's giving the jury an improper dynamite instruction violated his unwaived constitutional rights. Pullin further argues that the court's failure to inform the jury on the consequences of a deadlocked jury misled the jury, possibly leading it to believe that it must continue deliberations until a unanimous verdict was reached. The state counters that Pullin has failed to demonstrate that the district court's colloquy with the jury foreman violated Pullin's unwaived constitutional rights.
The United States Supreme Court has held that in order for a petitioner to be denied a constitutional right through the use of a dynamite instruction (or "supplemental charge"), the instruction must be coercive. Lowenfield v. Phelps, 484 U.S. 231, 239-41 (1988). In that case, the Supreme Court rejected a claim that giving a dynamite instruction was unconstitutional. In doing so, the Supreme Court rejected several arguments based on its own precedents, because those precedents had been based on the Court's supervisory powers over federal courts rather than on the Constitution. See Jenkins v. United States, 380 U.S. 445, 446 (1965) (holding that an instruction given after the jury informed the judge that it was unable to reach a verdict, and the judge told the jury it had to reach a decision, was improper after relying on other cases involving the exercise of supervisory powers, and not relying on constitutional grounds); Brasfield v. United States, 272 U.S. 448, 449-50 (1926) (holding that the judge's inquiry into the jury's numerical division was improper due to the potential dangers of jury polling by relying on the Court's supervisory powers). While stating that it was mindful that the jury returned with its verdict soon after receiving the supplemental instruction, suggesting the possibility of coercion, the Supreme Court concluded that because defense counsel did not object to the supplemental instruction, it indicated that the potential for coercion that the defendant argued on appeal was not apparent when the instruction was given. Therefore, the supplemental instruction was not coercive in such a way that the defendant was denied a constitutional right. Lowenfield, 484 U.S. at 239-41.
Idaho law is consistent with federal law, although it provides greater protection to the defendant. To avoid the possibility of jury coercion, the Idaho Supreme Court has adopted a "blanket prohibition" against the use of such instructions. State v. Gomez, 137 Idaho 671, 676, 52 P.3d 315, 320 (2002); State v. Flint, 114 Idaho 806, 812, 761 P.2d 1158, 1164 (1988). However, in prohibiting the use of dynamite instructions altogether, the Supreme Court specifically disclaimed any intent to prohibit instructions directing further deliberations where the jury is not definitely deadlocked: Proscribing the use of dynamite instructions does not restrict a trial court . . . from polling the individual jurors, and depending on the ...