Appeal from the District Court of the Fourth Judicial District, State of Idaho, Boise County. Hon. Patrick H. Owen, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction for felony driving under the influence, affirmed.
Daniel E. Marmentini was convicted of felony driving under the influence. He asserts that his conviction should be vacated because the prosecutor committed misconduct during closing arguments, violating his due process right to a fair trial. We affirm.
A law enforcement officer driving behind Marmentini on the highway noticed that Marmentini was swerving within his lane and repeatedly exiting and re-entering the highway. The officer followed Marmentini when he exited the highway a third time. After leaving the highway, Marmentini's vehicle turned around and headed back toward the officer and the highway. As he pulled alongside the officer's vehicle, Marmentini stopped, rolled down his window, and stated that he was looking for Floating Feather Road, a road located in another county. He then stated that he was looking for Harris Creek Drive. The officer smelled alcohol on Marmentini's breath and noticed that his speech was slurred. In response to the officer's questions, Marmentini stated that he had not been drinking, but was slurring his speech because he was nervous. The officer conducted three field sobriety tests, which Marmentini either did not pass or could not complete. The officer then placed Marmentini under arrest for driving under the influence, and conducted two breath tests. The tests measured alcohol concentration levels of 0.224 and 0.225. Marmentini was subsequently charged with driving without privileges (DWP), Idaho Code § 18-8001, and felony driving under the influence (DUI), enhanced because his alcohol concentration measured 0.20 or more, and because he had previously been convicted of driving under the influence with an alcohol concentration exceeding 0.20, I.C. § 18-8004C(2).
At trial, Marmentini presented no evidence. He did, however, extensively cross-examine the law enforcement officer, eliciting testimony regarding (1) the possibility that Marmentini's alcohol concentration levels had risen between the time Marmentini stopped driving and the time he took the breath test, (2) the accuracy and margin of error of the type of breath-test machine used by the law enforcement officer, and (3) the calibration or miscalibration of the specific machine used to test Marmentini's alcohol concentration levels.
During closing arguments, the prosecutor repeatedly used the phrase "I believe" as he expressed his opinion that Marmentini was guilty, described his role and duties as a prosecutor, and characterized the defense arguments. The court sustained three of defense counsel's four objections to these statements, each time admonishing the prosecutor not to refer to his personal beliefs. Defense counsel did not request any specific curative instructions, and none were given. The jury returned a verdict of not guilty on the DWP charge and guilty on the DUI charge.
Marmentini asserts that four statements made by the prosecutor during closing argument constituted prosecutorial misconduct and violated his right to a fair trial; and that after each of his objections, the district court should have instructed the jury, sua sponte, to disregard the statements.
"Both sides have traditionally been afforded considerable latitude in closing argument to the jury and are entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be drawn therefrom." State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003). "Considerable latitude, however, has its limits, both in matters expressly stated and those implied." State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). A prosecutor exceeds the scope of this considerable latitude if he or she "attempts to secure a verdict on any factor other than the law as set forth in the jury instructions and the evidence admitted during trial, including reasonable inferences that may be drawn from that evidence." State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). Prosecutorial misconduct followed by a contemporaneous objection is reviewed for harmless error. Id.
Here, most of the defendant's objections to the prosecutor's closing argument were sustained. Where a defendant's objection to alleged misconduct is sustained, there is no ruling unfavorable to the defendant for this Court to review or reverse. State v. Sanchez, 142 Idaho 309, 317, 127 P.3d 212, 220 (Ct. App. 2005). See also State v. Olson, 138 Idaho 438, 442, 64 P.3d 967, 971 (Ct. App. 2003). However, prosecutorial misconduct may so infect the trial with unfairness as to make the resulting conviction a denial of due process even when objections are sustained. Greer v. Miller, 483 U.S. 756, 765-66 (1987); Sanchez, 142 Idaho at 318, 127 P.3d at 221. 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. Greer, 483 U.S. at 765; Sanchez, 142 Idaho at 318, 127 P.3d at 221. Thus, when prosecutorial misconduct may have resulted in a violation of due process, the trial court's decision to sustain or overrule a contemporaneous defense objection to the prosecutor's comment is not determinative of whether this Court will review the issue. See Greer, 483 U.S. at 764-65; State v. Gamble, 146 Idaho 331, 344, 193 P.3d 878, 891 (Ct. App. 2008); Sanchez, 142 Idaho at 318, 127 P.3d at 221. Instead, "[w]hether the trial court sustains an objection to an impermissible question, or whether the prosecutor is allowed to refer to [impermissible information] in his or her closing arguments, are questions that are relevant to the harmless-error inquiry, or to deciding whether the error made the trial fundamentally unfair." Greer, 483 U.S. at 767 (Stevens, J., concurring). "Where a defendant demonstrates that prosecutorial misconduct has occurred, and such misconduct was followed by a contemporaneous objection by defense counsel, such error shall be reviewed for harmless error in accordance with Chapman [v. California, 386 U.S. 18 (1967)]." Perry, 150 Idaho at 227, 245 P.3d at 979. As we stated in Sanchez, 142 Idaho at 318, 127 P.3d at 221:
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 ...