Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
) 2012 Unpublished Opinion No. 541
) Stephen W. Kenyon, Clerk ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY
Judgment of conviction for delivery of a controlled substance within 1000 feet of a school, affirmed.
William Thomas Scott, Jr. appeals from his judgment of conviction entered upon a jury verdict finding him guilty of delivery of a controlled substance within 1000 feet of a school. For the reasons set forth below, we affirm.
Officers with the Cassia County Sheriff's Office set up a controlled methamphetamine buy between a confidential informant and Scott, whom the informant had known for years and had identified as a source for drugs. In exchange for her cooperation, the informant, who had been charged with possession of methamphetamine with the intent to deliver, was allowed to participate in a drug court program in lieu of incarceration.
The informant arranged the purchase from Scott over the telephone in several calls recorded by law enforcement. After being searched by officers and having her vehicle searched as well, the informant drove her vehicle to the location Scott chose to deliver the drugs. She was followed by several officers conducting surveillance, none of whom were close enough to see the actual transaction take place or to positively identify Scott, but who saw a vehicle registered to Scott approaching the area and stopping near the informant's vehicle. Upon the informant's return to the Sheriff's office, officers recovered a bag containing a substance later identified as methamphetamine. Because the transaction occurred near Burley Junior High School, Scott was charged with delivery of a controlled substance within 1000 feet of a school, Idaho Code §§ 37-2732(a)(1)(A), 37-2739B(b)(2).
At trial, the informant testified in detail as to the transaction, identifying Scott as the person who delivered the methamphetamine. The officers involved also testified as to the incident and their observations. Scott neither presented any witnesses, nor testified on his own behalf. In closing argument, the prosecutor stated on numerous occasions, without objection from the defense, that the evidence in regards to various individual elements of the crime was "undisputed" or "uncontradicted." The jury found Scott guilty as charged, and he now appeals.
Scott contends the prosecutor's eight references during closing arguments, that the State's evidence was uncontradicted or undisputed, constituted fundamental error in violation of Scott's Fifth Amendment right to remain silent. The prosecutor's comments during closing argument were as follows:
First of all, on or about February 13th, 2009. The evidence is undisputed, uncontradicted that this controlled buy happened on that date.
Number two, in the State of Idaho. That evidence also is uncontradicted. It was confirmed by a number of witnesses that the controlled buy happened in Cassia County, in the city of Burley, in the State of Idaho, even narrowed down to almost the exact place on 13th Street where the controlled buy happened.
. The only evidence before you is that the substance in question was methamphetamine. . . . Again, that ...