Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Fred M. Gibler, District Judge.
The opinion of the court was delivered by: Perry, Judge Pro Tem
2013 Unpublished Opinion No. 426
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment of conviction for aggravated battery, affirmed.
Alan Daniel Burtness appeals from his judgment of conviction for aggravated battery. He asserts that the state violated his right to a fair trial during closing argument when the prosecutor vouched for state witnesses, and that the district court erred when it denied his motion for mistrial. For the reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Daniel McCullough was a guest at Alan Burtness's house on January 19, 2010. During the course of the evening, McCullough entered Burtness's bedroom where he was sitting with his girlfriend, Jennifer Jewitt, and a fight ensued. Valerie Reichart, a friend of McCullough's, entered the room to find the two men struggling on the floor, fighting over a knife. In the course of the struggle, Burtness was cut over his eye and McCullough was cut across his hand and arm, and both his ulna and radial bones in his arm were broken. Burtness was charged, tried, and convicted of aggravated battery.
During closing argument the prosecutor made the following statement:
What we have in evidence in this trial, ladies and gentlemen, is the testimony of Valerie and Dan.
Ladies and gentlemen, they both took this stand. They swore to tell the truth, the whole truth and nothing but the truth. The evidence shows you that they are credible. When you were watching Valerie and Dan testify, what was their demeanor like? Were they evasive and hostile, like some of the defense witnesses we saw? Were they consistent with each other? Were they aggravated? Did they look like they were searching for answers? No. The evidence, the demeanor, their presentation on the stand . . .
Burtness objected and the district court sustained the objection and instructed the jury to disregard the comments regarding the demeanor of the defense witnesses. The state then continued, "Look to Valerie. Look to Dan. Do you feel like they were lying to you? I respectfully submit they came across as genuine. For that reason you can believe them." Burtness again objected and asserted the state was vouching for its witnesses and moved for a mistrial. The district court denied the motion. The jury found Burtness guilty as charged. The district court imposed a unified sentence of ten years, with three years fixed. The court then suspended the sentence and placed Burtness on supervised probation for four years. Burtness appealed. On appeal, Burtness asserts that the state violated his right to a fair trial by vouching for its witnesses and that it was error for the district court to deny his motion for mistrial.
In criminal cases, motions for mistrial are governed by I.C.R. 29.1. A "mistrial may be declared upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the defendant of a fair trial." I.C.R. 29.1(a). Our ...