2013 Unpublished Opinion No. 665
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.
Judgment of conviction for battery with intent to commit a serious felony, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.
Cody William Parmer appeals from the judgment of conviction entered upon the jury verdict finding him guilty of battery with the intent to commit a serious felony, Idaho Code §§ 18-903, 18-911. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim, S.H., a minor, went to Parmer's residence and drank alcohol, danced, and played cards with Parmer and his roommates, including Ms. Seeling. While S.H. and Parmer were dancing, Parmer allegedly bit S.H. multiple times and attempted to touch her vagina. Later, S.H., Parmer, and Seeling went into a bedroom and lay down on a bed. Seeling momentarily left the bed and Parmer allegedly rolled on top of S.H. and began having sexual intercourse with her. S.H. testified that she told him to stop and then pushed him off of her and S.H. left the residence and reported the incident to authorities. Thereafter, Parmer was arrested and charged with rape, both forcible rape and statutory rape, as alternate theories of the charged offense.
Following trial, Parmer was acquitted of the rape charge but convicted of a lesser included charge of battery with attempt to commit rape. The district court imposed a unified term of sixteen years with six years determinate and retained jurisdiction. Following the period of retained jurisdiction, the district court suspended the sentence and placed Parmer on probation for five years. Parmer timely appeals.
Parmer claims that the prosecutor engaged in a pattern of misconduct while cross-examining defense witness Seeling. Specifically, Parmer claims that the prosecutor committed misconduct by using inflammatory language to influence the jury and by repeating inflammatory questions after the district court ruled that the questions were inadmissible. The State asserts that Parmer is required to meet the fundamental error standard because he did not move the district court for a mistrial based on the alleged prosecutorial misconduct and therefore, the question of whether the prosecutor's conduct deprived him of a fair trial was not first addressed by the district court. The State further contends that the prosecutor's questions did not amount to prosecutorial misconduct and that any error was harmless.
Although our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id. A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous objection we determine factually if there was prosecutorial misconduct, then we determine whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055 (1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). Where a defendant meets his or her initial burden of showing that a violation occurred, the State has the burden of demonstrating to the appellate court beyond a reasonable doubt that the constitutional violation did not contribute to the jury's verdict. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010).
During cross-examination of Seeling, the prosecutor asked her several questions challenging her recollection of the events and her truthfulness. During the examination, the prosecutor provided Seeling with a transcript of her interview with the prosecutor and an investigator. The prosecutor attempted to impeach Seeling and refresh her memory on multiple occasions by using the unsworn transcript from the interview. Throughout the extensive cross-examination, defense counsel objected to thirty questions and the district court sustained sixteen of the objections.
On appeal, Parmer argues that the prosecutor used inflammatory language and repeated questions after the district court made adverse rulings. Parmer asserts that the prosecutor's questions constitute misconduct. To demonstrate the alleged misconduct, Parmer points to various portions of the transcript wherein the district court sustained objections to the prosecutor's examination of Seeling. First, Parmer attempts to demonstrate the prosecutor's inflammatory language by pointing to the following portions of the transcript where the prosecutor attempted to impeach Seeling:
[STATE]: Oh, okay. Well, when you were smoking and you say that Mr. Parmer was on top of [S.H.], didn't you look at her at some point?
[STATE]: And you saw her face?
SEELING: No. I saw her arm.
[STATE]: Didn't you look and see her face?
[STATE]: Didn't you look and see that she was scared when
Mr. Parmer was on top of her?
SEELING: I couldn't see her face. It was on the bed.
[STATE]: Why don't you turn to page 24. See if that refreshes your memory about whether or not she was scared when Mr. Parmer was on top of her.
SEELING: (witness complies).
[STATE]: What do you think now?
SEELING: That I don't remember what happened a year ago, and I don't know what I said, so I'm trying to ...