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State v. Bergerud

Court of Appeals of Idaho

October 22, 2013

STATE of Idaho, Plaintiff-Respondent,
v.
Daniel Walter BERGERUD, Defendant-Appellant. State of Idaho, Plaintiff-Respondent,
v.
Kathleen Gay Bergerud, Defendant-Appellant.

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[Copyrighted Material Omitted]

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Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.

LANSING, Judge.

In this consolidated appeal, Daniel and Kathleen Bergerud (the Bergeruds) appeal from their judgments of conviction entered following a jury verdict finding both guilty of several drug offenses. The Bergeruds challenge the district court's ruling prohibiting them from asking the State's rebuttal witness if he had ever made a false statement to police. We conclude that exclusion of this evidence was harmless error.

I.

BACKGROUND

Evidence presented at the Bergeruds' trial indicated the following. The Bergeruds lived with their daughter and, at times, a renter and acquaintance, Robert Jones. Law enforcement officers suspected the Bergeruds of possessing and producing marijuana and searched their garbage. In the garbage, the officer found modified soda cans that appeared to have been used to smoke marijuana, a plastic tube and foil associated with methamphetamine use, match boxes with the striker plates removed, and various pieces of mail linking the Bergeruds, their daughter, and Jones to the home. The officer also obtained records of pseudoephedrine purchases which are required by law to be reported by the vendor. Using this information, the officer sought and obtained a search warrant permitting a search for marijuana and methamphetamine in the Bergeruds' home.

Multiple officers arrived at the Bergeruds' home on July 22, 2010, to execute the warrant. They announced their presence loudly and, seeing and hearing no response, broke into the home. Daniel Bergerud, his daughter, and a friend were in the home at the time officers entered it. The officers reported that immediately upon entering they smelled a strong chemical odor that they associated with the production of methamphetamine. For this reason, officers sought and obtained a second search warrant permitting them to seek and collect evidence of methamphetamine production.

In searching a closet in the downstairs bathroom of the Bergeruds' home, [1] the officers found a bi-layer liquid that later was determined to contain methamphetamine. In and around the Bergeruds' home the officers also found numerous ingredients that may be used in the manufacture of methamphetamine.

The Bergeruds were charged with trafficking in methamphetamine by manufacturing, Idaho Code §§ 37-2732B(a)(3), 18-204; manufacture of a controlled substance where a child is present, I.C. §§ 37-2737A, 18-204; possession of a controlled substance with the intent to manufacture methamphetamine, I.C. § 37-2732(a)(1)(A); conspiracy to traffic in methamphetamine, I.C. §§ 37-2732B(a)(3), 18-1701; possession of drug paraphernalia, I.C. § 37-2734A; possession of marijuana, I.C. § 37-2732(c)(3); and possession of psilocybin, I.C. § 37-2732(c)(3).

At trial, the witnesses agreed that there were a number of methods for producing methamphetamine. The method officers suspected

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the Bergeruds of using is the ephedrine reduction-red phosphorous method. It requires several chemical reagents: ephedrine, red phosphorous, and iodine. Using these reagents, methamphetamine is produced as a bi-layer liquid. Later in the process, other reagents are used to precipitate methamphetamine powder out of the bi-layer liquid. This second process can also be done in several ways; the Bergeruds were suspected of using a gassing chamber containing salt and muriatic acid. Lastly, several other chemicals can be used at various stages and for various purposes. For example, isopropyl alcohol, commonly known as rubbing alcohol, can be used both to process pseudoephedrine pills into ephedrine and to more easily collect the red phosphorous from the striker plates of matchboxes.

When manufacturing methamphetamine, ephedrine is usually derived by processing pseudoephedrine pills. Officers did not find ephedrine or pseudoephedrine pills at the home, but did obtain records indicating that the Bergeruds had purchased over 2,500 pseudoephedrine pills between January 2009 and July 2010. They also found in excess of one hundred matchbooks with the striker plates removed in the downstairs fireplace and in the trash.

Bottles with labels indicating that each contained iodine were found in a drawer near the Bergeruds' bed and also in a downstairs bathroom closet adjacent to the bi-layer solution containing methamphetamine. Three of the bottles, found in the bedroom, held only one ounce and were still sealed. The other bottle was povidone iodine, which is usually used to treat lacerations, and the evidence was not clear whether it could have been used to produce methamphetamine. Iodine leaves characteristic staining. That staining was found on a makeshift workbench and a glass bottle, both of which were in a shed outside the home. An electric hotplate was near both the bench and the bottle. Officers confirmed their suspicion that the staining was from iodine by removing a portion of the workbench and submitting it for laboratory testing. Isopropyl alcohol was also found on a shelf in the Bergeruds' bedroom.

Muriatic acid was found in a jug outside of the home, under a deck, and obscured by a lattice. Adjacent to the muriatic acid, there was a plastic container with a " white sludge" at the bottom. One witness indicated that the bottle was probably a gassing chamber containing a mixture of salt and muriatic acid which, when mixed, become a white sludge. The ...


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