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John M. Adams, Kootenai County Public Defender; Marcus O. Draper, Deputy Public Defender, Coeur d'Alene, for appellant. Jay W. Logsdon argued.
Hon. Lawrence G. Wasden, Attorney General; Nicole L Schafer, Deputy Attorney General, Boise, for respondent. Nicole L. Schafer argued.
GUTIERREZ, Chief Judge.
Joseph Thomas Iverson appeals from the district court's intermediate appellate order affirming Iverson's judgment of conviction for battery. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
Darryl Farnham received word that his former girlfriend was involved in an altercation with her current boyfriend, Iverson. Darryl and three others drove to the house where the former girlfriend and Iverson lived in order to come to her aid. After finding out she was no longer at the residence, Darryl stood next to his vehicle parked in front of the residence, talking on the phone. Iverson approached him, grabbed the phone, threw it in the street, and engaged in a verbal altercation with Darryl for several minutes, telling Darryl to leave the property on several occasions. Dustin North, who had arrived with Darryl, exited the vehicle and began slowly walking towards Iverson. Iverson
then punched Darryl once in the face, causing Darryl to sustain multiple fractures requiring surgery and the insertion of titanium plates and screws. Darryl and several witnesses stated Darryl had been turning away from Iverson at the time of the punch.
On July 13, 2011, Iverson was issued a citation charging him with battery, Idaho Code § 18-903. A jury trial was scheduled to commence on October 19. On October 5, during the pretrial conference, Iverson first alerted the State that he intended to claim self-defense. On October 11, after the discovery deadline passed, the State disclosed an additional potential witness, Shawn Farnham, Darryl's brother, who would testify to several text messages Iverson sent Shawn following the incident, at least one of which indicated a motive for the use of force other than self-defense. In the days that followed, the State also disclosed its intent to call Dr. Farr, Darryl's treating doctor, as a potential expert witness and disclosed Darryl's medical records and photographs of his injuries taken before and after surgery. On the morning of trial, Iverson requested that Shawn and Dr. Farr be excluded from testifying and that introduction of the medical records and photographs be disallowed because the late disclosure of the witnesses, records, and photographs hampered his ability to prepare for trial. The magistrate limited Dr. Farr to testifying as a custodian of the medical records, preventing him from testifying as to Darryl's injuries, but allowed the admission of Shawn's testimony and the medical records and photographs. Iverson also requested that the photographs be excluded pursuant to Idaho Rule of Evidence 403 because they were unfairly prejudicial and minimally probative. The magistrate denied the motion.
At trial, Iverson testified he did not feel threatened by Darryl specifically, but felt threatened by Darryl and his friends' presence on the property and by North's (a large man) slow approach towards him while clenching his fists. Iverson testified he felt it necessary to punch Darryl because he could not turn his back on Darryl in order to defend himself against North. Both Darryl and North testified they had not used, and did not intend to use, force against Iverson during the verbal exchange. Several witnesses testified Darryl never acted aggressively toward Iverson. Shawn testified that shortly after the incident, Iverson sent him a text message stating, in relevant part: " I just beat the f--- out of your brother. It's been a long time comin'."
The jury found Iverson guilty as charged. He timely appealed his conviction to the district court, arguing the prosecutor committed misconduct by making certain statements in the pretrial hearings and during her closing arguments. He also argued the magistrate erred by allowing admission of the photographs and other evidence. Following a hearing, the district court affirmed the conviction. Iverson now appeals.
On appeal, Iverson contends the prosecutor committed misconduct by making pretrial misrepresentations to the magistrate and making factual and legal misstatements to the jury during closing arguments. He also argues the magistrate abused its discretion by admitting the photographs of Darryl's injuries. He further contends his right to due process was infringed by the magistrate's decision to allow the State to call Shawn and Dr. Farr as witnesses and to introduce Darryl's medical records and the photographs of Darryl's injuries even though the State belatedly disclosed this evidence. Finally, he asserts that even if the alleged errors were individually harmless, the cumulative error doctrine requires a reversal of his conviction. On review of a decision of the district court, rendered in its appellate capacity, we examine the record from the magistrate court to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law
follow from those findings. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct.App.2008).
A. Prosecutorial Misconduct
Iverson contends the prosecutor committed misconduct requiring a reversal of his conviction. Specifically, he contends the prosecutor made several misrepresentations to the magistrate prior to trial in arguing for the admission of certain evidence and misstated both facts and the law during closing arguments.
1. Pretrial statements
Iverson argues the prosecutor committed misconduct by making several misrepresentations to the court during a motion in limine hearing prior to trial. He contends the prosecutor misled the trial court in her arguments opposing his motion to exclude photographs of Darryl taken after surgery and to exclude Shawn's testimony as a sanction for the State's late disclosure of Shawn as a possible witness. Iverson did not contemporaneously object to these statements, but raised the issue for the first time on intermediate appeal.
Although our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he or she 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. Since Iverson made no contemporaneous objection to the prosecutor's alleged misrepresentations at trial, the fundamental error doctrine in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), is applicable. If the alleged misconduct was not followed by a contemporaneous objection, an appellate court should reverse when a defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
Iverson first asserts the prosecutor " affirmatively misled the trial court in its argument" regarding its opposition to Iverson's motion to exclude photographs of Darryl taken after surgery. The prosecutor argued the photographs were probative because they would " substantiate other evidence that [Iverson] had an object in his hand when he struck [Darryl]." Iverson points to the fact the State did not present any evidence at trial to support this theory. At the hearing on intermediate appeal, the prosecutor indicated that based on various conversations with witnesses to the incident, one of the State's theories developed in preparation for trial had been the possibility that Iverson had something in his hand when he struck Darryl. As the trial progressed, however, the prosecutor indicated she decided not to present evidence to that effect because it was potentially " speculative." The district court determined the record did not support a finding that the prosecutor engaged in misconduct, noting that whether Iverson had something in his hand when he struck the victim was a " fairly arguable issue[ ]."
We agree that Iverson has not shown the statement at issue amounted to misconduct, let alone amounted to fundamental error. He has not shown the prosecutor made an affirmatively false representation to the magistrate in characterizing the possible probative value of the photographs in an effort to obtain admission of the photographs. The most reasonable explanation, as recognized by the district court and which Iverson has not submitted evidence to refute, is that provided by the prosecutor— she intended to present evidence supporting this theory, but changed course after determining the evidence was not strong. This simply does not amount to misconduct, and notably, Iverson does not provide any authority to support his contention that it does.
Iverson also asserts the prosecutor committed misconduct by " deceiving" the court regarding the nature of Shawn's testimony when ...