Opinion No. 66
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Cynthia K. C. Meyer, District
of conviction for eluding a peace officer, vacated and case
D. Fredericksen, State Appellate Public Defender; Sally J.
Cooley, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy
Attorney General, Boise, for respondent.
Lynn Alwin appeals from his judgment of conviction for one
count of eluding a peace officer, which was entered after a
jury found him guilty. Alwin asserts that the district court
erred in admitting a booking photograph, which he contends is
prohibited propensity evidence under Idaho Rule of Evidence
404(b). Alwin further contends that the prosecutor committed
misconduct rising to the level of fundamental error during
closing argument. Alwin asks this Court to vacate the
judgment of conviction. For the reasons explained below, we
vacate the judgment of conviction and remand.
AND PROCEDURAL BACKGROUND
approximately 1:30 a.m. on August 3, 2015, an officer spotted
a speeding vehicle and proceeded to effectuate a traffic
stop. He provided the vehicle's Montana license plate
number to dispatch and approached the vehicle. The driver
never looked directly at the officer; the officer observed
approximately three quarters of the driver's face at one
point, but he was looking away from the officer at other
points during the twenty-two-second stop. After briefly
interacting with the officer, the driver sped away, reaching
speeds of approximately 120 miles per hour. The officer
pursued the car and called for backup. The driver eluded
fifteen minutes after the officer initially stopped the
vehicle, he used the computer in his patrol vehicle to
determine that the vehicle was registered to Alwin. The
officer then viewed a photograph of Alwin and determined the
driver was the person in the photograph. The photograph was a
booking photograph, but it did not contain placards,
identifying numbers, a side view, or anything else that would
indicate that it was a booking photograph other than the jail
issued clothing Alwin was wearing. Alwin was charged with
felony eluding of a peace officer, Idaho Code §
trial, the State sought to introduce into evidence the
booking photograph relied on by the officer for
identification purposes. Alwin objected under I.R.E. 404(b).
The State responded that no conduct was being alleged.
Neither party mentioned that it was a booking photograph or
explained why the photograph constituted Rule 404(b)
evidence. The district court did not see the photograph up
close prior to admitting it and consequently did not know it
was a booking photograph. As a result, the district court
found the photograph did not constitute conduct under I.R.E.
404(b), overruled the objection, and admitted the exhibit.
proceeded to put on an alibi defense, with his half-brother
testifying that Alwin was with his half-brother in Montana
during the time of the police chase. Alwin also testified
that two other individuals, one with a Russian-sounding name,
had access to a spare key to the vehicle. Alwin also called
an identification expert to discredit the officer's
jury found Alwin guilty. Alwin moved for a new trial on the
basis that the district court erred by admitting the booking
photograph. After a hearing on the motion for a new trial,
the motion was denied. The district court entered a judgment
of conviction and sentenced Alwin to a unified sentence of
two years, with a minimum period of confinement of one year,
but suspended the sentence ...