Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Alwin

Supreme Court of Idaho

September 21, 2018

STATE OF IDAHO, Plaintiff-Respondent,
v.
JEFFREY LYNN ALWIN, Defendant-Appellant.

          Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

         District court order denying motion for new trial, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Sally J. Cooley, Deputy Appellant Public Defender argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark W. Olson, Deputy Attorney General argued.

          BURDICK, CHIEF JUSTICE.

         Jeffrey Lynn Alwin appealed his judgment of conviction entered in the Kootenai County district court. A jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a new trial, challenging the district court's admission of a booking photograph at trial. Alwin argued the booking photograph was evidence of prior criminal conduct in violation of Idaho Rule of Evidence ("I.R.E.") 404(b). The district court denied his motion. Alwin timely appealed and contended the district court abused its discretion in denying his motion for a new trial because the district court erroneously admitted I.R.E. 404(b) evidence over his objection when it admitted the booking photograph at trial. Alwin also argued the State committed prosecutorial misconduct during closing arguments. The Court of Appeals reversed, and the State filed a timely Petition for Review. For reasons discussed below, we affirm the district court's judgment.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On August 3, 2015, Officer Cody Cohen of the Coeur d'Alene Police Department was clearing a traffic stop when he observed a black Mercedes-Benz drive past that was rapidly accelerating. Officer Cohen returned to his patrol vehicle and followed the Mercedes. Officer Cohen then initiated a traffic stop. The Mercedes pulled over and Officer Cohen approached the driver's window that was rolled about half-way down. Through this opening, Officer Cohen observed the sole occupant of the vehicle. He described the occupant as a white male with brown hair, about six feet in height with a muscular build. Officer Cohen also detected the odor of alcohol and that the male was avoiding eye contact. When Officer Cohen requested the male's driver's license, registration, and insurance information, the male responded with a slurred, incoherent response. At that time, the male reached across the vehicle to the glove box, returned his hand from the glove box empty, placed his hand on the shifter, and drove away. A multi-officer pursuit ensued but was ultimately disengaged.

         Officer Cohen called and provided the license plate number to dispatch approximately fifteen minutes after the vehicle fled the initial traffic stop. It was then discovered the vehicle was registered to Jeffery Lynn Alwin. At that time, Officer Cohen pulled a photograph of Alwin from the computer system. Officer Cohen confirmed the photograph of Alwin matched the male he had stopped earlier. Based on this information, a warrant was issued for Alwin's arrest. Alwin voluntarily turned himself in.

         The main issue at trial revolved around Officer Cohen's identification of Alwin. In support of Officer Cohen's testimony, the State offered as evidence the photo Officer Cohen viewed the night of the traffic stop. Alwin objected under I.R.E. 404(b). No further explanation accompanied the objection. The State responded, arguing the objection was improper because no conduct was being alleged by the photo. The district court agreed, overruled the objection, and the photo was admitted into evidence.

         The jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a new trial arguing that the district court "erred in deciding it was permissible to expose the jury to [Alwin]'s prior booking photo." The district court denied the motion. Alwin timely appealed and alleged the district court erroneously admitted I.R.E. 404(b) evidence and the district court's denial of Alwin's motion for a new trial was error. Alwin also alleged the State committed prosecutorial misconduct during closing arguments. The Court of Appeals reversed the district court's judgment, and the State timely filed a Petition for Review.

         II. ISSUES ON APPEAL

          1. Whether the district court's denial of Alwin's motion for a new trial was an abuse of discretion.

         2. Whether the prosecutor committed misconduct during closing argument that amounted to fundamental error.

         III. STANDARD OF REVIEW

         This Court reviews a district court's denial of a motion for a new trial under an abuse of discretion standard. State v. Lankford, 162 Idaho 477, 491, 399 P.3d 804, 818 (2017) (quoting State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008)). Similarly, a district court's determination that evidence is admissible under I.R.E. 404(b) is reviewed for an abuse of discretion. State v. Rawlings, 159 Idaho 498, 504, 363 P.3d 339, 345 (2015) (citing State v. Pepcorn, 152 Idaho 678, 690-91, 273 P.3d 1271, 1283-84 (2012)). "To determine whether a trial court has abused its discretion, this Court considers whether it correctly perceived the issue as discretionary, whether it acted within the boundaries of its discretion and consistently with applicable legal standards, and whether it reached its decision by an exercise of reason." Id. (quoting Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002)).

         "Where prosecutorial misconduct was not objected to at trial, [this Court] may only order a reversal when the defendant demonstrates that the violation in question qualifies as fundamental error[.]" State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). Showing fundamental error requires the following:

(1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.

Id. at 226, 245 P.3d at 978 (citation omitted). The burden of showing fundamental error is placed on the defendant. Id. If the burden is satisfied, this Court must vacate and remand. Id. at 227, 245 P.3d at 979.

         IV. ANALYSIS

         A. The district court did not abuse its discretion in denying Alwin's motion for a new trial.

         At trial, a prior booking photo of Alwin was offered into evidence by the State. According to Alwin, the booking photo displays Alwin standing, unsmilingly, in front of a blank wall, dressed in yellow "jail garb," and it is apparent Alwin has a black eye. The introduction of the photo was accompanied by Officer Cohen's testimony that he had viewed the photo from a computer system in his patrol vehicle. When asked by the district court whether the defense had any objections to the introduction of the booking photo, Alwin's counsel simply stated: "[w]e would object under 404(b)." The State responded: "[n]o, I don't think it is 404(b) . . . [t]here is no conduct being alleged." The district court agreed with the State and admitted the booking photo. Alwin moved for a new trial, pursuant to Idaho Criminal Rule 34, alleging the district court erred in admitting the photo into evidence. The district court denied the motion, stating "if the request had been made to redact the clothing from the photo, since there would be no harm in doing that, I probably would have ordered it. . . . But I don't think it's required, and so I am going to deny the motion." On appeal, Alwin argues the motion for a new trial should have been granted because the district court "committed an error of law in not realizing that the booking photo was evidence of a prior bad act and, thus, failing to recognize that analysis under I.R.E. 404(b) was required." For the reasons to be discussed, the district court did not erroneously admit the booking photo because the photo did not constitute I.R.E. 404(b) evidence. Because the photo did not constitute I.R.E. 404(b) evidence, the district court's denial of Alwin's motion for a new trial was not erroneous.

         The Idaho Rules of Evidence applicable at the time of Alwin's trial[1] provided that, "[a]ll relevant evidence is admissible except as otherwise provided by these rules or by other rules applicable in the courts of this state. Evidence which is not relevant is not admissible." I.R.E. 402. Evidence is relevant if the evidence has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than [the fact] would be without the evidence." I.R.E. 401. However, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." I.R.E. 404(b). But such evidence may be admissible for other permitted purposes such as proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" Id. (emphasis added). If propensity evidence is offered for one of the above listed purposes, "the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Id.

         Mugshots are generally inadmissible under I.R.E. 404(b) because mugshots are indicative of a prior crime, wrong, or other bad act. See State v. Cunningham, 97 Idaho 650, 653, 551 P.2d 605, 608 (1976). Mugshots are indicative of a prior crime, wrong, or other bad act because mugshots contain indicia typically associated with criminal activity. See id.; Barnes v. United States, 365 F.2d 509, 510-11 (D.C. Cir. 1966), (noting "[t]he double-shot picture, with front and profile shots alongside each other, is so familiar . . . that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic."); see also Eberhardt v. Bordenkircher, 605 F.2d 275, 280 (6th Cir. 1979) ("The use of mugshots has been strongly condemned . . . as effectively eliminating the presumption of innocence and replacing it with an unmistakable badge of criminality."). Thus, mugshots that display the typical indicia associated with criminal activity-height lines, front and side profiles, and references to police departments-are inadmissible under I.R.E. 404(b). See Cunningham, 97 Idaho at 653, 551 P.2d at 608; see also United States v. McCoy, 848 F.2d 743, 745-46 (6th Cir. 1988) (holding the district court erred in admitting mugshots that displayed defendant, among others, standing in front of height lines holding a sign that referenced the local police department).

         However, mugshots that have been trimmed to eliminate the indicia described above are not indicative of criminal activity and thus, are not considered I.R.E. 404(b) evidence. See Cunningham, 97 Idaho at 653, 551 P.2d at 608. This Court has stated: "[p]hotographs showing the . . . appearance of a person are generally admissible in the discretion of the trial court, unless the photograph is so inflammatory that its probative value is outweighed by the prejudice which might result from its inflammatory nature." State v. Carter, 103 Idaho 917, 921, 655 P.2d 434, 438 (1981). Such photos used to "describe a person . . . are admissible for the purpose of explaining and applying the evidence and assisting the jury in understanding the case." Id. (quoting State v. Kleier, 69 Idaho 278, 286, 206 P.2d 513, 518 (1949)). Photographic "evidence is used to clarify and present a more comprehensive explanation of the physical facts than could be obtained from the testimony of the witnesses." Id. Thus, mugshots that have been trimmed to eliminate reference to prior criminal behavior, and therefore do not constitute I.R.E. 404(b) evidence, will be admitted so long as the mugshot is relevant and the mugshot's probative value outweighs prejudice to the defendant. See I.R.E. 401; I.R.E. 403.

         This Court has held that a district court does not err in admitting a mugshot if the typical indicia are removed or trimmed. Cunningham, 97 Idaho at 653, 551 P.2d at 608. In Cunningham, the State offered into evidence a mugshot to prove, among other things, an extrajudicial identification of the defendant. Id. The mugshot had been trimmed to "eliminate any reference to the local police department[.]" Id. This Court affirmed the district court's admission of the mugshot because the mugshot had probative value. See id. (citing United States v. Johnson, 495 F.2d 378 (4th Cir. 1974)) (holding the district court did not err in admitting a taped-over mugshot that was offered to show the defendant's appearance because the mugshot had probative value).

         A few years later, this Court once again affirmed the district court's admission of a mugshot where the "numbers and language at the bottom of the photograph, indicating it was a 'mug shot,' were removed prior to the photo's admission into evidence." Carter, 103 Idaho at 921, 655 P.2d at 438. In Carter, the mugshot was offered by the State to show the appearance of the defendant at the time of the incident. Id. This Court held the mugshot was admissible because it would serve as an aid in "explaining and applying the evidence and assisting the jury in understanding the case." Id. at 922, 655 P.2d at 439. This Court reasoned the mugshot was more probative than prejudicial because the mugshot would assist the jury in having an "accurate contemporary view of the circumstances of the crime." Id. at 922, 655 P.2d at 439.

         Other state and federal jurisdictions have similarly held photos that lack the typical indicia of a mugshot may be admissible. For instance, in Washington, its Supreme Court held a mugshot that had all identifying information removed was properly admitted because the mugshot did "nothing to suggest it was a police photograph." State v. Scott, 604 P.2d 943, 946 (Wash. 1980). Similarly, the Supreme Court of Arizona held a mugshot that "excluded any reference to the [defendant's] robbery or the circumstances surrounding the taking of the photograph" was admissible because the photo was relevant to prove identity and the admission was not unfairly prejudicial. State v. McCutcheon, 781 P.2d 31, 35 (Ariz. 1989). Additionally, the Sixth Circuit more recently held a photocopy of a photographic array was admissible because the array did not display jail identification numbers or height lines. United States v. George, 160 Fed.Appx. 450, 456 (6th Cir. 2005) (recognizing the array was admissible despite the "use of mug shots [being] highly disfavored" because the photo removed "any of the typical indicia of a mug shot" i.e. height lines or jail identification numbers).

         In this case, Alwin argues the district court erred in admitting the booking photo because the photo constituted I.R.E. 404(b) evidence and because the State failed to provide notice of its intent to use the booking photo. According to Alwin, the booking photo constitutes I.R.E. 404(b) evidence because it "demonstrated that Mr. Alwin had been incarcerated or at least arrested in the past." The booking photo portrays Alwin, standing somberly in front of a blank wall, with a black eye and wearing a yellow scrub shirt. Alwin argues that from the photo it is clear he is wearing "jail clothing." In addition, Alwin argues the booking photo was accompanied by Officer Cohen's testimony stating he was able to view the photo from a computer system in his patrol vehicle. According to Alwin, the photo, along with the accompanying testimony, was evidence of a prior crime, wrong, or other act, and thus, was inadmissible under I.R.E. 404(b). This argument is unavailing.

         Alwin's argument is that there should be an absolute bar for use of a booking photo under any circumstance. However, here, the booking photo lacks the typical indicia of a booking photo or mugshot. Unlike the photo in Barnes that consisted of "two close-up shots of [the defendant's] face side by side, one full face and one a profile," the booking photo here was not offered contemporaneously with a side profile view that would lead jurors to believe the photo was a mugshot. 365 F.2d at 510. Instead, similar to the photo in Cunningham that was admissible because it had been trimmed to eliminate any reference to the local police department, the booking photo here also lacked any reference to the local police department. 97 Idaho at 653, 551 P.2d at 608. In addition, similar to the photo in George that was admissible because it lacked height lines and jail identification numbers, the booking photo here also lacked height lines and jail identification numbers. 160 Fed.Appx. at 456. Thus, the booking photo in this case does not constitute I.R.E. 404(b) evidence because it lacks the typical indicia of a mugshot; the front-facing photo of Alwin was not accompanied by a side profile photo and the photo lacked height lines, any reference to the local police department, or jail identification numbers.

         Instead, the booking photo is a headshot of Alwin standing in front of a blank wall. As the district court recognized, the photo could have been a passport photo or a driver's license photo. The State offered the booking photo for identification purposes. That is, the photo was offered with Officer Cohen's testimony that he had viewed the photo on his computer after stopping Alwin and the photo on record matched the description of the male he had stopped. Like the photo in Carter that was introduced, among other reasons, to assist the jury in understanding the case, the booking photo here was introduced to assist the jury in understanding how Officer Cohen confirmed the identity of the individual who drove away from a traffic stop and also the owner of the automobile for further investigation. 103 Idaho at 921, 655 P.2d at 438. Such photos are admissible because they are relevant and probative. See id. Therefore, the district court did not err in ruling the photo was not I.R.E. 404(b) evidence and ultimately admitting the booking photo into evidence.

         Alwin next argues the district court erred in denying his motion for a new trial because the district court erroneously admitted the booking photo. At the time the post-trial motion was made, Rule 34 provided "[t]he court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice."[2] Rule 34 "does not provide an independent ground for a new trial." State v. Lankford, 162 Idaho 477, 493, 399 P.3d 804, 820 (2017) (quoting State v. Cantu, 129 Idaho 673, 675, 931 P.2d 1191, 1193 (1997)). Instead, Idaho Code section 19-2406 sets forth the limited grounds for which a district court may grant a motion for a new trial. Such motions may be granted "[w]hen the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial" or "[w]hen the verdict is contrary to law or evidence." I.C. § 19-2406(5)-(6). As discussed above, the district court did not err in admitting the booking photo because the photo does not constitute I.R.E. 404(b) evidence. Thus, the district court did not, as Alwin alleges, err by misdirecting the jury and the verdict was not contrary to the law or evidence. Thus, the district court properly denied Alwin's motion for a new trial.

         B. The prosecutor committed prosecutorial misconduct but it did not rise to the level of fundamental error.

         Alwin asserts three instances of prosecutorial misconduct that occurred during the prosecutor's closing argument. First, Alwin asserts the prosecutor committed misconduct by bolstering Officer Cohen's testimony. Second, Alwin asserts the prosecutor committed misconduct by personally guaranteeing to the jury the defense's theory of the case was untrue. Lastly, Alwin asserts the prosecutor committed misconduct by implicitly asking the jury to find Alwin guilty based on information other than evidence adduced at trial. Alwin concedes the instances of misconduct were not objected to in the district court. Each allegation will, in turn, be discussed below.

         "Where prosecutorial misconduct was not objected to during trial, this Court may only reverse when the misconduct constitutes fundamental error." Lankford, 162 Idaho at 494, 399 P.3d at 821 (quoting State v. Adamcik, 152 Idaho 445, 480, 272 P.3d 417, 452 (2012)). Fundamental error: "(1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate records, including information as to whether the failure to object was a tactical decision); and (3) [is] not harmless." Id. (quoting Perry, 150 Idaho at 228, 245 P.3d at 980). An error is harmless only if it can be proven beyond a reasonable doubt the error did not contribute to the jury's verdict. Id. "If the defendant persuades [this Court] that the complained of error satisfies this three-prong inquiry, then [this Court] shall vacate and remand." Perry, 150 Idaho at 228, 245 P.3d at 980.

         "There is . . . 'considerable latitude in closing argument,' and both sides are 'entitled to discuss fully, from their respective standpoints, the evidence and the inferences' that should be drawn from it." State v. Dunlap, 155 Idaho 345, 369, 313 P.3d 1, 25 (2013) (quoting State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003)). "Whether comments during closing arguments rise to the level of fundamental error is a question that must be analyzed in the context of the trial as a whole." Lankford, 162 Idaho at 497, 399 P.3d at 824 (quoting State v. Carson, 151 Idaho 713, 718-19, 264 P.3d 54, 59-60 (2011)). Unobjected-to prosecutorial misconduct that arises in closing argument must be so egregious that the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Additionally, misconduct may be remedied by an instruction from the district court informing the jury that the attorneys' comments are not evidence. Id. at 501-02, 399 P.3d at 828-29 (stating "the court explicitly informed the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.