from the District Court of the First Judicial District of the
State of Idaho, Kootenai County. Hon. Cynthia K.C. Meyer,
court order denying motion for new trial, affirmed.
D. Fredericksen, State Appellate Public Defender, Boise, for
appellant. Sally J. Cooley, Deputy Appellant Public Defender
Lawrence G. Wasden, Idaho Attorney General, Boise, for
respondent. Mark W. Olson, Deputy Attorney General argued.
BURDICK, CHIEF JUSTICE.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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
ISSUES ON APPEAL
Whether the district court's denial of Alwin's motion
for a new trial was an abuse of discretion.
Whether the prosecutor committed misconduct during closing
argument that amounted to fundamental error.
STANDARD OF REVIEW
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)).
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
The district court did not abuse its discretion in denying
Alwin's motion for a new trial.
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
Idaho Rules of Evidence applicable at the time of Alwin's
trial 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."
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).
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.
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
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.
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
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.
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.
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
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." 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.
The prosecutor committed prosecutorial misconduct but it did
not rise to the level of fundamental error.
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
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.
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