State v. Perry

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 34846

STATE OF IDAHO, )

)

Boise, September 2008

Plaintiff-Respondent, )

)

2010 Opinion No. 130

v. )

)

Filed: December 7, 2010

JOSEPH EVERETT PERRY, )

)

Stephen W. Kenyon, Clerk

Defendant-Appellant. )

)

SUBSTITUTE OPINION. THE

)

COURT’S PRIOR OPINION

)

DATED JULY 23, 2010 IS

)

HEREBY WITHDRAWN.

)

)

Appeal from the District Court of the First Judicial District, State of Idaho,

Kootenai County. Hon. John P. Luster, District Judge.

District court conviction and sentence, affirmed.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Elizabeth

A. Allred, Deputy State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. John

Charles McKinney, Deputy Attorney General argued.

__________________________________

BURDICK, Justice

Appellant Joseph E. Perry was convicted of two counts of sexual battery of a child under

the age of sixteen, for acts against T.P., and two counts of misdemeanor battery for acts against

H.P. Perry asks us to reverse his conviction based on several alleged errors committed during

trial, including the exclusion of I.R.E. 412 evidence offered to impeach T.P.‘s allegations against

Perry, the exclusion of I.R.E. 613 evidence offered to impeach the foster mother‘s testimony, and

various acts of prosecutorial misconduct. Perry argues that these errors, individually, are either

fundamental and/or not harmless. Alternatively Perry contends that even if each error is

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individually found to be harmless, in the aggregate they constitute reversible error under the

cumulative error doctrine.

We hold that the evidence proffered by Perry was properly excluded. In addition, we

hold that the trial court properly sustained the only objection made at trial that pertained to

prosecutorial misconduct, and the unobjected to acts of prosecutorial misconduct do not rise to

the level of fundamental error. Finally, we find that the cumulative error doctrine is inapplicable

as Perry did not preserve any error for consideration on appeal. Therefore, we affirm Perry‘s

conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

From February to April, 2005, while T.P. (age 11) and H.P. (age 13) were living in foster

care, Appellant Joseph E. Perry started taking the girls for overnight visits at his home in an

attempt to reunite with his two daughters. Later that June, T.P. and H.P. revealed to their foster

mother that Perry had occasionally invited one girl to sleep with him during these visits, and

while the girl was lying in bed facing away from her father, Perry moved against her and rubbed

his penis against the girl‘s back or buttocks in an up and down motion. Based on these

allegations Perry was charged with four counts of lewd and lascivious conduct with a minor

under sixteen years old, I.C. § 18-1508.

Before trial, Perry filed a motion in limine to present testimony/evidence that T.P. made a

prior false allegation of a sex crime against H.P., i.e., that in 2004, T.P. had made statements,

which were subsequently partially retracted, that H.P. touched T.P.‘s breasts twice and sprayed

T.P.‘s genitals with a shower head during a family camping trip. The incident was reported to

the girls‘ social worker, but after investigation, the Idaho Department of Health and Welfare

(Department) determined that no further action was necessary.

At trial, the prosecutor called the foster mother as her first witness. Without objection

from defense counsel, the prosecutor asked the foster mother whether the girls had ever been

dishonest with her. She replied that they had, but only about ―normal kid stuff.‖ Later, on

redirect examination, the prosecutor asked the foster mother to specify what types of things the

girls had lied about in the past. Again, the foster mother indicated relatively minor things, such

as messes in the house. Defense counsel made a tactical decision to not object to this testimony

in order to lay the foundation for the I.R.E. 412 evidence. On re-cross-examination, defense

counsel asked the foster mother if she recalled T.P.‘s statements regarding the 2004 camping

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incident, and whether the foster mother considered that more than a minor thing. Before the

foster mother could answer, the prosecutor objected to defense counsel‘s line of questioning.

The district court sustained the objection, but indicated that admissibility of the I.R.E. 412

evidence could be addressed later in the trial.

Before T.P. took the stand, defense counsel reasserted his request to present the I.R.E.

412 evidence to impeach T.P.‘s allegations against Perry. The report detailing T.P.‘s allegations

against H.P. stated that H.P. had grabbed T.P.‘s breasts twice and placed a shower head on T.P.‘s

genitals and buttocks, and defense counsel quickly focused the district court‘s attention on the

incident with the shower head. Defense counsel argued that because the shower spraying

incident between the girls constituted a ―sex crime‖ under I.R.E. 412(e)(2), and therefore T.P.‘s

later retraction of her statement – that H.P. did not stop spraying when asked – placed the

evidence under the purview of I.R.E. 412(b)(2)(C) as a prior false allegation of a sex crime. The

district court agreed with defense counsel that the shower spraying incident theoretically

constituted a ―sex crime,‖ but noted that it was a ―real stretch.‖ However, after determining the

evidence‘s probative value was ―about zip‖ for I.R.E. 412 purposes, the district court held that

the probative value was outweighed by the danger of allowing extraneous issues to come before

the jury. The court also concluded that the jury‘s consideration of the evidence would be a waste

of trial time. As such, the district court excluded the evidence under I.R.E. 412.

Defense counsel also sought to introduce this evidence under I.R.E. 613 to impeach the

foster mother‘s testimony. Defense counsel argued that evidence demonstrating T.P. had made a

prior false allegation of a sex crime against H.P., and the foster mother‘s documented concern

that T.P. had lied or exaggerated about the shower spraying incident, was inconsistent with her

trial testimony that T.P. had only lied about ―normal kid stuff.‖1 Although the district court

acknowledged that the prosecutor had impermissibly opened the door to this line of questioning,

the court also determined further evidence on the issue would be unhelpful to the jury and would

waste trial time. Accordingly, the district court held the evidence inadmissible under I.R.E. 403.

Later, the prosecutor called the foster father to testify. This time, defense counsel

initiated questioning about the girls‘ truthfulness during cross-examination. However, on

redirect, the prosecutor continued with her theme of eliciting vouching testimony by asking the

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The foster mother‘s concern was documented in the Department‘s Narrative Summary Report, which detailed the

reporting and investigation of the 2004 incident between T.P. and H.P.

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foster father if he noticed any signs of dishonesty on the girls‘ faces when they told him what had

happened with Perry, to which the foster father replied ―no.‖ Defense counsel neither objected

to the prosecutor‘s line of questioning, nor did he conduct re-cross-examination of the foster

father.

Next, the prosecutor presented the testimony of Scott Teneyck, the investigating officer

who interviewed T.P. and H.P. regarding their allegations against Perry. After the prosecutor

asked a series of questions that established Teneyck‘s training and experience in interviewing

children, and elicited testimony regarding the signs children typically give off during interviews

which indicate that they are being untruthful, the prosecutor went on to inquire about Teneyck‘s

interviews with T.P. and H.P. First, the prosecutor asked the Teneyck for his opinion as to

whether T.P. was being truthful when she reported her allegations against Perry. Teneyck

replied that he saw no indication of untruthfulness during his interview with T.P. When the

prosecutor asked the same question regarding H.P., defense counsel objected before Teneyck

could answer. The district court sustained the objection, noting that the prosecution was

attempting to vouch for the girls‘ credibility and it was up to the jury to decide whether or not the

girls were telling the truth.

Nevertheless, during closing argument the prosecutor referred to testimony from the

foster mother, the foster father, and the officer that vouched for the girls‘ credibility. On four

separate occasions, either directly or indirectly, the prosecutor reiterated that these witnesses

believed the girls‘ allegations. Once again, defense counsel did not object to any of the

prosecutor‘s statements.

The jury found Perry guilty of two counts of sexual abuse of a child under sixteen years

of age, for acts against T.P., and two counts of misdemeanor battery, for acts against H.P. The

district court sentenced Perry to two concurrent fifteen-year terms, with five years determinate,

for the two counts of sexual abuse, and two concurrent 180-day terms for the two counts of

battery. Perry appealed and the Court of Appeals affirmed his conviction. This Court granted

Perry‘s Petition for Review.

II. STANDARD OF REVIEW

―On review of a case from the Court of Appeals, this Court gives due consideration to the

Court of Appeals‘ decision, but directly reviews the decision of the trial court.‖ State v.

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Clements, 148 Idaho 82, __, 218 P.3d 1143, 1145 (2009) (quoting State v. Bishop, 146 Idaho

804, 810, 203 P.3d 1203, 1209 (2009)).

III. DISCUSSION

A. Prior False Allegation of a Sex Crime under I.R.E. 412

Perry argues that the district court abused its discretion in excluding evidence that T.P.

made a prior false allegation of a sex crime against H.P. under I.R.E. 412 to impeach T.P.‘s

accusations against Perry. We agree with the district court‘s determination that Perry‘s proffer

of I.R.E. 412 evidence was limited to the shower spraying incident between the girls, but

disagree with the district court‘s interpretation that the incident constituted a ―sex crime‖ under

I.R.E. 412(e)(3). We affirm the district court‘s exclusion of the evidence.

1. The district court did not abuse its discretion in limiting the I.R.E. 412 evidence to the

shower spraying incident between T.P. and H.P.

At the onset, we must address Perry‘s claim that the district erred in limiting its ruling on

the admissibility of the I.R.E. 412 evidence to the shower spraying incident between the girls.

Perry argues that it is clear from his I.R.E. 412 notice that he also sought to introduce evidence

that T.P. had falsely accused H.P. of touching her breasts in 2004. Specifically, Perry directs us

to the Department‘s Narrative Summary Report attached to his I.R.E. 412 motion, which details

the reporting and investigation of T.P.‘s allegations against H.P. The report states that, in 2004,

T.P. accused H.P. of spraying T.P.‘s genitals with a shower head and grabbing T.P.‘s ―boobies‖

twice during a family camping trip. The report later contains an entry documenting the foster

mother‘s concern that T.P. either embellished or lied about the incident. Perry argues that these

two entries read together demonstrate that T.P. lied about H.P. touching her breasts.

The admissibility of I.R.E. 412 evidence is determined solely from the basis of the I.R.E.

412 hearing. See I.R.E. 412(c)(2)-(3). Under I.R.E. 412, evidence of a victim‘s past sexual

behavior is generally inadmissible. I.R.E. 412(a)-(b). A defendant seeking to introduce evidence

regarding a sex-crime victim‘s past sexual behavior is required to submit a written offer of proof

from which the trial court determines if that evidence falls within the limited exceptions for

admissibility. I.R.E. 412(c)(2). In other words, the trial court determines whether it will even

consider the admissibility of the evidence based upon the written offer of proof. If the trial court

determines that an I.R.E. 412 hearing is warranted, the evidence‘s admissibility is determined

from the basis of that hearing alone. I.R.E. 412(c)(3). Perry cannot now rely on any other

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supposed ―false allegations‖ contained in his I.R.E. 412 notice that defense counsel did not also

include in his argument during the I.R.E. 412 hearing.

Upon review of the I.R.E. 412 hearing transcript, it is clear that evidence of T.P.‘s prior

false allegation was limited to the shower spraying incident. There was no evidence presented at

the hearing that T.P. lied about H.P. touching her breasts twice during the 2004 camping trip. In

fact, defense counsel quickly pulled the district court‘s attention away from this allegation and

instead focused the court‘s attention on the shower spraying incident. 2 Furthermore, when the

district court asked if the ―false allegation‖ was whether H.P. stopped spraying when T.P.

protested, defense counsel stood by and said nothing. If this was not the only false allegation

defense counsel sought to present, he should have corrected the court at that time. Thus, from

the proceedings of the I.R.E. 412 hearing, we agree with the district court that Perry‘s proffer of

evidence regarding T.P.‘s prior false allegation of a sex crime against H.P. was limited to the

shower spraying incident and whether H.P. stopped spraying when T.P. protested.

2. The shower spraying incident between T.P. and H.P. did not constitute a ―sex crime‖

under I.R.E. 412(e)(2).

Although neither side raises the issue on appeal, we exercise free review over whether the

shower spraying incident between the girls constituted a false allegation of a ―sex crime‖ under

I.R.E. 412(b)(2)(C). In order to present evidence of a false allegation of a ―sex crime‖ as the

term is defined under I.R.E. 412(e)(2), the defendant must first identify a separate crime under

Idaho law that the incident falls under. Here, defense counsel failed to specifically identify the

underlying crime. Instead, defense counsel read the definition of ―sex crime‖ under I.R.E.

412(e)(2) verbatim. Defense counsel explained that the rule requires that the alleged sex crime

fall under a separate crime in Idaho, and then went on to say that H.P. made contact with T.P.‘s

genitals, both in front and back, without her consent. Although defense counsel never

specifically stated that the underlying crime was battery, the district court determined that

―theoretically‖ the shower spraying incident could constitute a battery that involved the genitals

of another person. Because the district court was able to discern that the underlying crime was

battery, we find that defense counsel in essence laid the proper foundation for the proffer of

I.R.E. 412 evidence.

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At the onset of the I.R.E. 412 hearing, after reading T.P.‘s allegations against H.P. contained in the Department of

Health and Welfare Narrative Summary Report, defense counsel stated: ―But the main incident that we‘re dealing

with on that I would like to inquire about is the incident with the shower head.‖

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However, despite that proper foundation, the shower spraying incident between H.P. and

T.P. clearly did not constitute a ―sex crime.‖ As originally adopted in 1985, I.R.E. 412 did not

include the term ―sex crime.‖ ―Sex crime‖ was added in 1986 and defined as ―rape, attempted

rape, assault with the intent to commit rape or the infamous crime against nature, battery with the

intent to commit rape or the infamous crime against nature, or kidnapping for the purpose of

committing rape or the infamous crime against nature.‖ I.R.E. 412(e)(2) (1986). This definition

was amended in 1997 after the Evidence Rules Committee determined that the original definition

of ―sex crime‖ did not encompass many of the more modern sexual abuse crimes defendants

were being charged with. Agenda for the 1996 Annual Meeting of the Evidence Rules Comm. at

1. As part of the amendment the committee added the ―catchall‖ provision of I.R.E. 412(e)(2),

which defines ―sex crime‖ as ―any other crime under the law of the state of Idaho that involved;

contact, without consent, between any part of the defendant‘s body or an object and the genitals

or anus of another person; or contact, without consent, between the genitals or anus of the

defendant and any part of another person‘s body.‖ I.R.E. 412(e)(2). This language was taken

from Rule 413 of the Federal Rule of Evidence which governs the admissibility of evidence of

similar crimes in federal sexual assault cases. See Agenda for the 1996 Annual Meeting of the

Evidence Rules Comm. at 2. Federal Rule of Evidence 413(a) reads: ―In a criminal case in which

the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission

of another offense or offenses of sexual assault is admissible, and may be considered for its

bearing on any matter to which it is relevant.‖ (Emphasis added). For purposes of F.R.E. 413,

―offense of sexual assault‖ is defined as ―a crime under federal law or the law of a state that

involved . . . contact, without consent, between any part of the defendant‘s body or an object and

the genitals or anus of another person.‖ F.R.E. 413(d)(2) (emphasis added). Thus, the word

―defendant‖ in F.R.E. 413(d)(2)—the provision that I.R.E. 412(e)(2) mirrors—refers to the

defendant charged with the underlying offense.

Based on the history of I.R.E. 412(e)(2) listed above, we hold that the shower spraying

incident between T.P. and H.P. does not fall within the definition of ―sex crime.‖ In order to

constitute a ―sex crime,‖ the contact must involve either the body of, or an object held by the

defendant charged with the underlying offense and the genitals or anus of another person. See

I.R.E. 412(e)(2). Because Perry – and not H.P. – is the defendant charged with the underlying

sex crime in this case, the shower spraying incident between T.P. and H.P. does not fall within

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the definition of ―sex crime‖ under I.R.E. 412(e)(2). As such, we need not determine whether

T.P.‘s partial retraction of her allegations against H.P. constituted a ―false allegation‖ under

I.R.E. 412(b)(2)(C).

3. The district court did not abuse its discretion in excluding Perry from offering

evidence of T.P.‘s alleged false allegation regarding the shower spraying incident in order

to impeach T.P.‘s accusations against Perry.

Perry contends that the district court abused its discretion by failing to give enough

weight to the evidence of T.P.‘s prior false allegation of a sex crime against H.P. We disagree.

The trial court‘s judgment concerning admission of evidence shall ―only be disturbed on

appeal when there has been a clear abuse of discretion.‖ State v. Gleason, 123 Idaho 62, 65, 844

P.2d 691, 694 (1992). See also State v. Watkins, 148 Idaho 418, __, 224 P.3d 485, 488 (2009).

In determining whether a trial court has abused its discretion, the sequence of inquiry is:

(1) [W]hether the trial court correctly perceived the issue as one of discretion; (2)

whether the trial court acted within the outer boundaries of its discretion and

consistently with the legal standards applicable to the specific choices available to

it; and (3) whether the trial court reached its decision by an exercise of reason.

Hall v. Farmers Alliance Mut. Ins. Co., 145 Idaho 313, 319, 179 P.3d 276, 282 (2008) (quoting

Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000

(1991)).

Although the district court erred in evaluating the evidence of the shower spraying

incident under I.R.E. 412, the court nevertheless excluded the evidence under the appropriate

balancing test. Evidence of a victim‘s past sexual behavior, if relevant, is subject to the I.R.E.

412(c)(3) balancing test, which requires that the probative value of such evidence outweigh the

danger of unfair prejudice. I.R.E. 412(c)(3). As set forth above, the shower spraying incident

does not fall under I.R.E. 412 and, therefore, is not subject to the I.R.E. 412(c) balancing test.

Instead the evidence is subject to the I.R.E. 403 balancing test, which provides: ―[E]vidence may

be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.‖ During the I.R.E. 412 hearing, the

district court stated:

As I say – well, all right, maybe theoretically it comes within the definition of sex

crime, but its probative value to me is, at least for 412 purposes, is so slim that

letting it in would be –I know they‘re talking about unfair – the danger of unfair

prejudice. I think that they probably ought to have said there‘s also the danger of

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getting a lot of extraneous issues before the jury that are a waste of their time and

not going to be helpful to them in deciding what is the guilt or innocence of the

defendant. So, under – to let it under 412, I‘d say no.

We note that I.R.E. 412 was irrelevant to the district court‘s decision since the shower spraying

incident was not a ―sex crime.‖ However, in weighing the evidence, the court considered factors

outside of the I.R.E. 412 balancing test, such as the danger of introducing extraneous issues that

would be unhelpful to the jury and the danger of wasting trial time. As such, we find that the

Court effectively conducted an I.R.E. 403 analysis, which was the appropriate test for the

evidence.

We therefore hold that the district court did not abuse its discretion by excluding Perry

from offering evidence of T.P.‘s alleged false allegations regarding the shower spraying incident

to impeach T.P.‘s allegations against Perry under I.R.E. 403. The proposed evidence regarding

the shower spraying incident had minimal probative value, if any. Accordingly, we affirm the

exclusion of the evidence as a proper exercise of the court‘s discretion.

B. Impeachment by Prior Inconsistent Statement under I.R.E. 613

Perry also asserts that the district court abused its discretion by excluding evidence of

T.P.‘s prior false allegations against H.P. from the 2004 camping trip to impeach the foster

mother‘s testimony under I.R.E. 613. We disagree.

To be admissible for impeachment purposes evidence of a witness‘s prior inconsistent

statement must be relevant to the witness‘s trial testimony. See I.R.E. 401. As previously

established, the evidence was limited to the shower spraying incident and whether H.P. stopped

spraying T.P. when asked. Again, this was not evidence of a ―sex crime,‖ but rather

inconsequential information concerning children engaging in horseplay, and their subsequent

dispute. Although the foster mother may have believed that T.P. either lied or exaggerated about

this minor incident, this entry is not inconsistent with her trial testimony that the girls had never

lied about anything of significance. The district court was well within its discretion in holding

that the marginal probative value contained in the evidence surrounding this childish dispute was

substantially outweighed by the danger of confusing or misleading the jury with extraneous

issues and wasting trial time. As such, we affirm the district court‘s ruling to exclude the

evidence.

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C. Prosecutorial Misconduct

On appeal Perry argues that the prosecutor committed five acts of misconduct during the

course of the judicial proceedings; however, Perry only objected to one of these alleged acts of

prosecutorial misconduct. Perry argues that each act of misconduct not followed by a

contemporaneous objection constitutes fundamental error, and that none of the acts, whether

objected to or not, are harmless.

In State v. Field, we stated our standard of review for claims of prosecutorial misconduct:

When there has been a contemporaneous objection we determine factually if there

was prosecutorial misconduct, then we determine whether the error was harmless.

When there is no contemporaneous objection a conviction will be reversed for

prosecutorial misconduct only if the conduct is sufficiently egregious so as to

result in fundamental error. However, even when prosecutorial misconduct has

resulted in fundamental error, the conviction will not be reversed when that error

is harmless.

144 Idaho 559, 571, 165 P.3d 273, 285 (2007) (internal citations omitted). Thus, for alleged acts

of prosecutorial misconduct followed by a contemporaneous objection, courts have engaged in a

two-step analysis, determining: (1) whether misconduct occurred; and (2) whether the

misconduct was harmless. When the alleged acts of prosecutorial misconduct were not objected

to at trial the appellate court engaged in a three-step analysis, determining: (1) whether

misconduct occurred; (2) whether the alleged misconduct rose to the level of fundamental error;

and (3) whether the misconduct was harmless. Id.

1. Clarification Needed for Standards Employed in Idaho Appellate Review

Multiple statements of law pertaining to the fundamental error doctrine have caused

confusion. We have identified three major problems with our standard of review that continue to

plague the appellate courts of this state. First, the definition of fundamental error we adopted

from the New Mexico Supreme Court is at odds with our precedent for constitutional claims.

See Smith v. State, 94 Idaho 469, 475 n.13, 491 P.2d 733, 739 n.13 (1971); but see State v.

Kirkwood, 111 Idaho 623, 626, 726 P.2d 735, 738 (1986). Second, Idaho appellate courts apply

two different definitions of fundamental error to claims of prosecutorial misconduct, one

definition for misconduct allegedly committed during closing argument, and another for

misconduct allegedly committed at any other time during the judicial proceedings. See, e.g.,

State v. Spencer, 74 Idaho 173, 183-84, 258 P.2d 1147, 1154 (1953); State v. Ames, 109 Idaho

373, 376, 707 P.2d 484, 487 (Ct. App. 1985); but see State v. Christiansen, 144 Idaho 463, 470,

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163 P.3d 1175, 1182 (2007). Third, appellate courts also apply two different standards of review

for harmless error depending upon whether the error complained of affects the trial in a more

general sense, or whether the error complained of involves a discrete piece of evidence. State v.

LePage, 102 Idaho 387, 396, 630 P.2d 674, 683 (1981).

We take this opportunity to clarify the standards employed by Idaho appellate courts in

analyzing alleged trial errors for harmless error or fundamental error, so as to: (1) provide

guidance to our Appellate Courts applying the doctrine; (2) promote judicial fairness and equal

application of law by eliminating unnecessary ambiguities; (3) reinforce the judicial preference

for contemporaneous objections before the trial court.

After thorough examination, we find no compelling reason why claims of prosecutorial

misconduct should be treated any different than other errors occurring at trial. The standard of

review that shall properly be applied to these errors is dependent upon two factors: (1) whether

these errors were followed by a contemporaneous objection at trial, and, if not, (2) whether these

errors constitute the violation of a constitutionally protected right.

In order to establish a clear standard going forward, we begin with an examination of the

past, summarizing the origins of the harmless error doctrine, the subsequent development of the

standard of review employed for errors impinging upon constitutionally protected rights, and

finally, federal plain error and its relationship with Idaho‘s doctrine of fundamental error.

i. Harmless Error

Prior to the early twentieth century the doctrine of harmless error did not exist, and where

error was found to have occurred at trial, a reversal was necessitated in all cases. Kotteakos v.

United States, 328 U.S. 750, 759 (1946) (―So great was the threat of reversal, in many

jurisdictions, that criminal trial became a game of sowing reversible error in the record, only to

have repeated the same matching of wits when a new trial had been thus obtained.‖) In a

footnote in Kotteakos, 328 U.S. at 760 n. 14, the Court cited the Missouri Supreme Court‘s

opinion in State v. Campbell, 109 S.W. 706 (Mo. 1908), to highlight the problem of reversals on

purely technical violations that necessitated the creation of harmless error review. In Campbell,

the Missouri Supreme Court reversed a rape conviction because the indictment incorrectly listed

the charged offense as ―against the peace and dignity of state‖ rather than the correct charge of

―against the peace and dignity of the state.‖ 109 S.W. at 711 (emphasis added). Harmless error

review was created to prevent such miscarriages of justice, and to prevent trial verdicts from

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being reversed on mere technical violations that did not affect the ultimate disposition of the

case. As the court in Kotteakos explained:

[In developing the doctrine of harmless error, t]he general object was simple, to

substitute judgment for automatic application of rules; to preserve review as a

check upon arbitrary action and essential unfairness in trials, but at the same time

to make the process perform that function without giving men fairly convicted the

multiplicity of loopholes which any highly rigid and minutely detailed scheme of

errors, especially in relation to procedure, will engender and reflect in a printed

record.

328 U.S. at 759-60.

The original federal harmless error provision was enacted in 1919, in section 269 of the

Judicial Code, directing appellate courts to ignore ―technical errors, defects, or exceptions which

do not affect the substantial rights of the parties.‖ Act of Feb. 26, 1919, ch. 48, 40 Stat. 1181

(repealed 1948). 3 Determining which errors ―affect the substantial rights of the parties‖ became

key, and in Kotteakos, the Court offered the following: ―If, when all is said and done, the [Court]

is sure that the error did not influence the jury, or had but very slight effect, the verdict and the

judgment should stand, except perhaps where the departure is from a constitutional norm or a

specific command of Congress.‖ 328 U.S. at 764-65. Thus, in the aftermath of Kotteakos, it was

unclear whether or not harmless error analysis could be applied to an error which infringed upon

a constitutionally protected right. This uncertainty was resolved by the U.S. Supreme Court in

Chapman v. California, 386 U.S. 18 (1967), where the Court found that most errors amounting

to constitutional violations could be subject to a form of harmless error analysis, but under a

higher standard of review than that provided under Kotteakos.

ii. Chapman Harmless Error

In Chapman, the Court found that although State harmless error rules applied to

violations of state procedural or substantive law, the U.S. Supreme Court‘s standards govern

where the violation of a constitutionally-protected right occurs. Id. at 21 (―[W]e cannot leave to

the States the formulation of the authoritative laws, rules, and remedies designed to protect

people from infractions by the States of federally guaranteed rights. . . . [Absent] appropriate

congressional action, it is our responsibility to protect [constitutional rights] by fashioning the

3

Currently harmless error review is governed by rules of procedure at the state and federal level. Federal Rule of

Criminal Procedure 52 (a) states, ―Harmless Error. Any error, defect, irregularity or variance which does not affect

substantial rights must be disregarded.‖ Idaho Criminal Rule 52 contains identical language. (Harmless error

review is also provided for in Idaho Rule of Civil Procedure 61.)

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necessary rule.‖). The Court determined that where a defendant is deprived of a constitutionally

protected right at trial, automatic reversal is not always necessary; rather a heightened form of

harmless error analysis will apply. Id. at 21. So, although ―some constitutional rights [are] so

basic to a fair trial that their infraction can never be treated as harmless error,‖4 most

constitutional violations would be subject to the heightened harmless error review of

constitutional harmless error analysis. Id. at 23-24. Under the Chapman harmless error analysis,

where a constitutional violation occurs at trial, and is followed by a contemporaneous objection,

a reversal is necessitated, unless the State proves ―beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.‖ Id. at 24.

In Idaho, the harmless error test established in Chapman is now applied to all objected-to

error. See State v. Thompson, 132 Idaho 628, 636, 977 P.2d 890, 898 (1999) (applying Chapman

to an error in refusing to redact a portion of an admitted psychiatric report which this Court

found to be of no probative value, and highly prejudicial); State v. Johnson, 148 Idaho 664, __,

227 P.3d 918, 923 (2010) (applying Chapman to an error in admitting evidence about the

defendant‘s prior sexual misconduct). It is true that some opinions issued after Chapman have

employed pre-Chapman phraseology when providing the applicable standard. See State v.

Zichko, 129 Idaho 259, 265, 923 P.2d 966, 972 (1996) (―‗Where the evidence of the defendant‘s

guilt is proven and is such as ordinarily produces moral certainty or conviction in an

unprejudiced mind, and the result would not have been different had an error in the trial not been

committed, the judgment of conviction will not be reversed.‘‖ (quoting State v. Pizzuto, 119

Idaho 742, 778, 810 P.2d 680, 716 (1991))). See also, e.g., State v. Stoddard, 105 Idaho 169,

171, 667 P.2d 272, 274 (Ct. App. 1983). However, we find that the standard employed by this

alternative phraseology is so similar analytically to the standard employed under Chapman, that

there is no practical difference. In order to avoid confusion and promote equal application of the

law, Idaho shall from this point forward employ the Chapman harmless error test to all objected-

4

[T]here may be some constitutional errors which in the setting of a particular case are so

unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the conviction. . . . ―The question is whether

there is a reasonable possibility that the evidence complained of might have contributed to the

conviction.‖ Although our prior cases have indicated that there are some constitutional rights so

basic to a fair trial that their infraction can never be treated as harmless error, this statement in

Fahy itself belies any belief that all trial errors which violate the Constitution automatically call

for reversal.

Chapman v. California, 386 U.S. 18, 22 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).

13

to error. A defendant appealing from an objected-to, non-constitutionally-based error shall have

the duty to establish that such an error occurred, at which point the State shall have the burden of

demonstrating that the error is harmless beyond a reasonable doubt.

Three important questions remained after Chapman. First, how were courts to determine

when violations of constitutionally protected rights were so egregious that they would necessitate

an automatic reversal, not subject to harmless error analysis? Second, could an error in jury

instructions ever be considered harmless under the Chapman analysis? Third, what review, if

any, would be provided for violations of constitutionally-protected rights that were not followed

by a contemporaneous objection at trial?

a. Trial Error/Structural Defect Distinction

In Arizona v. Fulminante, 499 U.S. 279 (1991), the Court elaborated on its statements in

Chapman that some constitutional rights are so basic to a fair trial that the violation of those

rights requires an automatic reversal and is not subject to harmless error analysis. Chief Justice

Rehnquist, writing for the majority on the issue, noted that constitutional error could essentially

be broken down to two different categories: 1) trial errors ―which [occur] during the presentation

of the case to the jury, and which may therefore be quantitatively assessed in the context of other

evidence presented in order to determine whether [their] admission was harmless beyond a

reasonable doubt;‖ and 2) structural defects which affect ―the framework within which the trial

proceeds, rather than simply an error in the trial process itself‖ and thus are so inherently unfair

that they are not subject to harmless error analysis. Id. at 307-308, 310. Explaining why certain

constitutional violations amount to structural defects, the U.S. Supreme Court noted that

―‗[w]ithout these basic protections, a criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence, and no criminal punishment may be regarded as

fundamentally fair.‘‖ Id. at 310 (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)). See also

U.S. v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (―[Structural defects] ‗defy analysis by

harmless-error standards‘ because they ‗affect the framework within which the trial proceeds,‘

and are not ‗simply an error in the trial process itself.‘‖ (quoting Fulminante, 499 U.S. at 309-

10)).

The U.S. Supreme Court has found that the following errors constitute structural defects:

(1) complete denial of counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); (2) biased trial

judge (Tumey v. Ohio, 273 U.S. 510 (1927)); (3) racial discrimination in the selection of a grand

14

jury (Vasquez v. Hillery, 474 U.S. 254 (1986)); (4) denial of self-representation at trial

(McKaskle v. Wiggins, 465 U.S. 168 (1984)); (5) denial of a public trial (Waller v. Georgia, 467

U.S. 39 (1984)); (6) defective reasonable-doubt instruction (Sullivan v. Louisiana, 508 U.S. 275

(1993)); and (7) erroneous deprivation of the right to counsel of choice (U.S. v. Gonzalez-Lopez,

548 U.S. 140 (2006)). Although there may be other constitutional violations that would so

affect the core of the trial process that they require an automatic reversal, as a general rule, most

constitutional violations will be subject to harmless error analysis. Neder v. U.S., 527 U.S. 1, 8

(1999). (―‗[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other [constitutional] errors that may have occurred are subject to

harmless-error analysis.‘‖ (quoting Rose v. Clark, 478 U.S. 570, 579 (1986) (alterations in the

original)).

b. Instructional Error

In Chapman, the U.S. Supreme Court noted that the State of California‘s harmless-error

analysis was flawed, as applied to constitutional errors, due to its over-reliance on the

―overwhelming evidence‖ standard. 386 U.S. 18, 23 (1967). The Court held that the correct

standard required appellate courts to ask ―‗whether there is a reasonable possibility that the

evidence complained of might have contributed to the conviction.‘‖ Id. at 23 (quoting Fahy v.

Connecticut, 375 U.S. 85, 86-87 (1963)). Following Chapman and Fulminante, it was unclear

whether error in jury instructions would always be considered structural error or, if not, whether,

without invading the province of the jury, an appellate court could find such an error harmless,

due to the difficulty of analyzing such an error under the Chapman reasonable possibility

standard.

In Sullivan v. Louisiana, 508 U.S. 275 (1993), the jury was given a defective ―reasonable

doubt‖ instruction, and the U.S. Supreme Court found that Sullivan‘s Sixth Amendment right to

a jury trial had, therefore, been violated. The Court found that such violation constituted a

structural defect, as it ―vitiate[d] all the jury‘s findings‖ such that it would be improper for the

Court to speculate on what the jury would have done if they had been provided with an adequate

reasonable doubt instruction, therefore necessitating an automatic reversal. Id. at 281. The

Court stated that without a valid verdict, based upon an accurate reasonable doubt instruction,

―the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been

rendered absent the constitutional error is utterly meaningless. There is no object, so to speak,

15

upon which the harmless-error scrutiny can operate.‖ Id. at 280. The Court concluded, ―the

inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict

would have been rendered, but whether the guilty verdict actually rendered in this trial was

surely unattributable to the error.‖ Id. at 279. It appeared, after Sullivan, that an error in jury

instructions would likely be considered a structural defect.

In Neder v. U.S., 527 U.S. 1 (1999), the Court backed away from the cut-and-dry rule

established in Sullivan. In Neder the jury instructions omitted an element of one of the offenses

being charged, preventing the jury from making a determination as to that element, but the Court

nevertheless held that the constitutional violation was subject to harmless error review. Id. The

Court held that ―where a reviewing court concludes beyond a reasonable doubt that the omitted

element was uncontested and supported by overwhelming evidence, such that the jury verdict

would have been the same absent the error, the erroneous instruction is properly found to be

harmless.‖ Id. at 17. In rejecting automatic reversal for all errors that ―infringe upon the jury‘s

fact-finding role and affect the jury‘s deliberative process in ways that are, strictly speaking, not

readily calculable,‖ the Court held that the essential inquiry is whether it is ―clear beyond a

reasonable doubt that a rational jury would have found the defendant guilty absent the error.‖

Id. at 18 (emphasis added).

In a strongly-worded dissent Justice Scalia, joined by Justices Souter and Ginsburg,

condemned the majority‘s ruling:

The Court‘s decision today is the only instance I know of (or could conceive of)

in which the remedy for a constitutional violation by a trial judge (making the

determination of criminal guilt reserved to the jury) is a repetition of the same

constitutional violation by the appellate court (making the determination of

criminal guilt reserved to the jury).

Id. at 32 (Scalia, J. dissenting in part and dissenting in judgment). The majority was not entirely

insensitive to this concern, but stated that, ultimately, ―[w]e believe that where an omitted

element is supported by uncontroverted evidence, this approach reaches an appropriate balance

between ‗society‘s interest in punishing the guilty [and] the method by which decisions of guilt

are to be made.‘‖ Id. at 18 (quoting Connecticut v. Johnson, 460 U.S. 73, 86 (1983) (plurality

opinion)). The majority went on to note that if the element in question had been contested, and

competing evidence sufficient to support a contrary finding on the omitted element had been

offered, then the Court could not have found the constitutional violation harmless beyond a

reasonable doubt and would have reversed. Id. at 19.

16

Taking Sullivan and Neder together, in instances where erroneous jury instructions were

provided at trial, an appellate court must first determine whether an improper jury instruction

affected the entire deliberative process. If it did, then a reversal is necessary as the jury‘s

deliberations were fundamentally flawed, and any attempted harmless error inquiry would

essentially result in the appellate court itself acting in the role of jury. However, where the jury

instructions were only partially erroneous, such as where the jury instructions improperly

omitted one element of a charged offense, the appellate court may apply the harmless error test,

and where the evidence supporting a finding on the omitted element is overwhelming and

uncontroverted, so that no rational jury could have found that the state failed to prove that

element, the constitutional violation may be deemed harmless.

iii. Review Provided for Fundamental Error/Plain Error

Generally Idaho‘s appellate courts will not consider error not preserved for appeal

through an objection at trial. State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995).

―This limitation on appellate-court authority serves to induce the timely raising of claims and

objections, which gives the [trial] court the opportunity to consider and resolve them.‖ Puckett v.

U.S., 129 S.Ct. 1423, 1428 (2009). Ordinarily, the trial court is in the best position to determine

the relevant facts and to adjudicate the dispute. Id. ―In the case of an actual or invited

procedural error, the [trial] court can often correct or avoid the mistake so that it cannot possibly

affect the ultimate outcome.‖ Id. Furthermore, requiring a contemporaneous objection prevents

the litigant from sandbagging the court, i.e., ―remaining silent about his objection and belatedly

raising the error only if the case does not conclude in his favor.‖ Id. However, every defendant

has a Fourteenth Amendment right to due process and ―[i]t is axiomatic that ‗[a] fair trial in a fair

tribunal is a basic requirement of due process.‘‖ Caperton v. A.T. Massey Coal Co., Inc., 129 S.

Ct. 2252, 2259 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). Accordingly, when

an error has not been properly preserved for appeal through objection at trial, the appellate

court‘s authority to remedy that error is strictly circumscribed to cases where the error results in

the defendant being deprived of his or her Fourteenth Amendment due process right to a fair trial

in a fair tribunal. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007).

The U.S. Supreme Court has never held that the U.S. Constitution requires state courts to

provide appellate review for instances of unobjected to violations of constitutionally protected

rights. Nevertheless we choose to consider the U.S. Supreme Court‘s application of the

17

statutorily-derived plain error review and how it compares with Idaho‘s traditional fundamental

error review.

The federal courts, like Idaho, follow the procedural principle that an issue raised for the

first time on appeal will not be considered on appeal. However, Federal Rule of Criminal

Procedure 52(b) provides federal appellate courts with limited power to correct errors even in the

absence of a timely objection before the trial court. Federal Rule of Criminal Procedure 52(b)

states: ―A plain error that affects substantial rights may be considered even though it was not

brought to the court‘s attention.‖ In applying plain error review the U.S. Supreme Court has

recognized the strong societal interest in finality of judgments, and the associated incentive that

must be given for defendants to properly object before a trial court, as that body is best suited to

deal with potential error at trial, before a verdict has been reached. See Puckett v. U.S., 129 S.Ct.

1423 (2009). However, the Court has also recognized that this public policy must be balanced

with the sense of fundamental justice inherent in the concept of a fair trial. See id.

Based upon this framework the U.S. Supreme Court devised a three-prong threshold

inquiry for determining when appellate courts should reverse on the grounds of unobjected to

error. U.S. v. Olano, 507 U.S. 725, 732-35 (1993). First, the defendant must have had one of his

rights violated, a right which he did not waive. Id. at 732-33 (―Waiver is different from

forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the

‗intentional relinquishment or abandonment of a known right.‘‖ (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938))). Second, the error must be ―plain‖ which ―is synonymous with ‗clear‘ or,

equivalently, ‗obvious.‘‖ Id. at 734. Third, the error must affect substantial rights, meaning (in

most instances) that it must have affected the outcome of the trial court proceedings. Id. This

third prong is equivalent to the analysis applied in Chapman harmless error review, with one

important difference. In harmless error review the burden of persuasion is on the State to

demonstrate that the constitutional violation did not affect the outcome of the case. In plain error

review the burden is upon the defendant to demonstrate that the error did affect the outcome. As

stated by the U.S. Supreme Court:

When the defendant has made a timely objection to an error and Rule 52(a)

applies, a court of appeals normally engages in a specific analysis of the district

court record - a so-called ―harmless error‖ inquiry - to determine whether the

error was prejudicial. Rule 52(b) normally requires the same kind of inquiry, with

one important difference: It is the defendant rather than the Government who

bears the burden of persuasion with respect to prejudice. In most cases, a court of

18

appeals cannot correct the forfeited error unless the defendant shows that the error

was prejudicial. This burden shifting is dictated by a subtle but important

difference in language between the two parts of Rule 52: While Rule 52(a)

precludes error correction only if the error ―does not affect substantial rights,‖ . . .

Rule 52(b) authorizes no remedy unless the error does ―affec[t] substantial

rights.‖

Id. at 734-35 (citations omitted). The reason the parenthetical - (in most instances) - was inserted

into the third prong above is because the U.S. Supreme Court in Olano declined to determine

whether unobjected to constitutional violations rising to the level of structural defects will satisfy

the ―affect substantial rights‖ prong without a showing of actual affect on the outcome of the

case. Id. at 735. See also Puckett v. U.S., 129 S.Ct. 1423, 1432 (2009). Finally, the U.S.

Supreme Court in Olano held that even where the defendant has met his burden under the three-

prong threshold test, an appellate court should still only reverse where the error ―seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.‖ Id. at 736 (alteration

in the original) (internal quotation omitted).

Although the Idaho Rules of Criminal Procedure do not contain the equivalent of Rule

52(b), Idaho Rule of Evidence 103(d) does state that nothing under the rules shall preclude an

appellate court from ―taking notice of plain errors affecting substantial rights.‖ We have long

held that instances of unobjected to fundamental error would be subject to review on appeal.

State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971) (―In case of fundamental error in

a criminal case the Supreme Court may consider the [error] even though no objection had been

made at time of trial.‖). Where the federal courts employ the plain error doctrine, Idaho courts

employ the fundamental error doctrine.

Idaho has limited appellate review of unobjected-to error to cases wherein the defendant

has alleged the violation of a constitutionally protected right. State v. Kirkwood, 111 Idaho 623,

625-26, 726 P.2d 735, 737-38 (1986). We have stated that ―where . . . the asserted error relates

not to infringement upon a constitutional right, but to violation of a rule or statute . . . the

‗fundamental error‘ doctrine is not invoked.‖ Id. at 626, 726 P.2d at 738 (quoting State v. Kelly,

106 Idaho 268, 277, 678 P.2d 60, 69 (Ct. App. 1984)). In other words, contrary to the federal

plain error rule, in Idaho a trial error that does not violate one or more of the defendant‘s

constitutionally protected rights is not subject to reversal under the fundamental error doctrine.

See State v. Anderson, 144 Idaho 743, 749, 170 P.3d 886, 892 (2007).

19

The State of Idaho shares the same conflicting interests as the federal government when it

comes to review of unobjected to error, and we find that the U.S. Supreme Court struck an

appropriate balance between these competing interests in their opinion in Olano. Idaho‘s

previous articulation of fundamental error failed to provide appellate courts with a structured

inquiry likely to lend itself to equal application. Therefore, after careful and considered analysis,

we hold that in cases of unobjected to fundamental error: (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

decision5; 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. If there is insufficient evidence in the appellate record to show clear error, the

matter would be better handled in post-conviction proceedings. Placing the burden of

demonstrating harm on the defendant will encourage the making of timely objections that could

result in the error being prevented or the harm being alleviated.

In summary, where an error has occurred at trial and was not followed by a

contemporaneous objection, such error shall only be reviewed where the defendant demonstrates

to an appellate court that one of his unwaived constitutional rights was plainly violated. If the

defendant meets this burden then an appellate court shall review the error under the harmless

error test, with the defendant bearing the burden of proving there is a reasonable possibility that

the error affected the outcome of the trial.

In Smith v. State, 94 Idaho 469, 475 n.13, 491 P.2d 733, 739 n.13 (1971), we adopted the

following definition of fundamental error from the New Mexico Supreme Court:

Error that is fundamental must be such error as goes to the foundation or basis of

a defendant's rights or must go to the foundation of the case or take from the

defendant a right which was essential to his defense and which no court could or

ought to permit him to waive. Each case will of necessity, under such a rule,

stand on its own merits. Out of the facts in each case will arise the law.

5

See State v. Adams, 147 Idaho 857, 216 P.3d 146 (Ct. App. 2009) (where defense counsel did not try to exclude a

juror for cause, nor use a peremptory challenge to remove her, the trial court‘s failure to remove that juror for cause

sua sponte could not constitute fundamental error as the record failed to demonstrate that the juror would be biased

against the defendant, such that the failure to attempt to exclude that juror could not have been a strategic decision

by the defense).

20

Although we have applied other definitions in the past,6 this is the only definition that has been

formally adopted by the Court. See State v. Knowlton, 123 Idaho 916, 918, 854 P.2d 259, 261

(1993) (reaffirming that the New Mexico definition of fundamental error was formally adopted

by this Court in Smith). One problem with New Mexico‘s definition lies in the phrase ―which no

court could or ought to permit [the defendant] to waive.‖ Bingham, 116 Idaho at 423, 776 P.2d

at 432 (quoting State v. Garcia, 128 P.2d 459, 462 (N.M. 1942)). In Idaho, we permit a

defendant to waive a right of constitutional magnitude, so long as the defendant does so

knowingly, voluntarily, and intelligently. See State v. Kirkwood, 111 Idaho 623, 626, 726 P.2d

735, 738 (1986). Another problem with the New Mexico definition is that it makes fundamental

error review an excessively ambiguous process, with only vague standards for appellate courts to

follow. We take this opportunity to expressly disavow our definition of ―fundamental error‖ as

adopted in Smith.

iv. Review for Claims of Prosecutorial Misconduct

We find no reason that claims of prosecutorial misconduct should be treated any

differently from other trial errors.

a. Objected to Prosecutorial Misconduct

Where a defendant demonstrates that prosecutorial misconduct has occurred, and such

misconduct was followed by a contemporaneous objection by defense counsel, such error shall

be reviewed for harmless error in accordance with Chapman.

b. Unobjected to Prosecutorial Misconduct

Where prosecutorial misconduct was not objected to at trial, Idaho appellate courts may

only order a reversal when the defendant demonstrates that the violation in question qualifies as

fundamental error as outlined above. If the defendant fails to meet his burden then an appellate

court may not reverse under the fundamental error doctrine.7 If the prosecutorial misconduct is

found to constitute fundamental error under the three-prong inquiry, then an appellate court shall

vacate and remand. Where a prosecutor attempts to secure a verdict on any factor other than the

6

―At other times, we have defined fundamental error as ‗[a]n error that goes to the foundation or basis of a

defendant's rights,‘ State v. Kenner, 121 Idaho 594, 597, 826 P.2d 1306, 1309 (1992), and an ‗error which so

profoundly distorts the trial that it produces manifest injustice and deprives the accused of his constitutional right to

due process,‘ State v. Sheahan, 139 Idaho 267, 281, 77 P.3d 956, 970 (2003) [(internal quotations omitted)].‖ State

v. Christiansen, 144 Idaho 463, 470, 163 P.3d 1175, 1182 (2007).

7

The defendant may still file a petition for post-conviction relief proceedings in order to ascertain whether defense

counsel‘s failure to object to the alleged error constituted ineffective assistance of counsel.

21

law as set forth in the jury instructions and the evidence admitted during trial, including

reasonable inferences that may be drawn from that evidence, this impacts a defendant‘s

Fourteenth Amendment right to a fair trial.

v. Standard of Review Summary

In summary, where a defendant alleges that an error occurred at trial, appellate courts in

Idaho will engage in the following analysis:

(1) If the alleged error was followed by a contemporaneous objection at trial, appellate

courts shall employ the harmless error test articulated in Chapman. Where the

defendant meets his initial burden of showing that a violation occurred, the State then

has the burden of demonstrating to the appellate court beyond a reasonable doubt that

the constitutional violation did not contribute to the jury‘s verdict. There are two

exceptions to this standard:

a. Where the error in question is a constitutional violation found to constitute a

structural defect, affecting the base structure of the trial to the point that a

criminal trial cannot reliably serve its function as a vehicle for determination

of guilt or innocence, the appellate court shall automatically vacate and

remand.

b. Where the jury reached its verdict based upon erroneous instruction an

appellate court shall generally vacate and remand the decision of the lower

court. However, in the limited instance where the jury received proper

instruction on all but one element of an offense, and ―[w]here a reviewing

court concludes beyond a reasonable doubt that the omitted element was

uncontested and supported by overwhelming evidence, such that the jury

verdict would have been the same absent the error, the erroneous instruction is

properly found to be harmless.‖ State v. Lovelace, 140 Idaho 73, 79, 90 P.3d

298, 304 (2004). If a rational jury could have found that the state failed to

prove the omitted element then the appellate court shall vacate and remand.

(2) If the alleged error was not followed by a contemporaneous objection, it shall only be

reviewed by an appellate court under Idaho‘s fundamental error doctrine. Such

review includes a three-prong inquiry wherein the defendant bears the burden of

persuading the appellate court that the alleged 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 record, including

information as to whether the failure to object was a tactical decision); and (3) was

not harmless. If the defendant persuades the appellate court that the complained of

error satisfies this three-prong inquiry, then the appellate court shall vacate and

remand.

We find that this analytical approach clarifies our standard of review while adhering to the

historic principles underlying Idaho‘s harmless error and fundamental error doctrines. In

22

Rhoades v. State, this Court expressly adopted the Teague8 standard for determining when a

newly announced rule shall be applied retroactively in criminal cases. 149 Idaho 130, __, 233

P.3d 61, 70 (2010). As this opinion announces no new rule of law, but is only a clarification of

our existing standards, Teague analysis is inapplicable, and these clarified standards shall be

applied to all cases not yet final on direct review.

2. As Applied Here

Perry‘s claims of prosecutorial misconduct raised by Perry on appeal fail to demonstrate

a clear violation of an unwaived constitutional right. As stated above, ―where . . . the asserted

error relates not to infringement upon a constitutional right, but to violation of a rule or statute, . .

. the ‗fundamental error‘ doctrine is not invoked.‖ State v. Kirkwood, 111 Idaho 623, 626, 726

P.2d 735, 738 (1986) (quoting State v. Kelly, 106 Idaho 268, 277, 678 P.2d 60, 69 (Ct. App.

1984)). Here Perry alleges that the prosecutor committed misconduct in eliciting testimony from

the foster mother, foster father, and investigating officer, all vouching for the T.P.‘s credibility,

and by referring to this testimony again during closing arguments.

i The prosecutor committed misconduct.

a. Prosecutorial Misconduct in Questioning Witnesses

Perry first asserts that the prosecutor committed misconduct by eliciting testimony from

the foster mother, foster father, and the investigating officer, Teneyck, vouching for the girls‘

credibility. During direct examination, the prosecutor asked the foster mother if T.P. had ever

been dishonest with her, the foster mother replied that T.P. had, but only about immaterial things.

In addition, the prosecutor asked the foster father during redirect examination whether he noticed

any signs of dishonesty on the girls‘ faces when they reported the allegations against Perry, and

the foster father replied that he had not. Finally, the prosecutor asked the Teneyck on direct

examination whether he believed that T.P. & H.P. were being truthful in their allegations against

Perry. Teneyck replied that he believed T.P. was being truthful; he did not offer his opinion as to

the truthfulness of H.P. as the court sustained defense counsel‘s objection to this question.

The Supreme Court of the Territory of Idaho stated over one-hundred years ago, that a

question calling ―for the opinion of one witness as to the truthfulness of another . . . is clearly an

invasion of the province of the jury, who are the judges of the credibility of witnesses.‖ People

v. Barnes, 2 Idaho 148, 150, 9 P. 532, 533 (1886). Lay witnesses are not permitted to testify as

8

Teague v. Lane, 489 U.S. 288 (1989).

23

to matters of credibility. Reynolds v. State, 126 Idaho 24, 30-31, 878 P.2d 198, 204-05 (Ct. App.

1994). Furthermore, we have held that ―expert testimony which does nothing but vouch for the

credibility of another witness encroaches upon the jury's vital and exclusive function to make

credibility determinations, and therefore does not ‗assist the trier of fact‘ as required by Rule

702.‖ State v. Perry, 139 Idaho 520, 525, 81 P.3d 1230, 1235 (2003) (quoting U.S. v. Charley,

189 F.3d 1251, 1267 (10th Cir. 1999)). We hold that the prosecutor committed misconduct by

eliciting vouching testimony from these witnesses. However, the record in this case does not

show the clear violation of an unwaived constitutional right. As noted above, part of the inquiry

in determining whether a clear violation exists is whether the record demonstrates that the

decision whether or not to object to an error at trial was strategic. Here there were multiple

instances of the prosecutor eliciting improper vouching testimony from witnesses, but defense

counsel chose to object only once. Where defense counsel objected the Court sustained that

objection, and harm was avoided. It appears to be a reasonable possibility, under the facts of this

case, that defense counsel‘s failure to object to the prosecutor‘s improper conduct in both

eliciting vouching testimony and later referencing that testimony during closing was a strategic

decision. Therefore, this claim cannot properly be dealt with in a fundamental error review and

is more properly pursued on post-conviction relief where additional fact-finding may be

conducted to determine the motivation for defense counsel‘s failure to object.

b. Prosecutorial Misconduct in Closing Statement

Perry next asserts that four statements made by the prosecutor during her closing

argument constituted error. First, the prosecutor said:

[The foster mother] told you that they are regular kids, no big issues, no problems

as far as, you know, being excessively dishonest. They tell little untruths or they

have about things that are small. But every child does that. You have to look,

when you‘re reviewing the credibility of witness‘s testimony, at their credibility.

If [the foster mother] had wanted you to believe that these two girls were absolute

angels, she probably thinks that they are, but if she had wanted to bolster them in

some way and say, well, they‘re – they never tell an untruth, that is what she

would say. She would say, no, they‘re never untruthful. And that wouldn‘t be

what we know to be true in the real world. That‘s not the way children are. No

children are perfect. All children tell mistruths from time to time. These children

tell mistruths about really incidental things, but minor things, not of any great

accord. Writing on a wall, I don‘t think, would be considered a major lie.

Second, the prosecutor made reference to the investigating officer‘s testimony, stating:

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[The investigating officer] told you that he has a lot of training and experience in

interviewing both adults and children, what the differences are. Stress levels of

girls or children are higher. He didn‘t detect any signs that he normally would see

if he was thinking that something was – he didn‘t detect any signs of dishonesty

in these girls either.

Third, the prosecutor said:

All three witnesses [the foster mother, the foster father, and the officer] that they

told this to individually believed them. All three.

Fourth and finally, the prosecutor stated:

There hasn‘t been any indication here of anything from these girls but honesty. If

they had wanted to tell a lie, then why not just go all the way . . . . Why not if

you‘re going to lie.

By the time of closing argument, the prosecutor had been warned twice by the district

court about the impropriety of eliciting vouching testimony from the witnesses. Nevertheless,

the prosecutor went on to refer to the vouching testimony listed above. There was no excuse for

this conduct and it was clearly improper. Therefore, the prosecutor‘s statements during closing

argument constitute misconduct. However, such misconduct did not clearly violate any of

Perry‘s constitutional rights, and it therefore cannot constitute fundamental error.

ii. Only one act of prosecutorial misconduct was objected to during trial and the

trial court properly sustained the objection.

As noted above, the prosecutor committed misconduct during her questioning of the

foster mother, foster father, and investigating officer, as well as during her closing statement.

However, defense counsel chose to object to only one such instance of misconduct, when the

prosecutor—after establishing Officer Teneyck‘s training and experience in detecting signs of

deceptiveness in interviewees—asked Teneyck whether T.P. displayed any signs of

untruthfulness during her interview. Teneyck responded that she had not. Later, the prosecutor

asked the same question regarding H.P., but this time defense counsel objected before Teneyck

could answer. The district court sustained counsel‘s objection, stating: ―This just seems to be a

way of trying to vouch for the witnesses‘ credibility and I think it‘s inadmissible. It‘s up to the

jury to decide whether the witnesses are credible or not.‖ We hold that the prosecutor‘s question

constituted misconduct, in questioning a witness on the credibility of another witness, infringing

upon the province of the jury. However defense counsel‘s timely objection, sustained by the trial

court, kept impermissible evidence from the jury. Therefore, no error occurred and harmless

error analysis is inapplicable.

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D. Cumulative Error

In the alternative, Perry argues that the accumulation of errors that occurred during trial,

in the aggregate, were sufficient to warrant a new trial. Perry argues that even if this Court

determined that the errors listed above are not fundamental and/or are harmless; they still

constitute ―errors‖ and must be considered under the cumulative error doctrine. We disagree.

Under the doctrine of cumulative error, a series of errors, harmless in and of themselves,

may in the aggregate show the absence of a fair trial. State v. Martinez, 125 Idaho 445, 453, 872

P.2d 708, 716 (1994). However, a necessary predicate to the application of the doctrine is a

finding of more than one error. See State v. Hawkins, 131 Idaho 396, 407, 958 P.2d 22, 33 (Ct.

App. 1998).

In State v. Higgins, 122 Idaho 590, 836 P.2d 536 (1992), this Court considered whether

alleged errors not objected to during trial, that were not deemed fundamental, could be reviewed

under the cumulative error doctrine. After determining that the alleged act of prosecutorial

misconduct did not rise to the level of fundamental error, we refused to consider the act under

our cumulative error analysis. We stated: ―Because we find no error in this case that was

preserved for appeal, we conclude that the cumulative error doctrine does not apply.‖ Id. at 604,

836 P.2d at 550. This Court was also faced with a similar issue in State v. Raudebaugh, 124

Idaho 758, 864 P.2d 596 (1993). After determining that the prosecutor‘s acts did not rise to the

level of fundamental error, we refused to address whether there was error. Id. at 769-70, 864

P.2d at 607-08. As such, we did not include the defendant‘s claims of prosecutorial misconduct

in our cumulative error analysis.

Thus, it is well-established that alleged errors at trial, that are not followed by a

contemporaneous objection, will not be considered under the cumulative error doctrine unless

said errors are found to pass the threshold analysis under our fundamental error doctrine. Here,

Perry has demonstrated no error. Where defense counsel raised an objection to the prosecution‘s

question about Teneyck‘s opinion as to H.P.‘s truthfulness the trial court properly sustained,

preventing the impermissible testimony from reaching the jury. Instances of prosecutorial

misconduct that were not objected to at trial failed our threshold inquiry for fundamental error

and are therefore not properly considered error for purposes of cumulative error review. As

such, Perry has failed to demonstrate at least two errors, a necessary predicate to the application

of our cumulative error doctrine.

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IV. CONCLUSION

For the reasons set forth above, we hold that the district court did not err in excluding

evidence that T.P. had lied or exaggerated about the shower spraying incident involving H.P.,

which was offered to impeach T.P.‘s allegations against Perry and to impeach the foster mother‘s

testimony under I.R.E. 613(a), as any minimal probative value of the evidence was substantially

outweighed by the danger of jury confusion and the waste of trial time. In addition, we hold that

the alleged acts of prosecutorial misconduct, not followed by a contemporaneous objection were

misconduct but do not rise to the level of fundamental error. We also hold that the prosecutor‘s

question to the officer regarding H.P.‘s truthfulness, which was objected to, was properly

excluded by the trial judge and does not constitute error. Finally, we hold that Perry failed to

demonstrate that at least two errors existed for purposes of applying cumulative error review.

Therefore, we affirm Perry‘s judgment of conviction.

Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.

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