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The Court issued two more criminal cases today. One with a favorable result for the defense and the other. . . .

First, the good news. The Court reversed the denial of a motion to suppress in State v. Frederick, http://www.isc.idaho.gov/opinions/State%20v%20%20Frederick%20-%20FINAL.pdf. In Frederick, the state conceded that the search was illegal under Arizona v. Gant, but argued that a "good-faith" exception should apply because the search was conducted prior to the issuance of Gant. The Court rejected the state's argument in this case, while holding out the possibility of applying the good-faith exception under different facts. The Court wrote:

"It is our view that retroactivity rules do not preclude application of the good faith exception when an officer relies on case law. We note, however, that the Supreme Court has emphasized that the good faith described in United States v. Leon 'must be objectively reasonable.' The burden of proving that such objectively reasonable good faith reliance existed is on the State. In this case, the State has failed to meet that burden." (Internal citations and parenthetical phrases omitted.)

The Court also held that Mr. Frederick had not preserved his state constitutional claim for appeal because he failed to mention the claim in his argument before the district court, did not cite to any authority expressly mentioning the state constitution, and did not obtain a ruling on the issue from the district court.

And speaking of not preserving an issue for appeal, the Court found in Kelly v. State that a pro se petitioner had waived his claim that he had not received adequate notice before his post-conviction petition was dismissed. In doing so, the Court reiterated the rule in DeRushé v. State that "an appellant may not challenge the sufficiency of the notice contained in the state's motion for summary disposition, and accompanying memoranda, for the first time on appeal." It also rejected Kelly's argument that he had not received any notice of some claims as not supported by the record.

The most useful part of the opinion for practitioners appears in a footnote where the Court says:

"To properly preserve this issue for appeal, an applicant would merely have to raise the issue below so that the district court had an opportunity to rule on it. For example, where the petitioner for post-conviction relief receives a motion for summary dismissal and does not feel that the motion for summary dismissal and accompanying memoranda provides him with sufficient notice of the grounds for summary dismissal - under the standard established in DeRushé - he may file a motion with the district court under I.R.C.P. 7, objecting to the motion for summary dismissal on the basis that it fails to provide him with sufficient notice. Likewise, the petitioner could object to the sufficiency of the notice at the summary dismissal hearing before the district court. Finally, if the district court grants the State's motion for summary dismissal, the petitioner may file an I.R.C.P. 11 motion for reconsideration, citing to DeRushé and arguing that the State's motion and accompanying memoranda did not provide sufficient notice."

Unfortunately, Mr. Kelly never asked for an attorney to represent him at the district court and his petition was dismissed before DeRushé was issued.

Kelly v. State, http://www.isc.idaho.gov/opinions/kelly%20opn.pdf

Court Holds Sex Offender Registration Law Does Not Infringe on Right to Travel

Richard Yeoman was convicted of rape in Washington in 1984 and was required to register as a sex offender there. He moved to Idaho in 2007, did not register and was charged with failing to register as a sex offender. He entered a conditional plea of guilty reserving his right to appeal the denial of his motion to dismiss.

Yeoman made two arguments on appeal: 1) That the sex offender registration law did not apply to him because he was convicted before July 1, 1993, the effective date of the statute; and 2) That, if the statute applies, his constitutional right to travel was violated. Today, the Supreme Court rejected both arguments.

As to the first argument, the Court wrote:

"When construing Idaho Code § 18-8304 as a whole, subsection (1)(c) is not limited to crimes for which the person was convicted on or after July 1, 1993. Subsection (1)(c) incorporates by reference "the offenses listed in subsection (1)(a) of this section." (Emphasis added). Subsection (1)(a) applies to any person who "[o]n or after July 1, 1993, is convicted of the crime, or an attempt, a solicitation, or a conspiracy to commit a crime provided for in section . . . 18-6101 (rape, but excluding 18-6101(1) . . .) . . . ." (Emphasis added.) Subsection (1)(c) does not incorporate by reference the convictions listed in subsection (1)(a); it incorporates by reference the offenses listed. The offenses are listed by reference to their respective code sections. The date of conviction for one of those offenses is not part of the definition of the crime as set forth in the code section. The date a person was convicted of a crime does not become part of the definition of the offense for which he or she was convicted. Therefore, subsection (1)(c) applies to Defendant."

As to the second argument, the Court tartly wrote that "[b]ecause [Mr. Yeoman] was required to register while residing in Washington, it is difficult to see how the requirement that he register in this State in any way infringed upon his right to travel to or become a resident of this State." It then went on to state that even assuming that the registration requirement imposed a penalty on Mr. Yeoman's right to change residence, it was still valid because it was necessary to promote a compelling state interest. i.e., the "strong interest in preventing future sexual offenses and alerting local law enforcement and citizens to the whereabouts of those that could reoffend."

State v. Yeoman, http://www.isc.idaho.gov/opinions/State%20v.%20Yeoman%20OPINION.pdf

Perry Fundamental Error Update

A substitute opinion was issued in State v. Perry on Friday. The new opinion states that in cases where a trial error was not followed by a contemporaneous objection the defendant bears the burden of demonstrating that there is a reasonable possibility that the error affected the outcome of the trial. The Court's original opinion required that the defendant demonstrate beyond a reasonable doubt that the error affected the outcome.

http://www.isc.idaho.gov/opinions/Perry.pdf

Rule Permitting Automatic DQ of Judge Suspended

Idaho Criminal Rule 25(a), which permits the disqualification of a judge without cause, has been suspended by the Idaho Supreme Court immediately. The Court in doing so stated that the rule has been used "excessively and abused so that the use of the rule should be curtailed and a study made of the possible modification or elimination of the rule."

http://www.isc.idaho.gov/links/Order-suspending-ICR25a.pdf

I don't know what the Court is seeing in its statistics, but I can assure it that I use Rule 25(a) only rarely and then very selectively.

Bujak Bank Records Held Exempt from Public Records Law

The Idaho Press Tribune is reporting that Judge Kathryn Sticklen has held that Canyon County Prosecutor John Bujak is not required to turn over financial documents relating to a contract between the prosecutor and the City of Nampa to provide prosecution services. Bob Henry had filed a public records request for the documents. The newspaper quotes Judge Sticklen as holding the records "are not documents that relate to the duties of the CPA. Rather, they are private records of Bujak under the contract with the City.”

Interestingly, the City of Nampa announced earlier this week that it would start paying contract money directly to Canyon County and not to Mr. Bujak personally.

Here's a link to today's Press-Trib article: http://www.idahopress.com/news/article_ca698946-9675-11df-b1eb-001cc4c03286.html.

State v. Perry -- Restatement of Appellate Standards of Review

The Supreme Court has changed the standards of review on appeal. In State v. Perry, issued July 8, 2010, the Court conducted an extensive review of fundamental error and harmless error in Idaho and reformulated the standards. Per Perry (which specifically is not to be applied retroactively):

On appeal, courts are to engage in the following analysis:

(1) If the alleged error was followed by a contemporaneous objection at trial, the appellate court will apply the Chapman harmless error test. Where the defendant meets the initial burden of showing that a violation occurred, the state then has the burden of demonstrating beyond a reasonable doubt that the constitutional violation did not contribute to the jury's verdict. There are 2 exceptions:

(a) Where the error is 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 must automatically vacate and remand.

(b) Where the jury reached its verdict based upon an erroneous instruction, an appellate court shall generally vacate and remand. However, in the limited situation where the jury received proper instruction on all but one element of an offense, and where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the verdict would have been the same absent the error, the erroneous instruction is to be found harmless. On the other hand, if a rational jury could have found that the state failed to prove the omitted element then the appellate court must vacate and remand.

(2) If the alleged error was not followed by a contemporaneous objection, it may only be reviewed under the fundamental error doctrine -- which has been changed. Fundamental error review is now a three-prong test wherein the defendant bears the burden of persuading the appellate court that the error: (1) violated one or more of the defendant's unwaived constitutional rights; (2) plainly exists; and (3) was not harmless. In determining whether the error was harmless, the burden has been moved from the state to the defense. The defendant must prove beyond a reasonable doubt that the error affected the outcome of the trial.

Perry clarifies that the same standards of review apply to claims of prosecutorial misconduct as to all other trial errors.

Perry also addresses some other issues.

With regard to IRE 412 evidence, on appeal, the court will only look at the IRE 412 hearing. The court will not review the admissibility of evidence included in the IRE 412 notice, but not specifically included in the hearing argument.

The Court also clarified the definition of "sex crime" for purposes of IRE 412(e)(2) limiting it to false allegations concerning the defendant currently on trial. IRE 412(e)(2) does not apply to false allegations involving a perpetrator other than the defendant.

Regarding Perry's claims of prosecutorial misconduct, the Court held that it is misconduct for the prosecutor to elicit vouching testimony from witnesses, but that the misconduct does not violate any constitutional rights. Likewise, there is no excuse for a prosecutor referring to improperly elicited vouching evidence in closing, but again such misconduct does not amount to a constitutional violation.

http://www.isc.idaho.gov/opinions/new%20perry%20final%20opn%204.pdf

Appellate Record Rule Updated

Appellate Rule 27 has been amended to permit the entire district court file to be scanned and submitted to the Supreme Court in CD format as the appellate record. Previously, counsel had to designate the documents to be included. However, each county has to agree to make this option available to counsel and only Ada, Kootenai, Fremont and Jerome have done so. The number of counties opting in will likely grow and the Supreme Court website will keep an up to date list.

The rule can be found at http://www.isc.idaho.gov/appell%20rule%2027.pdf

I participated in the trial of this method of preparing the record and liked it. Currently, appellate counsel needs to compare the Register of Actions to the file ordered by trial counsel and then try to determine whether everything needed is in the record. When the record needs to be augmented, the appeal can be delayed. It'll be better for appellate counsel and the Court to simply get the complete record to begin with and the CD format makes that possible. I can't speak for other appellate lawyers, but I encourage trial lawyers in the four participating counties to use this option. If others disagree, especially SAPD lawyers, please post a comment.