State v. Vance Everett Thumm , 153 Idaho 533 ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37512
STATE OF IDAHO, ) 2012 Opinion No. 39
)
Plaintiff-Respondent, ) Filed: July 25, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
VANCE EVERETT THUMM, ) AMENDED OPINION
) THE COURT’S PRIOR
Defendant-Appellant. ) UNPUBLISHED OPINION
) DATED JULY 11, 2012 IS
) HEREBY AMENDED FOR
) THE PURPOSE OF
) PUBLICATION
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael E. Wetherell, District Judge.
Judgment of conviction and unified sentence of forty years with a minimum
period of confinement of fifteen years, for aggravated battery, affirmed.
Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Chief Judge
Vance Everett Thumm appeals from his conviction for aggravated battery with a
persistent violator enhancement.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Thumm, Deven Ohls, and several other people attended an early morning party in a motel
room that Thumm had rented. At some point during the party Thumm attacked Ohls, striking
him with a closed fist several times in the head. Another person, Frankie Hughes, kicked Ohls
and stabbed him in the buttock. The attack continued for some time and, by the time it was over,
Ohls had suffered significant bleeding, a concussion, two black eyes, a complex lip laceration,
and a nasal fracture, in addition to the stab wound.
1
The State charged Thumm by information with aggravated battery and a persistent
violator sentencing enhancement. Three others, including Paris Davis, Thumm’s girlfriend, were
also charged in connection with the attack on Ohls. Prior to trial, the State filed multiple
separate notices of intent to introduce evidence at trial pursuant to Idaho Rule of
Evidence 404(b). In its first notice, the State intended to offer evidence that Mr. Thumm was a
member of the Severely Violent Criminal (SVC) gang and the gang’s purported modus operandi
in attacking others as impeachment evidence in the event Thumm offered evidence of a peaceful
nature. The notice also sought to offer testimony of a prior attack and beating alleged to have
been committed by Thumm and other SVC gang members. In addition, the State filed a motion
for pretrial ruling regarding the admissibility of evidence, asking the district court to permit it to
introduce evidence that Davis and Thumm “are either members or close associates of the
Severely Violent Criminal prison/street gang and the tenets of that gang are self-protection,
insubordination to authority, violence, and dishonesty.”
In regard to the I.R.E. 404(b) evidence of the prior altercation involving Thumm, the
district court concluded that this “evidence would be more prejudicial than probative if issues
with regard to self-defense or mistake or accident or another of that nature were not raised in the
case and the Court would not allow it to be used.” Addressing the State’s motion for pretrial
ruling on the gang connections of Thumm and Davis, the district court ruled that “this is
admissible evidence for the purposes of impeachment should any members of the gang choose to
testify and provide information related to alibi or other factors since it goes directly to the
credibility of the witnesses.” The district court further stated that the “name of the gang involved
here will not be used, but the State may make reference to the fact if the testimony is given that
they are a member of a gang and can impeach on that basis if they meet the criteria set forth in
the Abel case.” 1
After a four-day consolidated trial in which Thumm and Davis were tried for their
respective charges, the jury found Thumm guilty of aggravated battery and of being a persistent
violator. Thumm was sentenced to a unified term of forty years, with fifteen years determinate.
Thumm timely appealed from the district court’s judgment of conviction. He also filed a motion
for reconsideration of sentence, which was denied by the district court.
1
United States v. Abel, 469 U.S. 45 (1984).
2
II.
DISCUSSION
A. Motion for Mistrial
Thumm first contends that the district court committed reversible error by denying his
motion for mistrial after a State’s witness, Frankie Hughes, purportedly referenced Thumm’s
alleged gang affiliation. The State contends that the district court never made a ruling regarding
the State’s use of gang-affiliation evidence in its case-in-chief and, therefore, no prosecutorial
error occurred. The State also argues, in the alternative, that none of the witnesses’ statements
revealed any gang affiliation.
In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A
“mistrial may be declared upon motion of the defendant, when there occurs during the trial an
error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is
prejudicial to the defendant and deprives the defendant of a fair trial.” I.C.R. 29.1(a). Our
standard for reviewing a district court’s denial of a motion for mistrial is well established:
The question on appeal is not whether the trial judge reasonably exercised his
discretion in light of circumstances existing when the mistrial motion was made.
Rather, the question must be whether the event which precipitated the motion for
mistrial represented reversible error when viewed in the context of the full record.
Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
of discretion” standard is a misnomer. The standard, more accurately stated, is
one of reversible error. Our focus is upon the continuing impact on the trial of the
incident that triggered the mistrial motion. The trial judge’s refusal to declare a
mistrial will be disturbed only if that incident, viewed retrospectively, constituted
reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983). This error will be
deemed harmless if the appellate court is able to declare, beyond a reasonable doubt, that there
was no reasonable possibility that the event complained of contributed to the conviction. State v.
Morgan, 144 Idaho 861, 863-64, 172 P.3d 1136, 1138-39 (Ct. App. 2007).
Prior to trial, the district court ruled that evidence of Thumm’s gang affiliation was
“admissible evidence for the purposes of impeachment should any members of the gang choose
to testify and provide information related to alibi or other factors since it does go directly to the
credibility of the witnesses.” The district court further ruled that the “name of the gang involved
here will not be used, but the State may make reference to the fact if the testimony is given that
3
they are a member of a gang and can impeach on that basis if they meet the criteria set forth in
the Abel case.”
At trial, during the State’s direct examination of Hughes, the following exchange took
place:
State: Did his [Thumm’s] demeanor change at some point?
Hughes: Yes.
State: How did it change?
Hughes: At some point when I was just sitting over by the sink, I was just
sitting there and that’s when, you know, I heard bits and pieces of
their conversation. And, you know, I heard Deven saying
something about knowing someone from one of [Thumm]’s
friends, you know, that he hangs out with and --
State: Then what happened?
Hughes: [Thumm] said, oh, yeah, like, he said, yeah, that’s my homie.
She’s from my hood. And then waives his hand across his neck
and shows his neck. 2
Immediately after Hughes’ statement, defense counsel for Davis asked to be heard outside the
presence of the jury. The State later described what occurred during the unrecorded side bar:
Your Honor, the State’s recollection of that was the State had asked a
question. [Hughes] had responded to that question. There was an objection. We
approached. During that side bar, the State’s recollection was that both defense
counsel were concerned about the reference to the hood or homie and that tattoo.
After Hughes finished testifying, defense counsel made a motion for mistrial, stating: “I
believe that the statements made by Mr. Hughes about the homies and the hood and the reference
to his tattoos clearly prejudices the jury and is against your court order. I am going to ask for a
mistrial.” The district court denied the motion, explaining: “The Court will point out that I have
cases all the time in which there are not gang members in which the terms homie and hood are
used as common slang. They do not always refer to gang-related activities. Nor do tattoos.”
1. The district court’s ruling
As a threshold matter, we note that the State’s argument that the district court never ruled
in regard to the State’s use of gang-related evidence in its case-in-chief is unavailing. “This
Court will not review a trial court’s alleged error on appeal unless the record discloses an adverse
ruling which forms the basis for the assignment of error.” State v. Yakovac, 145 Idaho 437, 442,
2
Thumm has the letters “SVC” tattooed on his neck.
4
180 P.3d 476, 481 (2008) (internal quotations omitted); see State v. Pickens, 148 Idaho 554, 557,
224 P.3d 1143, 1146 (Ct. App. 2010). It is clear from the record that the district court ruled that
the evidence would be admissible only for impeachment purposes and not in the State’s case-in-
chief. Prior to trial, the State filed a notice of intent to use I.R.E. 404(b) evidence, seeking to
introduce evidence of Thumm’s gang affiliation, the motives of that gang, and the gang’s modus
operandi in attacking others. The notice stated in regard to the gang-related evidence: “The
State would not attempt to elicit this information in its case in chief, but feels it is highly relevant
to rebut any evidence presented of [Thumm’s] peaceable character or to rebut a claim of self
defense.” At a pretrial hearing, the State informed the district court that it sought to admit the
evidence for impeachment or rebuttal purposes, and did not take issue with defense counsel’s
assertion that “I understand that counsel [the State] plans only to use this as a part of rebuttal or
impeachment.” Moreover, the district court clearly limited the use of the evidence in its ruling:
I think counsel are aware of the Court’s position on the 404(b) evidence. This
evidence would be more prejudicial than probative if issues with regard to self-
defense or mistake or accident or anything of that nature were not raised in the
case and the Court would not allow it to be used.
If, however, the defendant asserts self-defense, a peaceable disposition, a
mistake or an accidental harm, then the probative value of these statements or
these prior incidents become significantly elevated in the case for purposes of
rebuttal. And the Court then would weigh differently under Rule 403. And the
Court at that point would find the probative value does not outweigh the
prejudicial effect. All evidence has some prejudicial effect. That’s the idea of the
evidence on both sides.
But the Court’s general rule is that. Somebody raises the issue that an
attack was self-defense or they’ve got a peaceable nature or that this was an
accidental occurrence, it wasn’t an intentional attack, then it comes in on rebuttal.
The district court had an opportunity to reiterate its ruling when the State later sought to
admit similar evidence in response to Thumm’s defense of alibi. The district court stated:
“[The] Court has previously ruled that this [is] admissible evidence for the purposes of
impeachment should any members of the gang choose to testify and provide information related
to alibi or other factors since it goes directly to the credibility of the witnesses.” From the
discussion between the parties and the district court regarding the admissibility of the gang-
related evidence, it is apparent that the district court ruled that the State could offer evidence of
Thumm’s alleged gang affiliation for purposes of impeachment or rebuttal and only if issues of
alibi, self-defense, accident or mistake, or peaceful disposition arose.
5
2. Prosecutorial misconduct and harmless error
As the district court recognized, Hughes’ passing reference to “my homie” and the
“hood,” and Thumm’s gesture to his neck are not necessarily indicative of gang affiliation. The
prosecutor’s questions did not call for any gang-related information, and the statements offered
by Hughes did not reference any gang names, any person’s gang affiliation, or any other
information subject to the district court’s pre-trial ruling. Therefore, the statements did not
constitute prosecutorial error or a violation of the court’s orders.
Moreover, even if we were to assume, arguendo, that Hughes’ testimony constituted
prosecutorial error, the trial court’s refusal to grant a mistrial did not constitute reversible error.
Hughes’ brief reference was not so prejudicial as to overwhelm all the admissible evidence that
he was guilty of aggravated battery such that Hughes’ testimony can be said to have contributed
to the verdict in any meaningful way. The district court offered to give a limiting instruction if
the parties felt it necessary, but neither party ever requested such an instruction. Thumm does
not even attempt to substantiate any assertion that the verdict would have been different absent
Hughes’ reference. Thus, the district court did not commit reversible error by denying Thumm’s
motion for a mistrial.
B. Testimony of Chris Smith
Thumm next argues that the district court committed reversible error by ruling that if the
defense called Chris Smith to testify, then the State would be permitted to impeach his testimony
with information that both Thumm and Smith were alleged gang members. The State argues that
Thumm has failed to preserve his argument for appeal because the district court never ruled on
the matter and, in the alternative, Thumm has failed to show the district court abused its
discretion.
“It is well settled that in order for an issue to be raised on appeal, the record must reveal
an adverse ruling that forms the basis for assignment of error.” State v. Huntsman, 146 Idaho
580, 199 P.3d 155 (Ct. App. 2008) (citing State v. Amerson, 129 Idaho 395, 401, 925 P.2d 399,
405 (Ct. App. 1996)). See also Pickens, 148 Idaho at 557, 224 P.3d at 1146.
On the morning of the trial’s fourth day, outside the presence of the jury, defense counsel
brought up the issue of evidence of gang association used for impeachment purposes. This time,
the issue was brought up in regard to Chris Smith, who had previously pled guilty to stabbing
Ohls during the altercation. Smith had reported to police that Thumm was not involved in the
6
attack on Ohls and, presumably, the defense wanted to call him to testify in a similar fashion at
trial. Defense counsel stated:
Now, he has--he is a documented gang member from California, not of a
specific gang that’s at issue here, but there is still that general overlying thing that
people will cover for each other. So I’m interested in what the Court’s ruling
would be and what parameters I have if I call Chris Smith to the stand whether it
is going to open the door.
Thumm argues that this statement constituted a specific request for a ruling from the
court as to whether Smith could be impeached by the State using evidence of prior gang
associations of Smith and Thumm, even though Smith purportedly did not have the same gang
affiliation as Thumm. The district court stated that putting Smith on the stand would likely mean
the State would be able to bring in Smith’s gang affiliation in regard to credibility. The State
then interjected, stating for the record what evidence it would provide of the association of Smith
and Thumm. In response, the district court stated: “And that would become relevant and the
relevancy outweighs the prejudicial [effect].” Lastly, the district court also stated:
So that would be my response. I don’t want to mousetrap anybody. But I
understand, [defense counsel], you may want to call them, but you can’t call them
and expect them to be treated as though they were a citizen off the street with no
association, no past, no history. The State gets to bring that up.
The district court clearly communicated to the parties that if Smith were to testify, the
State would be permitted to bring in its evidence of the association and gang affiliation. As such,
an adverse ruling exists to which Thumm has assigned error; and, therefore, the issue is properly
before this Court.
Thumm argues that the district court erred in ruling that if Smith were to testify, the State
would be allowed to impeach based upon Smith’s gang associations. Thumm relies on United
States v. Abel, 469 U.S. 45 (1984), where the Supreme Court held that evidence of a witness’s
membership in the same gang as the defendant was sufficiently probative of possible bias
towards the defendant to warrant its admission into evidence. Id. at 49. According to Thumm,
in order to impeach an individual for bias based upon his affiliation with a certain group, the
parties must have “common membership in an organization.” Thumm argues that he and Smith
were members of different gangs and, thus, the district court committed error when it ruled
Smith’s and Thumm’s prior associations were admissible.
7
While the Abel Court held that common membership in a gang could be used for
impeachment as evidence of bias, it did not hold that membership in different gangs required the
opposite finding. See id. at 52, 54-55. Rather, the Court reaffirmed the proposition that the
district court has the discretion to determine admissibility of evidence showing bias. See id. at
54. “Thus it was within the district court’s discretion to admit the testimony, and the Court of
Appeals was wrong in concluding otherwise.” Id. at 49. Abel does not foreclose the possibility
that evidence of a person’s prior association is admissible impeachment evidence for purposes of
showing bias. The evidence may be admissible even if the witness and defendant are members
of different gangs, provided that the evidence is relevant and the probative value is not
substantially outweighed by the risk of unfair prejudice. Therefore, Abel does not dictate a
limitation only to persons of the same gang affiliation, regardless of other gang-related
affiliation, and we must review the district court’s ruling under our traditional standards.
Whether evidence is relevant under I.R.E. 401 is an issue of law which we review de
novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Sanchez, 147
Idaho 521, 525, 211 P.3d 130, 134 (Ct. App. 2009). A lower court’s determination under
I.R.E. 403 will not be disturbed on appeal unless it is shown to be an abuse of discretion. State v.
Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772
P.2d 263, 266 (Ct. App. 1989). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower
court correctly perceived the issue as one of discretion; (2) whether the lower court acted within
the boundaries of such discretion and consistently with any legal standards applicable to the
specific choices before it; and (3) whether the lower court reached its decision by an exercise of
reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
The State outlined for the district court its evidence regarding the prior association of
Smith and Thumm:
[J]ust so the record is clear. We do have information via [Hughes] that Mr. Smith
and Mr. Thumm were associates for a couple of months. Hung out together. We
also have objective information, which includes a surveillance video that shows
[Smith, Hughes, and Thumm] all together. And it shows both [Smith] and
[Hughes] essentially trying to keep people away from [Thumm] while he engages
in another beating.
And so I think that that is part of the gang mentality of backing each other.
And I just want to let you know for the record the State has that information, and
we would put proper proof of that information.
8
The district court determined that the evidence “would become relevant and the relevancy
outweighs . . . the prejudicial effect given the nature of the charges here in terms of impeaching
those witnesses.” 3
Evidence that Smith and Thumm associated with each other bears directly on Smith’s
credibility and is therefore relevant. Given that Smith’s version of events would have exculpated
Thumm, Smith’s credibility was directly at issue. The evidence that Smith and Thumm were
closely associated, and that their respective gang memberships were a component of that
affiliation, was relevant. Also relevant was evidence that it was a tenet of the gangs that they
cover for each other, including lying on behalf of other gang members. As the Supreme Court
has noted, “Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’
self-interest.” Abel, 469 U.S. at 52. Generally, “Proof of bias is almost always relevant because
the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all
evidence which might bear on the accuracy and truth of a witness’ testimony.” Id. The district
court did not err in determining that the challenged evidence was relevant as impeachment
evidence for the purpose of showing bias. Moreover, Thumm has failed to demonstrate that the
district court abused its discretion in finding that the probative value of the evidence was not
outweighed by unfair prejudice. Consequently, we cannot say that the district court abused its
discretion by ruling that evidence of the association and gang membership of Smith and Thumm
was admissible should Smith be called to testify.
C. Fifth Amendment Violations
Thumm next asserts that the State used his pre-Miranda 4 silence as evidence of his guilt
in violation of his right to remain silent, as protected by the Fifth and Fourteenth Amendments to
the United States Constitution, and Article I, § 13 of the Idaho Constitution. The State contends
that it did not utilize Thumm’s silence to infer guilt and, in the alternative, Thumm has failed to
3
We do not address the State’s claimed evidence of Smith’s association with Thumm in
regard to a prior beating because Thumm has not challenged the admissibility of that evidence,
but has challenged only the district court’s ruling that Thumm and Smith’s gang affiliations
could be used for impeachment.
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
9
show fundamental error. No objection was raised at trial in regard to the statements Thumm
alleges violated his constitutional rights.
This Court will not address an issue not preserved for appeal by an objection in the trial
court. State v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct. App. 1997). However,
we may consider fundamental error in a criminal case, even though no objection was made at
trial. Id. Fundamental error has been defined as error which goes to the foundation or basis of a
defendant’s rights, goes to the foundation of the case, or takes from the defendant a right which
was essential to his or her defense and which no court could or ought to permit to be waived.
State v. Babb, 125 Idaho 934, 940, 877 P.2d 905, 911 (1994).
In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified
that the fundamental error doctrine applied where an alleged error was not followed by a
contemporaneous objection:
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.
Perry, 150 Idaho at 228, 245 P.3d at 980.
During the State’s redirect examination of the arresting officer, the following exchange
occurred:
State: What, if anything, did [Thumm] say in response to your statements
about the warrant? Did he say anything at all?
Officer: I don’t recall. We didn’t have much conversation in regards to the
fact that he was being arrested on the warrant.
State: Okay. What, if anything, did he do to acknowledge whether or not
he had heard you?
Officer: He invoked his rights a couple times stating I got rights.
State: And let me interrupt you. I guess, what I’m asking you though is,
did he at any point [in] time ask you what the warrant was for
himself or ask for clarification on the warrant?
Officer: I don’t recall if he did. I remember him knowing that he was
instructed what the warrant was.
10
While Thumm’s allegation is constitutional in nature, the Idaho Supreme Court has held
that “the constitutional right against self-incrimination is not absolute . . . and applies only when
the silence is used solely for the purpose of implying guilt.” State v. Ellington, 151 Idaho 53, 61,
253 P.3d 727, 735 (2011) (quoting State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181
(1998)). In this case, Thumm made no objection at the time of the exchange and, thus, the
precise purpose of the State’s questioning was never expressly stated for the record. However,
from the record it is clear that the prosecutor was not attempting to elicit information regarding
Thumm’s pre-Miranda silence. Rather, it is apparent that the officer’s reference to Thumm’s
statements was merely an unsolicited “blurt.” Moreover, it is not clear that the jury would have
implied guilt from the statement. Therefore, the alleged error does not plainly exist. And even if
the error was plain, given the totality of the testimony and evidence at trial, the error could not
have affected the outcome of the trial proceedings. Thus, any error was harmless, and the
officer’s testimony did not constitute fundamental or reversible error.
D. Prosecutorial Misconduct
Thumm also asserts that due to multiple acts of prosecutorial misconduct, he was denied
his constitutional right to a fair trial and his right to remain silent was violated. He argues,
specifically, that during closing arguments: (1) the prosecutor improperly appealed to the jury’s
passions and prejudices by asking the jury to picture themselves in the position of the victim;
(2) the prosecutor used Thumm’s pre-Miranda silence to imply his guilt; and (3) the prosecutor
misstated the reasonable doubt standard, enabling the jury to convict Thumm with a lesser
evidentiary standard. Thumm did not object to the prosecutor’s comments.
Thumm made no contemporaneous objection to the prosecutor’s comments at trial. In
Perry, the Idaho Supreme Court clarified the fundamental error doctrine as it applies to
allegations of prosecutorial misconduct. If the alleged misconduct was not followed by a
contemporaneous objection, an appellate court should reverse when a defendant persuades the
court that the alleged error: (1) violates one or more of the defendant’s unwaived constitutional
rights; (2) the error is clear or obvious without the need for reference to any additional
information not contained in the appellate record; and (3) the error affected the outcome of the
trial proceedings. Id. at 226, 245 P.3d at 978.
While our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, he or she is nevertheless expected and
11
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. A
fair trial is not necessarily a perfect trial. Id.
1. Impermissible appeal to jury’s emotions
Thumm first argues that during the State’s closing argument, the prosecutor improperly
attempted to get the jurors to act upon their fears by having them imagine themselves as the
victim. Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).
Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence.
Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides
have traditionally been afforded considerable latitude in closing argument to the jury and are
entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be
drawn therefrom. Phillips, 144 Idaho at 86, 156 P.3d at 587; State v. Sheahan, 139 Idaho 267,
280, 77 P.3d 956, 969 (2003).
Appeals to emotion, passion, or prejudice of the jury through the use of inflammatory
tactics are impermissible. Phillips, 144 Idaho at 87, 156 P.3d at 588. See also Raudebaugh, 124
Idaho at 769, 864 P.2d at 607; State v. Pecor, 132 Idaho 359, 367, 972 P.2d 737, 745 (Ct. App.
1998). In this case, the prosecutor began his closing statement:
So imagine you’re Deven Ohls. You pick up your girlfriend to go [to] the
bar. You have a few drinks. You pick up another friend that you know. You go
to a hotel for an after party. You go to drink alcohol. You go to hang out with
friends. While you’re there, you notice you’re one and they seem to be four.
While you are there things appear okay. Things start to get a little bit hot maybe.
All of a sudden out of the blue you’re standing, there’s one behind you. Two in
front of you. You can feel it coming. And sure enough it does. And Vance
Thumm takes the first blow.
We have previously held that urging the jury to find a defendant guilty based on emotions
is improper. In State v. Gross, 146 Idaho 15, 20, 189 P.3d 477, 482 (Ct. App. 2008), the
prosecutor made comments in the closing argument of a DUI prosecution that Gross was driving
“in the opposite lane of traffic while under the influence of alcohol. Imagine yourself coming
down that other lane.” The prosecutor also stated: “My client [the State] wants to protect you in
case you’re the person that happens to be coming down that lane. My client wants to keep you
off the front page of that newspaper.” Id. We found these comments were improper because
12
“the prosecutor did not ask the jury to rely on the evidence but, rather, urged the jury to find
Gross guilty of the DUI charge based on a fear of being the victim of a drinking and driving
accident serious enough to be on the front page of a newspaper.” Id. at 21, 189 P.3d 483.
The prosecutor’s comments in this case invited the jury to put themselves in the position
of Deven Ohls, more so as a descriptive technique than as an appeal to the jury’s emotions. The
statement did not ask the jury to convict out of fear or protection of society. Nonetheless, asking
a jury to put themselves in the victim’s position runs the significant risk of emotional attachment
to the victim.
However, even though the prosecutor’s statements may have been improper, they do not
rise to the level of fundamental error. With respect to this second prong of the Perry test, 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 . . . .” Perry, 150 Idaho at 226, 245 P.3d at 978. Although Thumm asserts error of a
constitutional nature, the error does not “plainly exist” because counsel’s failure to object very
well could have been a tactical decision. In many cases, counsel’s decision not to object may
come from a desire to avoid undue attention to certain facts or comments. See State v. Roles,
122 Idaho 138, 147, 832 P.2d 311, 320 (Ct. App. 1992) (“Trial counsel . . . may well have made
the tactical decision not to object and move to strike, so as not to draw further attention to the
passing reference.”); In re Davis, 101 P.3d 1, 39 (Wash. 2004) (“Lawyers do not commonly
object during closing argument ‘absent egregious misstatements.’ A decision not to object
during summation is within the wide range of permissible professional legal conduct.”). As it is
entirely possible that counsel’s failure to object was a tactical decision, and Thumm points to no
evidence in the record that indicates otherwise. As noted, the prosecutor’s statement may well
have been perceived as an attempt to describe the scene--albeit from the victim’s perspective--
more than an appeal to convict based upon emotion. Thumm has failed to show the prosecutor’s
statement constituted clear and obvious error.
Moreover, even if we assumed error, we can conclude beyond a reasonable doubt that
absent the prosecutor’s comment, the outcome of the trial would have been the same. By closing
arguments, the jury had already been exposed to graphic descriptions and photographs depicting
the attack on Deven Ohls, and had heard descriptions of the attack from several witnesses. We
are confident beyond a reasonable doubt that the jury, having heard and observed all such
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evidence, would have convicted Thumm absent the prosecutor’s comments. Therefore, Thumm
has failed to show fundamental error.
2. Use of Thumm’s pre-Miranda silence to imply guilt
Thumm contends that the State committed prosecutorial misconduct rising to the level of
fundamental error during its rebuttal closing argument. Specifically, Thumm contends that the
prosecutor erred by rhetorically asking why Thumm would leave the crime scene and “not stick
around and tell police what happened.” However, a review of the relevant portion of the State’s
rebuttal closing argument reveals that, in context, the prosecutor was not calling attention to
Thumm’s assertion of his right to silence, but was instead highlighting Thumm’s immediate
flight from the scene of the aggravated battery. The prosecutor stated:
What other objective evidence? The other objective evidence is why
would [Thumm] leave? That hotel room is in his name. If he did nothing wrong,
if he is not going to get busted because the cops are coming because he committed
this crime, why would you leave? He left because he knew exactly what he did.
The police arrived within four minutes. Where was [Thumm]? Four
minutes. Where was [Thumm]? Gone. Lickety-split. He is out. Because he
ain’t getting caught. But if he didn’t do anything wrong, if you truly left and
weren’t even in the hotel room, maybe like Deven Ohls says, wouldn’t you be
going, hey, what happened? What’s going on? No, that doesn’t happen. He’s
gone. And he gets arrested, he gets arrested four days later.
Why run if you’re not guilty? Why not stick around and tell police what
happened? Why get rid of clothes if it’s not evidence? The clothes never show
up. See, this is objective evidence, you know what, nobody is putting a spin on
this, but it is telling you exactly who to believe.
In context, the prosecutor did not mention Thumm’s silence to imply guilt, but rather
made a passing reference to it while discussing Thumm’s immediate flight from the crime scene.
“Evidence of flight, escape, or failure to appear on the part of a defendant is often identified as
relevant to demonstrate consciousness of guilt.” State v. Pokorney, 149 Idaho 459, 463, 235
P.3d 409, 413 (Ct. App. 2010). As there was evidence in the record that Thumm had fled rapidly
from the crime scene, there was nothing improper about the prosecutor using that evidence to
imply Thumm’s consciousness of guilt. See State v. Norton, 151 Idaho 176, 187, 254 P.3d 77,
89 (Ct. App. 2011) (“The prosecutor was free to argue the evidence and any reasonable
inferences to be drawn from that evidence.”). That the prosecutor made a statement with a
passing reference to “telling” the police what happened does not rise to the level of fundamental
error.
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3. Reasonable doubt standard
Thumm also contends that the prosecutor committed misconduct by misstating the
reasonable doubt standard during his closing argument. Specifically, Thumm contends that the
prosecutor committed misconduct by asking the jury to consider what they felt in their “gut,” and
by discussing what is “reasonable” in the reasonable doubt standard in terms of everyday
decisions. Thumm did not object to any of the statements.
In State v. Carson, 151 Idaho 713, 264 P.3d 54 (2011), Carson contended that
unobjected-to comments by the prosecutor during her closing argument, if followed by the jury,
would have permitted it to convict him upon proof that was less than beyond a reasonable doubt.
Id. at 718, 264 P.3d at 59. The Idaho Supreme Court found no error, reasoning that, even if the
prosecutor’s comments were improper, the district court properly instructed the jury on
reasonable doubt. Id. The Court presumed that the jury followed the jury instructions given by
the trial court in reaching its verdict, and there was no indication that the jury did not follow the
court’s instructions. Id.
The same reasoning as Carson applies to the present case, and leads to the same result.
The district court instructed the jury on the meaning of reasonable doubt. The district court also
instructed the jury that: (1) it was the court’s duty to instruct them as to the law; (2) they must
follow all the rules as explained to them by the court; and (3) if anyone stated a rule of law
differently from what the court told them, the jury must follow the court’s instruction. We
presume that the jury followed the jury instructions given by the trial court in reaching its
verdict. Id. Further, as in Carson, there is no indication that the jury did not follow the district
court’s instructions. Therefore, Thumm’s argument fails.
E. Cumulative Error
Lastly, Thumm asserts that under the doctrine of cumulative error, the accumulation of
errors that occurred during trial is, in the aggregate, sufficient to warrant a new trial. The
cumulative error doctrine refers to an accumulation of irregularities, each by itself might be
harmless, but when aggregated, show the absence of a fair trial in contravention of the
defendant’s right to due process. Moore, 131 Idaho at 823, 965 P.2d at 183. The presence of
errors alone, however, does not require the reversal of a conviction because, under due process, a
defendant is entitled to a fair trial, not an error-free trial. Id. Moreover, “it is well-established
that alleged errors at trial, that are not followed by a contemporaneous objection, will not be
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considered under the cumulative error doctrine unless said errors are found to pass the threshold
analysis under our fundamental error doctrine.” Perry, 150 Idaho at 230, 245 P.3d at 982. A
necessary predicate to application of the cumulative error doctrine is a finding of more than one
error. State v. Hawkins, 131 Idaho 396, 407, 958 P.2d 22, 33 (Ct. App. 1998). Thumm has
failed to show errors sufficient to invoke the doctrine of cumulative error.
III.
CONCLUSION
Thumm has failed to show that the district court committed reversible error when it
denied his motion for mistrial. The district court did not err in its ruling regarding impeachment
of Smith. Thumm has also failed to show that the other alleged, unobjected-to errors rose to the
level of fundamental error. Therefore, Thumm’s judgment of conviction and sentence for
aggravated battery with a persistent violator enhancement is affirmed.
Judge LANSING and Judge MELANSON CONCUR.
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