PERRY CONVICTION UPHELD; ALLEGED PROSECUTORIAL MISCONDUCT

This case concerns the Defendant appealing the judgment of the District Court of the First Judicial District, State of Idaho, Kootenai County. This court convicted him of two counts of sexual battery of a child under the age of sixteen for acts against an eleven-year-old victim and two counts of misdemeanor battery for acts against a thirteen-year-old victim. Two young foster girls told their foster mother that Defendant engaged in sexual contact with them during overnight visits at his home. The district court excluded evidence that the younger had lied about a shower spraying incident; offered in an attempt to impeach testimony. The court wanted to avoid possible jury confusion and trial time wasted. The court applied Idaho R. Evid. 412( e) (2) in establishing what is considered a “sex crime” and the admissibility in a sex offense case of evidence of victim's past sexual behavior was inadmissible.

According to Defendant’s Petition for Habeus Corpus, the prosecutor apparently committed misconduct through attempts to entice vouching testimony from witnesses; however, defense counsel did not immediately object. Defendant did not demonstrate at least two errors existed and thus the cumulative error review could not be applied. Cumulative Error Review is an analysis of the alleged errors committed by prosecution. After Defense counsel initiated questioning on the girls’ truthfulness, on redirect, the prosecutor continued strongly his intent to gain vouching testimony by questioning the foster father about the girls’ honesty in their faces. Defense counsel neither objected to the prosecutor's line of questioning, nor did he conduct follow-up questioning of the foster father.

On appeal Perry argued that the prosecutor committed five acts of misconduct during the course of the proceedings; however, Perry only objected to one of these alleged acts. Perry argued 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, the court stated its standard of review for claims of prosecutorial misconduct:

• When there is a contemporaneous objection the court determines factually if there was prosecutorial misconduct, [and then]
• it determines whether the error was harmless.

The court said that 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.(my own emphasis). However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is harmless. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007)

Summarizing the U.S. Supreme Court in Cupp v. Naughten, federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) [the errors] "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400¬01, 38 L.Ed.2d 368 (1973). The present Idaho case failed to satisfy the cumulative errors test where prosecutorial misconduct was alleged.

The Idaho Supreme Court affirmed the lower court’s decision.