IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33527
STATE OF IDAHO, )
) Lewiston, April 2007 Term
Plaintiff-Respondent, )
) 2007 Opinion No. 71
v. )
) Filed: May 2, 2007
ERIC L. CHRISTIANSEN, )
) Stephen W. Kenyon, Clerk
Defendant-Appellant. )
)
Appeal from the District Court of the Second Judicial District of the State of
Idaho, in and for Nez Perce County. The Hon. Carl B. Kerrick, District Judge.
The judgment of the district court is affirmed.
Blake & Cox, Lewiston, for appellant. Scott Chapman argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Courtney Beebe
argued.
EISMANN, Justice.
This is an appeal from a conviction for arson. The fire started in the defendant’s leased
business premises. The defendant seeks a new trial based upon misconduct by the prosecuting
attorney in eliciting inadmissible evidence by seeking to lay the foundation for expert testimony
by a police officer that in his opinion the defendant was deceptive during police interrogation
and in eliciting testimony from the officer that the defendant refused to consent to a search of his
business premises. We find the prosecutorial misconduct harmless beyond a reasonable doubt
and affirm.
I. FACTS AND PROCEDURAL HISTORY
At about 3:30 a.m. on November 20, 2001, the defendant Eric Christiansen reported a fire
in commercial property he leased in Lewiston, Idaho. He operated a business known as
Partyworks from the property. The fire investigators concluded that it was an arson fire, and on
September 20, 2002, Christiansen was indicted for four felonies: first degree arson of a
structure, first degree arson of personal property, attempted first degree arson of a structure, and
attempted first degree arson of personal property. Christiansen entered a plea of not guilty, and
the charges were tried before a jury in July 2004. The jury found Christiansen guilty of all four
counts, and the district court granted him a withheld judgment and placed him on probation.
Prior to sentencing, Christiansen moved for a judgment of acquittal or a new trial based
upon trial testimony wrongfully elicited by the prosecuting attorney from Sergeant Clark of the
Lewiston Police Department. Sergeant Clark testified that at about 11:15 a.m. on the morning of
the fire he interviewed Christiansen at the police station. Christiansen was not in custody, but
had come voluntarily to the station at Sergeant Clark’s request. Sergeant Clark testified that
Christiansen gave the following account of what had occurred. He had worked late that night
and had left a candle burning on his desk when he left the business at about 12:45 a.m. and went
home to bed. At about 3:30 a.m. he awakened and remembered the candle. He went to the
business to check on it and discovered the fire, which he thought was probably started by the
candle. The prosecuting attorney elicited testimony from Sergeant Clark that he did not believe
Christiansen’s story and had told him so.1 The prosecutor then asked whether Sergeant Clark
had asked Christiansen for permission to search the property. The officer answered that he had
and that he had told Christiansen that the search could shed light on whether Christiansen had a
financial motive to start the fire. The prosecutor then asked whether Christiansen had given
consent to the search, and Sergeant Clark answered that he had not. Christiansen did not object
to these questions. However, after the testimony had been given, he did move for a mistrial. The
district court denied the motion because it did not believe that Christiansen would be deprived of
a fair trial. It offered Christiansen an opportunity for a jury instruction on the issue, but
Christiansen declined because he did not want to draw further attention to the issue.
1
After giving a summary of Christiansen’s account of what happened, including his theory that the candle may have
accidentally started the fire, Sergeant Clark stated, “I didn’t particularly think that this was the way things
happened.” The prosecuting attorney then elicited from Sergeant Clark that he took a break from interviewing
Christiansen in order to discuss the matter with another officer. He testified that he told the other officer that he did
not believe Christiansen’s account and that he would attempt to obtain a statement as to what really happened. In
response to questioning from the prosecuting attorney, Sergeant Clark then testified that he went back to speak with
Christiansen and told him he did not believe Christiansen’s story. The prosecutor’s conduct in eliciting this
testimony regarding whether Sergeant Clark believed Christiansen’s account was clearly improper. Christiansen has
not raised it on appeal, but if he had it would not have changed the result. It is simply another example of the
prosecuting attorney’s misconduct in this case.
2
The prosecuting attorney then elicited testimony from Sergeant Clark regarding his
training to determine whether someone was being deceptive during an interview and the
mannerisms he had been trained to observe as indicators of deception. The obvious purpose of
the questioning was to lay a foundation for the officer’s opinion that Christiansen was deceptive
during the interview. When the prosecuting attorney asked Sergeant Clark what he had noticed
about Christiansen’s behavior during the interview, Christiansen objected. The district court
sustained that objection.
The district court denied Christiansen’s motion for a judgment of acquittal or a new trial.
Christiansen appealed, and the appeal was initially heard by the Idaho Court of Appeals. It
upheld Christiansen’s conviction, and he requested review by this Court. In cases that come
before this Court on a petition for review of a Court of Appeals decision, this Court gives serious
consideration to the views of the Court of Appeals, but directly reviews the decision of the lower
court. Head v. State, 137 Idaho 1, 43 P.3d 760 (2002).
II. ANALYSIS
Christiansen contends that the district court erred in failing to grant his motion for a
judgment of acquittal or a new trial. We will discuss each one separately.
Motion for a judgment of acquittal. Rule 29 of the Idaho Criminal Rules provides that
a court can grant a motion for acquittal if the evidence is insufficient to sustain a conviction of
the offenses. The district court found that the evidence in this case, although circumstantial, was
sufficient to support the jury’s verdict.
The evidence was uncontroverted that the fire was deliberately set. Three fire
investigators examined the premises and came to the same conclusion. It was an arson fire.
Christiansen stated that he had been working late cleaning and organizing. As a result, he had
made a trail of cardboard boxes filled with papers and crumpled newspaper stretching from his
office down a hallway past the back door and a bathroom to a storage room where he had left a
five-gallon container of aviation gas. The vent on the gas container was open. The expert
testimony showed that one fire started in papers on Christiansen’s desk, but it self-extinguished
and did not spread beyond the desk top. One or more other fires started in the boxes left in the
hallway. There was no innocent cause for any of these fires. The investigators ruled out any
possible causes other than arson.
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Christiansen offered a hypothesis based upon the testimony of his mother. She recounted
an incident that occurred approximately one year before the fire when she was burning a candle
that was the same type left by Christiansen on his desk. It was a candle in a glass jar. She stated
that after it had burned all the way down to the point that there was no wax remaining it suddenly
flamed up very briefly. She described what occurred as follows:
I had it [the candle] sitting on my stereo, and it was just almost gone. You
know, it was just right at the bottom. And I got up to go into the kitchen, and all
of a sudden, it made this really loud whish noise and flames went up the candle
about this far up above the jar (indicating), but just for a blink of an eye. I mean,
it was just a very short time. But it scared me. It sounded like a sparkler. And I
have burnt several of those type of candles, and it’s the only one that ever did it.
On cross-examination she testified that the candle had burned down to the small metal
disc on the bottom of the candle and that the wax was gone. She also said that she had told
Christiansen about what had happened. Although Christiansen’s mother said that the candle
sounded like a sparkler, she did not testify that it shot out any sparks. It only flamed up very
briefly.
The fire investigators all testified that from their examination the candle left on
Christiansen’s desk did not start the fire. The physical evidence was simply not consistent with
that possibility. The candle was offered into evidence during the trial. About one-half of the
wax was remaining in the jar, and the jar was intact.
The evidence was uncontroverted and overwhelming that the fire was intentionally set.
There was no evidence of any other possible causes for the fire. The only question was who set
it. Christiansen stated that when he left the business at about 12:45 a.m., he went out through the
back door, locking it. A security guard testified that at about 2:16 a.m. he checked the strip mall
in which Christiansen’s business was located. He checked all of the doors by trying to open
them, and the back door of Christiansen’s business was locked. According to Christiansen, when
he arrived back at his store at around 3:30 a.m., the door was closed. He said that after walking
up to the door, he realized there was a fire inside the building. He put his keys into the lock to
unlock the door so he could go inside to grab a fire extinguisher. He then remembered what he
had seen in movies when a door was opened to a room in which there was a fire. The flames
shot out with explosive force when the door was opened. He decided not to open the door, but
instead ran back to his vehicle and called the fire department on his cell phone. When the fire
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department arrived, the back door was still locked, but it was slightly ajar. The draft of the fire
had been going out the rear door. The smoke and heat damage around and above the door
showed that there had been a lot of heat and soot coming out the door. The door had a tight seal,
so the smoke and heat damage on the outside of the building could not have occurred unless the
door was open while the fire was burning. There was no indication of any forced entry into the
store, and none of the door keys were missing. Christiansen was the only person who had access
to the store at the time the fire started.
There was also evidence that he had a financial motive to set the fire. The profit and loss
statement for the period from January 1, 1997, through February 7, 2002, showed a net loss of
$50,900.04. According to Christiansen’s accountant, that net loss included a loss of about
$48,000 during the business’s first year. A commercial appraiser determined that the retail value
of the store’s inventory, based upon the price tags on the merchandise, totaled $57,158.35. A
balance sheet dated December 31, 2001, listed the value of the inventory at $26,034.00, which
would be its cost. The balance sheet also showed that Christiansen had invested $132,693.86 in
the business, that he had taken $44,650.85 in draws, and that his total equity in the business was
$5,109.24.
Prior to the fire, Christiansen had attempted to sell his business. He paid a company in
Texas $3,000 for its services to find a buyer and signed a listing agreement to pay a commission
if the company found a buyer. He admitted initially lying to the insurance company about
whether he had paid any money to try and sell his business.
There was evidence that Christiansen was having difficulty paying business debts as they
came due. The balance sheet showed four bank accounts available to the business, including a
personal checking account. All four accounts had negative balances, which totaled $12,624.96.
Documents recovered from the business after the fire showed that Christiansen was delinquent in
various business debts, including $44.03 for a cell phone, $552.80 for yellow pages advertising,
$1,096.19 to a supplier, $141.77 to the Internal Revenue Service, and $358.00 for the minimum
payment on a business credit card.
In addition, Christiansen was delinquent in payments to his landlord, although he
disputed the amount. According to his landlord, as of November 1, 2001, he owed $18,806.29 in
rent, common area maintenance fees, and a power bill. Christiansen disputed the amount owed,
but admitted that he was at least one or two months behind in payments to his landlord. The
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amounts owing to the landlord were not reflected as liabilities in the balance sheet dated
December 31, 2001. His accountant testified she had learned of that outstanding balance about a
month before the fire. Christiansen had received a letter indicating that he had not paid that
portion of the rent based upon a percentage of sales, a utility bill, and a rent increase. The
accountant stated that the letter came as a shock to her. In addition, Christiansen had given the
landlord a promissory note in the amount of $10,000 for money spent by the landlord in finishing
the inside of the rental premises. That note was likewise not reflected in the balance sheet.
Payments of $317.39 per month on that promissory note were to begin on April 1, 2002.
Effective September 23, 2001, Christiansen’s business insurance policy had been
cancelled for nonpayment of the premium. The amount of coverage was $47,000. About two
weeks before the fire, Christiansen reinstated his insurance and, at the suggestion of his
insurance agent, increased his coverage to $83,000.
In summary, the evidence at the trial was sufficient to sustain the jury’s verdict. It was
uncontroverted that the fire was intentionally set and that Christiansen was the only person who
had access to the business at the time of the fire. The evidence also showed that the business was
not paying bills as they came due and had recently been fully insured, giving Christiansen a
motive to set the fire. The district court did not err in denying Christiansen’s motion for a
judgment of acquittal.
Motion for a new trial. “Idaho Code § 19-2406 sets forth the only bases for the grant of
a new trial.” State v. Gomez, 126 Idaho 83, 86, 878 P.2d 782, 785 (1994). Of those listed in the
statute, the only one that could even arguably be applicable in this case is that “the court . . . has
erred in the decision of any question of law arising during the course of the trial.” I.C. § 19-
2406(3). Christiansen argues that the district court made two errors that would be grounds for a
new trial.
The first alleged error was failing to grant Christiansen’s pretrial motion “[t]o require the
state establish, outside the presence of the jury, adequate foundation for opinion/technical
evidence pursuant to Rule 702 and 705 of the Idaho Rules of Evidence.” The motion did not
specify any particular anticipated expert testimony, but was a blanket motion applicable to all
expert testimony. Christiansen wanted the foundation for any expert testimony to be established
first outside the presence of the jury. If the court determined that the foundation was adequate
and the opinion testimony admissible, the foundation testimony would be repeated with the jury
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present. The district court denied the motion. Christiansen argues that had the court granted the
motion, the jury would not have heard prejudicial testimony as the prosecuting attorney
attempted to lay a foundation that Sergeant Clark was qualified to express an opinion as to
Christiansen’s veracity during police interrogation. The questioning was as follows:
Q. (By Mr. Spickler) Sergeant Clark, when we left off, I had asked you if
you could relate for the jury your training that you’ve received in methods of
interviewing individuals.
A. I’ve received, from the standpoint of hours, about 60 hours devoted
just to interview and interrogation. Probably the best courses that I’ve had was
called the Read technique. It’s well known. A lot of private investigation firms
and private individuals use this for their store security, as well as police officers.
And essentially when we’re interrogating someone, we attempt to read
body language and, of course, put that in the context of what the question is, what
the response is, and then what the body language is. So, we try to determine
through all these factors whether a person is being deceptive or truthful.
Q. What kind of –if I might, we’ve all heard about tells in poker, where
somebody is trying to determine whether somebody is bluffing or not. What kind
of tells would you be looking for in a normal interview?
A. Well, if someone is telling the truth, they don’t have to think about the
answer. Typically, the person will lean forward, have an open position and
answer—the interviewer will ask the question, and it will be—it’s not difficult to
tell the truth, so the answer will be spontaneous, because the truth just remains the
same. Lies or untruths, sometimes we forget what we said a minute ago, so we
have to think about things.
Q. You said an open position?
A. Well, leaning forward, palms up, making direct eye contact and giving
a complete answer without a lot of stammering and stumbling.
Q. What kind of things have you been trained to look for that indicate
somebody is being deceptive?
A. Well, and we have to be cautious here, because one thing, in and of
itself, doesn’t necessarily say anything; but several factors put together may be an
indicator of deception. Hesitating when questioned, crossing arms, leaning back,
looking away when giving an answer to a question, this kind of thing, rubbing lint
away from the shoulders, rubbing your eyes, those kind of things strung together
are an indicator of deception, is my training and my experience. I’ve used this for
several years now, and it—it’s accurate, I believe. I mean, I’ve conducted many,
many interrogations using this technique.
Q. And have you used this technique to come to opinions on whether the
person you’re talking to is being deceptive or not?
A. Yes.
Q. Referring to this specific interview that we’ve been discussing, can
you tell the jury what kind of things you noticed about the behavior of the
defendant?
At this point, Christiansen objected and the district court ultimately sustained the objection.
7
The questioning by the prosecuting attorney was clearly improper. Sergeant Clark’s
opinion testimony regarding Christiansen’s veracity was clearly inadmissible. Over one-hundred
years ago the Supreme Court of the Territory of Idaho held 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 161,
163, 9 P. 532, 533 (1886). In State v. Walters, 120 Idaho 46, 55, 813 P.2d 857, 866 (1990), we
stated, “Generally, expert testimony that purports to determine whether a particular witness is
truthful on a particular occasion is not permitted because there is no reason to believe that
experts are any more qualified to render such opinions than are jurors.” In State v. Raudebaugh,
124 Idaho 758, 768, 864 P.2d 596, 606 (1993), we said, “Pursuant to [I.R.E. 608(a)], testimony
by one witness that another witness was, or was not, telling the truth when they made a particular
statement is not admissible evidence.” Most recently, in State v. Perry, 139 Idaho 520, 81 P.3d
1230 (2003), we held that, absent a stipulation of both parties, opinion testimony regarding the
results of the defendant’s polygraph examination was inadmissible in his criminal trial because
such testimony “usurps the role of the jury as the ultimate finder of credibility” and “[t]he
polygraph results in this case do not help the trier of fact to find facts or to understand the
evidence as required by I.R.E. 702.” Id. at 525, 81 P.3d at 1235.
“Every person accused of crime in Idaho has the right to a fair and impartial trial,” State
v. Sharp, 101 Idaho 498, 494, 616 P.2d 1034, 1040 (1980), “whether guilty or innocent,” State v.
Fowler, 13 Idaho 317, 89 P. 757 (1907). We long ago held, “It is the duty of the prosecutor to
see that a defendant has a fair trial, and that nothing but competent evidence is submitted to the
jury.” State v. Irwin, 9 Idaho 35, 44, 71 P. 608, 611 (1903). They should not “exert their skill
and ingenuity to see how far they can trespass upon the verge of error, [because] generally in so
doing they transgress upon the rights of the accused.” Id. Prosecutorial misconduct includes
asking questions where the answer is inadmissible, but the jury can infer what the answer would
have been simply from the questioned asked. Id.
The State concedes that the prosecuting attorney’s conduct was improper. The State
agrees that Sergeant Clark’s opinion regarding Christiansen’s veracity during police questioning
was clearly inadmissible and that there was no basis for laying the foundation for such testimony
other than to get inadmissible evidence before the jury.
8
Even though the district court sustained the objection to Sergeant Clark’s opinion, the
jury obviously understood where the prosecuting attorney was going with his line of questioning.
It was obvious that he was seeking to have Sergeant Clark testify that in his opinion Christiansen
was lying during the interview. The objection to Sergeant Clark’s ultimate opinion did not
prevent the jury from inferring what that opinion would be. This type of tactic is prosecutorial
misconduct. It is even more egregious in this case because the prosecuting attorney by a pretrial
motion in limine successfully prevented Christiansen from introducing into evidence opinion
testimony regarding the results of his polygraph examination. That opinion testimony was
inadmissible for the same reason that the opinion testimony of Sergeant Clark was inadmissible.
State v. Perry, 139 Idaho 520, 81 P.3d 1230 (2003). It makes no difference whether the opinion
as to veracity is based upon polygraph results or upon observations of body language. In both
cases it invades the province of the jury.
“Allegations of prosecutorial misconduct at trial are not among the grounds for a new
trial provided by I.C. § 19-2406.” State v. Jones, 127 Idaho 478, 481, 903 P.2d 67, 70 (1995).
Accord, State v. Page, 135 Idaho 214, 223, 16 P.3d 890, 899 (2000). Had the district court
granted Christiansen’s motion to require the prosecuting attorney to establish, outside the
presence of the jury, adequate foundation for any expert opinion, it may have prevented the
prosecutor from engaging in the misconduct that occurred in his questioning of Sergeant Clark.
However, there is nothing to indicate that the district court could or should have anticipated such
misconduct. Regardless, the decision to grant or deny the motion was a discretionary ruling by
the district court, Gunter v. Murphy’s Lounge, LLC, 141 Idaho 16, 105 P.3d 676 (2005), not “the
decision of any question of law.” Therefore, the denial of the motion cannot be the ground for a
new trial under Idaho Code § 19-2406(3).
Christiansen also alleges that the district court should have granted a new trial because
the prosecuting attorney offered evidence that Christiansen had exercised his Fourth Amendment
Right by refusing to consent to the search of his business premises. During the prosecuting
attorney’s questioning of Sergeant Clark, the following exchange occurred:
Q. (By Mr. Spickler) Did you ask him for consent to search his business?
A. I did. I told him that I believed that it would shed some light on
motive. If he was financially sound, which he told me he was, then there should
be documentation indicating the same, that shows that he’s making money; that
the business is under no financial stress. And that would shed a lot of light on
motive.
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Q. Did he give you permission?
A. No, he did not.
Q. It was his right not to give you permission?
A. Correct.
Christiansen did not object to the questioning, and so the district court was not asked to rule upon
the admissibility of the testimony. Thus, this could not constitute an error by the court “in the
decision of any question of law arising during the course of the trial” because the court was not
asked to make any decision regarding the admissibility of that testimony. It cannot be grounds
for granting a new trial under Idaho Code § 19-2406(3).
Fundamental error. Christiansen also argues that the testimony elicited by the
prosecuting attorney regarding Christiansen’s refusal to consent to a search should constitute
fundamental error. In Idaho, the genesis of what became known as the doctrine of fundamental
error was our opinion in State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). In that case, the
defendant took the stand at trial and presented an alibi defense. When cross-examining the
defendant, the prosecuting attorney elicited from the defendant that he had not testified at his
preliminary hearing where he could have told the judge of his alibi defense. Defendant’s
attorney did not object to that line of questioning. On appeal, this Court held that it would
consider the propriety of the prosecuting attorney’s conduct even though there was no objection
at trial. We reasoned, “[T]he obligation of the state to see that defendant receive a fair trial is
primary and fundamental. In case of fundamental error in a criminal case the Supreme Court
may consider the same even though no objection had been made at time of trial.” Id. at 251, 486
P.2 at 262 (citations omitted).
Later, in State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989), we adopted
from State v. Garcia, 128 P.2d 459, 462 (N.M. 1942), the following definition of fundamental
error:
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.
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),
10
and “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) (quoting State v. Mauro, 121 Idaho 178, 180, 824 P.2d 109, 111 (1991)).
In State v. White, 97 Idaho 708, 551 P.2d 1344 (1976), we held it constituted fundamental
error for the prosecutor to elicit testimony regarding the defendant’s post-arrest silence, whether
his purpose was to raise an inference of guilt or to impeach the defendant’s trial testimony. We
relied upon Doyle v. Ohio, 426 U.S. 610 (1976), wherein the United States Supreme Court held
that “the use for impeachment purposes of [defendants’] silence, at the time of arrest and after
receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.”
We also relied upon Griffin v. California, 380 U.S. 609, 615 (1965), in which the United States
Supreme Court held that “the Fifth Amendment, in its direct application to the Federal
Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids
either comment by the prosecution on the accused’s silence or instructions by the court that such
silence is evidence of guilt.”
The same rationale that precludes evidence of an accused’s assertion of his or her Fifth
Amendment Rights offered for the purpose of either impeachment or inferring guilt precludes
evidence of the accused’s assertion of his or her Fourth Amendment rights offered for the same
purposes. The State concedes that the prosecuting attorney’s sole purpose for eliciting this
testimony was to have the jury infer that Christiansen’s refusal to consent to the search showed
consciousness of guilt. The State also agrees that eliciting such testimony was improper and that
the prosecuting attorney could not reasonably have believed that such evidence was admissible
in this case. We hold that the prosecutor’s questioning as to Christiansen’s refusal to consent to
the search of his business premises constituted fundamental error when the purpose for such
testimony is to show consciousness of guilt.
Even though the prosecuting attorney’s conduct in eliciting this testimony constituted
fundamental error, such error does not automatically require reversal. Chapman v. California,
386 U.S. 18 (1967); State v. Robbins, 123 Idaho 527, 850 P.2d 176 (1993). Some constitutional
errors may be deemed harmless, depending upon the circumstances of the particular case. Id.
“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24
(1967). Accord, State v. Robbins, 123 Idaho 527, 850 P.2d 176 (1993). An error is harmless
11
beyond a reasonable doubt if the Court can conclude, based upon the evidence and argument
presented during the trial, that the jury would have reached the same result absent the error.
State v. Sandoval-Tena, 138 Idaho 908, 71 P.3d 1055 (2003).
After the prosecuting attorney elicited testimony that Christiansen had refused to consent
to the search of his business premises, Christiansen’s attorney asked to be heard outside the
presence of the jury. After the jury left the courtroom, he asked for a mistrial. The district court
stated that the prosecutor’s question was improper, but concluded it did not deprive Christiansen
of a fair trial. The court therefore denied the motion for a mistrial, but it offered Christiansen the
option of instructing the jury on the matter. Christiansen declined that offer in order not to bring
any more attention to it. There is nothing in the record indicating that Christiansen’s assertion of
his Fourth Amendment rights was ever again mentioned during the trial.
In assessing whether the errors by the prosecuting attorney were harmless beyond a
reasonable doubt, we have conducted an independent review of the evidence. We have not
placed any weight on the district court’s denial of the motion for mistrial. Its determination that
the prosecutor’s conduct did not deprive Christiansen of a fair trial came during the second of
five days of testimony. Without having heard all of the evidence, it would be difficult for the
district court to accurately assess the impact of the prosecuting attorney’s improper conduct.
There was no excuse for the prosecuting attorney seeking to elicit Sergeant Clark’s
opinion as to Christiansen’s veracity during police interrogation or testimony that Christiansen
refused consent to a search of his business premises. The prosecuting attorney’s actions were
clearly misconduct. Considering all of the evidence presented, however, we find that the
prosecuting attorney’s misconduct was harmless beyond a reasonable doubt. The evidence was
uncontradicted that the fire was caused by arson and that Christiansen was the only person who
had access to the premises at the time of the fire. If the evidence of Christiansen’s guilt were less
clear-cut, we would vacate the judgment because of the prosecuting attorney’s misconduct.
III. CONCLUSION
The judgment of the district court is affirmed.
Chief Justice SCHROEDER, and Justices TROUT, BURDICK and JONES CONCUR.
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