IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36968
STATE OF IDAHO, )
) 2011 Opinion No. 22
Plaintiff-Respondent, )
) Filed: April 27, 2011
v. )
) Stephen W. Kenyon, Clerk
PONY L. JACKSON, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Clark County. Hon. Joel E. Tingey, District Judge.
Judgment of conviction for two counts of lewd and lascivious conduct with a
minor, affirmed.
Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
LANSING, Judge
Pony L. Jackson appeals from his conviction on two counts of lewd and lascivious
conduct with a minor child, Idaho Code § 18-1508. He seeks fundamental error review of a
number of asserted instances of prosecutorial misconduct to which no objection was made at
trial. Finding no error that meets the criteria for fundamental error, we affirm.
I.
BACKGROUND
In 2008, Jackson was charged with two counts of lewd conduct with a minor under
sixteen years of age, I.C. § 18-1508, for acts of molestation of his niece, K.W., that were alleged
to have occurred sixteen years earlier. K.W. apparently was prompted to report these offenses in
2007 because she had heard of a news broadcast indicating that Jackson had been charged with
possession of child pornography and that law enforcement authorities were requesting contact
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from anyone who had been victimized by him. After a jury trial, Jackson was found guilty of
both charges. On appeal, Jackson contends that the prosecutor violated a pretrial order that
precluded the State from disclosing details of the news broadcast indicating other criminal
activity by Jackson. He also argues that the prosecutor improperly elicited testimony from
K.W.’s mother vouching for K.W.’s credibility and violated Jackson’s Fifth Amendment right
against self-incrimination by referring during closing argument to the absence of any trial
testimony by Jackson.
II.
STANDARD OF REVIEW
Jackson made no objection at trial to the alleged acts of prosecutorial misconduct of
which he now complains. Trial error ordinarily will not be addressed on appeal unless a timely
objection was made in the trial court. State v. Adams, 147 Idaho 857, 861, 216 P.3d 146, 150
(Ct. App. 2009). This limitation “serves to induce the timely raising of claims and objections,
which gives the [trial] court the opportunity to consider and resolve them.” Puckett v. United
States, ___ U.S. ___, ___, 129 S. Ct. 1423, 1428 (2009). Because Jackson raises his claims of
error for the first time on appeal, to obtain our review of these issues, he must establish that they
are reviewable as “fundamental error.”
In its recent opinion in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho
Supreme Court re-examined the fundamental error doctrine and adopted a new definition of the
types of error for which review will be provided on appeal in the absence of a timely objection in
the trial court. The Supreme Court stated that to obtain relief on appeal for 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 decision;
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.
Id. at 226, 245 P.3d at 978 (footnote omitted). Thus, on a claim of fundamental error a defendant
must first show that the alleged error “violates one or more of the defendant’s unwaived
constitutional rights” and that the error “plainly exists” in that the error was plain, clear, or
obvious. Id. at 228, 245 P.3d at 980. If the appellate record is insufficient to show clear error,
“the matter would be better handled in post-conviction proceedings.” Id. at 226, 245 P.3d at 978.
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If the alleged error satisfies the first two elements of the Perry test, the error is reviewable. Id.
To obtain appellate relief, however, the defendant must further persuade the reviewing court that
the error was not harmless; i.e., that there is a reasonable possibility that the error affected the
outcome of the trial. Id. at 226, 228, 245 P.3d at 978, 980.
III.
ANALYSIS
A. Evidence and Argument Implying Jackson Had Other Molestation Victims
In advance of trial, Jackson filed a motion in limine seeking exclusion, pursuant to Idaho
Rule of Evidence 404(b), 1 of any evidence of his child pornography charge and any reference to
television reports requesting that any alleged victims contact authorities. After a hearing on the
motion, the district court reserved ruling until the evidence was proffered at trial. Immediately
before trial was to begin, however, the prosecutor requested a ruling. He explained that he
wanted to inquire of the victim in this area in order to explain why she had reported this abuse to
authorities so long after the occurrence, and the prosecutor sought a ruling on the permissible
boundaries so as not to cause “any mistrials or appealable issues.” After some discussion, the
district court held that the prosecutor could make his point and avoid prejudice to Jackson by
eliciting from the victim that “there was a law enforcement inquiry regarding Pony Jackson and
that prompted her to come forward, something general and innocuous like that.” The court
further directed the prosecutor to instruct the victim on this limitation to her testimony.
Notwithstanding this ruling, in his opening statement the prosecutor said, “[I]t wasn’t until 2007,
in January 2007, when there was a report on the news that anybody who had been molested by
Pony Jackson, if they would contact the sheriff’s office or law enforcement had wanted them to
do that.” Then the prosecutor elicited from the victim testimony that she contacted the sheriff’s
department because “on the news they had said that Pony Jackson had been arrested and that
anybody else that had been molested by him, to please come forward.” (Emphasis added.)
Lastly, in closing argument the prosecutor said that after the victim heard a media report “that
those who have something to say about Pony Jackson molesting them ought to come forward,
1
Rule 404(b) states, in part, “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that the person acted in conformity therewith.”
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she came forward.” Defense counsel did not object, move to strike the testimony or argument, or
request a mistrial.
In order to satisfy the first prong of the Perry standard for fundamental error review--that
the error violates one of his unwaived constitutional rights--Jackson appears to argue that
because he has a Fourteenth Amendment due process right to a fair trial, necessarily all errors
that taint a trial infringe on that right and thus are constitutional errors that are reviewable as
fundamental error. We do not view this contention to be consistent with the Supreme Court’s
pronouncement in Perry 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 226, 245 P.3d at 978 (quoting State v. Kirkwood, 111 Idaho 623, 626, 726 P.2d
735, 738 (1986)). Long before Perry, the Idaho Supreme Court had held that claims of error in
the admission of evidence (including violation of Rule 404(b)) are not subject to fundamental
error analysis. See, e.g., State v. Cannady, 137 Idaho 67, 72-73, 44 P.3d 1122, 1127-28 (2002);
State v. Moore, 131 Idaho 814, 822, 965 P.2d 174, 182 (1998); State v. Evans, 129 Idaho 758,
762, 932 P.2d 881, 885 (1997); State v. Davis, 127 Idaho 62, 64, 896 P.2d 970, 972 (1995); State
v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995); State v. Bingham, 116 Idaho 415,
423, 776 P.2d 424, 432 (1989). While the Supreme Court has not been invariable in that
position, holding in State v. Walters, 120 Idaho 46, 59, 813 P.2d 857, 870 (1991) (Boyle, J.
concurring) 2 that the admission, without objection, of a fire investigation expert’s opinion that
the defendant was the person who started the fire was reviewable as fundamental error, the
Walters decision appears to be the only exception. Both before and after Walters, the Supreme
Court has consistently refused fundamental error review for evidentiary error that does not
encompass a constitutional violation. In our view, the Perry Court’s definition of fundamental
error as requiring a constitutional violation reflects an intent to frame a more definitive limit
upon fundamental error review, not to expand it. To hold that the presentation of evidence and
associated argument in violation of an evidentiary rule satisfies the constitutional violation
element of Perry because all evidentiary error implicates due process would, in our view,
virtually eviscerate the first prong of the Perry standard and contravene the limits that Perry
places on fundamental error review.
2
Justice Boyle’s concurring opinion issued on rehearing was joined by two other justices
and thus presented the view of a majority of the Idaho Supreme Court.
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Here, the trial court’s order prohibiting reference in front of the jury to the content of the
news broadcast that implied other offenses by Jackson was not based upon any constitutional
right but apparently upon the trial court’s determination that such evidence was inadmissible
under Idaho Rule of Evidence 404(b). There being no demonstration that the prosecutor’s
alleged misconduct in disobeying the pretrial order violated one or more of Jackson’s unwaived
constitutional rights, no fundamental error has been shown.
B. Vouching Evidence
Jackson next asserts that the prosecutor committed misconduct by eliciting testimony
from the victim’s mother that she believed her daughter was truthful in her allegations against
Jackson.
Whether this particular variety of evidentiary error, to which no objection was made at
trial, is reviewable as fundamental error was not made entirely clear by Perry. The Perry case
itself involved a nearly identical claim of fundamental error. The prosecutor there elicited
testimony from child victims’ foster parents and the investigating officer that they believed the
victims were honest and/or believed the victims’ allegations against the defendant. Although the
Supreme Court deemed this evidence inadmissible because “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,’” id. at 229, 245 P.3d at 981 (quoting
People v. Barnes, 2 Idaho 148, 150, 9 P. 532, 533 (1886)), and because such evidence does not
“assist the trier of fact” as required by I.R.E. 702, id., the Court declined to conduct a
fundamental error review. In so declining, the Court did not address whether the error violated
one of the defendant’s constitutional rights. Instead, the Court skipped to the second prong of
the Perry standard, which asks whether the failure to object at trial was a strategic decision. Id.
Finding that the record of Perry’s trial indicated that defense counsel may have chosen not to
object to the vouching testimony as a matter of trial strategy, the Court refused fundamental error
review.
The same approach is not appropriate here. The record in this case suggests no reason to
conclude that defense counsel elected, as a matter of trial strategy, to waive any objection when
the prosecutor elicited testimony from K.W.’s mother that she believed K.W.’s allegations
against Jackson. Therefore, we must address the issue that was not determined in
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Perry--whether the elicitation of vouching testimony from a lay witness violates a constitutional
right of the accused.
We conclude that it does not. People v. Barnes, the early decision cited by the Perry
Court for the proposition that it is impermissible for one witness to vouch for the truthfulness of
another witness’s testimony, did not predicate that rule upon a constitutional principle; rather, it
cited a provision of the Idaho Territories Code of Civil Procedure. Barnes, 2 Idaho at 150, 9 P.
at 533. Since adoption of the Idaho Rules of Evidence, Rules 608(a), 701, and 702 have all been
cited as disallowing testimony of one witness that another witness was or was not telling the
truth in particular testimony. See, e.g., State v. Christiansen, 144 Idaho 463, 468, 163 P.3d 1175,
1180 (2007) (Rule 608(a)); State v. Perry, 139 Idaho 520, 525, 81 P.3d 1230, 1235 (2003)
(Rule 702); State v. Raudebaugh, 124 Idaho 758, 768, 864 P.2d 596, 606 (1993) (Rule 608(a));
State v. Hauser, 143 Idaho 603, 612, 150 P.3d 296, 305 (Ct. App. 2006) (Rule 701); State v.
Johnson, 119 Idaho 852, 857-58, 810 P.2d 1138, 1143-44 (Ct. App. 1991) (Rule 701). We have
found no Idaho authority that invoked a constitutional provision as a basis for excluding
vouching testimony. Hence, we hold that Jackson’s assertion, raised for the first time on appeal,
that the vouching testimony of the victim’s mother was inadmissible, does not present an issue of
fundamental error.
Even if the principle disallowing vouching testimony were found to have constitutional
roots, the presentation of the testimony of the victim’s mother here would not lead us to reverse
Jackson’s conviction, for he has not shown that the error affected the outcome of his trial. This
Court discussed the relative prejudicial effect of vouching testimony in Reynolds v. State, 126
Idaho 24, 30, 878 P.2d 198, 204 (Ct. App. 1994):
At least with respect to the witnesses in this case, a partisan lay witnesses [sic]
testimony generally implies a belief in the claims of the party for whom they are
testifying. We do not believe that in this case a mother’s testimony that she
believes her child, or an adult friend’s testimony that she believes the victim,
would have any more than a marginal effect on the jury’s determination of the
credibility of the victim. The danger of experts testifying regarding credibility
lies in the perception by the jury that the expert is a detached, neutral party who
has no stake or interest in the litigation. Experts often possess special knowledge
or training, giving their opinions of credibility great weight in the minds of jurors.
Such weight is not afforded the lay witness who obviously sides with one party.
The error here permitted the jury to hear vouching testimony only from the victim’s mother. For
the reasons stated in Reynolds, Jackson has not shown a reasonable possibility that the vouching
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testimony of K.W.’s mother affected the outcome of his trial. Accordingly, this error, even if
fundamental, would not warrant a new trial.
C. Alleged Prosecutorial Reference to Defendant’s Choice not to Testify
Jackson also asserts fundamental error in a number of the prosecutor’s statements during
closing arguments. According to Perry, “Where a prosecutor attempts to secure a verdict on any
factor other than the 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,” and hence is reviewable as fundamental
error. Perry, 150 Idaho at 227, 245 P.3d at 979.
Jackson first complains of the following statements made by the prosecutor at closing
argument:
What is--what’s her motive to say these things other than if it isn’t true? . . . I
mean, it happened. It’s believable. . . .
....
There’s just so many things that she has talked about that are so credible
that I believe that the only right and just verdict in this case . . . is that Pony
Jackson sexually abused [the victim] . . . . How could you make these facts up? I
mean, how--a mirror, I mean, think about it. I mean, scissors. What she says
happened happened.
Jackson argues that these statements violated the prohibition against attorneys interjecting at trial
their personal opinions and beliefs about the credibility of a witness, see State v. Phillips, 144
Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007), and thereby infringed his constitutional right to
due process. We disagree. Prosecutors are entitled to ask jurors to draw inferences from the trial
evidence, including inferences about a witness’s credibility. State v. Felder, 150 Idaho 269, 272-
73, 245 P.3d 1021, 1024-25 (Ct. App. 2010); State v. Priest, 128 Idaho 6, 14, 909 P.2d 624, 632
(Ct. App. 1995). This claim of misconduct is not reviewable under the fundamental error
doctrine because it is not plain, clear, or obvious that the prosecutor was asking the jury to render
a decision based on the prosecutor’s personal opinion or belief rather than asking the jury to
draw reasonable inferences from the trial evidence concerning the victim’s credibility.
The next statement with which Jackson takes issue is the prosecutor’s comment that the
victim “ought not to be held or punished again for waiting to come forward” with her allegations
of abuse until years later. This, Jackson urges, was an impermissible attempt to obtain a guilty
verdict by argument aimed at engendering sympathy for the victim. See State v. Troutman, 148
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Idaho 904, 910, 231 P.3d 549, 555 (Ct. App. 2010). While this brief and indirect statement
might be viewed as seeking to invoke sympathy, it does not meet the Perry standard that the
constitutional error be plain, clear, or obvious. Nor could we find that it was of such moment
that there is a reasonable possibility that it altered the outcome of the trial. Therefore, no
fundamental error is shown.
Jackson’s final contention is that the prosecutor violated Jackson’s Fifth Amendment
right to remain silent by commenting upon his choice not to testify at trial when, during rebuttal
closing argument, the prosecutor said, “Did we hear any testimony that [the alleged lewd
conduct] didn’t happen? I don’t recall hearing any testimony that it didn’t happen. The only
testimony I recall was that it happened.”
The Fifth Amendment guarantee that no person may be compelled in a criminal case to
be a witness against himself is violated if a prosecutor comments upon a defendant’s failure to
testify at trial. Griffin v. California, 380 U.S. 609, 614 (1965); State v. McMurry, 143 Idaho 312,
314, 143 P.3d 400, 402 (Ct. App. 2006). This rule applies to both direct and indirect comments
about the absence of testimony from the defendant. McMurry, 143 Idaho at 314, 143 P.3d at
402. While a prosecutor’s general reference to “uncontradicted” evidence does not necessarily
reflect on the defendant’s failure to testify where witnesses other than the defendant could have
contradicted the State’s evidence, comments on the lack of contradicting evidence may result in
an indirect Griffin violation, depending upon the number and nature of those comments.
McMurry, 143 Idaho at 314-15, 143 P.3d at 402-03. Jackson asserts that because he did not
testify at trial and because he was the only potential trial witness who could have contradicted
the victim’s allegations against him, the prosecutor violated this standard in the rebuttal closing
argument.
We conclude that this claim of error does not warrant fundamental error review. The
prosecutor’s statement must be evaluated in light of defense counsel’s closing argument that
immediately preceded it. State v. Severson, 147 Idaho 694, 719, 215 P.3d 414, 439 (2009).
During cross-examination, defense counsel had elicited from a detective that in an interview
Jackson had denied molesting the victim. Then during his closing argument, defense counsel
said:
Mr. Jackson has a constitutional right not to have to testify. He’s not required to
testify. And you cannot take that for anything, a matter of his guilt or of his
innocence. He has a constitutional right not to be required to take the stand. But
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he already did testify to the detective; and again, he denied any of these things
ever happened.
(Emphasis added.) In this context, the prosecutor’s responsive statement can be viewed as fair
rebuttal to defense counsel’s mischaracterization of Jackson’s statements to the detective as
“testimony.” Nothing in the prosecutor’s rebuttal argument explicitly called for the jury to infer
that Jackson was guilty because of his silence or to convict him on that basis. As stated by our
Supreme Court, “a court should not lightly infer that a prosecutor intends an ambiguous remark
to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw
that meaning from the plethora of less damaging interpretations.” Severson, 147 Idaho at 719,
215 P.3d at 439 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)). The
prosecutor’s comment here, given in response to defense counsel’s own improper argument, was
at most an indirect and ambiguous comment on the absence of trial testimony from Jackson; it
does not satisfy the Perry requirement that the constitutional error must be plain, clear, or
obvious.
IV.
CONCLUSION
We conclude that Jackson has not demonstrated fundamental error. Therefore, the
judgment of conviction is affirmed.
Judge GUTIERREZ and Judge MELANSON CONCUR.
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