IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36819
STATE OF IDAHO, ) 2011 Opinion No. 17
)
Plaintiff-Respondent, ) Filed: April 1, 2011
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v. ) Stephen W. Kenyon, Clerk
)
ROBERT J. SUTTON, II, )
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Defendant-Appellant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Bonner County. Hon. Steven C. Verby, District Judge.
Judgment of conviction for intimidating a witness, vacated and remanded.
Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy
Appellate Public Defender, Boise, for appellant. Jason C. Pintler argued.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent. John C. McKinney argued
________________________________________________
GRATTON, Chief Judge
Robert J. Sutton, II (Sutton) appeals his judgment of conviction, upon jury verdict, for
intimidating a witness, Idaho Code § 18-2604. Sutton claims the jury instructions regarding the
elements of the offense were defective and require vacating the conviction. We vacate the
judgment of conviction and remand.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Sarah Phelps (Phelps) worked as a bartender in Sandpoint where she met Sutton and
Mike O’Neil (O’Neil), Sutton’s uncle. Phelps witnessed O’Neil selling methamphetamine to
customers at the bar and informed the police. She agreed to work as a paid informant. After
Phelps concluded a controlled buy of methamphetamine from O’Neil, O’Neil was charged with
delivery of a controlled substance. A preliminary hearing was scheduled for June 18, 2009, at
which Phelps was a potential witness.
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On June 15, 2008, Sutton and his father, Robert Sutton, Sr. (Sutton Sr.), visited Phelps’
apartment. Phelps owned a pit-bull terrier that was very protective. She testified that her dog
was for protection, and in order to prevent the dog from becoming friendly with strangers she
kept him in a separate room when people visited. Phelps testified she put the dog in a separate
room on this day and he was barking while the Suttons were there.
On June 15, 2008, an evening phone call was recorded from the jail to the house where
Sutton and Sutton Sr. were staying. During the fifteen-minute call, six people talked on the
phone, two from the jail and four from the house. The call began with another inmate, “Lefty,”
calling his friend, Gary Rust, whom the Suttons were living with at the time. Rust stated to
Lefty, “Tell [O’Neil] Sara Phelps told on him.” When Sutton Sr. began speaking with O’Neil,
Sutton Sr. said “Don’t say anything on the phone.” O’Neil replied “I know.” O’Neil said that
Rust would talk to Sutton later. When Sutton Sr. stated “I’ll do anything I can for you.” O’Neil
responded, “Tell your fucking kid he already knows who she is.” When Sutton came on the
phone, O’Neil told him that this is his (O’Neil’s) second conviction and he is at risk of being
sentenced from seven to life. O’Neil then said, “I have a hearing on the 18th. My preliminary is
on the 18th.” Thereafter, the following exchange occurred:
Sutton: “I want to know who your . . .”
O’Neil: “You know who.”
Sutton: “Well I don’t know . . .”
O’Neil: “Bitch.”
Sutton: “Just don’t say nothing and we’ll just talk when I . . .”
O’Neil: “Bitch. That’s all I’m going to say. You know what time
it is.”
Sutton: “I’ll come get you and we’ll work something out.”
O’Neil: “I ain’t even worried about it.”
Sutton: “I just want to know.”
O’Neil: “I want to see the bitch up on the stand. Just so I can look
at her and fucking spit.”
Sutton: “They won’t give the exact day in the newspaper because
then they think you’ll know who it is.”
O’Neil: “I know who it is. The time frame is way too short.”
On June 17, 2008, between 6:30 to 7:00 a.m., Phelps, following her daily routine, took
her pit-bull for his morning walk. Before Phelps could stop him, her dog ate two balls of raw
hamburger that were left outside her home in the alley. Shortly after returning from the twenty-
minute walk, the dog became ill with seizures. Phelps took her dog to a veterinarian and was
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instructed to leave him there because he was extremely ill. After leaving her dog, Phelps went to
a local bar where she had a number of cocktails and became intoxicated because she was upset
that someone would hurt her dog. Phelps returned to her apartment and fell asleep. Phelps
awoke to the noise of her French doors hitting the wall and allegedly saw Sutton and Sutton Sr.
storm into her apartment. She testified that they came directly at her and stated: “We know that
you narked. Michael told us. You’re fucked. You’re going down.” Sutton allegedly touched
her cheek with a .45 caliber pistol and then moved the pistol to the corner of her mouth. Phelps
did not remember any other statements before the Suttons left and estimated the incident took
about two minutes.
Sutton was charged with burglary, aggravated assault, and intimidating a witness. He
was also alleged to be a persistent violator. A jury found Sutton guilty of intimidating a witness,
acquitted him of aggravated assault, and could not reach a verdict on the burglary charge. Sutton
admitted to being a persistent violator of the law. He was sentenced to a unified term of ten
years with six years determinate. Sutton appeals.
II.
DISCUSSION
Sutton and the State agree that under State v. Anderson, 144 Idaho 743, 170 P.3d 886
(2007), the jury instructions given on the elements for intimidation of a witness, I.C. § 18-2604,
were in error. Both also agree that, like the defendant in Anderson, Sutton failed to object.
Sutton argues that Anderson requires vacating his conviction. The State contends that Sutton has
not demonstrated fundamental error under State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010)
and the conviction should be affirmed.
Idaho Code § 18-2604 defines four instances of intimidating a witness. The subsection
applicable here criminalizes intimidating witnesses in criminal proceedings prior to their
anticipated testimony, stating:
Any person who, by direct or indirect force, or by any threats to person or
property, or by any manner wilfully intimidates, influences, impedes, deters,
threatens, harasses, obstructs, or prevents, a witness, including a child witness, or
any person who may be called as a witness or any person he believes may be
called as a witness in any criminal proceeding or juvenile evidentiary hearing
from testifying freely, fully and truthfully in that criminal proceeding or juvenile
evidentiary hearing is guilty of a felony.
I.C. § 18-2604(3) (emphasis added).
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In Anderson, the defendant was arrested for shoving his wife multiple times. Several
days after the incident, Anderson left a voicemail for one of the arresting officers. The officer
testified that Anderson stated he was going to “get me on the stand and let people know I’m
gay.” Anderson, 144 Idaho at 745, 170 P.3d at 888. Anderson was charged with misdemeanor
domestic battery and harassing a witness, under I.C. § 18-2604(3). At the conclusion of the trial
the following intimidation instruction was given:
YOU ARE INSTRUCTED that the essential elements in Count II of the
crime of HARRASSING (sic) A WITNESS which defendant is charged are:
1. On or about the 14th day of January, 2005;
2. in the state of Idaho;
3. the defendant, JOHN CORNELL ANDERSON, did willfully threaten
or harass;
4. a witness in a criminal proceeding;
5. or a witness the defendant believe may be called in a criminal
proceeding
The State has the burden of proving each of these elements by proof
beyond a reasonable doubt. If any of the above has not been proven beyond a
reasonable doubt, then you must find the defendant not guilty. If each of the
above has been proven beyond a reasonable doubt, you must find the defendant
guilty.
Anderson, 144 Idaho at 748, 170 P.3d at 891. The jury was also instructed that “an act is
‘willful’ or done ‘willfully’ when done on purpose. One can act willfully without intending to
violate the law, to injure another, or to acquire any advantage.” Id. Anderson, pro se, did not
object to the instructions.
The Court held that the instruction on harassing a witness erroneously omitted the
element that the defendant willfully threatened or harassed the witness “from testifying freely,
fully and truthfully.” Id. The Court also noted that the “willfully” instruction exacerbated the
error by emphasizing Anderson could be found guilty without finding a specific intent to acquire
an advantage. On appeal, Anderson argued the error was fundamental. The Court held that
because the instruction omitted an essential element of the crime, Anderson’s right to due
process was violated and it was a clear instance of manifest injustice that constituted
fundamental error. The Court then conducted a harmless error analysis. The State, on appeal,
focused on arguing that the error was not fundamental and did not argue the error was harmless.
The Court concluded that the State failed to meet its burden to demonstrate the error was
harmless. The Court reasoned that the jury could have thought that Anderson called the officer
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to vent his anger or to irritate or annoy the officer, rather than intimidate him regarding his
testimony. Id. at 749, 170 P.3d 892.
In this case, Sutton and the State agree that, based on Anderson, the elements instructions
were erroneous. Jury instruction nineteen, stated:
In order for the defendant to be guilty of Witness Intimidation, the state
must prove each of the following:
1. On or about June 17, 2008,
2. in the state of Idaho,
3. the defendant, Robert James Sutton, II, did wilfully, by use of direct or
indirect force and/or threat to Sara Phelps,
4. intimidate a witness or a person whom he believed may be called as a
witness in a court criminal proceeding.
If any of the above has not been proven beyond a reasonable doubt, you
must find the defendant not guilty. If each of the above has been proven beyond a
reasonable doubt, then you must find the defendant guilty.
Instruction twenty stated:
An act is “wilful” or done “wilfully” when done on purpose. One can act
wilfully without intending to violate the law, to injury another, or to acquire any
advantage.
Sutton, who was represented by an attorney, failed to object to the above jury instruction. The
instructions in this case appear to be substantially similar to the instructions in Anderson. While
in this case the court used the term “intimidate,” the Anderson instruction used the phrase
“threaten or harass.” Both sets of instructions seem to imply a requirement that the act be done
to prevent the witness from testifying, but neither included it as an express element. The State
does not dispute the similarities here with Anderson, but argues Perry changes the outcome.
In Perry, after considerable analysis, the Court stated:
In summary, where a defendant alleges that an error occurred at trial, appellate
courts in Idaho will engage in the following analysis:
(1) If the alleged error was followed by a contemporaneous
objection at trial, appellate courts shall employ the harmless error test
articulated in Chapman. Where the defendant meets his initial burden of
showing that a violation occurred, the State then has the burden of
demonstrating to the appellate court beyond a reasonable doubt that the
constitutional violation did not contribute to the jury’s verdict. There are
two exceptions to this standard:
a. Where the error in question is a constitutional violation
found to constitute a structural defect, affecting the base structure
of the trial to the point that a criminal trial cannot reliably serve its
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function as a vehicle for determination of guilt or innocence, the
appellate court shall automatically vacate and remand.
b. Where the jury reached its verdict based upon erroneous
instruction an appellate court shall generally vacate and remand the
decision of the lower court. However, in the limited instance
where the jury received proper instruction on all but one element
of an offense, and “[w]here a reviewing court concludes beyond a
reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict
would have been the same absent the error, the erroneous
instruction is properly found to be harmless.” State v. Lovelace,
140 Idaho 73, 79, 90 P.3d 298, 304 (2004). If a rational jury could
have found that the state failed to prove the omitted element then
the appellate court shall vacate and remand.
(2) If the alleged error was not followed by a contemporaneous
objection, it shall only be reviewed by an appellate court under Idaho’s
fundamental error doctrine. 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 227-28, 245 P.3d 979-80 (emphasis added). The Court concluded: “We find
that this analytical approach clarifies our standard of review while adhering to the historic
principles underlying Idaho’s harmless error and fundamental error doctrines.” Id.
Despite the summary provided in outline format by the Perry Court, Sutton argues that
the appropriate standard of review for failing to include an element of the offense in a jury
instruction is that stated in subparagraph (1)(b) above, where the Court quotes Lovelace. The
standard set out in Lovelace, 140 Idaho at 79, 90 P.3d at 304, comes from Neder v. United States,
527 U.S. 1, 17 (1999). The Neder standard states: “where the reviewing court concludes beyond
a reasonable doubt that the omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same absent the error, the erroneous
instruction is properly found to be harmless.” Neder, 527 U.S. at 17. Subparagraph (1) of the
Perry opinion quoted above sets forth standard for objected-to error and then notes that “[t]here
are two exceptions to this standard,” one of which is the Neder standard set out in
subparagraph (1)(b). Sutton asserts that when the Court identified the Neder standard as an
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exception, it meant to identify the applicable standard regardless of whether there was or was not
a contemporaneous objection.
We note, first, that in Neder the instruction was objected to. Neder, 527 U.S. at 6. The
Perry Court favorably cited the Neder standard for reviewing jury instruction error when there is
a contemporaneous objection. Perry, 150 Idaho at 228, 245 P.3d at 980 (quoting Lovelace, 140
Idaho at 79, 90 P.3d at 304 (citing Neder, 527 U.S. at 17)). The Perry Court was careful to detail
the significant distinction between objected-to and unobjected-to error. One of the Perry Court’s
stated purposes in announcing the standards set forth therein was to “reinforce the judicial
preference for contemporaneous objections before the trial court.” Id. at 220, 245 P.3d at 972.
Thus, after setting out the standards for objected-to error in subparagraph (1), including its
exceptions in subparagraphs (a) and (b), the Court clearly stated that “if the alleged error was not
followed by a contemporaneous objection” the three-part analysis in subparagraph (2) applies.
The Court made no exceptions in subparagraph (2). Therefore, the Court rejects Sutton’s
interpretation of Perry and will apply the three-prong inquiry for unobjected-to error in jury
instructions. Each of the three prongs will be addressed in turn.
1. Unwaived constitutional right
The Anderson Court concluded that “the jury instruction omitted an essential element
from the felony witness harassment statute, thereby violating Anderson’s right to due process.”
Anderson, 144 Idaho at 749, 170 P.3d at 892. That decision compels the conclusion that the
instructions in this case constituted an error that violated Sutton’s due process rights. The State
acknowledges that “Sutton has tentatively shown a violation of his constitutional right to have
the jury receive instruction on every element of the crime of witness intimidation.” Sutton
demonstrated the violation of an unwaived constitutional right.
2. Plain error
For an error to plainly exist, there must not be a need for additional information outside
the appellate record. Perry, 150 Idaho at 228, 245 P.3d at 980. Requiring error to be “plain” is
“synonymous with ‘clear’ or, equivalently, ‘obvious.’” Id. at 225, 245 P.3d at 977 (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)). Sutton argues that the existence of the
Anderson case, coupled with the jury instructions in the record, renders the error in this case
plain.
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However, Perry further requires demonstration from the record itself that the failure to
object was not a matter of tactics or strategy. If that conclusion cannot be drawn from the record,
then plain error is not shown and direct review under fundamental error is inappropriate. As
Perry further states, “[i]f there is insufficient evidence in the appellate record to show clear error,
the matter would be better handled in post-conviction proceedings.” Perry, 150 Idaho at 226,
245 P.3d at 978. The Court concluded there was a reasonable possibility that Perry’s failure to
object was a strategic decision and additional fact-finding would be necessary to determine
defense counsel’s motivation. Thus, Perry had failed to demonstrate plain error and the Court
concluded the prosecutor misconduct claim could not be reviewed under fundamental error.
The State argues that the error in this case does not plainly exist, because Sutton’s failure
to object may have been for tactical reasons. The State asserts the instructional error should have
been obvious to Sutton by comparing the instruction with I.C. § 18-2604, or reading the
Anderson opinion. The State hypothesizes that defense counsel knew the instruction was error.
The State speculates that Sutton decided not to object because the instructional error was
minimal and Sutton could attempt to secure acquittal on his alibi defense, knowing that in the
event that he lost he could appeal and claim the instruction was error with the hope of receiving a
new trial. The State contends this is exactly the type of “sandbagging” that Perry, at 224, 245
P.3d at 976, and Puckett v. United States, __ U.S. __, 129 S.Ct. 1423, 1428 (2009), warned
against.
First, there is no indication in the record that Sutton knew any more about the law than
the State or the trial court, nor is there any evidence or indication that Sutton was attempting to
sandbag the court. There is no evidence Sutton presented this instruction to the court. Second,
the audio recording from the jail indicates that O’Neil wanted Sutton to do something regarding
Phelps, but it is not clear. While the break-in to Phelps’ home was temporally related to the
preliminary hearing at which Phelps might testify, nothing in her recounting of the statements
made by the Suttons directly related to her testifying. With that in mind, a reasonable trial
strategist would have wanted the instruction to require the jury to find, beyond a reasonable
doubt, that Sutton’s actions were expressly related to her potential testimony and for the purpose
of intimidating her from “freely, fully, and truthfully” testifying at the preliminary hearing.
Counsel could then argue that, because none of the statements attributed by Phelps to the Suttons
referred to testimony, the jury could not find, beyond a reasonable doubt, that Sutton’s acts were
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meant to intimidate her from “freely, fully and truthfully” testifying. Indeed, during the
jailhouse telephone conversation, O’Neil stated that he wanted Phelps on the witness stand so he
could spit on her. If Sutton’s purpose for breaking into Phelps’ apartment with a pistol was to
keep her from testifying, it would seem most likely that he would, in fact, expressly tell her not
to testify. Although Sutton was pursuing an alibi defense, nothing precluded an alternative
argument to the jury that even if the jury believed Sutton was involved in the incident, by the
victim’s own testimony, it had nothing to do with her testifying, whether freely, fully or
truthfully.
We are left with only the State’s speculation that Sutton made a tactical decision not to
object. This Court concludes that information outside the record is not necessary to determine
that Sutton’s failure to object was not a strategic decision.
3. Prejudicial error
Sutton has the burden of demonstrating that the error was not harmless. Perry, 150 Idaho
at 228, 245 P.3d at 980. Sutton must demonstrate that the error affected his substantial rights,
meaning that it must have altered the outcome of the trial proceedings. Id. at 226, 245 P.3d at
978. Sutton argues that the failure to properly instruct the jury did affect the outcome of the trial.
Sutton points to weaknesses in the State’s case, including: (1) Phelps’ credibility; (2) the jury’s
failure to convict on the other two counts; and (3) the timeline of events and arguable alibi.
Phelps’ credibility was called into question. At the preliminary hearing, Phelps was
asked if she was a confidential informant and she answered no. Phelps acknowledged at trial
that the statement was false, and that she was a paid informant against O’Neil. She explained
that she was confused at that hearing and not sure she had to disclose that she was an informant
against O’Neil. On direct examination, Phelps testified she was sure she drank six screwdrivers
the morning of July 17, 2008. But when asked if she remembered testifying at the preliminary
hearing to having consumed eight screwdrivers, she did not deny having said so, but indicated
that six or eight was pretty close. Even though she admitted to being drunk, she was adamant her
memory and her identification of the Suttons were correct. When asked if she had purchased
methamphetamine from O’Neil, she denied it, but Detective Higbee testified that Phelps had
helped him in a controlled purchase from O’Neil. Phelps testified that even though she was
concerned for her safety after the incident, she did not seek police protection because she was not
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easily spooked; however, Detective Higbee believed Phelps did not promptly notify the police
because she did not want to be labeled an informant.
Sutton asserts that based on the aggravated assault acquittal, and the hung jury on the
burglary charge, the jury did not believe Phelps’ testimony. Sutton argues that the jury, by
acquitting him on the aggravated assault charge, did not believe Phelps’ testimony that he broke
into her apartment and put a gun to her face. In addition, while the jury must have found some
interaction, it was not assaultive and a jury instruction that Sutton’s actions must have been for
the purpose of not just intimidating her, but to intimidate her from testifying “freely, fully and
truthfully,” would have similarly resulted in acquittal. Finally, Sutton claims his alibi defense
enhances the likelihood of an acquittal had the jury been properly instructed. Sutton concludes
that any threat made here was the same as in Anderson and that the jury might have found that
Sutton was expressing his anger to Phelps for informing on O’Neil, not that he was intending to
deter her from testifying.
Sutton met his burden of demonstrating that the error was not harmless. Ultimately, this
case hinges on Phelps’ testimony, which was subject to a number of reasons for the jury to doubt
its credibility. She lied at the preliminary hearing. She testified she did not buy
methamphetamines from O’Neil and the officer testified otherwise. She was intoxicated. Lastly,
although the alleged break-in was temporally related to the date of the preliminary hearing,
according to Phelps’ testimony, Sutton made no reference to her upcoming testimony against
O’Neil, or any desire that she not testify, modify her testimony, or lie. Indeed, even though it
can be argued that she was the subject of discussion in the recorded telephone conversation, it is
not clear that the thrust of the conversation was to influence her testimony at O’Neil’s hearing.
Thus, like in Anderson, an argument can be made that Sutton’s purpose for the alleged break-in
was retribution for “narking” as opposed to affecting future testimony. Consequently, we cannot
say that the failure of the instruction to require the express tie of Sutton’s actions to Phelps
“freely, fully and truthfully” testifying did not affect the outcome.
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III.
CONCLUSION
The jury instruction was erroneous and violated an unwaived constitutional right. The
error was plain and was not harmless error. The judgment of conviction is vacated and the case
is remanded.
Judge LANSING and Judge GUTIERREZ CONCUR.
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