IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 34220
STATE OF IDAHO, )
) 2009 Opinion No. 43
Plaintiff-Respondent, )
) Filed: June 2, 2009
v. )
) Stephen W. Kenyon, Clerk
CLAYTON ADAMS, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Renae J. Hoff, District Judge.
Judgment of conviction and sentences for second degree murder and aggravated
battery, affirmed.
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.
______________________________________________
LANSING, Chief Judge
Clayton Adams appeals from his convictions for second degree murder and aggravated
battery, asserting that two fundamental errors deprived him of a fair trial. He argues that the
district court erred by failing to sua sponte dismiss a juror for cause because she was biased and
that the prosecutor committed misconduct during closing argument. He also asserts that his
sentences are excessive. We affirm.
I.
FACTS AND PROCEDURE
Three friends, Tyler Gorley, Stephen Maylin and Mikeal Campbell, were leaving a
Caldwell bar at closing time when they ran into Adams and his friend, Sergio Madrigal, outside
the entrance. Campbell spoke to Adams, whom he knew, and the group decided to go to a
private party at another location, with the intent to buy beer and drop off Maylin at his home
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along the way. The five men got into Adams‟ car. According to the State‟s evidence at Adams‟
subsequent trial, the following events then unfolded. En route, Adams asked for beer and gas
money from Gorley, Maylin and Campbell, and when he was told that they had no money,
Adams became enraged. Adams told the men that he had a knife and a gun and that someone
was going to get hurt if he was not given money. In an apparent attempt to scare the men into
compliance, Adams started driving recklessly, speeding and running stop lights and stop signs.
Gorley, Maylin and Campbell demanded to be let out of the car, but Adams initially refused to
stop. Eventually, Adams slammed on his brakes in the middle of a rural road, and the three men
got out of the car to escape from him. Campbell was successful in doing so but the other two
men were not. As Maylin was exiting by the left-rear passenger door, he was met by Adams,
who stabbed Maylin once in the side before Maylin got away. Adams then stabbed Gorley five
times, killing him. Adams then got back in his car and drove away, with Madrigal still a
passenger. The two men then bought beer, unsuccessfully looked for the party and then drove to
Adams‟ home where he was arrested.
Adams was charged with first degree premeditated murder, or in the alternative, first
degree felony murder, three counts of attempted robbery, and one count of aggravated battery.
The jury acquitted on the first degree murder charges and the attempted robbery charges, but
found Adams guilty of the lesser offense of second degree murder and of aggravated battery.
The district court imposed a unified life sentence with twenty-five years determinate for second
degree murder and a consecutive ten-year sentence with three years determinate for aggravated
battery.
Adams appeals from his convictions and asserts two trial errors--that the district court
should have sua sponte dismissed a juror for cause when Adams did not challenge the juror for
cause and that the prosecutor committed misconduct during closing argument. Adams also
asserts that the district court abused its discretion by imposing unreasonably severe sentences.
II.
ANALYSIS
A. The Juror
During voir dire by the prosecutor, potential Juror 608 revealed that she had previously
served on a jury in a criminal case. She described her experience as follows:
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I was disappointed. At the end, the prosecutor said if you have questions,
you know, stay in the room and we‟ll come in and answer. And I didn‟t like that,
as jurors, we weren‟t given what I thought was all of the information, you know,
that the courts are very selective about what jurors can hear. It‟s like we want you
to sit up there, we want you to rule or do whatever it is you do, but we‟re only
going to give you this little piece, and then you have to make your decision with
that. I wanted - the things that he told us afterwards about the case that he could
not present, I didn‟t understand the reasons why they couldn‟t, so I didn‟t care for
that.
....
I didn‟t like having to - it was like every three minutes a word would be
mentioned, and it‟s, oh, juror, leave, come back in five minutes, three minutes.
Later a word is mentioned. Oh, jury‟s got to leave. It was like, you know, either
stop saying the word or tell us what you‟re not telling us.
On later voir dire by defense counsel, the following exchange occurred:
DEFENSE COUNSEL: You know, there might be an occasion, an instance or an
occasion where we might have to take up some legal issues, and we might have to
do that in the absence of the jury.
JUROR NO. 608: Yes
DEFENSE COUNSEL: That we might have to excuse the jury. Will you
promise me that you will not hold that against either myself or the State if that
happens in this case?
JUROR NO. 608: Do I promise? No.
DEFENSE COUNSEL: You cannot promise that?
JUROR NO. 608: (Shakes head.)
DEFENSE COUNSEL: Okay. At least will you be willing to promise me that
you will not be willing to hold that against Mr. Adams, the individual I‟m trying
to help over here?
THE COURT: Counsel, with all due respect, I‟m not going to allow you to
require her to promise.
DEFENSE COUNSEL: Okay. Will you be willing to do your best to make sure
if that happens in this case, you do not hold that against Mr. Adams, the
individual I‟m trying to help in this case?
JUROR NO. 608: Yes, I will do my best.
DEFENSE COUNSEL: You will do your best. That‟s all we can ask for.
Defense counsel did not move to exclude the juror for cause or use a peremptory challenge to
remove her from the panel, and she ultimately served as a juror in the trial. Adams now contends
that the district court should have sua sponte removed the juror for cause because she exhibited
bias and that the court‟s failure to do so amounts to fundamental error.
Our appellate courts normally require that an issue be raised in the trial court before it
may be asserted as error on appeal. State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262
(1971). Therefore, the failure to “exhaust the means available to exclude unacceptable jurors”
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ordinarily precludes consideration on appeal of a subsequent claim of error in seating the juror.
State v. Johnson, 145 Idaho 970, 979, 188 P.3d 912, 921 (2008). An exception to that rule arises
in criminal cases when a fundamental error is shown. Id. Our Supreme Court has defined
fundamental error as follows:
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.
Id. (quoting State v. Lewis, 126 Idaho 77, 80, 878 P.2d 776, 779 (1994)). Fundamental error has
also been described as “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)).
Appellate review of a claimed error to which no objection was made in the trial court on
the basis that it constituted fundamental error is the exception, not the rule, and the fundamental
error doctrine is not a mechanism for criminal defendants to obtain judicial review of every
plausible claim of trial error. The contemporaneous objection requirement exists for a number of
reasons. Among these, it gives the trial court the opportunity to consider and resolve disputes at
the time when the error can be prevented or cured, or any prejudice attendant to an error can be
lessened. It also prevents a defendant from “sandbagging” by remaining silent about a
recognized error and belatedly raising the error only if the case does not conclude in his favor.
See Puckett v. United States, ___ U.S. ___, ___, 129 S.Ct. 1423, 1428-29 (2009) (discussing the
scope of the federal “plain-error” rule, Federal Rule of Criminal Procedure 52(b)).
Appellate courts should be particularly careful in applying the fundamental error doctrine
to what may be a matter of legitimate strategic or tactical choices by defense counsel, which
generally cannot be discerned from the record on appeal. See Mintun v. State, 144 Idaho 656,
662, 168 P.3d 40, 46 (Ct. App. 2007). Decisions whether to challenge a potential juror for cause
fall within that category. In assessing whether to challenge a particular juror, attorneys must not
only weigh the perceived negative features against the favorable features of that particular juror,
they must also consider whether eliminating the juror could result in an even less acceptable
individual moving into that position on the jury panel. Here, the absence of a challenge to
Juror 608 may have been a tactical decision by defense counsel, because although Juror 608 gave
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some problematical answers in voir dire, other factors may have led defense counsel to believe
that she was, on balance, a person that he wanted on the jury or that she was more acceptable
than another who might be substituted for her. After his conviction, and in hindsight, Adams
now contends that the trial court should have intervened sua sponte to exclude the juror for
cause. We are of the view that trial courts should not be required or encouraged, in any but the
most extreme circumstances, to interfere with legitimate tactics of counsel by excusing for cause
a juror who has not been challenged by either party. Therefore, we will not find fundamental
error in such trial court inaction in the absence of a clear record that a potential juror would be so
biased against a criminal defendant, or otherwise excludable for cause, that neither the trial court
nor defense counsel could have reasonably allowed the juror to serve.
Such a record does not exist here. At no time did the juror indicate that she was biased
against criminal defendants or in favor of the State. Instead, the juror disclosed that she resented
the removal of the jurors from the courtroom when attorneys‟ objections required discussion in
the jury‟s absence, and that if this occurred at Adams‟ trial she would not promise not to hold it
against the defense attorney or the prosecutor. She expressed resentment toward a part of the
trial process, not toward either party. This is not a clear “bias” against the defense.
Adams maintains that the decision in State v. Hauser, 143 Idaho 603, 608-11, 150 P.3d
296, 301-04 (Ct. App. 2006), demonstrates that he is entitled to appellate relief on this issue. In
Hauser, we reversed a conviction and remanded for a new trial because the district court had
incorrectly denied a defendant‟s motion to exclude a juror for cause on the ground of bias. That
decision offers no support for Adams‟ present claim, however, because in Hauser, defense
counsel moved to excuse the juror for cause, thereby preserving the issue for appeal and
eliminating any possibility that retention of the juror was a tactical choice of the defense.
Adams has not shown fundamental error in the district court‟s failure to excuse Juror 608
sua sponte.
To the extent that Adams is arguing that the district court erred by disallowing his effort
to elicit a “promise” from the juror that she would not hold it against Adams if the jurors were
sometimes removed from the courtroom during the trial, we agree that this was error. Decisions
of our Supreme Court indicate that it is appropriate to obtain “assurances” from venire persons
concerning their ability to set aside any bias, to follow the trial court‟s instructions, and to decide
the case solely on the facts presented at trial. Johnson, 145 Idaho at 979, 188 P.3d at 921; State
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v. Hairston, 133 Idaho 496, 506, 988 P.2d 1170, 1180 (1999); State v. Jones, 125 Idaho 477,
484, 873 P.2d 122, 129 (1994). In Hauser, we used the terms “assurance” and “promise”
interchangeably. Hauser, 143 Idaho at 609-11, 150 P.3d at 302-04. We see nothing
impermissible in defense counsel‟s request here for a promise from Juror 608 that she would not
become biased against him as a result of periodic removal of the jury from the courtroom.
This error by the district court affords Adams no relief, however, because, as explained
above, this record does not show that the juror would become biased against Adams or would
assume that evidence detrimental to Adams was being withheld from the jury. The district
court‟s intervention did not preclude defense counsel from conducting further inquiries about
Juror 608‟s attitude. For example, defense counsel could have asked Juror 608 whether she
would make an assumption that evidence detrimental to Adams was being kept from the jury if
they were removed from the courtroom, whether she would be able to follow the typical court
instruction that jurors should not make any assumptions about the content of evidence that was
excluded by the court, and whether removal of the jurors from the courtroom upon evidentiary
objections from counsel would affect her decision making. Adams‟ counsel did not pursue any
such inquiries, and therefore the record reveals no answers to such questions. Trial errors that do
not affect substantial rights of the parties will not be deemed grounds for reversal on appeal.
Idaho Criminal Rule 52; State v. Severance, 132 Idaho 637, 639, 977 P.2d 899, 901 (Ct. App.
1999). Because the record here does not demonstrate that a biased juror was seated as a result of
the trial court‟s disallowance of Adams‟ request for a promise from Juror 608, he has shown no
right to relief on appeal.
B. Prosecutorial Misconduct During Closing Argument
Adams next contends that the prosecutor committed misconduct during his rebuttal
closing argument when, after reviewing the trial evidence, the prosecutor said:
[W]e ask one thing, that you take us home, home to justice, justice for Mike
Campbell who watched his friend die, justice for Stephen Maylin who got stabbed
trying to run away from someone he didn‟t even know, justice for Tyler Gorley
whose death is the reason we are here and whose life is insulted by the story that
(Adams) wants you to believe, and justice for Clayton Adams who did these
things, who you know committed these crimes, and who thought so little of it, that
he went and bought beer. We ask for justice. Thank you.
Adams made no objection to this argument but now contends that the statement was outside the
bounds of proper closing argument and was designed to inflame the passions and prejudices of
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the jury. Because Adams did not object to the prosecutor‟s argument at trial, he again contends
that the issue now raised on appeal is a matter of fundamental error.
Closing argument serves to sharpen and clarify the issues for the jurors and to help them
remember and interpret the evidence. It gives each party an opportunity to present its view of
what the evidence proves or fails to prove. Herring v. New York, 422 U.S. 853, 862 (1975);
State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007); State v. Reynolds, 120
Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Counsel are traditionally afforded
considerable latitude to discuss fully, from their respective standpoints, the evidence, inferences
and deductions arising from the evidence. State v. Payne, 146 Idaho 548, 566, 199 P.3d 123, 141
(2008); Phillips, 144 Idaho at 86, 156 P.3d at 587. It is well established, however, that it is not a
proper use of closing argument for an attorney to appeal to emotion, passion or prejudice of the
jury through use of inflammatory tactics. Id. at 86-87, 156 P.3d at 587-88.
Prosecutorial misconduct in closing argument rises to the level of fundamental error
when it is calculated to inflame the minds of jurors and arouse prejudice or passion against the
defendant or is so inflammatory that the jurors may be influenced to determine guilt on factors
outside the evidence. State v. Kuhn, 139 Idaho 710, 715, 85 P.3d 1109, 1114 (Ct. App. 2003);
State v. Lovelass, 133 Idaho 160, 167, 983 P.2d 233, 240 (Ct. App. 1999). This Court has
reversed convictions for prosecutorial misconduct during closing argument where timely
objections to the argument were made and overruled and the misconduct was patent, repeated
and egregious. For example, in Phillips, 144 Idaho at 87-88, 156 P.3d at 588-89, we reversed a
conviction where the prosecutor repeatedly and improperly appealed to the emotions of the jury
by arguing that the jury should be upset and irritated by trial evidence that he attributed to the
defense, but that was actually elicited by the prosecution. Similarly, in State v. Beebe, 145 Idaho
570, 574-76, 181 P.3d 496, 500-02 (Ct. App. 2007), we reversed a conviction when the
prosecutor misstated the evidence, misstated the law by grotesquely mischaracterizing the
defendant‟s defense, and repeatedly appealed to the jury to decide the case on factors other than
evidence of guilt. We have also held that the prosecutorial misconduct to which no objection
was made at trial rose to the level of fundamental error where the prosecutor repeatedly
disparaged defense counsel by implying that the defense attorney participated in or facilitated the
defendant‟s “lies,” asked the jury to rely on the prosecutor‟s self-proclaimed trustworthiness and
integrity and that of the arresting officer, and appealed to the emotion and passion of the jury by
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asking its members to step into the shoes of a hypothetical victim of the defendant‟s alleged
drunk driving. State v. Gross, 146 Idaho 15, 19-21, 189 P.3d 477, 481-83 (Ct. App. 2008). We
held that all of these improper arguments sought a finding of guilt based on factors outside the
evidence and that, in light of the evidence adduced at trial, the misconduct was not harmless.
Adams argues that the prosecutor here, by asking the jury to “take us home, home to
justice” for the victims, appealed to the passions and prejudices of the jury like the prosecutors in
Phillips, Beebe and Gross. He contends that the request for justice was improper because the
prosecutor was urging the jury to provide comfort or satisfaction or “justice” to the victims or to
punish Adams for his indifference to the harm he had done.
We are not persuaded that Adams has shown fundamental error in the prosecutor‟s
arguments. First, it is permissible for a prosecutor to ask the jury to do justice if that request is in
the context of argument addressing how trial evidence demonstrates the defendant‟s guilt.
Justice is, after all, the goal of any criminal trial. If the prosecutor‟s requests here for justice for
the victims, or his reference to the evidence of Adams‟ indifference to his stabbing victims, can
be viewed as straying into the realm of emotion, it does not approach the level of egregiousness
necessary to constitute fundamental error. These concluding remarks in the prosecutor‟s rebuttal
argument came immediately after his description of how the trial evidence proved Adams‟ guilt,
and it does not amount to an inflammatory appeal for the jury to render its decision on anything
other than the evidence adduced at trial. Fundamental error is not shown.
C. Sentence Review
Adams next contends that his sentences--a unified life sentence with twenty-five years
determinate for second degree murder and a consecutive ten-year sentence with three years
determinate for aggravated battery--are excessive.
We will not conclude on review that a trial court abused its sentencing discretion unless
the sentence is unreasonable under the facts of the case. See State v. Brown, 121 Idaho 385, 393,
825 P.2d 482, 490 (1992); State v. Bowcut, 140 Idaho 620, 621, 97 P.3d 487, 488 (Ct. App.
2004); State v. Sanchez, 115 Idaho 776, 769 P.2d 1148 (Ct. App. 1989); State v. Toohill, 103
Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). The objectives of sentencing, against which
the reasonableness of a sentence is to be measured, are the protection of society, the deterrence
of crime, the rehabilitation of the offender and punishment or retribution. Id. In examining the
reasonableness of a sentence, we conduct an independent review of the record, focusing on the
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nature of the offense and the character of the offender. State v. Young, 119 Idaho 510, 511, 808
P.2d 429, 430 (Ct. App. 1991).
The crimes involved here are especially heinous--Adams killed one man and stabbed
another in a petty dispute over his demands for beer and gas money. His record prior to these
crimes also evidences a lack of regard for the law or for the rights of other people. From 2001 to
these offenses in 2006, there had not been a year in which Adams was not charged with or
convicted of a crime. Among other offenses, Adams had previously been convicted of battery,
resisting an officer, and driving under the influence (twice), and had been charged with
aggravated assault. He had previously been incarcerated in the retained jurisdiction program and
was on probation at the time of the present offenses. Both Adams‟ consumption of alcohol and
his possession of a weapon at the time of the present offenses violated terms of that probation.
The current crimes, together with Adams‟ past conduct, abundantly show that he is a danger to
society. In light of all of the goals of sentencing, the nature of these offenses and Adams‟
character as revealed by his criminal history, we cannot say that the sentences imposed here are
excessive.
III.
CONCLUSION
Adams has not shown fundamental error in jury selection or in the prosecutor‟s closing
argument, and his sentences are not excessive. Accordingly, the judgment of conviction and
sentences are affirmed.
Judge PERRY CONCURS.
Judge GRATTON, SPECIALLY CONCURRING.
I write separately to express my belief that a “promise” and an “assurance” are not
synonymous or interchangeable. Our Supreme Court decisions use the term “assurance,” in
regard to voir dire. State v. Johnson, 145 Idaho, 970, 979, 188 P.3d 912, 921 (2008); State v.
Hairston, 133 Idaho, 496, 506, 988 P.2d 1170, 1180 (1999); State v. Jones, 125 Idaho 477, 484,
873 P.2d 122, 129 (1994). Indeed, this Court, in State v. Hauser, 143 Idaho 603, 609-611, 150
P.3d 296, 302-304 (Ct. App. 2006) generally used the term “assurance,” and cited to several
cases similarly using that term. Unfortunately, in Hauser, we suggested that perhaps “the trial
court” (not counsel) could have participated by “directly asking the juror whether he would
promise or commit.” Id. at 611, 150 P.3d at 304. The sample questions proposed by the
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majority demonstrate that assurances can be obtained without asking a potential juror to make a
promise. The sample question proposed in Hauser, using the term “promise” should be
disavowed. I do not believe that attorneys should be extracting promises from potential jurors. I
can only imagine where such a practice may lead.
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