This is an appeal from a judgment of conviction for robbery. Gregory Kerchusky claims that the district court committed fundamental error at trial by admitting evidence of Kerchusky’s silence prior to his arrest and prior to Miranda 1 warnings, that the court erred by excluding defense evidence that two other persons had access to a wig like the one worn by the robber, and that the sentence imposed was excessive.
I.
BACKGROUND
Kerchusky was charged with robbery, Idaho Code § 18-6501. The evidence presented at trial showed that on August 22, 2000, at approximately 4:30 p.m., a man approached a teller at the U.S. Bank branch in Boise. The man was wearing black sunglasses or safety glasses, a black wig, a blue shirt, a baseball cap, jeans, and a fanny pack. He was described as a white male, age thirty to thirty-five, and of average height and build. The man handed the teller a note demanding money and referring to a gun. The teller gave the man bills with a total value of $507.
At approximately the same time, fourteen-year-old Josh Piper, who lived next to the bank, saw a man with a wig and sunglasses run through Piper’s yard and hop over a brick wall into a neighbor’s yard. As Piper watched, the man went behind a dumpster, pulled off his jacket or shirt, pants, wig, and glasses, and threw them in the dumpster. Piper then saw the man run toward Quinn’s Lounge, a nearby tavern. When Piper later saw police responding to the bank robbery, he told one of the officers what he had seen.
Within the same time frame, Kerchusky entered Quinn’s Lounge. Kerchusky bought drinks for himself and an acquaintance and then left Quinn’s to buy cigarettes. As he left, he was confronted by two police officers who detained him. Kerchusky did not ask why he was being detained, nor did he respond when told that he matched the description of a person who had robbed a bank.
Piper was then brought to the scene and asked if he recognized Kerchusky as the man who had run through his yard, but Piper could not make an identification. Piper said that Kerchusky’s clothing was unlike that which he had seen on the man, but he also observed that Kerchusky’s build, height, and hair length matched the man he had seen. A bank employee was also brought to the scene and said that she recognized Kerchusky as the robber by his mannerisms, his profile, and his boots.
Kerchusky was then arrested and searched incident to the arrest. The money found in his wallet and in a pouch he carried, together with the sum he had spent on drinks at Quinn’s Lounge, totaled $507, the precise amount stolen from the bank. Police found a wig, gloves, glasses, and a baseball cap in the dumpster where Piper had seen them being discarded. Police also saw a boot print near the dumpster with tread similar to the boots Kerchusky was wearing at the time of his arrest. During a subsequent search of Kerehusky’s bedroom, police found black nylon hair which matched that in the wig found in the dumpster. Kerchusky’s former roommate testified that, until just prior to the robbery, his daughter had possessed a wig like the one left in the dumpster.
At Kerchusky’s trial, witnesses testified that Kerchusky had regularly worn a baseball cap like the one retrieved from the dumpster. However, testing of fabric from the cap showed that the “major contributor” of DNA found on the cap was not Kerchusky, and the test did not yield a DNA profile from
Defense evidence included the testimony of Kerchusky’s brother, who said that during the month of August 2000, he had paid Kerchusky approximately $1,200 for doing yard work, including approximately $400 paid the day before the robbery.
Kerchusky also sought to introduce evidence that during the month of August 2000, two men stayed in Kerchusky’s apartment and therefore had access to the child’s wig, and that one of the men was similar in appearance to Piper’s description of the man who removed items of clothing behind the dumpster. The district court excluded the evidence, concluding that the offered evidence would do no more than raise a “mere suspicion” that one of the two men who stayed at the apartment committed the crime.
The jury found Kerchusky guilty, and the district court sentenced Kerchusky to a unified term of fifteen years with six years determinate. Kerchusky filed a motion for reduction of sentence, which the district court denied. Kerchusky appeals, asserting that there were errors in evidentiary rulings at his trial and that his sentence is excessive.
II.
ANALYSIS
A. Exclusion of Evidence of Alternative Perpetrator
Kerchusky first argues that the district court erred by excluding his proffered evidence of alternative perpetrators, the men who had stayed at Kerchusky’s apartment during the month of the robbery and who therefore had access to the wig belonging to the daughter of Kerchusky’s roommate.
The district court excluded the evidence based on the “direct connection” doctrine expressed by the Idaho Supreme Court in
State v. Larsen,
vestigated in connection with the crime. This evidence, which was excluded by the trial court, would have shown that bloodstains were found on the back seat of this former suspect’s car and on a spare tire in the trunk. The former suspect had claimed that the stains were hamburger blood, but tests revealed that they were human blood. The car had been in the vicinity on the day of the murder and on several days thereafter, The defendant’s proffer included evidence that the former suspect had engaged in sexual relations with the deceased. The deceased had told a schoolmate that she was pregnant with the child of a married man, but the schoolmate could not remember the married man’s name, and no evidence was offered to show that the other suspect was married. The deceased had also told the same schoolmate that she knew someone was going to kill her, but no offer was made as to whether the deceased had revealed the name of this person. The Idaho Supreme Court affirmed the exclusion of this evidence of an alternative perpetrator. The Court held that “there must be such proof of connection with the crime, such a train of facts or circumstances, as tend clearly to point out someone besides the accused as the guilty party.”
Id.
at 47,
It has been observed that the direct connection doctrine applied in
Larsen
is merely a specialized application of the requirement, now embodied in Idaho Rule of Evidence 403, that a trial court balance the probative value of evidence against countervailing considerations, such as confusion of the issues, undue delay, or waste of time.
2
David McCord,
“But Perry Mason Made it Look So Easy!:” The Admissibility of Evidence Offered by a Criminal Defendant to Suggest that Someone Else is Guilty,
68 Tenn. L.Rev. 917, 975 (1996). Thus in
State v. Gibson,
Thus, our review of the exclusion of Kerchusky’s proffered evidence is essentially an inquiry into whether the district court correctly applied I.R.E. 403, which authorizes the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We will not disturb a trial court’s determination under I.R.E. 403 unless an abuse of discretion has been shown.
State v. Baer,
Examination of the manner in which other courts have treated proffers of third-party perpetrator evidence is illuminating. In
United States v. Armstrong,
In
United States v. Robinson,
In several other cases, appellate courts found the linkage between the third party and the crime to be too tenuous to make the evidence admissible. In
State v. Holloman,
In
People v. Austin,
Kerchusky also argues that the exclusion of his offered evidence violated his constitutional right to present evidence in his defense. The United States Supreme Court has recognized that “[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”
Chambers v. Mississippi
However, the United States Supreme Court, in addressing a Sixth Amendment Compulsory Process Clause claim, has since held that in order to establish a violation of the constitutional right to present evidence, a defendant “must at least make some plausible showing of how [the] testimony would have been both material and favorable to his defense.”
United States v. Valenzuela-Bernai
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt____This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
Valenzuela-Bernal
This materiality standard was applied to circumstances very similar to those presented here in
Sheffield v. Curran,
In the present case, we have determined that Kerchusky’s proffered evidence was of minimal probative value and would not have linked the other man to the crime. Given the compelling evidence of Kerchusky’s guilt, we are confident that the excluded evidence would not have created a reasonable doubt in the minds of the jurors. Therefore, the evidence was not material and its exclusion did not deprive Kerchusky of his right to present a defense.
B. Admission of Evidence of Pre-Miranda Silence
At trial, the prosecutor elicited testimony from two officers, without objection from defense counsel, regarding Kerehusky’s lack of
Kerchusky maintains that the admission of this testimony violated his right to due process and his Fifth Amendment right to remain silent. The United States Supreme Court has held that due process is violated if the prosecutor impeaches a testifying defendant with evidence that the defendant was silent upon his arrest after receiving
Miranda
warnings.
Doyle v. Ohio,
This issue has been resolved, however, by the Idaho Supreme Court with a determination in
State v. Moore,
We believe the better rule is that which holds that the defendants’ Fifth Amendment right not to have their silence used against them in a court proceeding is applicable pre-arrest and pre-Miranda warnings. The constitutional right is always present. ‘While the presence of Miranda warnings might provide an additional reason for disallowing use of the defendants’ silence, they are not a necessary condition to such a prohibition.”
Id.
at 820,
The State argues that the testimony about Kerchusky’s silence is not barred by the ruling in Moore because it was not admitted to imply Kerchusky’s guilt, but only to show that he was not surprised at the reference to the bank robbery and therefore must have had prior knowledge of the robbery. The State’s position is an unpersuasive exercise in semantics. The only reason for the State to show that Kerchusky had prior knowledge of the robbery would be to thereby imply that he must have been the robber. The testimony about Kerchusky’s silence was used to demonstrate that he must be guilty because he failed to protest his innocence or otherwise react as an innocent person would be expected to do. Therefore, its admission violated Kerchusky’s right not to have his silence used against him.
The State also argues that because Kerchusky did not object to this testimony at trial, we should not consider the issue on appeal. This Court generally will not address issues that were not raised in the trial court. Idaho Rule of Evidence 103(a)(1);
State v. MacDonald,
This Court has held that the admission of testimony about a defendant’s post-
Miranda
silence constitutes fundamental error.
State v. Poland,
While application of the fundamental error doctrine may appear to place a considerable burden on the trial court to exclude evidence sua sponte, the doctrine also reflects an obligation on the part of the State to refrain from eliciting evidence in violation of a defendant’s constitutional rights. “[W]hile [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
State v. Wilbanks,
Having concluded that the admission of testimony regarding Kerchusky’s silence constituted fundamental error, we must determine whether the error is harmless or necessitates a new trial. Even error that is fundamental may be harmless in the context of the entire trial.
Poland,
In this case, we conclude that the error in admission of testimony concerning Kerchusky’s pre-arrest silence was harmless because, had this evidence been excluded, the extensive circumstantial evidence linking Kerchusky to the bank robbery would still have led the jury to find him guilty. The evidence showed that the man who robbed the bank was the same man who ran through Piper’s yard, wearing the baseball cap, wig, glasses, fanny pack, and brown boots. Piper observed that Kerchusky had the same body build, height, and hair length as the man who had run across his yard. Kerchusky’s boots were muddy, as was Piper’s yard, and their tread matched the boot print in Piper’s yard. Kerchusky also had access to a wig and glasses and owned a baseball cap similar to those used in the robbery. Soon after the robbery, Kerchusky was at Quinn’s Lounge near the bank. He was sweaty, and, according to the bartender, had never been in Quinn’s before. The cash in Kerchusky’s wallet and pouch, together with that which he had spent on drinks, was the precise sum that had been stolen from the bank. 3 A bank employee identified Kerchusky as the robber. In light of this evidence, we are confident beyond a reasonable doubt that the jury would have found Kerchusky guilty if the court had excluded the testimony regarding Kerchusky’s silence when he was initially detained. Therefore, the error in the introduction of evidence of Kerchusky’s pre-arrest silence does not call for a new trial.
Kerchusky also asserts that the district court abused its discretion by imposing a unified fifteen-year sentence with a six-year minimum term and by denying Kerchusky’s motion under Idaho Criminal Rule 35 for reduction of the sentence. When a sentence is challenged on appeal, this Court examines the record, focusing upon the nature of the offense and the character of the offender, to determine if there has been an abuse of the sentencing court’s discretion.
State v. Young,
A motion to reduce a lawful sentence is also committed to the trial court’s discretion.
State v. Wersland,
Kerchusky’s criminal record included prior felony convictions for grand theft and theft by extortion as well as eleven misdemeanor convictions. In light of Kerchusky’s criminal history, and the seriousness of the offense, we conclude that the sentence is not excessive under any reasonable view of the facts. Therefore, the district court did not abuse its discretion in sentencing Kerchusky or in denying his Rule 35 motion.
CONCLUSION
Kerchusky has not demonstrated that there was reversible error in his trial nor that his sentence is excessive. Accordingly, ' the judgment of conviction and sentence, and the order denying Kerchusky’s motion for reduction of the sentence, are affirmed.
Notes
.
Miranda
v.
Arizona,
. Larsen was decided before the Idaho Rules of Evidence were adopted.
. This coincidence is worthy of consideration notwithstanding that Kerchusky was separately carrying six or seven dollars in a pocket and that a one dollar bill was found by police near the dumpster.