The district court again struck this last statement sua sponte and instructed the jury to disregard it. It is improper, however, for the prosecution to express a personal belief as to the credibility of witnesses, unless the comment is based solely on inferences from evidence presented at trial. Sheahan, Idaho , , 77 P.
Carson, Idaho , , P. Mendoza, Idaho , , P. Therefore, Abdullah has failed to demonstrate a violation of an unwaived constitutional right due to the alleged prosecutorial misconduct. Cortez, Idaho , , 21 P. The lawyers are not witnesses. What they say in their. Parker, Idaho , , P. In this case, the prosecutor did not engage in misconduct. Phillips, Idaho 82 , 87, P. Even assuming that the prosecutor engaged in misconduct, any error was harmless because there is not a reasonable possibility the error affected the outcome of the trial.
Facts After the State and Abdullah gave closing arguments and just prior to sequestration of the jury for deliberations in the guilt phase of trial, the record states: THE COURT: At this time we will give the oath to the bailiffs and then we will pick the alternates. Oath given to the bailiffs. Similarly, after closing arguments in the penalty phase and just prior to sequestration of the jury for deliberations, the record states: THE COURT: At this time we need to swear the bailiffs.
Bailiffs are sworn. THE COURT: At this time I would ask the bailiffs to take the jurors to the appropriate -- keep alternates separate at this point, but to take the jurors to the appropriate jury room. Abdullah argues that the record does not affirmatively show the district court properly swore the bailiffs who took custody of the sequestered jury during the guilt and penalty phases, which violated his right to a fair trial before an impartial jury.
Standard of Review The Court exercises free review over constitutional questions and interpretation of a statute.
Glenn, Idaho 22 , 24, P. Rogers, Idaho , , P.
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Analysis In State v. Idaho Code section provides in part: [W]hen first given custody of the jury the officer or bailiff must be sworn to keep the jury together during each recess and adjournment during the trial; to allow no person to speak to or communicate with them, or any of them, nor to do so himself, on any subject connected with the trial, and to return them into court as ordered by the court.
The record in Rodriguez provided: The Court: Do you remember? Did you swear the Bailiff? The Court: I was quite sure that she did. In fact, I was quite sure I could remember what she told him. Reeves: It is our recollection from our notes that there was no swearing until the time of the final submission and may the record show that the Clerk indicates that she does not recall? Reeves: Does the Bailiff perhaps recall whether he was sworn?
The Court: Do you recall whether we had you sworn when we started? I thought I swore every time the rest did.
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United States, U. If they do not agree without retiring, an officer must be sworn to keep them together in some private and convenient place, and not permit any person to speak or communicate with them, nor to do so himself, unless by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court. Although the record did not show that the bailiff was sworn, the Court ultimately held that the error was harmless. This case is distinguishable from Rodriguez.
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The issue in Rodriguez was whether the oath was given at all. In contrast, the record in this case clearly shows that an oath was given to the bailiff. Rodriguez was limited to the facts of the case, and its holding does not require in every case that the court reporter transcribe the oath given to the bailiff verbatim.
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In other words, Rodriquez did not create a bright-line rule that the oath must be in the record in its entirety in all criminal cases. In this case, the record complies with Idaho Code section and Rodriguez by affirmatively showing the bailiff was sworn. Moreover, there is no allegation that any error was prejudicial to Abdullah. There is no indication that the bailiff caused the jury to be tainted in some way due to an improper oath.
Nor is there any allegation that the jury acted improperly. Carney, Idaho , , P. This presumption can be rebutted by a production of evidence showing that the public officer failed to carry out the duty at issue. Roberts, Idaho at —95, P.
A similar presumption to the swearing of the bailiff is applicable here. Abdullah points to nothing in the record to show that an improper swearing of the bailiff prejudiced his rights at trial. Rodriguez, 93 Idaho at —90, P. Absent evidence to the contrary, this Court presumes the bailiff was properly sworn. Facts The swearing of the bailiffs prior to sequestering the jury during their deliberations in the guilt and penalty phase of trial were not recorded and therefore not available as a transcript for Abdullah on appeal.
Glenn, Idaho at 24, P. Strand, Idaho , , 50 P. In State v. Lovelace Lovelace I , Idaho 53 , 90 P.
Abdullah does not allege that any specific prejudice occurred from the failure to record the swearing of the bailiffs. He does not allege that he is unable to raise a specific appealable issue due to the absence of a recording. There was no error here. Facts On June 5, , Abdullah filed a second objection to the record on appeal. The district court further determined from its review that the indictment was proper. Therefore, the district court found no good cause to release the underlying grand jury proceedings or make them part of the record on appeal, except the three public orders.
Clark, Idaho , , 16 P. Alternatively, he requests that this Court remand this issue to the district court for that court to provide the grand jury selection transcripts. The district court filed an order admonishing SAPD and informed them that the only appropriate method to seek grand jury information is by filing a motion with a district judge with notice to the State.
He explains that the grand jury documents he has been provided indicate that the grand jury empaneled may not have been the same grand jury that indicted him and thus the grand jury term may have expired prior to his indictment. Abdullah rests his argument on the fact that the court minutes show that the grand jury selection for Grand Jury Panels A and B began at a.
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An indictment is void and the district court lacks subject matter jurisdiction if the grand jury issues an indictment past its six-month term. Lute, Idaho , —41, P. The grand jury indictment—also provided to Abdullah— shows that Grand Jury Panel B issued the indictment on November 14, Based on these facts, Abdullah provides no legal basis for this Court to allow his review of the grand jury selection transcripts.
We decline to order the district court to provide Abdullah with the grand jury selection transcripts. The alleged errors in the aggregate did not result in cumulative error at trial.
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Abdullah argues that the accumulation of errors deprived him of his constitutional rights to due process and a fair trial before an impartial jury.