State v. Lee

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50335

STATE OF IDAHO, )
) Filed: June 5, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
BERT EUGENE LEE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Third Judicial District, State of Idaho, Payette
County. Hon. Kiley Stuchlik, District Judge.

Judgment of conviction for two counts of rape and two counts of lewd conduct with
a minor under the age of sixteen, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Elizabeth A. Allred Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________

HUSKEY, Judge
Bert Eugene Lee appeals from the district court’s judgment of conviction for two counts of
rape and two counts of lewd conduct with a child under sixteen. He argues the district court erred
by denying his motion for a mistrial after a witness referenced Lee’s invocation of his right to
counsel during a police interview, improperly creating an inference of guilt. The district court’s
judgment of conviction is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Lee was charged with two counts of rape, Idaho Code § 18-6101, and two counts of lewd
conduct with a minor under sixteen, I.C. § 18-1508. A jury trial was held, resulting in a hung jury.
Over a year later, a second jury trial was held.

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At the second trial, Detective Jones testified to the following. After he received a report of
allegations of sexual assault and rape by Lee against B.B., a minor under the age of sixteen,
Detective Jones contacted Lee and asked him to come in for an interview. Lee did so. Detective
Jones met with Lee for the interview and notified Lee of his Miranda1 rights. During the interview,
Detective Jones and Lee discussed the allegations against B.B. Detective Jones testified about the
interview and his use of a bluffing technique. Detective Jones used a bluffing technique to imply
DNA evidence existed and the DNA would prove what happened so Lee should be honest with
the detective.
During cross-examination, defense counsel asked Detective Jones, “And did--after you had
made that bluff did Mr. Lee back down regarding his denial of sexual contact?” Detective Jones
answered, “He continued with his denials. And then eventually invoked his right to talk to an
attorney.” Defense counsel requested a conference outside the presence of the jury. In chambers,
the judge and counsel discussed the statement and the possibility of it causing another mistrial.
The parties agreed that defense counsel would object to the statement and move to strike on the
record, the judge would strike the statement and tell the jury to disregard the stricken statement,
and then the jury would be recessed to provide defense counsel time to draft a formal motion for
mistrial.
Back on the record, in the presence of the jury, defense counsel objected to Detective Jones’
statement and moved to strike. The district court sustained the objection by stating, “I’m going to
strike the statement of the witness regarding the defendant invoking his right to counsel and
instruct the jury not to consider that statement as evidence in this case.” The court then recessed,
and outside the presence of the jury, Lee moved for a mistrial under Idaho Criminal Rule 29.1,
arguing the conduct was prejudicial and deprived him of a fair trial. Specifically, Lee argued his
Fifth Amendment right to not have his silence used against him had been violated and it was
fundamental error for the prosecutor to use silence against the accused for the purpose of implying
guilt or to impeach credibility. The State refuted the argument clarifying that a request for an
attorney is not the same as invoking a right to silence and because it was on cross-examination,
the prosecution did not engage in questioning designed to elicit the response and should not be
responsible. The district court considered the arguments, stating:

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See Miranda v. Arizona, 384 U.S. 436 (1966).
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This is a matter within the discretion of the Court. I have here: “Where
admissible evidence inadvertently gains admission and the jury is promptly
instructed to disregard the evidence, it is presumed that the jury obey the instruction
and mistrial is not warranted.”
That’s State v. Hedger, 115 Idaho 598, [768 P.2d 1331 (1989)] and State v.
Fluery, 123 Idaho 9[, 843 P.2d 159 (Ct. App. 1992)]. The first one being an Idaho
Supreme Court case, and the second being an Idaho Court of Appeals case. So I
think in this case it wasn’t [the prosecutor] purposely trying to elicit improper
testimony.
Obviously it wasn’t prosecutorial misconduct. It was a response to defense
counsel’s questioning, so I think that’s relevant. And Counsel, you know, requested
a bench conference immediately, and we immediately instructed the jury not to
consider it. So I think that’s important in this case as well. So I’m going to deny
the defendant’s motion for a mistrial at this time.
The statement by Detective Jones was not referenced or mentioned again for the remainder
of the trial. The jury was instructed to disregard all testimony that had been excluded or stricken.2
Lee was found guilty of all counts. He timely appeals.
II.
STANDARD OF REVIEW
In criminal cases, motions for mistrial are governed by I.C.R. 29.1. A mistrial may be
declared upon motion of the defendant, when there occurs during the trial an error or legal defect
in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant
and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for reviewing a district
court’s denial of a motion for mistrial is well established:
[T]he question on appeal is not whether the trial judge reasonably exercised his
discretion in light of circumstances existing when the mistrial motion was made.
Rather, the question must be whether the event which precipitated the motion for
mistrial represented reversible error when viewed in the context of the full record.
Thus, where a motion for mistrial has been denied in a criminal case, the “abuse of
discretion” standard is a misnomer. The standard, more accurately stated, is one of
reversible error. Our focus is upon the continuing impact on the trial of the incident
that triggered the mistrial motion. The trial judge’s refusal to declare a mistrial will
be disturbed only if that incident, viewed retrospectively, constituted reversible
error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983).

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Final jury instruction twelve stated, in relevant part, “Certain things you have heard or seen
are not evidence, including . . . [t]estimony that has been excluded or stricken, or which you have
been instructed to disregard.”
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III.
ANALYSIS
Lee argues the district court committed reversible error by denying his motion for a mistrial
after Detective Jones testified that Lee invoked his right to counsel. Lee contends the reference to
the invocation of counsel creates an inference of guilt that prejudiced him and violates his Fifth
Amendment rights. He asserts that the district court’s instruction to the jury to disregard the
statement was insufficient to cure the defect. The State argues the curative instruction immediately
given to the jury ameliorated any impact from the improper testimony and the jury instructions
further clarified that stricken testimony is not evidence. The State argues there is nothing to
suggest the jury failed to follow the court’s instructions and the potential prejudicial impact was
minimal given the evidence presented.
A. Stricken Testimony
We first examine whether the detective’s testimony that Lee invoked his right to counsel
violated his rights under the Fifth Amendment. The Idaho Supreme Court has reiterated a
defendant’s protection under the United States Constitution to invoke a right to silence without the
prosecution commenting on the silence for the purposes of implying guilt.
The Fifth and Fourteenth Amendments of the U.S. Constitution, as well as
Article I, section 13 of the Idaho Constitution, guarantee a criminal defendant the
right not to be compelled to testify against himself. The U.S. Supreme Court has
interpreted this right also to bar the prosecution from commenting on a defendant’s
invocation of that right. A prosecutor may not use evidence of post-arrest,
post-Miranda silence for either impeachment purposes or as substantive evidence
of guilt because of the promise present in a Miranda warning. If a prosecutor is
allowed to introduce evidence of silence, for any purpose, then the right to remain
silent guaranteed in Miranda . . . becomes so diluted as to be rendered worthless.
The prosecutor also may not use any post-custody silence to infer guilt in its
case-in-chief. In cases of pre-Miranda, pre-arrest silence, the prosecutor may not
use that evidence solely for the purpose of implying guilt. The prosecutor may use
pre-Miranda silence, either pre or post-arrest, for impeachment of the defendant.
State v. Parker, 157 Idaho 132, 146-47, 334 P.3d 806, 820-21 (2014) (citations and quotation
marks omitted). Although strictly speaking there is no “Fifth Amendment right to counsel,” the
right is a protective adjunct to the right to remain silent and a protective measure arising under
Miranda. State v. Kent, 167 Idaho 689, 693, 475 P.3d 1211, 1215 (2020); State v. Blevins, 108
Idaho 239, 242, 697 P.2d 1253, 1256 (Ct. App. 1985).

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Lee’s invocation of rights was made after Lee had been given Miranda warnings but prior
to any arrest or custodial setting. Despite the lack of a custodial setting, once the Miranda
warnings have been given,
[i]t is then that the promise contained in the statement of Miranda rights precludes
the prosecutor from commenting on the defendant’s silence. See Fencl v.
Abrahamson, 841 F.2d 760 (7th Cir.1988) (holding that references to pre-arrest,
post-Miranda silence violated due process). Miranda provides that “once warnings
have been given . . . [i]f the individual indicates in any manner, at any time prior to
or during questioning, that he wishes to remain silent, the interrogation must cease.”
384 U.S. at 473-74; cf. Davis v. United States, 512 U.S. 452 (1994) (after waiving
right to counsel, defendant may invoke that right by clearly requesting a lawyer).
Kappos v. Hanks, 54 F.3d 365, 368-69 (7th Cir. 1995).
Neither party disputes the statement that Lee’s request to talk to an attorney is interpreted
as Lee invoking his right to remain silent. Further, neither party argues that the district court erred
in sustaining Lee’s objection to the detective’s testimony. Therefore, if the statement attributed to
Lee was an invocation of silence, it was improper for the detective to provide that testimony under
Miranda and Parker.
In evaluating the denial of a motion for a mistrial, the threshold inquiry on appeal is
whether the State introduced error. State v. Shepherd, 124 Idaho 54, 57, 855 P.2d 891, 894 (Ct.
App. 1993). Here, the prosecutor argued that although he should have better prepared Detective
Jones, because the statement by the detective occurred during cross-examination by Lee’s counsel,
the prosecutor cannot be held responsible for eliciting a statement regarding Lee asserting his right
to counsel. Lee argued that, during the first trial, Detective Jones was asked essentially the same
question but had a different response. In the first trial, Lee asked, “After you used the strong
language with [Lee] he still continued to deny that he ever had sex with [B.B.]r; is that correct?”
Detective Jones responded: “Correct.” Lee then argued there was no reason for the detective to
comment on Lee invoking his right to counsel and the question did not lead the detective to that
answer.
The district court agreed that the prosecutor did not purposely elicit the statement regarding
Lee invoking the right to an attorney and it was relevant that the response came as a result of cross-
examination by defense counsel. However, the district court found that the detective’s testimony
was inadmissible.
Whether the prosecutor intended to elicit the improper testimony or not, “when an officer
of the State gives any unsolicited testimony that is gratuitous and prejudicial to the defendant, that
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testimony will be imputed to the State for the purposes of determining prosecutorial misconduct.”
State v. Ellington, 151 Idaho 53, 61, 253 P.3d 727, 735 (2011). Here, the detective’s testimony
that Lee invoked his right to counsel was gratuitous and prejudicial and is, therefore, attributable
to the State.3 The detective’s testimony violated Lee’s right to remain silent under the Fifth and
Fourteenth Amendments. Because the evidence was inadmissible, we next determine whether it
was reversible error, i.e., whether when viewed retrospectively, the error had a continuing impact
on the trial.
B. Stricken Testimony’s Contribution to Jury Verdict
Where a criminal defendant shows an error based on a contemporaneously objected to
constitutional violation, 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
and, therefore, was not reversible error. State v. Johnson, 163 Idaho 412, 421, 414 P.3d 234, 243
(2018). In conducting this inquiry, we presume that the jury followed the district court’s
instructions. See State v. Kilby, 130 Idaho 747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v.
Hudson, 129 Idaho 478, 481, 927 P.2d 451, 454 (Ct. App. 1996).
In this case, Lee argues that the error was so significant, the curative instruction was
insufficient to ameliorate the prejudice to Lee and, thus, the State cannot show Detective Jones’
statement did not have a continuing impact on the trial. The State argues that Detective Jones’
statement occurred early in the trial, was immediately followed by a curative instruction, and Lee
has not rebutted the presumption that the jury followed the instructions given. Moreover, the State
argues that it presented multiple witnesses whose testimony provided strong evidence of Lee’s
guilt. As such, the State argues the statement did not have a continuing impact on the trial. We
agree with the State.
After returning from a recess where the parties discussed Detective Jones’ statement, Lee
objected, and the district court sustained the objection and then instructed the jury that the
statement was stricken and could not be considered. Thereafter, the State presented multiple
witnesses who provided evidence which support the jury’s guilty verdicts. The jury heard

3
Under the circumstances of this case, no negative connotation should be drawn from the
attribution of the error to the State. There is no suggestion that the prosecutor knew that the
detective would testify as he did, but Ellington, supra, requires that such testimony be attributed
to the State.
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testimony from the doctor who conducted the physical examination of B.B. and saw a deep notch
tear on her hymen. The doctor testified that in ninety-four percent of abuse cases, the medical
exam is normal, without any physical evidence on the vagina or hymen, but only in four to six
percent of cases, the result is abnormal. The doctor clarified that the deep notch tear cannot be
caused by self-exploration and comes from sexual intercourse or from having a baby, which B.B.
has not had, and that often tears, even deep ones, heal. The visibility of the notch, although not
conclusive, was strongly suggestive of forced penetration.
The jury also heard from the Children At Risk Evaluation Services (CARES) forensic
interviewer. The interviewer testified to the process of interviewing a child who has potentially
been abused. She testified to B.B.’s demeanor during the interview; the information B.B. disclosed
regarding multiple instances of sexual abuse, including rape; and the memory difficulties when
events span a significant period of time. The jury heard from the teacher in whom B.B. confided
and the teacher’s narrative of events, generally describing B.B.’s disclosure of sexual abuse and
B.B.’s demeanor when she made the disclosures. The jury heard from B.B., describing details of
the incidents, where it happened, and when it happened. The jury also heard from Officer Esquivel,
who testified that he spoke with the teacher about B.B.’s disclosures and that he did not find any
messages on B.B.’s phone between B.B. and Lee. Lee testified and provided his explanation of
his relationship with B.B. and denied anything inappropriate ever occurring. Both parties called
rebuttal witnesses. Additional evidence, such as the report from the medical exam, the CARES
intake video of B.B., and diagrams drawn by various witnesses, was also admitted for the jury’s
consideration.
The jury was in the best position to assess the evidence, including the demeanor of the
witnesses and weigh credibility. It is the jury’s function to assess the demeanor of the witnesses
and make a determination of credibility. This Court will not second-guess the jury’s determination
on credibility or the weight to be given to witnesses’ testimony. State v. Allen, 129 Idaho 556,
558, 929 P.2d 118, 120 (1996). Given that the vast majority of evidence was admitted after the
single inadmissible statement by Detective Jones and the concomitant verbal jury instruction, we
cannot say the statement had a continuing effect on the trial. Moreover, to the extent there was
any prejudice to Lee, that was ameliorated by the district court’s verbal order striking that
statement and instructing the jury to disregard it and the subsequent written instruction that the
statement was not evidence and should be disregarded. Nothing in the record suggests the jury

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ignored both of the court’s instructions or drew impermissible inferences of guilt from the stricken
testimony. Instead, the jury’s verdict is consistent with the quantum of evidence presented
regarding Lee’s guilt. When viewed in light of all the evidence and the district court’s curative
instructions, we conclude that Detective Jones’ statement did not contribute to the jury’s verdict.
IV.
CONCLUSION
Lee has shown no error in the district court’s denial of his motion for mistrial. Therefore,
Lee’s judgment of conviction for two counts of rape and two counts of lewd conduct with a minor
under the age of sixteen is affirmed.
Judge LORELLO and Judge TRIBE, CONCUR.

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