                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 35827



 STATE OF IDAHO,                         )             Boise, September 2011 Term
                                         )
     Plaintiff-Respondent,               )             2013 Opinion No. 41
                                         )
 v.                                      )             Filed: April 1, 2013
                                         )
 HECTOR B. ALMARAZ, JR.,                 )             Stephen W. Kenyon, Clerk
                                         )
     Defendant-Appellant.                )             SUBSTITUTE OPINION. THE
                                         )             COURT’S PRIOR OPINION FILED
                                         )             ON MAY 31, 2012 IS HEREBY
 _______________________________________ )             WITHDRAWN


       Appeal from the District Court of the Third Judicial District of the State
       of Idaho, Payette County. Hon. Gregory M. Culet, District Judge.

       The judgment of conviction is vacated and a new trial is ordered.

       Molly J. Huskey, State Appellate Public Defender, Boise, for appellant.
       Jason Pintler argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for
       respondent. Kenneth Jorgensen argued.
                                _______________________

BURDICK, Chief Justice

       Hector Almaraz appeals from his conviction for first-degree murder. He appeals based
on several evidentiary grounds. First, he argues that the district court abused its discretion by
admitting impermissible character evidence that gang members commit crimes and other violent
acts and by admitting improper testimony from a police officer and an expert witness interpreting
the security video from the scene of the crime. Almaraz also argues that the district court erred
in failing to suppress an eyewitness identification due to suggestive procedures, and by
precluding an expert from opining to the suggestiveness of a specific eyewitness’ identification.
Finally, he contends that the cumulative effect of the errors deprived him of a fair trial, and that


                                                 1
this Court should remand the case to the district court for a new trial. We vacate Almaraz’s
conviction and remand for a new trial.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
       Hector Almaraz and Thomas Salazar, both members of the gang Brown Magic Clique
(“BMC”), attended the Club 7 bar on April 23, 2006. The bar was equipped with sixteen video
surveillance cameras which showed that a fight erupted after Almaraz punched another patron,
Gabriel Flores. Just thirty seconds after the brawl began, the video cameras depict Flores flailing
his arms in the air and stumbling to the ground. Although the video does not clearly portray the
shooting or identify any patron with a gun, it does show Almaraz behind Flores just before he
was shot. Flores died in the hospital as a result of a gunshot wound to his back. Almaraz was
subsequently charged with first-degree murder in the shooting death of Flores.
       Ken Hust was a patron at the Club 7 bar on the night of the shooting. Three days after the
shooting, Hust met with police about the events of that evening. Hust was initially apprehensive
and reluctant to speak with the police. At first, Hust told police officers that he did not see the
shooter. In an effort to calm Hust’s fears and encourage him to talk, the officer conducting the
interview, Officer Sloan, told Hust “we caught the guy that did the shooting.” Hust then
explained that he might be able to recognize the shooter if he saw his face. Officer Sloan left the
interview room to retrieve a photo to be used as a photographic lineup and turned off the tape
recorder. Officer Sloan testified that upon returning with the photograph, Hust’s face went blank
as if he had seen a ghost and identified Almaraz without hesitation. The photograph obtained by
Officer Sloan and presented to Hust was not a typical photo lineup. Instead of several discrete
pictures of different individuals, the photo used was a group photograph of Almaraz and seven
other Hispanic men. Almaraz is in the center of the photo with a chandelier hanging directly
above his head.
       Before trial, the defense moved to suppress Ken Hust’s eyewitness identification arguing
that the overly suggestive procedures the police used to obtain the identification violated
Almaraz’s due process rights.     Specifically, Almaraz argued that Hust’s identification was
unreliable because of Officer Sloan’s interview procedures, the suggestiveness of the group
photograph used as the “photographic lineup,” and Hust’s lack of opportunity to adequately
observe the shooter at the time of the incident. The district court denied Almaraz’s motion to
suppress. The district court allowed the defense to present expert testimony from Dr. Daniel


                                                2
Reisberg, a cognitive psychologist, about the types of suggestive procedures that can render an
eyewitness identification unreliable. In his testimony before the jury, Dr. Reisberg identified
proper guidelines regarding witness interviews and identified specific types of police conduct
that could compromise a witness’s memory.            The court allowed Dr. Reisberg to testify
specifically about the suggestiveness of the group photograph the police showed to Hust, but not
about the suggestiveness of Officer Sloan’s interview procedures.
        Also prior to trial, the State filed a motion in limine seeking to admit evidence at trial of
Almaraz’s gang affiliation and the criminality of BMC generally under I.R.E. 404(b) to support
its theory of motive. The State argued that the shooting was not merely a random killing, but
that Almaraz shot Flores because of gang rivalry. The State asserted that Flores was shot
because he was wearing a red jersey, which symbolized the color of a rival gang. Almaraz
objected to such testimony during the pre-trial hearing and at trial on the ground that its
probative value was substantially outweighed by its prejudicial effect. The district court ruled
that evidence of Almaraz’s gang affiliation was relevant to the issue of motive and, after
applying a balancing test, the court found that the probative value was not outweighed by the
prejudicial effect.
        The district court allowed Tommy Salazar and another former member of BMC,
Armando (Milo) Landin, to testify about the criminality of BMC. Landin testified that BMC’s
criminal purpose was “basically selling drugs and violence.” Salazar testified about Almaraz’s
membership in BMC, general criminal conduct of BMC gang members, and the events that took
place with Almaraz on the night that Flores was killed. Specifically, Salazar testified that the
colors blue and brown symbolized membership in BMC and that the color of one of the gang’s
rivals was red. When recalling the details leading up to the fight, Salazar, who was standing near
Almaraz in the bar, testified that Almaraz asked Flores why he was wearing a red shirt and
inquired about which gang Flores claimed. Flores explained that he was not representing any
gang, but simply liked the red Chicago Bulls jersey he was wearing. According to Salazar,
Almaraz then asked Flores to remove the jersey. When Flores refused to take off his red jersey,
a fight immediately broke out, which ended when Flores was shot in the back.
        The State then presented Officer Jason Cantrell to testify as an expert on gangs. Officer
Cantrell testified about the criminal and violent crimes generally committed by street gangs. His
testimony was not specifically related to BMC or any of its members. Almaraz objected to the

                                                 3
State calling Officer Cantrell as an expert on “what gang life is like” in general. After the court
allowed Officer Cantrell to give his expert opinion testimony about gangs, the defense moved for
a mistrial, or alternatively to have the entire testimony stricken from the record, arguing that the
State failed to prove that BMC was in fact a criminal street gang with the primary purpose to
commit crimes.
       The State called Lieutenant Stephanie Steele, an officer who was called to duty on the
night of the shooting, to review the bar’s surveillance video tapes. The defense objected to
Lieutenant Steele’s characterization of the video when she testified, on re-direct examination,
that Almaraz appeared to be in what she called a “shooter’s crouch” just before Flores was shot.
The defense argued that such an interpretation invaded the province of the jury.
       The State also called Grant Fredericks to testify as a video expert to assist the jury in
accurately interpreting the bar’s surveillance videos from the night of the murder.          When
testifying to his impression of optimized versions of the surveillance videos, the State asked
Fredericks if he had formed an opinion about when Flores was shot. The defense objected,
arguing that Fredericks’ background in analyzing hundreds of videos was not a sufficient
foundation to testify about a person’s physiological reaction to being shot. The defense further
argued that the question went to the ultimate issue of the case and thereby invaded the province
of the jury. The district court allowed Fredericks to give his opinion about the particular video
frame that depicts the victim’s response to being shot.
       The jury returned a verdict that Almaraz was guilty of first-degree murder.              On
September 26, 2008, Almaraz was sentenced to life imprisonment with 40 years fixed. Almaraz
filed a motion for a new trial which was subsequently denied by the district court. Almaraz
timely filed a notice of appeal against his conviction and sentence on October 31, 2008.
                                      II. ISSUES ON APPEAL
1.     Whether the district court abused its discretion by allowing the jury to hear character
       evidence regarding the criminality of BMC and the criminality of gangs generally.
2.     Whether the district court erred in failing to suppress Hust’s eyewitness identification as
       unreliable due to suggestive practices used by the police.
3.     Whether the district court abused its discretion by preventing the defense expert, Dr.
       Reisberg, from testifying about the specific interview procedures used by the police
       during Hust’s eyewitness identification.




                                                 4
4.     Whether the district court abused its discretion by allowing Lieutenant Steele’s testimony
       interpreting the surveillance video and describing Almaraz’s stance just before Flores
       was shot as a “shooter’s crouch.”
5.     Whether the district court abused its discretion in finding the State laid a proper
       foundation to support admitting the testimony of Grant Fredericks, a video expert,
       regarding the precise moment Flores was shot.
                                   III. STANDARD OF REVIEW
       This “Court reviews a trial court’s decision admitting or excluding evidence, including
the testimony of expert witnesses, under the abuse of discretion standard.” White v. Mock, 140
Idaho 882, 888, 104 P.3d 356, 362 (2004). “A trial court does not abuse its discretion if it (1)
recognizes the issue as one of discretion, (2) acts within the boundaries of its discretion and
applies the applicable legal standards, and (3) reaches the decision through an exercise of
reason.” Fazzio v. Mason, 150 Idaho 591, 594, 249 P.3d 390, 393 (2011).
                                          IV. ANALYSIS
A.     The District Court Did Not Abuse Its Discretion in Admitting Evidence About the
       Criminality of Gangs
       Almaraz argues that the district court erred by admitting evidence regarding the criminal
conduct of BMC members and of street gangs in general as impermissible character evidence.
The State first argues that Almaraz did not preserve this issue for appeal because he only
objected generally to the admission of evidence relating to his membership in a criminal gang,
not to the evidence of other BMC members’ acts or general gang activity. The State then argues
that the district court correctly admitted the testimony of Salazar, Landin, and Officer Cantrell to
show motive.
       Almaraz sufficiently objected to both the introduction of Officer Cantrell’s testimony and
that of Salazar and Landin to preserve these issues for appeal. Generally, this Court will not
consider issues on appeal that were not raised below. State v. Danney, 153 Idaho 405, ___, 283
P.3d 722, 725 (2012). Both parties addressed the issue of admitting evidence of BMC’s criminal
conduct at the pre-trial hearing on the State’s motion in limine.        The State presented the
testimony regarding the criminal activity of BMC under the guise of I.R.E. 404(b) and argued
that the evidence was relevant to Almaraz’s motive. The defense objected to this testimony as
unfairly prejudicial because of a fear that prior bad acts or wrongs associated with gang activity
would be used for propensity purposes, which would substantially outweigh any probative value.



                                                 5
       The defense objected to Officer Cantrell’s expert testimony at trial on I.R.E. 404(b)
grounds. The Court heard argument from both parties on this issue outside the presence of the
jury. It is clear from the defense’s argument that the objection to Officer Cantrell’s testimony
about gang life was made out of a concern that the evidence would in fact be used for propensity
purposes. The defense also argued that this evidence was not even relevant, because none of
these general gang activities were tied to Almaraz. Therefore, Almaraz sufficiently objected to
the State’s evidence of other BMC members’ acts and of general gang activity as unfairly
prejudicial character evidence to preserve these issues for appellate review.
       Generally, character evidence is not permissible to prove a person acted in conformity
therewith. I.R.E. 404(a). Furthermore, evidence of other crimes, wrongs, or acts is also not
admissible to prove criminal propensity. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188
(2009); see I.R.E. 404(b). However, evidence of other crimes, wrongs, or prior acts may be
admissible if offered to prove “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” I.R.E. 404(b). The admissibility of prior bad acts is
subject to a two-pronged analysis. State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007).
First, the court must determine whether the prior wrong or bad act is relevant to a material issue
other than the defendant’s character or propensity to commit the crime charged. Id. Second, the
court must perform a balancing test to determine whether the probative value of the bad act is
substantially outweighed by the danger of unfair prejudice. Id.; see also I.R.E. 403. The trial
court’s determination regarding the danger of unfair prejudice is discretionary and will not be
disturbed on appeal unless it is shown to be an abuse of discretion. Id.; State v. Enno, 119 Idaho
392, 406, 807 P.2d 610, 624 (1991).
       1.      Both the criminal conduct of BMC and the criminal conduct of gangs generally
               are relevant to proving motive.
       The district court properly used its discretion to admit the testimony of Salazar and
Landin to support the State’s theory that Almaraz was motivated to kill Flores because of a gang
rivalry. On appeal, it is undisputed that evidence of Almaraz’s membership in the BMC gang
was properly admitted under I.R.E. 404(b) to demonstrate motive. This Court further holds that
the testimony from Salazar and Landin regarding the criminal and violent conduct of BMC
members was also properly admitted. Such evidence is relevant to explain how gang rivalries
can often lead to violence and retaliation. Salazar and Landin provided specific examples of
prior crimes that BMC members had committed. The defense argues that such evidence of prior
                                                 6
bad acts is improper character evidence under I.R.E. 404(b) because the testimony is about other
members’ bad acts and is not specifically related to Almaraz. The fact that the conduct was not
related to Almaraz shows it was not offered to prove his character but only to prove motive.
This testimony is relevant under I.R.E. 401 and I.R.E. 402 because it illustrates how something
as simple as wearing a red shirt could trigger a rival gang member to react with violence if he felt
disrespected. We hold that this evidence is relevant to an issue other than Almaraz’s criminal
propensity for murder; it is relevant to illustrate motive and intent.
         The district court also correctly admitted the testimony of Officer Cantrell, the State’s
expert on gang activity. Officer Cantrell testified that different gangs wear different colors and
that a rival gang wearing a rival color may incite violence. Because none of Officer Cantrell’s
testimony was specific to BMC, Almaraz argues that the testimony was irrelevant and highly
prejudicial character evidence under I.R.E. 404(a). Almaraz argues that by allowing Officer
Cantrell to testify that gangs generally commit crimes, the jury would infer that Almaraz was
more likely to commit crimes because he is a gang member. Officer Cantrell’s testimony is
relevant to motive because it explains how criminal gangs operate and assists the jury in
understanding the nature of gang rivalries. Thus, we hold that Officer Cantrell’s testimony about
gang culture was relevant to a material issue other than Almaraz’s propensity to commit crime.
         2.       The probative value of the evidence relating to the gang activity of BMC and the
                  criminal conduct of street gangs in general was not substantially outweighed by
                  unfair prejudice.
         The district court recognized the potentially inflammatory nature of gang evidence and
balanced the probative value of the testimony against the danger of unfair prejudice in
accordance with I.R.E. 403. The court found that the probative value of the testimony was not
substantially outweighed by the prejudicial effect of the testimony. To further mitigate any
unfair prejudice of gang related testimony, the district court gave a limiting instruction to prevent
the jury from considering the evidence as probative of Almaraz’s propensity to commit crimes.
The district court instructed the jury that “[s]uch evidence may be considered by you only for the
limited purpose of proving the defendant’s motive. . . . You should disregard such evidence if
you find no connection between the crime charged and gang involvement.” 1 The testimony
challenged is relevant in understanding Almaraz’s purported motive to shoot Flores because of a
1
  In addition to giving jury instructions at the close of the trial, the court also gave the jury a limiting instruction
regarding all expert testimony presented, explaining that the experts are there to assist the jurors in weighing the
information, but ultimately the determination is up to the jurors as the triers of fact.

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seemingly harmless offense—wearing a red jersey in the wrong place. Such evidence of gang
culture was necessary to explain how the mere gesture of refusing to remove a shirt could
amount to an act of disrespect that provoked a violent and deadly reaction. Therefore, this Court
finds that the district court did not abuse its discretion in determining that the probative value of
the evidence relating to BMC’s criminal activity and the violent nature of street gangs was not
substantially outweighed by unfair prejudice.
B.      The District Court Erred in Failing to Suppress Ken Hust’s Identification of
        Almaraz as the Shooter
        Hust was a patron at the Club 7 bar on the night of the shooting and he identified
Almaraz as the shooter at trial. The defense filed a pretrial motion to suppress Hust’s
identification arguing that both the interview procedures and group photograph used by the
police were overly suggestive, rendering the identification unreliable. The district court denied
the motion to suppress, ruling that the identification procedure was not so overly suggestive that
it diminished reliability. On appeal, Almaraz contends that the overly suggestive procedures
used by the police to obtain Hust’s identification violated his due process rights. The State
argues that in order for a constitutional violation to occur, the suggestive procedures must be
based on police action and the suggestive nature of the group photograph was not created by
police action. If showing the suggestive photograph to Hust was state action, the State then
argues that the police interview was not suggestive because Officer Sloan was not trying to
change Hust’s identification, but elicit information that Hust was withholding due to fear of
retaliation.
        The preliminary issue for this Court is whether Office Sloan’s act of showing Hust the
group photograph was police action. While this Court acknowledges that the suggestive nature
inherent in the photograph was not created by police action, the act of showing the suggestive
photograph instead of a proper photo lineup was clearly police action. Therefore, this Court must
address the substantive issue of whether the district court erred in denying the defense’s motion
to suppress Hust’s identification.
        In reviewing the district court’s ruling on a motion to suppress, this Court applies a
bifurcated standard of review. State v. Ray, 153 Idaho 564, 286 P.3d 1114, 1117 (2012). This
Court will accept the trial court’s findings of fact that are supported by substantial evidence and
freely review any constitutional principles implicated by the facts. Id. To determine whether
evidence of an out-of-court identification violates due process, this Court applies a two-step test.
                                                 8
See State v. Hoisington, 104 Idaho 153, 162, 657 P.2d 17, 26 (1983). First, the defendant must
establish that the identification procedure was overly suggestive. United States v. Wade, 388 U.S.
218, 240 n.1 (1967); Hoisington, 104 Idaho at 162, 657 P.2d at 26. Second, if the defendant
meets that burden, courts consider whether the identification was nonetheless reliable under the
totality of the circumstances. Id. This second step entails considering the witness’s opportunity to
view the perpetrator, his degree of attention, the accuracy of his description, his level of
certainty, and the time between the crime and pretrial confrontation, and then weighing those
factors against the “corrupting effect of the suggestive identification.” Manson v. Brathwaite,
432 U.S. 98, 108 (1977); Hoisington, 104 Idaho at 162, 657 P.2d at 26. Thus, greater indicia of
reliability may be necessary the more egregious the suggestive procedures.
        This Court is aware of the dangers of erroneous eyewitness identification. As Justice
William J. Brennan said, “there is almost nothing more convincing [to a jury] than a live human
being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’” Watkins v.
Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (internal quotation marks omitted)).
Indeed, the empirical evidence demonstrates that eyewitness misidentification is “the single
greatest cause of wrongful convictions in this country.” State v. Henderson, 27 A.3d 872, 885
(N.J. 2011). While this Court has acknowledged that the reliability of eyewitness identification
has been subject to “ongoing scientific and judicial inquiry,” we have yet to articulate the impact
of this inquiry on our due process analysis. See State v. Crawford, 99 Idaho 87, 102, 577 P.2d
1135, 1150 (1978). 2        The New Jersey Supreme Court recently undertook a very thorough
examination of the current state of scientific research regarding eyewitness identifications and
concluded that “[t]he research . . . is not only extensive,” but “it represents the ‘gold standard in
terms of the applicability of social science research to the law.’” Henderson, 27 A.3d at 916.
“Experimental methods and findings have been tested and retested, subjected to scientific
scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and
replicated at times in real-world settings.” Id. We agree with the New Jersey Supreme Court and
find that this extensive research convincingly demonstrates the fallibility of eyewitness



2
  The highest courts of two states have recently called into question the Manson test, based on the last 35 years of
social science research into the reliability of eyewitness identifications. See Henderson, 27 A.3d 872; Oregon v.
Lawson, 291 P.3d 673 (Or. 2012). In both instances, the courts provided defendants greater protections than Manson
prescribes.

                                                         9
identification testimony and pinpoints an array of variables that are most likely to lead to a
mistaken identification.
        The New Jersey Supreme Court divided these variables into “system variables” and
“estimator variables.” System variables are factors that are “within the control of the criminal
justice system.” Id. at 895.           Estimator variables are “factors related to the witness, the
perpetrator, or the event itself—like distance, lighting, or stress—over which the legal system
has no control.” Id.
        The research showed that the following system variables help reduce the risk of
misidentification: (1) conducting the identification procedure double-blind helps ensure that
lineup administrators who know the suspect’s identity do not inadvertently suggest the
information to the witness; 3 (2) administering proper pre-lineup instructions that inform the
witness that a suspect may or may not be in the lineup and it is permissible not to identify
anyone; (3) avoiding confirmatory or post-identification feedback which can engender a false
sense of confidence in the witness’s identification; 4 (4) making a full record of the witness’s
statement of confidence once an identification is made; and (5) shielding witnesses from viewing
suspects or fillers more than once. 5 Id. at 895–903.
        In contrast, the research established that the following estimator variables diminish the
reliability of a witness’s identification: (1) stress; (2) the use of a visible weapon during a crime; 6
(3) the shorter the duration of a criminal event; (4) the greater the distance and the poorer the


3
  “Even seemingly innocuous words and subtle cues—pauses, gestures, hesitations, or smiles—can influence a
witness’ behavior.” Henderson, 27 A.3d at 896 (citing Ryann M. Haw & Ronald P. Fisher, Effects of Administrator–
Witness Contact on Eyewitness Identification Accuracy, 89 J. Applied Psychol. 1106, 1107 (2004); Steven E. Clark
et al., Lineup Administrator Influences on Eyewitness Identification Decisions, 15 J. Experimental Psychol.: Applied
63, 66–73 (2009)).
4
  There is substantial research about confirmatory feedback, which shows that witnesses who received feedback
confirming their identification express significantly more confidence in their identification and report “better
witnessing conditions at the time of the crime, stronger memory at the time of the lineup, and sharper memory
abilities in general.” Henderson, 27 A.3d at 899 (quoting Amy Bradfield Douglass & Nancy Steblay, Memory
Distortion in Eyewitnesses: A Meta–Analysis of the Post-identification Feedback Effect, 20 Applied Cognitive
Psychol. 859, 863 (2006)).
5
  A meta-analysis of multiple studies revealed that although 15% of witnesses mistakenly identified an innocent
person viewed in a lineup for the first time, that percentage increased to 37% if the witness had seen the innocent
person in a prior mugshot. Henderson, 27 A.3d at 900 (citing Kenneth A. Deffenbacher et al., Mugshot Exposure
Effects: Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious Transference, 30 Law
& Hum. Behav. 287, 299 (2006)).
6
  “Weapon focus can also affect a witness’ ability to describe a perpetrator. A meta-analysis of ten studies showed
that ‘weapon-absent condition[s] generated significantly more accurate descriptions of the perpetrator than did the
weapon-present condition.’” Henderson, 27 A.3d at 905 (quoting Nancy M. Steblay, A Meta–Analytic Review of the
Weapon Focus Effect, 16 Law & Hum. Behav. 413, 415–17 (1992)).

                                                        10
lighting conditions; (5) increased levels of intoxication; (6) the use of disguises during the crime
and changes in facial features between the time of initial observation and a subsequent
identification; (7) the greater the period of time between observation and identification to law
enforcement; 7 (8) race-bias; 8 and (9) feedback from co-witnesses confirming the identification of
a perpetrator. Id. at 904–09.
        These two types of variables dovetail nicely with the two-step analysis this Court applies
to determine whether evidence of an out-of-court identification violates due process.                         As
previously stated we first look at whether the identification procedures are overly suggestive, and
if we find that they are, we examine whether the reliability of the identification outweighs the
corrupting effect of the suggestive identification. We hold that the system variables outlined
above are factors that courts should consider in determining whether identification procedures
were overly suggestive.
        Correspondingly, the estimator variables we addressed serve to elaborate on this Court’s
five-factor test for reliability: (1) the witness’s opportunity to view the perpetrator, (2) the
witness’s degree of attention, (3) the witness’s accuracy of description, (4) the witness’s level of
certainty, and (5) the time between the crime and pretrial confrontation. For example, under the
first factor courts may consider the lighting at the time the crime was committed, whether the
perpetrator was wearing a disguise, and the length of time taken to commit the crime, among
other variables. Under the second factor courts may consider the amount of stress the witness
was under, whether a weapon was present, or the witness’s level of intoxication. Additionally,
we note that courts should be cautious in the amount of weight they give to a witness’s degree of
certainty in their identification when police have used overly suggestive procedures, particularly
when confirmation feedback has been given. See State v. Lawson, 291 P.3d 673, 689 (Or. 2012)
(noting that “the current scientific knowledge and understanding regarding the effects of



7
  A meta-analysis of 53 “facial memory studies” established “that memory strength will be weaker at longer
retention than at briefer ones.” Kenneth A. Deffenbacher et al., Forgetting the Once–Seen Face: Estimating the
Strength of an Eyewitness’s Memory Representation, 14 J. Experimental Psychol.: Applied 139, 142 (2008).
However, researchers have not been able to pinpoint the threshold for when a person’s recall becomes unreliable.
Henderson, 27 A.3d at 907.
8
  Studies have shown that a witness may have more difficulty making an identification when the suspect is of a
different race than the witness. Henderson, 27 A.3d at 907 (citing Christian A. Meissner & John C. Brigham, Thirty
Years of Investigating the Own–Race Bias in Memory for Faces: A Meta–Analytic Review, 7 Psychol. Pub. Pol'y &
Law 3, 21 (2001)).


                                                       11
suggestive identification procedures indicates that self-reported evidence [a witness’s level of
certainty and degree of attention] can be inflated by the suggestive procedure itself”).
         In sum, we are not changing the two-part test this Court adopted in Hoisington to
determine whether an out-of-court-identification violates a defendant’s due process rights.
Rather, by outlining the system and estimator variables that research has convincingly shown to
impact the reliability of eye-witness identification, we hope to provide guidance to lower courts
applying the test from Hoisington.
         1. The procedures used in obtaining Hust’s pretrial identification were overly
            suggestive.
         This Court must first determine whether the State’s conduct was impermissibly
suggestive. “[T]he due process test for suppression of an in-court identification that is allegedly
tainted by an impermissibly suggestive out-of-court identification is whether the out-of-court
identification was so suggestive that there is a very substantial likelihood of misidentification.”
Hoisington, 104 Idaho at 161, 657 P.2d at 25. In accordance with the framework we have just
laid out, our analysis of whether the procedures Officer Sloan used during Hust’s identification
were overly suggestive will include consideration of whether any of the system variables that
diminish the chance of misidentification, such as double-blind administration or proper pre-
identification instructions, were present.
         It is clear from the facts the police violated the standard guidelines for preparing a photo
lineup by choosing a picture that was overly suggestive in nature. When asked about the proper
procedures used to prepare a photo lineup, Officer Sloan testified that he typically asks the
department’s secretary for a lineup after giving her the suspect’s name. The DMV then provides
the photos using other individuals with similar race, weight, and height, within a couple of hours
from the request.       Far from a double-blind administration of a line-up, Officer Sloan was
involved in the case and used a single photograph that pictured Almaraz in the center of a group
of individuals.      Officer Sloan provided no explanation or justification for using the group
photograph as the photo lineup for Hust’s identification. 9 Furthermore, the police had time—
three days—and the ability to arrange a traditional photo lineup.



9
  The defense asked “[c]an you explain why you wouldn’t have used a photo lineup for that rather than a group
picture that you obtained?” Officer Sloan answered “I can’t explain that at this time. I mean, the picture was there,
and I just showed it to Mr. Hust and went from there.”

                                                         12
        Additionally, Officer Sloan’s conduct during the identification was also suggestive.
Officer Sloan repeatedly interrupted the witness, asked leading questions which implied the
answer he was looking for, and discussed with Hust outside information about the case, the
suspect, and the victim during the interview. Even more troubling is the fact that Officer Sloan
turned off the tape recorder right before he asked Hust to identify Almaraz from the group
photograph. Such conduct by a police officer is an egregious error that deprives the court of
having a full record of the witness’s confidence in his identification.
        Further, Officer Sloan failed to give Hust the general instruction that the suspect may or
may not be in the photo.            Not only did Officer Sloan fail to give any pre-identification
instructions, he indicated that Almaraz was in the photograph when he asked, “who had the
gun?” Officer Sloan’s question was manifestly suggestive. In telling Hust that the shooter was
already in custody, and that they had a strong case, Officer Sloan implied that the shooter would
be present in any photographic lineup offered for identification. 10 Finally, rather than using a
traditional photo lineup, Hust was shown a group photograph which placed Almaraz squarely in
the center of the group with a chandelier hanging directly over his head. If a photo lineup creates
a situation in which the witness’s attention is focused on the defendant, the lineup may be unduly
suggestive. State v. Hyde, 127 Idaho 140, 146, 898 P.2d 71, 77 (Ct. App. 1995) (citing State v.
Haggard, 119 Idaho 664, 667, 809 P.2d 525, 528 (Ct. App. 1991)). Moreover, Almaraz was the
only individual without facial hair in the photograph.
        The district court analyzed the suggestiveness of the police interview during the motion
to suppress hearing.         As to the photograph, the district court stated that the issue of
suggestiveness “is one for the jury to make a determination.” As to the interview, the district
court had concerns after reading the written transcript but “[w]hen I listened to Officer Sloan’s
testimony, suddenly there was context to that transcript. Well, [Hust] was reluctant, he was
scared.” Going further, the district court concluded that Officer Sloan was dealing with a scared
witness and was abrupt in an effort to get Hust to talk, rather than an effort to guide his answers.

10
  Two meta-analyses found that telling witnesses in advance that the suspect may not be present in the lineup, and
that they need not make a choice, led to more reliable identifications in target-absent lineups. See Nancy Mehrkens
Steblay, Social Influence in Eyewitness Recall: A Meta–Analytic Review of Lineup Instruction Effects, 21 Law &
Hum. Behav. 283, 285–86, 294 (1997); Steven E. Clark, A Re-examination of the Effects of Biased Lineup
Instructions in Eyewitness Identification, 29 Law & Hum. Behav. 395, 418–20 (2005). By contrast, in one
experiment, 45% more people chose innocent fillers in target-absent lineups when administrators failed to warn that
the suspect may not be there. See Roy S. Malpass & Patricia G. Devine, Eyewitness Identification: Lineup
Instructions and the Absence of the Offender, 66 J. Applied Psychol. 482, 485 (1981).

                                                        13
We do not dispute the district court’s finding of fact that Officer Sloan’s questioning of Hust was
not overly suggestive on its own. However, when Officer Sloan’s questioning is coupled with the
suggestive group photograph, his failure to give proper pre-identification instructions, and his
failure to record Hust’s identification, the same conclusion cannot be reached. Taken together,
we hold that the procedures Officer Sloan employed to elicit Hust’s identification were overly
suggestive.
       2. The overly suggestive interview and photographic lineup were not outweighed by
          aspects of reliability.
       Once the police procedures are found to be overly suggestive, the court must conduct a
second inquiry to determine “whether under ‘the totality of the circumstances’ the identification
was reliable even though the [identification] procedure was suggestive.” Hoisington, 104 Idaho
at 162, 657 P.2d at 26 (quoting Biggers, 409 U.S. at 199). We continue to apply the five-factor
test found in Hoisington, but also consider the relevant estimator variables that fall under these
factors. A court must consider the following five factors to decide whether the identification is
sufficiently reliable: (1) the opportunity of the witness to view the criminal at the time of the
crime, (2) the witness’s degree of attention, (3) the accuracy of the prior description of the
criminal, (4) the level of certainty demonstrated at the identification, and (5) the length of time
between the crime and the identification. Id. (citing Manson v. Brathwaite, 432 U.S. 98, 114
(1977); Biggers, 409 U.S. at 199).
       Under the first factor, Hust’s proximity to and involvement in the fight provided an
opportunity to view the shooter at the time of the shooting. Not only was Hust at the bar on the
night of the murder, he also testified that he was trying to break up the fight and indicated that he
was merely two to three feet away from Almaraz. However, Hust also stated that he did not get
a good look at the shooter’s face because he was focused on the victim and because the shooter
ducked down and ran out of the bar so quickly. Additionally, in Henderson, the New Jersey
Supreme Court cited research indicating that “while there is no minimum time required to make
an accurate identification, a brief or fleeting contact is less likely to produce an accurate
identification than a more prolonged exposure.” 27 A.3d at 905.
       Under the second factor, there is substantial evidence that Hust’s attention was
compromised due to his intoxication and the chaotic atmosphere of the bar after the fight




                                                 14
erupted. Hust testified that he had been drinking heavily the night of the incident. 11 Studies have
found that “the effects of alcohol on identification accuracy show that high levels of alcohol
promote false identifications” and that “low alcohol intake produces fewer misidentifications
than high alcohol intake.” Id. at 906 (citing Jennifer E. Dysart et al., The Intoxicated Witness:
Effects of Alcohol on Identification Accuracy from Showups, 87 J. Applied Psychol. 170, 174
(2002)). The district court noted that Hust attempted to break up the fight and viewed Almaraz as
a participant in the fight. However, Hust’s impairment and the chaotic nature of the bar fight
would impact his level of awareness and weighs against reliability.
           In analyzing the third factor, Hust’s description of the shooter became more detailed over
the course of the interview, but was not entirely inaccurate. Hust described the shooter as a
Hispanic male of average weight and height, but he initially told Officer Sloan that he did not get
a look at the shooter’s face. He also provided an incorrect description of what the shooter was
wearing and could not remember if the shooter was wearing a hat. Eventually, Hust stated that
“if I seen [sic] his face I could probably say it was him or it wasn’t him” and that he saw the
shooter’s face “as he turned back around and he ducked down” while exiting the bar. In its
analysis, the district court found that the clothing description was inaccurate, but not fatal to the
later identification.
           Under the fourth factor, this Court finds that the level of certainty Hust demonstrated
during the identification weighs against reliability because Officer Sloan turned off the tape
recorder before showing Hust the photographic lineup. It is an improper police tactic for an
interviewing officer to record only part of the interview, especially without providing a reason or
justification. This action denies all reviewing courts of the best recollection of what was said or
done and thereby may weaken the state’s preparation for further investigation or courts’
preparation for reviewing the identification. Because Hust did not testify in the pretrial
proceedings, this Court must rely solely on Officer Sloan’s testimony that Hust had an
immediate reaction when he saw the photograph and identified Almaraz without hesitation.
Officer Sloan described Hust’s reaction to the photograph as though he had “seen a ghost” and
recognized Almaraz as the shooter “without hesitation.” The district court found that the “level
of certainty demonstrated at the identification, while the officer testified that he acted like he saw
a ghost or whatever, he had responded immediately and was quite certain.” However, since the

11
     Hust recalled drinking approximately six to eight beers and two shots of liquor prior to the shooting.

                                                            15
tape recorder was turned off before Hust’s identification, and Hust did not testify at trial that any
of Officer Sloan’s actions led him away or toward identifying the defendant, we only have the
officer’s testimony as evidence to the level of certainty demonstrated. These facts together with
the potential for confirmation feedback weigh against reliability.
         Finally, in analyzing the fifth factor, the length of time between the shooting and the
identification was reasonable and did not detract from the overall reliability of the identification.
Three days elapsed between the shooting and Hust’s identification and courts have found this
time period to be acceptable. 12 See e.g., State v. Gray, 129 Idaho 784, 797, 932 P.2d 907, 920
(Ct. App. 1997).
         Of the five factors, only the fifth factor is unquestionably in favor of reliability. The
other four factors each have specific shortcomings that call into question the reliability of the
identification. Additionally, as we noted above, confirmation feedback from overly suggestive
police procedures can impact an eyewitness’s level of certainty in their identification. This is
especially troublesome given the unexplained turning off the tape recorder before the interview
was complete. After balancing these five reliability factors against the suggestive elements of
the identification, the reliability of the identification fails to outweigh the impact of the
suggestive circumstances. Therefore, this Court holds that the district court erred in admitting
Hust’s identification because the suggestiveness of the identification procedure was not
outweighed by independent indicia of reliability.
         3. Whether the State met its burden of proving that the district court’s erroneous
            admission of Hust’s identification of Almaraz into evidence was harmless.
         Where a defendant alleges error at trial that he contemporaneously objected to, this Court
reviews the error on appeal under the harmless error test. State v. Perry, 150 Idaho 209, 222,
245 P.3d 961, 974 (2010). If the Court finds that the district court abused its discretion in
admitting or excluding the evidence, then the Court must declare a belief beyond a reasonable
doubt that the error did not affect the outcome of the trial, in order to find that the error was
harmless and not reversible. Id. at 227–28, 245 P.2d at 979–80. In other words, the error is
harmless if the Court finds that the result would be the same without the error. See id. In Perry,
this Court applied the standard of harmless error for a constitutional violation found in the
United States Supreme Court opinion in Chapman v. California, 386 U.S. 18 (1967). “Under the

12
  Additionally, the three days that elapsed between the shooting and Hust’s identification provided the investigators
with ample time to construct a proper line-up.

                                                         16
Chapman harmless error analysis, where a constitutional violation occurs at trial, and is followed
by a contemporaneous objection, a reversal is necessitated, unless the State proves ‘beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Perry,
150 Idaho at 221, 245 P.3d at 973 (quoting Chapman, 386 U.S. at 21). Put another way, did the
State prove beyond a reasonable doubt that the verdict would have been the same if Hust’s
testimony had not been erroneously admitted into evidence.
       In this case, the State argued in oral argument that any evidentiary errors are harmless.
The critical analysis, then, is whether the State properly advanced an argument that any error in
the introduction of Hust’s testimony—and that of Officer Sloan relating to his identification—
was harmless.
       In the context of the exclusion of Dr. Reisberg’s testimony, the State’s brief argues that
the Hust’s identification is not a key element of the prosecution’s case.
       The evidence in this case established that Almaraz was engaged in a fight with the
       victim when the victim was shot and all the evidence, including surveillance
       video of the moments just before and just after the shot was fired, indicates that
       Almaraz was the killer. Although Hust’s identification was helpful, it was not so
       important as to be considered key.
Going further, the State argues the existence of other evidence that does not rely upon Hust’s
testimony. This evidence includes the murder weapon that was found near the crime scene in a
shirt tied to Almaraz and ammunition identical to that used in the killing being found at
Almaraz’s residence.
       However, the State never specifically argues that Hust’s identification did not “contribute
to the verdict obtained” as clearly required under Perry. For example, the subject is not even
discussed in the State’s written brief on appeal, and is only vaguely referenced at oral argument.
This Court has previously held that “[a]dditional issues raised for the first time on appeal at oral
argument are not properly before this Court.” State v. Crowe, 131 Idaho 109, 111, 952 P.2d
1245, 1247 (1998). As such, the State has failed to meet its burden of proving beyond a
reasonable doubt that the verdict in this case would have been the same even if Hust’s testimony
had not been admitted.     Therefore, this Court finds that the State failed to meet its burden of
proving that the error is harmless.
C.     The District Court Abused Its Discretion by Limiting the Expert Testimony of Dr.
       Reisberg



                                                17
       On appeal, Almaraz argues that the district court abused its discretion by limiting Dr.
Reisberg’s testimony and precluding him from testifying specifically to the procedures
associated with Hust’s identification. In response, the State argues that Almaraz failed to show
error in the district court’s ruling on the scope of admissible testimony on the reliability of
eyewitness identification.
       Dr. Reisberg testified twice in this case. He first took the stand in a pre-trial hearing on
the State’s motion in limine to exclude or limit expert testimony on eyewitness identification.
The defense called Dr. Reisberg, a cognitive psychologist, to offer expert testimony on the
suggestiveness of Officer Sloan’s interview with Hust and the photographic lineup. Dr. Reisberg
offered testimony on how eyewitness memory can be affected by many factors, including
suggestiveness during police questioning. After testimony and argument, the district court ruled
that the defense would be allowed to present testimony from Dr. Reisberg, although the extent of
his testimony would be determined during trial outside of the presence of the jury.
       During trial, the defense again offered Dr. Reisberg’s expert testimony on the
suggestiveness of Officer Sloan’s interview with Hust and the photographic lineup. Specifically,
the defense wanted to play audio portions of Hust’s actual interview and then allow Dr. Reisberg
to point out how the interview violated established guidelines. The district court allowed Dr.
Reisberg to testify about the suggestiveness of the photographic lineup, but ruled that his expert
opinion regarding the suggestiveness of the interview would invade the province of the jury. The
district court found it proper to leave the accuracy of Hust’s identification to the jury and
precluded Dr. Reisberg from making any direct connections between improper technique and the
procedures Officer Sloan employed during his interview with Hust. The district court only
allowed the defense to present expert testimony from Dr. Reisberg regarding suggestive
procedures that can render eyewitness identification unreliable. In his testimony before the jury,
Dr. Reisberg identified proper guidelines regarding witness interviews and identified specific
types of police conduct that could compromise a witness’s memory. Almaraz argues that the
district court abused its discretion because Dr. Reisberg’s expert opinion testimony regarding the
suggestiveness of the Hust interview would have assisted the jury in understanding how to apply
the guidelines to the facts and in determining the proper weight to give Hust’s identification.
       1.      The District Court Erred by Prohibiting Dr. Reisberg from Testifying to the
               Specific Procedures Associated with Hust’s Identification.


                                                18
       Under I.R.E. 702, an expert witness may provide an opinion “[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Therefore, after the court qualifies a witness as an expert, it “must
determine whether such expert opinion testimony will assist the trier of fact in understanding the
evidence.” State v. Pearce, 146 Idaho 241, 246, 192 P.3d 1065, 1070 (2008). Expert testimony
that only vouches for the credibility of another witness “encroaches upon the jury’s vital and
exclusive function to make credibility determinations, and therefore does not ‘assist the trier of
fact’ as required by Rule 702.” State v. Perry, 139 Idaho 520, 525, 81 P.3d 1230, 1235 (2003).
However, expert opinion testimony that is admissible under I.R.E. 702 “is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.” I.R.E. 704. Indeed, we
have routinely held that “an expert’s opinion, in a proper case, is admissible up to the point
where an expression of opinion would require the expert to pass upon the credibility of witnesses
or the weight of disputed evidence. To venture beyond that point, however, is to usurp the jury’s
function.” Perry, 139 Idaho at 525, 81 P.3d at 1235 (quoting State v. Hester, 114 Idaho 688, 696,
760 P.2d 27, 35 (1988)).
       The trial court has discretion in excluding expert testimony on eyewitness identification
and will not be overturned without an abuse of discretion. Weeks v. E. Idaho Health Servs., 143
Idaho 834, 837, 153 P.3d 1180, 1183 (2007). A lower court does not abuse its discretion if the
court correctly recognized the issue as one of discretion, acted within the bounds of its
discretion, and reached its decision by exercising reason. State v. Moore, 131 Idaho 814, 819,
965 P.2d 174, 179 (1998) (citing Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho
87, 94, 803 P.2d 993, 1000 (1991)).
       Here, the district court abused its discretion when it ruled that Dr. Reisberg could not
testify about the specific procedures used in Hust’s interview. In making its ruling, the court
excluded the testimony as invading the province of the jury without making a determination as to
whether it would have assisted the jury. The district court was correct that expert opinion
testimony as to the accuracy of Hust’s identification would invade the province of the jury, but
Dr. Reisberg’s testimony was not an opinion as to Hust’s credibility. Rather, Dr. Reisberg would
have testified about the specific instances of police suggestiveness, which would have been
helpful to the average juror’s understanding of whether the interview was conducted in an overly
suggestive way.   Courts should not overly restrict expert testimony that assists the jury.

                                                19
       In reaching this holding, this Court still recognizes that an expert cannot opine to the
accuracy of the eyewitness identification or the credibility of any witness as those matters are
reserved for the jury. However, an expert witness may testify to specific instances of police
suggestiveness that may call into question the reliability of the eyewitness testimony.
       [E]xpert testimony on the reliability of eyewitness identifications does not invade
       the province of the jury to determine what weight or effect it wishes to give to
       eyewitness testimony. An expert should not be permitted to give an opinion about
       the credibility or accuracy of the eyewitness testimony itself; that determination is
       solely within the province of the jury. Rather, the expert should be permitted to
       testify only about factors that generally have an adverse effect on the reliability of
       eyewitness identifications and are relevant to the specific eyewitness
       identification at issue.
State v. Guilbert, 49 A.3d 705, 729 (Conn. 2012) (internal citations and quotations omitted).
Testimony relating to the proper guidelines for conducting an accurate interview or lineup,
whether or not those procedures were followed in the case at hand, and the consequences of non-
compliance with those procedures does not invade the province of the jury. The disallowed
testimony offered by Dr. Reisberg was aimed at specific procedures employed by Officer Sloan,
and how empirical research has shown those procedures to be suggestive. Dr. Reisberg was not
offering an opinion on the credibility or accuracy of the eyewitness testimony itself. Credibility
is an issue for the jury, as the jury is the lie detector in the courtroom. See Perry, 139 Idaho at
525, 81 P.3d at 1235. The district court erred by excluding Dr. Reisberg’s testimony on the
ground that it would invade the province of the jury, when the testimony was not an opinion on
Hust’s credibility. Therefore, this Court holds that the district court erred in limiting Dr. Reisberg
from testifying about the specific instances of suggestive conduct used during Officer Sloan’s
interview with Hust.
       2. The State failed to meet its burden to show that the limitation on Dr. Reisberg’s
          testimony was harmless error.
       Where a defendant alleges error at trial that he contemporaneously objected to, this Court
reviews the error on appeal under the harmless error test. Perry, 150 Idaho at 222, 245 P.3d at
974. “A defendant appealing from an objected-to, non-constitutionally-based error shall have the
duty to establish that such an error occurred, at which point the State shall have the burden of
demonstrating that the error is harmless beyond a reasonable doubt.” Id.
       For reasons similar to Section IV.B above, the State failed to meet its burden. There is no
mention of harmless error in the State’s briefing on appeal, and only a general mention of

                                                 20
harmless error at oral argument offered without supporting authority. This Court has previously
held that “[a]dditional issues raised for the first time on appeal at oral argument are not properly
before this Court.” Crowe, 131 Idaho at 111, 952 P.2d at 1247. This Court has acknowledged
that this rule will be relaxed when the issues are supported by argument in the briefs, id., but
there is no direct argument on this point in the State’s brief. Therefore, we hold that the State
failed to meet its burden of demonstrating that the error is harmless beyond a reasonable doubt.
D.     The District Court Did Not Abuse Its Discretion by Allowing Lieutenant Steele to
       Testify that Almaraz Was in a “Shooter’s Crouch” Just Before the Victim Was Shot
       Lieutenant Stephanie Steele was called to duty on the night of the shooting and
supervised the investigation. The State called Lieutenant Steele to testify about the investigation
and to review the bar’s surveillance video tapes. On re-direct examination, the State asked her to
describe the information she was relaying at the scene to the other officers and what part of the
surveillance video was significant to the investigation. Lieutenant Steele identified a key frame
in the video at 2:19:50 where she testified that Almaraz “appears to be in a – what I call a
shooter’s crouch” just before Flores was shot. The defense argued that such an interpretation
invaded the province of the jury and was beyond the scope of cross-examination. The district
court ultimately allowed Lieutenant Steele to proceed, reasoning that the testimony was relevant
to illustrate what details she was relying on when she relayed the information to the other
officers. Nevertheless, the court agreed that the issue was ultimately up to the jury and provided
a limiting instruction explaining that the jurors should make their own determination of what the
videos showed. Lieutenant Steele continued to testify about her interpretations of the video and
identified the suspect’s position immediately after Flores was shot and described how he exited
the bar. The defense objected on the grounds that it was improper opinion testimony and the
court sustained the objection until foundation was provided.
       Later in the trial, the defense called Officer Dean Muchow who also viewed the bar’s
surveillance videos. When asked on direct examination if there was a question about when
exactly the shot occurred, the State objected that such testimony was improper opinion evidence
because of a lack of foundation or knowledge. After sustaining the objection, the defense
responded by reminding the court “[w]ell judge, over objection you allowed Lieutenant Steele,
with absolutely no more foundation, to give her opinion about not only exactly when the shot
occurred, but where the shooter was, the shooter’s stance. And that’s in the record now. And it
was over objection.” The district court responded by acknowledging that Lieutenant Steele’s
                                                21
testimony may have been improperly admitted. The court stated “[a]nd I have noted to counsel
since then that that was – I didn’t say it on record, but that wasn’t something that should have
been allowed, but it was something in context to something else.”
       1. Almaraz’s Claims Were Properly Preserved for Appellate Review.
       On appeal, the defense argues that the description of Almaraz in a shooter’s crouch
improperly invaded the province of the jury because it answered the ultimate issue in the case –
who shot Gabriel Flores? The defense further contends that Lieutenant Steele’s testimony was
improper lay opinion testimony under I.R.E. 701 because it was based on specialized knowledge
and a proper foundation had not been laid for her to testify as an expert. The State argues that
Almaraz did not properly preserve the issue for appellate review because the defense made no
reference to I.R.E. 701 as grounds for the objection at trial.
               Generally, this Court will not consider an alleged error on appeal unless a
       timely objection to the alleged error was made at trial. For an objection to be
       preserved for appellate review, either the specific ground for the objection must
       be clearly stated, or the basis of the objection must be apparent from the context.
State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003) (internal citations omitted).
       However, some discretion lies with the court to consider the objection in light of the
context in which it was presented. Under I.R.E. 103(a), an objection must state “the specific
ground of objection, if the specific ground was not apparent from the context.” After reviewing
the objection within the context of the arguments contained in the transcripts, this Court finds
that the issue was properly preserved for appeal.           After Lieutenant Steele characterized
Almaraz’s stance as “what I call a shooter’s crouch,” the defense objected by stating: “everybody
can look at the same video with the same eyes. And ultimately, it’s the jury’s question. And
interpretation’s out of line.”     Moreover, as Lieutenant Steele continued to describe her
interpretations of the video, she testified that the man in the shooter’s crouch moved after Flores
was shot and pointed out his new position on the video. The defense objected stating “that is an
opinion and reasonable people watching this, I guarantee you, will disagree with that
interpretation.”   Although the rule was not specifically invoked, the defense’s arguments
surrounding Lieutenant Steele’s testimony show that the defense was concerned that her
conclusion was a lay opinion that was not helpful to a clear understanding for the jury and was
based on specialized knowledge as a police officer in violation of I.R.E. 701.
       2.      The District Court Did Not Abuse Its Discretion by Allowing Lieutenant Steele to
               Testify that Almaraz Was in What She Called a “Shooter’s Crouch.”
                                                 22
       The decision to admit opinion testimony, whether lay opinion or expert opinion, rests
within the discretion of the lower court, while the determination of its weight lies with the jury.
State v. Cutler, 94 Idaho 295, 299, 486 P.2d 1008, 1013 (1971). “The trial court’s broad
discretion in admitting evidence ‘will only be disturbed on appeal when there has been a clear
abuse of discretion.’” State v. Merwin, 131 Idaho 642, 646, 962 P.2d 1026, 1030 (1998) (quoting
Walker v. Am. Cyanamid Co., 130 Idaho 824, 832, 948 P.2d 1123, 1131 (1997)).
       While this Court acknowledges that the admissibility of Lieutenant Steele’s statement
that Almaraz was in what she calls a “shooter’s crouch” may have been a close call, this Court
finds that the decision was made within the district court’s discretion. Lieutenant Steele testified
to her personal observations of the video and simply explained why she thought frame 2:19:50
was a key frame and why the gentleman in the crouched position was a key suspect. The defense
failed to show that identifying Almaraz’s stance as a “shooter’s crouch” was due to specialized
knowledge or was a term of art used by the police. Furthermore, the court allowed the defense to
re-cross examine Lieutenant Steele based on her statement, but defense counsel did not take
advantage of that opportunity.      The district court also provided the jury with a limiting
instruction reminding the jury that they were not bound by any witness’s testimony about the
video. Therefore, we hold that Almaraz failed to show that the district court’s admission of
Lieutenant Steele’s testimony was an abuse of discretion.
E.     The District Court Did Not Abuse Its Discretion in Admitting the Expert Opinion
       Testimony of Grant Fredericks about when the Victim Was Shot
       The State called Grant Fredericks as an expert in forensic video analysis to assist the jury
in interpreting enhanced versions of the bar’s video surveillance from the night of the murder.
During his testimony, the State asked Fredericks if he had formed an opinion about when Flores
was shot and if he could identify that frame in the video. The defense objected, arguing that
Fredericks’ background in analyzing hundreds of videos was not a sufficient foundation to testify
about a person’s physiological reaction to being shot. The district court found that the State had
laid a proper foundation and allowed Fredericks to give his opinion about the particular video
frame that depicts the victim’s response to being shot.
       “The trial court has broad discretion in admitting expert evidence, and its judgment will
not be disturbed on appeal absent a clear abuse of discretion.” Polk v. Larrabee, 135 Idaho 303,
314, 17 P.3d 247, 258 (2000). Under I.R.E. 702, expert testimony is admissible “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence
                                                23
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.” Furthermore,
“the trial court has the discretion to determine whether a proper foundation has been laid for the
admission of expert testimony.” Swallow v. Emergency Med. of Idaho, P.A., 138 Idaho 589, 593,
67 P.3d 68, 72 (2003) (citing Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 995 P.2d 816
(2000)).
       After reviewing the foundation laid by the State, this Court finds no error in the district
court’s determination that Fredericks was sufficiently qualified to give his expert opinion of
when the impact of the shot occurred based on his experience and training in video analysis.
Fredericks is a forensic video analyst who, in 1984, started a company assisting law enforcement
with video-related investigations. He then became a police officer with the City of Vancouver
Police Department in Canada, where he was the coordinator of the department’s forensic video
unit. Fredericks also trained other police officers on how to interpret videos throughout the
United States and Canada. In 2000, Fredericks was hired by Avid Technology, the main imaging
company for law enforcement, as the manager of the forensic video division. He primarily
focuses on videos involving homicide, robbery, and kidnapping cases. When asked to describe
his role as an expert, Fredericks responded as follows:
       I have examined thousands and thousands of videotapes over the past 25 years
       specifically for this purpose, to assist the jury and to accurately interpret the
       video. My experience is that because of my knowledge and skills and experience
       and my equipment – and I will spend many dozens, if not hundreds, of hours
       sometimes examining video – I’m able to see things that the average person
       wouldn’t see right away. So I may be able to point out, this is what the camera
       shows, and then allow you to assess whether you can also see that. My
       experience is that if I were just to play it, you wouldn’t see everything I see.
       That’s – those are the skills I bear, to assist you. So my duty here is to assist you
       in accurately interpreting what the video’s showing, answer any questions,
       technical questions about why the video looks the way it does, and to assist you
       following motion and the movement of individuals . . . .
       This foundation was bolstered even further when Fredericks testified about his personal
experience in the line of duty seeing people shot. In response to the defense’s objection,
Fredericks clarified his experience and stated that in addition to analyzing videos of homicides,
“I’ve experienced firsthand, as a police officer people being shot. . . . I have been on the scene
where my partner shot somebody, and I’ve experienced hearing shots and seeing somebody react
to being shot.”

                                                24
        This Court finds that such a foundation allowed the district court to determine that
Fredericks was in fact qualified to give his opinion about which frame depicted the victim
reacting to being shot.        Fredericks was properly qualified to identify the precise moment
captured on video based on his knowledge, training, skill, and experience in assisting law
enforcement agencies in interpreting videos of crime. In explaining the basis for his opinion,
Fredericks testified that at 2:19:50 there was no reaction from the victim. Then, at some point
between 2:19:50 and 2:19:51, the victim reacted and you could see that reaction in the video by
2:19:51. 13 Fredericks stated “[h]is arms fly up. He moves forward. His chest comes out. His
back is arched. Something has caused that – that to occur.” Fredericks went on to describe that
within a third of a second, virtually every patron in the bar reacted intensely and quickly. The
totality of these reactions led Fredericks to opine that the shot was fired at the moment just
before 2:19:51. Prior to this testimony, the district court also gave the jury a limiting instruction
that ultimately the factual determinations about what the video depicts was left to the jury and
they should weigh all the testimony regarding the video. As a result, this Court finds no error in
the district court’s determination that such testimony properly assisted the jury in interpreting the
video. Therefore, Almaraz has failed to show that the district court abused its discretion in
finding that the State properly laid a foundation to support Frederick’s expert opinion.
                                              V. CONCLUSION
        Based on the reasoning above, this Court holds that the district court abused its discretion
in failing to suppress Hust’s identification of Almaraz as the shooter, and abused its discretion in
limiting Dr. Reisberg from testifying about the suggestiveness of the specific procedures the
police employed during Hust’s interview with Officer Sloan. This Court further holds that there
was no other abuse of discretion committed by the district court on the remaining evidentiary
issues Almaraz raises on appeal and we do not reach the issues of cumulative error or the denial
of Almaraz’s motion for new trial. Thus, this Court vacates Almaraz’s conviction and remands
for a new trial.
        Justices EISMANN and HORTON, CONCUR.
        Justice W. Jones, dissenting:




13
  The video surveillance cameras at Club 7 captured three frames per second. Therefore, Fredericks could only
identify when Flores was shot within one-third of a second.

                                                       25
       I would not lightly recommend that we send a man to the penitentiary for at least forty
years, and possibly his entire life, where his trial was marred by error—and I fully join in that
portion of the Majority’s Opinion holding that the district court erred by admitting Hust’s
eyewitness identification, and erred again by limiting Dr. Reisberg’s testimony regarding the
unduly suggestive police questioning that led to that identification.        Moreover, I cannot
understand the State’s inexplicable failure to brief the question of whether these two errors were
harmless. This oversight ordinarily would preclude us from considering the issue of harmless
error, because in most cases it would be unfair to decide this question without briefing and
argument from counsel.
       But, this is a unique case. Almaraz shot Flores in front of several eyewitnesses while
being taped by a surveillance camera. Damning physical evidence also links him to the crime. If
I believed a jury could possibly reach a different result in a new, error-free trial, I would not
hesitate to join the Majority. But, I believe that in extraordinary cases like this one we have a
duty to independently examine the record to determine whether all of the errors below were
harmless, and, if they were, to affirm the defendant’s conviction.
       Typically, in a criminal appeal the government must argue that the errors below were
harmless; otherwise, it waives that issue. See Pizzuto v. State, 146 Idaho 720, 725, 202 P.3d 642,
647 (2008) (party must support contentions on appeal with argument and authority); State v.
Ruiz, 150 Idaho 469, 471, 248 P.3d 720, 722 (2010) (declining to address harmless error issue
because State did not argue that error was harmless); see also Miller v. Stovall, 641 F. Supp. 2d
657, 665–66 (E.D. Mich. 2009) (same). However, a vast body of authority has developed
following United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991) (per curiam), which held
that such a waiver is not necessarily binding on an appellate court. See, e.g., Gover v. Perry, 698
F.3d 295, 299–301 (6th Cir. 2012); United States v. Ford, 683 F.3d 761, 768–69 (7th Cir. 2012);
United States v. Ghane, 673 F.3d 771, 787–88 (8th Cir. 2012); United States v. Davis, 596 F.3d
852, 861 (D.C. Cir. 2010); United States v. Gonzalez-Flores, 418 F.3d 1093, 1101–02 (9th Cir.
2005); United States v. Torrez-Ortega, 184 F.3d 1128, 1136 (10th Cir. 1999); United States v.
Rose, 104 F.3d 1408, 1414–15 (1st Cir. 1997); United States v. Adams, 1 F.3d 1566, 1575–76
(11th Cir. 1993); United States v. Vontsteen, 950 F.2d 1086, 1091–92 (5th Cir. 1992) (en banc);
People v. Casias, No. 09CA1745, 2012 WL 3793188, at *10–11 (Colo. App. July 19, 2012);
Randolph v. United States, 882 A.2d 210, 222–23 (D.C. 2005); Edwards v. State, 925 A.2d 1281,

                                                26
1285 (Del. 2007); Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999); State v. McKinney, 777
N.W.2d 555, 561 (Neb. 2010); Harlow v. State, 70 P.3d 179, 194–95 (Wyo. 2003).
         As originally articulated, the Giovannetti test includes three factors: (1) the length and
complexity of the record, (2) the court’s certainty that the errors were harmless, and (3) the time
and expense that a futile retrial would entail. See 928 F.2d at 227. The inquiry focuses primarily
on the second factor. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1101 (9th Cir.
2005). 14    This approach appropriately accounts for the very real danger that attends any
examination conducted without the benefit of adversarial briefing, while also interpreting Idaho’s
harmless error rule 15 in a manner that eliminates “unjustifiable expense and delay.” I.C.R. 2; see
also Neder v. United States, 527 U.S. 1, 18 (1999) (at some point, concern for method by which
guilt is determined must yield to society’s interest in punishing criminals); United States v.
Hasting, 461 U.S. 499, 508–09 (1983) (noting impossibility of securing perfect trials for criminal
defendants); State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 183 (1998) (defendant has a
constitutional right to a fair trial, not an error-free trial).
         Admittedly, this Court has intimated that it will not examine sua sponte whether trial
errors were harmless. See State v. Ruiz, 150 Idaho 469, 471, 248 P.3d 720, 722 (2010) (“The
State has not argued that the error was harmless.                    Therefore, we vacate the judgment of
conviction.”). Two terse sentences devoid of citations to authority is a questionable “holding” at
best, and nothing indicates that this Court was then aware of the Giovannetti line of cases.
         Although this Court has often stated that issues not briefed or argued by the parties are
waived, which is a good rule in the run of cases, it is impractical to retry cases where all of the
errors below were plainly harmless.               Moreover, if we adopt the Giovannetti test, we will
eliminate the risk that the State might strategically omit a harmless-error argument in an effort to
force us to reach a decision on one of the substantive issues involved in a case. If we assert our
discretionary power to examine the record for harmless error sua sponte, such gamesmanship
will be unavailing. See United States v. Rose, 104 F.3d 1408, 1414–15 (1st Cir. 1997) (noting



14
   One could well argue that the second “factor” is dispositive. If the record is long or complex, the court cannot be
confident in its unguided determination of harmlessness. Therefore, the first factor is relevant only to the extent that
it impacts the second factor. Moreover, time and expense can never justify depriving a defendant of a fair trial.
Therefore, the third factor is relevant only if the second factor has already been established.
15
   “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” I.C.R.
52.

                                                          27
that “the interest in avoiding incentives to the government to fail to make the proper arguments”
is one reason to adopt the Giovannetti test).
          Here, the record is not so long or complex that it would be overly burdensome for us to
review it for harmless error, particularly because the parties identified and thoroughly argued the
errors, but “simply failed to address [their] likely impact on the final result.” United States v.
Pryce, 938 F.2d 1343, 1348 (D.C. Cir. 1991). Nor were the errors interwoven with other aspects
of the State’s case such that it would be difficult to evaluate their prejudicial effect. See United
States v. Samaniego, 187 F.3d 1222, 1225 (10th Cir. 1999). Rather, both of the errors require us
to answer a straightforward question: would this case have come out differently without Hust’s
eyewitness identification?
          The answer clearly is “no.” The State presented a large amount of evidence that was
redundant with Hust’s identification. Salazar and two other eyewitnesses testified that Almaraz
shot Flores, and the bar’s surveillance video shows Almaraz crouching behind Flores at the
instant Flores was shot in the back. Following the murder, police officers searching near the bar
found a shirt with Almaraz’s DNA on it, in which was wrapped a gun that ballistics tests
matched to the bullet casings from the shooting. This comports with Salazar’s testimony that
Almaraz told Salazar “I got him,” wrapped his shirt around his gun, and then threw it over some
bushes.      Even without Hust’s identification, the proof that Almaraz was the shooter is
unassailable.
          I am absolutely convinced that a jury will reconvict Almaraz if he is retried. The trial by
jury is “one of the most sacred rights enjoyed by our people,” Russell v. Alt, 12 Idaho 789, 88 P.
416, 417 (1907), particularly in criminal cases, where one’s freedom or very life may be at stake,
see Neder v. United States, 527 U.S. 1, 19 (1999). No one should be deprived of this sacred right
out of mere concern for efficiency and expense. But, Almaraz has been fairly tried and found
guilty, albeit with two errors that I believe far beyond a reasonable doubt had no effect on the
guilty verdict. It has been held by the United States Supreme Court that a criminal defendant is
entitled to a fair trial, not necessarily a perfect trial. Almaraz had a fair trial. I see no need to
reverse his conviction in order to give him a second fair trial.
          Justice J. Jones, concurs.




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