                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 38229

STATE OF IDAHO,                                   )      2012 Unpublished Opinion No. 541
                                                  )
       Plaintiff-Respondent,                      )      Filed: June 28, 2012
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
WILLIAM THOMAS SCOTT, JR.,                        )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
       County. Hon. Michael R. Crabtree, District Judge.

       Judgment of conviction for delivery of a controlled substance within 1000 feet of
       a school, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       William Thomas Scott, Jr. appeals from his judgment of conviction entered upon a jury
verdict finding him guilty of delivery of a controlled substance within 1000 feet of a school. For
the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Officers with the Cassia County Sheriff’s Office set up a controlled methamphetamine
buy between a confidential informant and Scott, whom the informant had known for years and
had identified as a source for drugs. In exchange for her cooperation, the informant, who had
been charged with possession of methamphetamine with the intent to deliver, was allowed to
participate in a drug court program in lieu of incarceration.
       The informant arranged the purchase from Scott over the telephone in several calls
recorded by law enforcement. After being searched by officers and having her vehicle searched

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as well, the informant drove her vehicle to the location Scott chose to deliver the drugs. She was
followed by several officers conducting surveillance, none of whom were close enough to see the
actual transaction take place or to positively identify Scott, but who saw a vehicle registered to
Scott approaching the area and stopping near the informant’s vehicle. Upon the informant’s
return to the Sheriff’s office, officers recovered a bag containing a substance later identified as
methamphetamine. Because the transaction occurred near Burley Junior High School, Scott was
charged with delivery of a controlled substance within 1000 feet of a school, Idaho Code
§§ 37-2732(a)(1)(A), 37-2739B(b)(2).
       At trial, the informant testified in detail as to the transaction, identifying Scott as the
person who delivered the methamphetamine. The officers involved also testified as to the
incident and their observations. Scott neither presented any witnesses, nor testified on his own
behalf. In closing argument, the prosecutor stated on numerous occasions, without objection
from the defense, that the evidence in regards to various individual elements of the crime was
“undisputed” or “uncontradicted.” The jury found Scott guilty as charged, and he now appeals.
                                                II.
                                           ANALYSIS
       Scott contends the prosecutor’s eight references during closing arguments, that the State’s
evidence was uncontradicted or undisputed, constituted fundamental error in violation of Scott’s
Fifth Amendment right to remain silent. The prosecutor’s comments during closing argument
were as follows:
       First of all, on or about February 13th, 2009. The evidence is undisputed,
       uncontradicted that this controlled buy happened on that date.
               ....
               . . . Number two, in the State of Idaho. That evidence also is
       uncontradicted. It was confirmed by a number of witnesses that the controlled
       buy happened in Cassia County, in the city of Burley, in the State of Idaho, even
       narrowed down to almost the exact place on 13th Street where the controlled buy
       happened.
               ....
               . . . The only evidence before you is that the substance in question was
       methamphetamine. . . . Again, that point is essentially undisputed.
               ....
               . . . Also contained within point number three, that it was William Scott,
       the defendant in this case, that delivered that methamphetamine. That evidence
       also is uncontradicted and undisputed. Every witness who had any connection to



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       this case as far as the controlled buy or the surveillance connected William Scott
       to that controlled buy in some way.
                [The informant] had to face Mr. Scott, the man who sold her that
       methamphetamine, and identify him publicly in court. She did that, and that
       identification was undisputed.
                ....
                Her testimony, again, is that he sold her or delivered [to] her
       methamphetamine, and there is no evidence to contradict that. In fact, all of the
       other evidence introduced in this trial corroborates or supports her testimony.
                ....
                Instruction Number 16 will be the next big question, and that is very
       straightforward, very simple, and that is simply whether the delivery occurred
       within 1,000 feet of the property of any public or private, primary or secondary
       school. Again, the evidence was completely uncontradicted.

(Emphasis added.)
       The prosecutor then stated, during rebuttal argument:
       [The informant] was being honest. She was telling you what happened, and that
       evidence is uncontradicted.
              ....
              . . . [The informant] was under oath. She promised to tell the truth, and
       there was [no] evidence to contradict that.

(Emphasis added.)

       Scott argues the prosecutor’s repeated references to the informant’s testimony as
“uncontradicted,” as well as other comments that the evidence was “uncontradicted” or
“undisputed,” constituted comments regarding the exercise of his Fifth Amendment right not to
testify. Although Scott made no objection at trial to the prosecutor’s statements, Scott contends
this claimed violation of his constitutional right not to testify should be reviewed on appeal as
fundamental error.
       According to the Idaho Supreme Court, to obtain relief on appeal for fundamental error
the following three prongs must be met: (1) the defendant must demonstrate that one or more of
the defendant’s unwaived constitutional rights were violated; (2) the error must be clear or
obvious, without the need for any additional information not contained in the appellate record,
including information as to whether the failure to object was a tactical decision; and (3) the
defendant must demonstrate the error affected the defendant’s substantial rights, meaning (in
most instances) that it must have affected the outcome of the trial proceedings. State v. Perry,
150 Idaho 209, 226, 245 P.3d 961, 978 (2010). If the alleged error satisfies the first two

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elements of the Perry test, the error is reviewable. Id. To obtain appellate relief, however, the
defendant must further persuade the reviewing court the error was not harmless, i.e., that there is
a reasonable possibility the error affected the outcome of the trial and thereby prejudiced the
defendant. Id.
       Scott maintains the first prong of the Perry test is satisfied here because the prosecutor’s
comments violated the Fifth Amendment guarantee that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. CONST. amend. V. This constitutional
safeguard forbids prosecutorial comments to the jury regarding a defendant’s failure to testify at
trial. Griffin v. California, 380 U.S. 609, 615 (1965). It encompasses both direct and indirect
references to the choice not to testify. State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055
(1983); State v. McMurry, 143 Idaho 312, 314, 143 P.3d 400, 402 (Ct. App. 2006). However, we
will not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations. State v. Severson, 147 Idaho 694, 719, 215 P.3d 414,
439 (2009). Rather, we examine whether the language used was manifestly intended or was of
such character that the jury would naturally and necessarily take it to be a comment on the failure
of the accused to testify. McMurry, 143 Idaho at 315, 143 P.3d at 403.
       A prosecutor’s use of words implying a requirement of a personal response by the
accused may reflect upon the defendant’s failure to take the stand and deny guilt. McMurry, 143
Idaho at 315, 143 P.3d at 403. In McMurry, we held that the defendant’s Fifth Amendment
privilege was violated by the prosecutor’s comments regarding the absence of any evidence
contradicting the victim’s testimony about actions that allegedly occurred when only the victim
and the defendant were present. Id. On the other hand, a prosecutor’s general references to
uncontradicted evidence do not necessarily refer to the absence of testimony from the defendant
if witnesses other than the defendant could have contradicted the evidence. Id. at 314, 143 P.3d
at 402.    Thus, in Hodges, our Supreme Court held the defendant’s privilege against
self-incrimination was not violated when the prosecutor commented on an expert’s
“uncontradicted” testimony that a substance was cocaine because the defendant was not the only
logical witness who could have disputed the expert’s testimony. Hodges, 105 Idaho at 591-92,
671 P.2d at 1054-55. In addition, a prosecutor may rebut defense counsel’s arguments and
defenses. McMurry, 143 Idaho at 315, 143 P.3d at 403. However, in so doing, the line between


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a legitimate rebuttal of defense counsel’s arguments and an indirect comment on the fact that the
defendant has not taken the stand is often a very thin one. Id. Indeed, even where prosecutorial
comments refer to the absence of testimony on an issue that witnesses other than the defendant
could have contradicted, there may necessarily be an indirect Griffin violation depending on the
number and nature of those comments. McMurry, 143 Idaho at 314-15, 143 P.3d at 403-04. As
the Sixth Circuit Court of Appeals stated in Raper v. Mintzes, 706 F.2d 161, 167 n.5 (6th Cir.
1983), “We do not suggest that any magic number will constitute a violation of Griffin but the
number of comments, along with their nature, is a key factor.” Courts uniformly condemn this
prosecutorial tactic due to the difficulty of determining whether Griffin violations are
constitutionally harmless. McMurry, 143 Idaho at 315, 143 P.3d at 403.
       Initially, we note that four of the prosecutor’s statements--that the evidence was
undisputed as to the date of the transaction, that the transaction occurred in Idaho, that the
location of the transaction was within 1000 feet of a school, and that the substance delivered was
methamphetamine--were not the type of statements generally constituting impermissible
references to the failure of the defendant to testify. As we stated in McMurry, 143 Idaho at 314,
143 P.3d at 402, a prosecutor’s general references to uncontradicted evidence does not
necessarily refer to the absence of testimony from the defendant if witnesses other than the
defendant could have contradicted the evidence. Similar to the issue in Hodges, the prosecutor’s
comments in this case, that it was “undisputed” that the substance was methamphetamine, did
not constitute an impermissible comment on Scott’s silence, as Scott was not the only logical
witness who could have disputed the expert’s testimony as to the nature of the substance.
Likewise, Scott was not the only logical witness to dispute the testimony that the transaction
occurred on a certain date within the State of Idaho, which the informant and several detectives
testified to, or that it occurred within 1000 feet of a school, as testified to by Detective Kevin
Horak after he personally measured the distance.       For example, as to the latter point, the
defendant could have introduced his own witness qualified to testify as to the distance of the
point of the “alleged” transaction and the school.
       Possibly more problematic, however, were the prosecutor’s repeated statements that the
informant’s testimony, that Scott was the only person in the vehicle and was the person who sold
her the methamphetamine, was undisputed, given that none of the officers witnessed the actual
transaction occur. However, as the State points out, when the statements are read in context,


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there are grounds from which one could surmise the prosecutor was not intending to comment on
Scott’s failure to testify, or that the jury would necessarily interpret it as such, but rather that the
prosecutor was attempting to support the informant’s testimony, which Scott challenged as not
credible given that she was given leniency in exchange for her participation in the drug buy and
her testimony at trial. The prosecutor attempted to support the informant’s testimony by stating
her testimony was corroborated by other evidence in the case, including the recorded phone calls
and the testimony of the law enforcement officers who conducted surveillance before, during,
and after the buy; in other words, the prosecutor was stating that the informant’s testimony was
uncontradicted by the other evidence produced at trial. For example, after defense counsel
attacked the informant’s credibility in closing argument, the prosecutor stated the following in
rebuttal, which included two of the statements at issue:
                We do have to rely on [the informant] to some extent, and that’s why the
        police do everything they can to follow all these rules and regulations. All of the
        evidence is documented. They fill out all of this paperwork . . . . They do
        everything they can to make sure all of this is on the up-and-up, and there simply
        is no reasonable explanation other than William Scott sold his methamphetamine
        to [the informant]. You heard her testimony. You saw her demeanor. You saw
        that she was trying to be open. She was being honest. She was telling you what
        happened, and that evidence is uncontradicted.
                Again, even though there was not a law enforcement officer literally
        standing there watching the transaction, they saw William Scott’s car going to the
        transaction. You hear the tapes. They saw how quickly it happened. They see
        his vehicle leaving that area. They follow it to his home on Conant. They see
        him right after he’s gotten out of the car. That’s a very strong corroboration.
                You can argue that every witness has some kind of bias or some kind of
        motive. [The informant] was an informant. She was being compensated. Part of
        her agreement was that she had to promise to tell the truth. You’ll see that in the
        paperwork. It was an agreement that was approved by the prosecuting attorney of
        Minidoka County. That wasn’t just a police officer deciding to do something on a
        whim. They went through all of the right steps here. She was under oath. She
        promised to tell the truth, and there was [no] evidence to contradict that.

(Emphasis added). Because officers were present in the general vicinity of the transaction, this
case is distinguishable from State v. Whitaker, 152 Idaho 945, 277 P.3d 392 (Ct. App. 2012),
where we held it was error for the prosecutor to argue the testimony was “uncontroverted” as to
sexual contact and related incidents that occurred when only Whitaker and one of the victims
were present, because Whitaker was the only logical witness to rebut the testimony.



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       However, we need not resolve the issue of whether these statements constituted plain
error because we conclude Scott has failed to satisfy the third Perry prong: he has not shown a
reasonable possibility the error, assuming it occurred, affected the outcome of the trial. Perry,
150 Idaho at 226, 245 P.3d at 978. Whether trial errors could have affected the outcome of a
trial generally depends, in part, upon the strength of the properly admitted evidence of guilt.
Whitaker, 152 Idaho at 952, 277 P.3d at 399. Contrary to Scott’s contention that his conviction
was “based almost exclusively on the testimony of one drug-addicted, drug-dealing police
informant,” beyond the informant’s detailed testimony that she had known Scott for years prior
to the buy and he was the person who delivered the methamphetamine to her at the buy, the State
also presented evidence from several investigating officers corroborating the informant’s
identification of Scott. There was evidence presented that the vehicle seen arriving in the
vicinity of the drug deal was registered to Scott. Detective Terry Bell, who was conducting
surveillance during the transaction, testified he saw the vehicle that was registered to Scott in the
vicinity, watched as the informant pulled her vehicle behind Scott’s vehicle, and then saw both
vehicles stop together in the area the informant testified the drug transaction took place.
Detective Bell also testified that after Scott’s vehicle left the area, the detective followed the
vehicle to an address on Conant where he watched the driver back the vehicle into a driveway
and saw who he identified as Scott walking away from the vehicle into the house. Detective
Horak testified he had recorded calls between the informant and Scott during which they set up
the drug buy.    Detective Horak further testified he recognized Scott’s voice on the phone
recordings, as well as the recording from the drug buy itself during which the informant had been
wearing a wire. He also testified that approximately two weeks after the drug buy in question, he
observed the vehicle seen at the scene of the buy at the Conant address and saw Scott getting into
the vehicle. The officers involved in the operation also testified as to the procedures taken to
ensure a legitimate drug buy occurred, including searching the informant and her vehicle before
and after the buy and following the informant to and from the scene of the buy to make sure she
did not take any detours.
       Scott’s defense consisted largely of pointing out that none of the officers had seen the
actual transaction take place and attacking the informant’s credibility on the basis that she had
received leniency--specifically, that after being convicted of possession of methamphetamine
with the intent to deliver, the informant was not sentenced to incarceration and was allowed to go


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through a drug court program. The State countered this attack on the credibility of the informant,
pointing out the informant had not gotten off “free” for her involvement, but had pled guilty to a
felony crime, went through an “intense” drug court program from which she graduated, and had
remained free from drugs.
       After a review of all the evidence and arguments, we are convinced beyond a reasonable
doubt that the prosecutor’s comments did not contribute to the jury’s verdict. The informant,
whom the jury apparently found credible, testified in detail as to the transaction, much of which
was corroborated by significant other evidence, including recordings of phone calls between the
informant and Scott setting up the buy, the recording of the transaction itself, and the testimony
of several officers who saw Scott’s vehicle stop near the informant’s vehicle immediately
preceding the transaction and who saw Scott near the vehicle after the transaction. By contrast,
Scott offered little in the way of a convincing defense, relying largely on the jury finding the
informant not credible; however, aside from the fact she was given a lesser sentence for her
cooperation, Scott did not succeed in raising any serious issues as to her credibility. This is
especially true where she was largely corroborated by the officers, there was evidence the
undercover buy had been conducted according to established procedures, and she was a
recovered drug addict who had successfully completed a strenuous drug court program. Accord
Whitaker, 152 Idaho at 952-53, 277 P.3d at 399-400 (holding that while it was error for the
prosecutor to comment on Whitaker’s failure to testify by repeatedly stating the victims’
testimony was uncontroverted, the error was not reversible under the fundamental error standard
because, given the amount of evidence of his guilt and the relatively weak defense mounted,
Whitaker had not proven beyond a reasonable doubt that the effect of the comments contributed
to the jury’s verdict). Cf., McMurry, 143 Idaho at 316, 143 P.3d at 404 (holding it could not be
said the prosecutor’s impermissible comment on McMurry’s failure to testify did not contribute
to the verdict because there was strong evidence as to her self-defense claim). Accordingly, we
conclude the prosecutor’s comments did not constitute reversible error, and Scott’s judgment of
conviction for delivery of a controlled substance within 1000 feet of a school is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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