               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39074

STATE OF IDAHO,                                  )      2013 Unpublished Opinion No. 599
                                                 )
       Plaintiff-Respondent,                     )      Filed: July 26, 2013
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
JOSEPH PAUL MOBLEY,                              )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Stephen W. Drescher, District Judge.

       Judgment of conviction for felony domestic battery in the presence of a
       child, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Joseph Paul Mobley appeals from the judgment of conviction entered upon the jury
verdict finding him guilty of felony domestic battery in the presence of a child, Idaho Code
§§ 18-903, 18-918(3)(b), 18-918(4).
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Mobley was charged with felony domestic battery in the presence of a child and
attempted strangulation. Mobley’s first trial ended in a mistrial after the jury was unable to come
to a unanimous verdict on any of the charges. During jury deliberations in the second trial, the
jury sent a message to the district court stating, “We’re split on one of the charges. How do we
proceed with the charge we’re split on?” The district court responded by stating, “Reread
Instruction 28, Paragraph 6, and continue to deliberate.”



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       The jury found Mobley guilty of felony domestic battery in the presence of a child and
acquitted him of attempted strangulation. The district court imposed a unified term of four and
one-half years with one and one-half years determinate.        The district court suspended the
sentence and placed Mobley on probation for three years. Mobley timely appeals.
                                               II.
                                           ANALYSIS
       Mobley claims that the district court’s response to the jury was a “dynamite instruction”
that violated his rights to due process.    “The due process clauses of the state and federal
constitutions guarantee an accused a trial by a fair and impartial jury.” State v. Timmons, 141
Idaho 376, 377, 109 P.3d 1118, 1119 (Ct. App. 2005); State v. Lee, 131 Idaho 600, 605, 961 P.2d
1203, 1208 (Ct. App. 1998).       “If jury deliberations are tainted by undue pressure, this
constitutional guarantee is violated.” Timmons, 141 Idaho at 377, 109 P.3d at 1119; Lee, 131
Idaho at 605, 961 P.2d at 1208. Idaho courts have found undue pressure where deadlocked juries
were given a “dynamite instruction.” Timmons, 141 Idaho at 377, 109 P.3d at 1119. “A
dynamite instruction is one that directs a deadlocked jury to continue deliberating and exhorts
those jurors holding a minority view to reconsider their position.” State v. Gomez, 137 Idaho
671, 676, 52 P.3d 315, 320 (2002) (citing State v. Martinez, 122 Idaho 158, 162, 832 P.2d 331,
335 (Ct. App. 1992)). “In order to avoid jury coercion, Idaho has adopted a ‘blanket prohibition
against dynamite instructions.’” Gomez, 137 Idaho at 676, 52 P.3d at 320 (quoting State v. Flint,
114 Idaho 806, 812, 761 P.2d 1158, 1164 (1988)).
       Mobley did not object below to the district court’s response to the jury; therefore, he must
establish fundamental error. Generally, issues not raised below may not be considered for the
first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho
decisional law, however, has long allowed appellate courts to consider a claim of error to which
no objection was made below if the issue presented rises to the level of fundamental error. See
State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249,
251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho
Supreme Court abandoned the definitions it had previously utilized to describe what may
constitute fundamental error. The Perry Court held that an appellate court should reverse an
unobjected-to error when the defendant persuades the court that the alleged error: (1) violates
one or more of the defendant’s unwaived constitutional rights; (2) is clear or obvious without the


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need for reference to any additional information not contained in the appellate record; and
(3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
       Mobley initially argues that the fundamental error framework does not apply because the
district court allegedly responded to the jury without giving counsel the opportunity to make a
contemporaneous objection. After receiving a question from the jury, the district court went on
the record and stated:
       COURT:                          All right. We’re again taking up 2010-15105, and
                                       the counsel are present. And the jury has sent out a
                                       question that says, “We’re split on one of the
                                       charges. How do we proceed with the charge we’re
                                       split on?”
                                       The court has replied, “Reread Instruction 28,
                                       Paragraph 6, and continue to deliberate.”
                                       If you have any objections to that, make your
                                       record.
       [STATE]:                        No objection from the State, Judge.
       [DEFENSE COUNSEL]:              No objection, Your Honor.

Mobley argues that the district court’s language indicates that the court already sent its response
to the jury by the time the court asked the parties for objections. Therefore, he contends he was
unable to contemporaneously object to the response. The State argues that the district court
consulted with counsel before having the response delivered to the jury. The State points to the
court minutes for support. The court minutes indicate that the district court received the note
from the jury and then informed counsel of its intended response. The court minutes state: “In
answer to the Court’s inquiry, each of counsel indicated they had no objection to the Court’s
response to the question of the jury. The Court provided the written response to the Bailiff for
delivery to the jury.” Based on the foregoing, we determine that Mobley had an opportunity to
object to the district court’s response but failed to do so. Accordingly, Mobley must show that
the district court’s alleged error was a fundamental error. 1




1
        Mobley argues that to the extent the transcript and court minutes are inconsistent, the
transcript should control because it is a certified document of the proceedings and is entitled to a
presumption of correctness. We discern no inconsistencies between the transcript and the court
minutes.


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       Under the fundamental error framework, Mobley must first show that the district court’s
response to the jury violated an unwaived constitutional right. In State v. Pullin, 152 Idaho 82,
266 P.3d 1187 (Ct. App. 2011), this Court stated:
               The United States Supreme Court has held that in order for a petitioner to
       be denied a constitutional right through the use of a dynamite instruction (or
       “supplemental charge”), the instruction must be coercive. Lowenfield v. Phelps,
       484 U.S. 231, 239-41 (1988). In that case, the Supreme Court rejected a claim
       that giving a dynamite instruction was unconstitutional. In doing so, the Supreme
       Court rejected several arguments based on its own precedents, because those
       precedents had been based on the Court’s supervisory powers over federal courts
       rather than on the Constitution. See Jenkins v. United States, 380 U.S. 445, 446
       (1965) (holding that an instruction given after the jury informed the judge that it
       was unable to reach a verdict, and the judge told the jury it had to reach a
       decision, was improper after relying on other cases involving the exercise of
       supervisory powers, and not relying on constitutional grounds); Brasfield v.
       United States, 272 U.S. 448, 449-50 (1926) (holding that the judge’s inquiry into
       the jury’s numerical division was improper due to the potential dangers of jury
       polling by relying on the Court’s supervisory powers). While stating that it was
       mindful that the jury returned with its verdict soon after receiving the
       supplemental instruction, suggesting the possibility of coercion, the Supreme
       Court concluded that because defense counsel did not object to the supplemental
       instruction, it indicated that the potential for coercion that the defendant argued on
       appeal was not apparent when the instruction was given. Therefore, the
       supplemental instruction was not coercive in such a way that the defendant was
       denied a constitutional right. Lowenfield, 484 U.S. at 239-41.
               Idaho law is consistent with federal law, although it provides greater
       protection to the defendant. To avoid the possibility of jury coercion, the Idaho
       Supreme Court has adopted a “blanket prohibition” against the use of such
       instructions. State v. Gomez, 137 Idaho 671, 676, 52 P.3d 315, 320 (2002); State
       v. Flint, 114 Idaho 806, 812, 761 P.2d 1158, 1164 (1988). However, in
       prohibiting the use of dynamite instructions altogether, the Supreme Court
       specifically disclaimed any intent to prohibit instructions directing further
       deliberations where the jury is not definitely deadlocked:
               Proscribing the use of dynamite instructions does not restrict a trial
               court . . . from polling the individual jurors, and depending on the
               responses and appearances, then when appropriate guiding them
               toward another appropriate period of deliberation. This assumes, of
               course, that the jurors do not declare themselves deadlocked.
               Flint, 114 Idaho at 813, 761 P.2d at 1165.

Pullin, 152 Idaho at 84-85, 266 P.3d at 1189-90.




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        In the instant case, the district court responded to the jury’s question by directing the jury
to reread paragraph six of jury instruction twenty-eight and “continue to deliberate.” Paragraph
six of jury instruction twenty-eight reads:
                Consult with one another. Consider each other’s views, and deliberate
        with the objective of reaching an agreement, if you can do so without disturbing
        your individual judgment. Each of you must decide this case for yourself; but you
        should do so only after a discussion and consideration of the case with your
        fellow jurors.

Mobley contends that singling out paragraph six without referring to the instructions as a whole
“likely left the jurors with the impression that, despite the split of opinion on the jurors as to guilt
or innocence, they were absolutely required to continue to deliberate until a verdict was actually
reached.” 2 Further, Mobley argues that this paragraph, accompanied by the district court’s
direction to “continue to deliberate,” exhorted members of the jury to reconsider their views. We
disagree.
        As discussed above, “[a] dynamite instruction is one that directs a deadlocked jury to
continue deliberating and exhorts those jurors holding a minority view to reconsider their
position.” Gomez, 137 Idaho at 676, 52 P.3d at 320 (citing Martinez, 122 Idaho at 162, 832 P.2d
at 335). Here, the jury was “split.” There is no indication that a minority view existed or that a
single juror was holding out. The response of the district court did not exhort any members of
the jury to reconsider their positions or to surrender their personal beliefs. Contrarily, paragraph
six instructs the jury to reach an agreement “if you can do so without disturbing your individual
judgment” and to “decide this case for yourself.” Additionally, we note that instruction twenty-
eight, including paragraph six, is identical to the pattern jury instruction, Idaho Criminal Jury
Instruction 204. The Idaho Criminal Jury Instructions were presented to and approved by the
Idaho Supreme Court. State v. Harris, 136 Idaho 484, 485, 36 P.3d 836, 837 (Ct. App. 2001).
        Moreover, the amount of time the jury spent deliberating after receiving the response
from the court suggests that the court’s response was not coercive. The jury spent one and a half


2
        Mobley argues that it was especially damaging that the district court did not refer the jury
to paragraph seven of instruction twenty-eight. Paragraph seven states, “However, none of you
should surrender your honest opinion as to the weight or effect of evidence or as to the innocence
or guilt of the defendant because the majority of the jury feels otherwise or for the purpose of
returning a unanimous verdict.”


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hours deliberating prior to the court’s response and forty-nine minutes deliberating after the
response. Reaching a verdict in forty-nine minutes after being split on an issue is not evidence of
coercion in this case. See Pullin, 152 Idaho at 86, 266 P.3d at 1191 (finding that thirty minutes
of deliberation after the court responded to the jury did not constitute coercion “because the
original deliberations before the jury spoke to the court were not particularly lengthy in
comparison at only an hour and a half”). Further, the district court’s response did not establish a
deadline for reaching a verdict, did not make reference to the time or expense taken to try the
case, and did not make reference to the numerical division of the split. See Timmons, 141 Idaho
at 378, 109 P.3d at 1120 (where these factors contributed to a finding that the district court’s
response was not coercive). Based on the foregoing, we conclude that Mobley has failed to
establish that he was denied an unwaived constitutional right. Accordingly, he is unable to
demonstrate that the district court’s response constituted fundamental error. 3
                                                 III.
                                          CONCLUSION
       Mobley has failed to demonstrate reversible error.            Accordingly, his judgment of
conviction is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




3
        Although we conclude that Mobley failed to establish fundamental error, we note that the
better way to address a split jury is to poll the individual jurors and, if the responses indicate that
the jury is deadlocked to declare a mistrial. However if the jury is not deadlocked, the court can,
depending on the responses and appearance of the jury and when appropriate, guide the jury
toward another period of deliberation. Flint, 114 Idaho at 813, 761 P.2d at 1165.


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