                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 36427

STATE OF IDAHO,                                    )
                                                   )     2013 Opinion No. 44
       Plaintiff/Respondent/                       )
       Cross-Appellant,                            )     Filed: July 17, 2013
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
LEOTIS B. BRANIGH, III,                            )
                                                   )
       Defendant/Appellant/Cross-                  )
       Respondent.                                 )
                                                   )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jeff M. Brudie, District Judge.

       Judgment of conviction for murder in the first degree, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent. John C. McKinney argued.
                 ________________________________________________
LANSING, Judge
       Leotis B. Branigh, III appeals from his conviction for first degree murder. He contends
that the district court erred by denying his motion to suppress records of his cell phone activity,
including text messages, that were obtained by the State from his Kansas cell phone provider; by
overruling his trial objection to evidence derived from those records; by overruling his objection
to three photographs of the decedent’s injuries; and by denying his motion for a new trial
premised upon new evidence about a State’s witness that was suppressed by the prosecutor. He
also asserts that the prosecutor committed misconduct during closing argument by referring to
facts not in evidence and failing to correct false testimony.




                                                  1
                                               I.
                                       BACKGROUND
       In October 2007, Michael Johnston, the victim in this case, was residing with his ex-wife,
Desiree Anderson, as the two were attempting a reconciliation.         During the period when
Anderson and Johnston were estranged, Anderson had engaged in a romantic relationship with
Branigh. When Anderson attempted to break off her relationship with Branigh, he did not accept
that decision. He was upset and at times threatened to do physical harm to Anderson. During
the afternoon of October 1, 2007, Branigh came to the home that Anderson shared with Johnston
and pounded on the front door. Anderson called 911, and Branigh left after police arrived.
       On that same day, at about 10:20 in the evening, Johnston was shot and killed outside of
his Lewiston home. Responding officers spoke to several eyewitnesses who said the shooter was
driving a white car. Officers also spoke with Anderson, who told the officers that Branigh had
exchanged numerous text messages with her and with Johnston immediately prior to the
shooting. Some of the text messages between her and Branigh were stored on her cell phone,
which she read to an officer and which were later photographed and admitted at trial. The
messages revealed, generally, that Branigh was upset and was making veiled threats toward
Johnston.
       Branigh’s white Camaro (well known to the police) was quickly spotted in the city by
two patrol officers riding in a single vehicle. The police vehicle’s emergency lights and siren
were activated, but Branigh refused to stop and a high-speed chase ensued. The chase ended
when Branigh’s rear tire was flattened by shots fired by one of the officers. Branigh was charged
with first degree murder.
       The police obtained a search warrant from a Nez Perce County magistrate to obtain
release of Branigh’s electronically-stored cell phone records, including a log of phone contacts
and the text messages between Branigh and Anderson and between Branigh and Johnston during
a period surrounding the shooting. The police faxed the warrant to Branigh’s Kansas-based cell
phone provider (Sprint), which produced the records to the police. Branigh moved to suppress
those records. The district court initially granted the motion, but on the State’s motion for
reconsideration, changed its ruling and denied suppression.
       At trial, Branigh represented himself, with an attorney appointed to assist him. Branigh
objected to admission of the Kansas cell phone records and the text messages found on


                                                2
Anderson’s cell phone. He also objected to the admission of three emergency room photographs
of the victim. The court overruled all of these objections. The State’s final witness was a
jailhouse informant named Stephen Peak, who testified to several incriminating statements
allegedly made by Branigh while the two were housed together in the Nez Perce County jail.
The jury returned a guilty verdict.
       Thereafter, Branigh filed a motion for a new trial, contending that the prosecutor had
failed to disclose information about Peak that could have been used to impeach him. The district
court denied the motion. Branigh appeals, challenging the aforementioned district court rulings
and contending that the prosecutor committed misconduct by stating facts not in evidence during
his closing argument and by failing to correct Peak’s allegedly perjured testimony.
                                                II.
                                           ANALYSIS
A.     Motion to Suppress the Sprint Cell Phone Records
       Branigh’s suppression motion asserted that the State’s acquisition of his cell phone
records from Sprint violated safeguards afforded by the Fourth Amendment to the United States
Constitution and Article I, § 17 of the Idaho Constitution. Both the Fourth Amendment and
Article I, § 17 prohibit unreasonable searches and seizures by the government. A search that is
conducted without a warrant is unreasonable per se unless it falls within one of the well-defined
exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443,454-55
(1971); State v. Simmons, 120 Idaho 672, 676, 818 P.2d 787, 791 (Ct. App. 1991).
         Branigh argued to the district court that the Sprint records were illegally obtained
because Idaho law enforcement officers had no authority to serve and execute a search warrant at
Sprint’s headquarters in Kansas. The district court initially granted the motion. 1 The court held
that Branigh had established a constitutionally-protected privacy interest in the records because
of Sprint’s privacy policy and that the search warrant was unlawfully executed in violation of
Idaho Criminal Rule 41(a) as then in effect. The State filed a motion to reconsider, asserting that
the Federal Stored Communications Act, 18 U.S.C. § 2701, et seq. authorized nationwide service
of the Idaho warrant. On reconsideration, the district court agreed that the federal statute


1
      The court also noted that its ruling did not foreclose admission of Branigh’s text
messages and cell phone records if the State could show that they were lawfully obtained by
some means other than the challenged warrant.

                                                3
authorized the out-of-state service of the warrant and therefore reversed its earlier ruling on the
suppression motion.
       On appeal, Branigh abandons his argument below that the warrant was illegally served or
executed by the officer and now argues that by issuing a warrant to obtain the records located in
Kansas, the magistrate court exceeded its authority under I.C.R. 41(a). At the pertinent time, that
rule authorized the issuance of a search warrant “by a district judge or magistrate within the
judicial district wherein the property or person sought is located . . . .” Branigh contends that
because the records sought were not within the magistrate’s judicial district, the magistrate court
was “without jurisdiction” to issue it. Branigh reasons that the warrant was therefore void and
the subsequent search was effectively conducted without a warrant and was ipso facto violative
of both Article I, § 17 of the Idaho Constitution and the Fourth Amendment. Although this
question of the magistrate’s jurisdiction to issue the warrant is not an issue that was raised by
Branigh below, because he presents it as a challenge to the magistrate court’s subject matter
jurisdiction and because the district court raised the application of I.C.R. 41(a), we will address
the issue on appeal. See State v. Lundquist, 134 Idaho 831, 835, 11 P.3d 27, 31 (2000); State v.
Peterson, 153 Idaho 157, 160, 280 P.3d 184, 187 (Ct. App. 2012); State v. Diggie, 140 Idaho
238, 240, 91 P.3d 1142, 1144 (Ct. App. 2004).
       1.      Privacy interest
       We begin with the State’s contention on appeal that Branigh lacks standing to seek
suppression because he had no reasonable expectation of privacy in the records stored by his
service provider, Sprint.   The Fourth Amendment and Article I, § 17 prohibitions against
unreasonable searches are not implicated unless the person invoking their protection had a
“justifiable,” “reasonable,” or “legitimate expectation of privacy” that was invaded by the
government action. Smith v. Maryland, 442 U.S. 735, 740 (1979); State v. Thompson, 114 Idaho
746, 749, 760 P.2d 1162, 1165 (1988). See also Rawlings v. Kentucky, 448 U.S. 98, 104 (1980);
Katz v. United States, 389 U.S. 347, 357 (1967); State v. Wright, 153 Idaho 478, 489, 283 P.3d
795, 806 (Ct. App. 2012). A defendant attempting to suppress evidence bears the burden to
show such a privacy interest and, thus, “standing” to challenge a search. State v. Holland, 135




                                                4
Idaho 159, 162, 15 P.3d 1167, 1170 (2000); State v. Bottelson, 102 Idaho 90, 92, 625 P.2d 1093,
1095 (1981). 2
       Branigh’s Sprint records at issue here consist of two components: a log of telephone
numbers to and from which Branigh sent or received calls or texts, and the content of text
messages between Branigh and Anderson, and between Branigh and Johnston, from days before
the shooting until shortly thereafter. These two components are subject to differing privacy
concerns, and the state and the federal constitutions may diverge on whether a privacy interest
exists as to the telephone log.
       As to that component of the Sprint records that shows only telephone numbers from
which Branigh made and received communications, it appears that Branigh has no privacy
interest protected by the Fourth Amendment in view of the United States Supreme Court’s
decisions in United States v. Miller, 425 U.S. 435 (1976), and Smith, 442 U.S. 735. In Miller,
the Supreme Court held that the defendant had no expectation of privacy in his bank’s business
records of his deposits and, therefore, no interest protected by the Fourth Amendment. The
Court stated:
       This Court has held repeatedly that the Fourth Amendment does not prohibit the
       obtaining of information revealed to a third party and conveyed by him to
       government authorities, even if the information is revealed on the assumption that
       it will be used only for a limited purpose and the confidence placed in the third
       party will not be betrayed.

Miller, 425 U.S. at 443 (citations omitted). In Smith, the police, acting without a warrant, had
installed a “pen register” that recorded all telephone numbers dialed on the defendant’s
telephone. The Supreme Court, relying on Miller and its progenitors, concluded that:
       [P]etitioner can claim no legitimate expectation of privacy here. When he used
       his phone, petitioner voluntarily conveyed numerical information to the telephone
       company and “exposed” that information to its equipment in the ordinary course
       of business. In so doing, petitioner assumed the risk that the company would
       reveal to police the numbers he dialed.
               ....
               We therefore conclude that petitioner in all probability entertained no
       actual expectation of privacy in the phone numbers he dialed, and that, even if he
       did, his expectation was not “legitimate.”

2
        Branigh contends that this Court should not address the State’s argument because the
State did not raise it before the district court. The record shows, however, that the State did raise
the issue in its motion for reconsideration.

                                                 5
Smith, 442 U.S. at 745. Therefore, the Court held, the Fourth Amendment was not implicated
and no warrant was required.
       In interpreting Article I, § 17 of the Idaho Constitution, however, the Idaho Supreme
Court reached a different conclusion. It held that a telephone customer does possess a protected
privacy interest in such telephone logs. In Thompson, 114 Idaho at 749, 760 P.2d at 1165, the
Supreme Court rejected the reasoning in Smith and held that Article I, § 17 of the Idaho
Constitution afforded greater protection to such information than did the Fourth Amendment.
The Court said that “there is a legitimate and reasonable expectation of privacy in the phone
numbers that are dialed.” We therefore hold that Branigh had a reasonable expectation of
privacy in the telephone log records that the State obtained from Sprint and that the State’s
acquisition of those logs was subject to the restraints of Article I, § 17.
       As to the portion of the Sprint records consisting of text messages, whether there is a
privacy interest protected by the Fourth Amendment is not settled. In City of Ontario, Cal. v.
Quon, ___ U.S. ___, 130 S. Ct. 2619 (2010), the issue was presented but the United States
Supreme Court did not resolve it. Instead, the Court assumed that Quon had a reasonable
expectation of privacy in his text messages, but held that the Fourth Amendment “special needs”
exception to the warrant requirement applied in that case. Id. at ___-___, 130 S. Ct. at 2630-33.
A few jurisdictions, both before and after Quon, have found a protected Fourth Amendment
privacy interest in text messages and email messages. In State v. Bone, 107 So. 3d 49, 63-67
(La. Ct. App. 2012), the court held that the defendant had a reasonable expectation of privacy in
the content of his text messages stored by his service provider. The Court in United States v.
Warshak, 631 F.3d 266, 288 (6th Cir. 2010), likewise held that a subscriber enjoys a reasonable
expectation of privacy in the content of emails that are stored or sent and received through a
third-party Internet service provider. In United States v. Forrester, 512 F.3d 500, 509-12 (9th
Cir. 2008), the Ninth Circuit Court of Appeals held that a computer user has no legitimate
expectation of privacy in the to/from addresses on his email messages as shown on his home
computer because that information is conveyed to his service provider, but the Court in dicta
noted that the content of the emails “may deserve Fourth Amendment protection.” Several other
cases have held that people have an expectation of privacy in the content stored on their cell
phones, including text messages. See United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008);



                                                   6
United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007); United States v. Quintana, 594 F.
Supp. 2d 1291, 1299 (M.D. Fla. 2009); United States v. Davis, 787 F. Supp. 2d 1165, 1170 (D.
Or. 2011).
       It is unnecessary for this Court to join the debate as to whether a privacy interest
protected by the Fourth Amendment exists in text messages stored by a service provider because,
in view of the Idaho Supreme Court’s Thompson decision, a privacy interest plainly must be
recognized under the Idaho Constitution. If, as Thompson holds, there is a privacy interest
protected by the Idaho Constitution in a telephone contact log, by logical extension there also
must be a protected privacy interest in the content of text messages, for messages disclose far
more intimate and private information than a mere list of numbers dialed. We so hold.
       2.      Whether the warrant’s noncompliance with I.C.R. 41 requires suppression
       The next question is whether the magistrate court’s warrant that purported to authorize a
search outside of the magistrate’s judicial district, indeed outside of the state boundaries,
satisfied Article I, § 17 of the Idaho Constitution. 3 Branigh asserts that the warrant was void
because it was issued in excess of the magistrate’s jurisdiction in that the property searched was
in Kansas. He bases this argument on former Idaho Criminal Rule 41(a), which then stated:
               (a) Authority to Issue Warrant. A search warrant authorized by this rule
       or by the Idaho Code may be issued by a district judge or magistrate within the
       judicial district wherein the property or person sought is located upon request of
       a law enforcement officer or any attorney for the state of Idaho.

(emphasis added).
       Judicial actions taken without subject matter jurisdiction are void. See generally State v.
Lute, 150 Idaho 837, 840, 252 P.3d 1255, 1258 (2011); State v. Dicksen, 152 Idaho 70, 76, 266
P.3d 1175, 1181 (Ct. App. 2011); State v. Armstrong, 146 Idaho 372, 376, 195 P.3d 731, 735 (Ct.
App. 2008). Idaho jurisprudence addressing subject matter jurisdiction has generally dealt with
challenges to a court’s jurisdiction over a case, asserting either that the court never acquired
subject matter jurisdiction in the first instance or that the court lost it after a final judgment
concluded the case. See, e.g., State v. Jones, 140 Idaho 755, 757-58, 101 P.3d 699, 701-02


3
       That section states: “The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures shall not be violated; and no warrant shall
issue without probable cause shown by affidavit, particularly describing the place to be searched
and the person or thing to be seized.”

                                                7
(2004) (holding an Idaho court possesses subject matter jurisdiction in the criminal context when
a charging document has been filed alleging the commission of an offense, as defined under
Idaho law, that was committed within the state of Idaho); State v. Jakoski, 139 Idaho 352, 355,
79 P.3d 711, 714 (2003) (the district court no longer had jurisdiction to hear a motion to
withdraw the defendant’s guilty plea after the case became final). As described by our Supreme
Court:
                  Jurisdiction over the subject matter is the right of the court to exercise
          judicial power over that class of cases; not the particular case before it, but rather
          the abstract power to try a case of the kind or character of the one pending; and
          not whether the particular case is one that presents a cause of action, or under the
          particular facts is triable before the court in which it is pending, because of some
          of the inherent facts that exist and may be developed during trial.

Troupis v. Summer, 148 Idaho 77, 79-80, 218 P.3d 1138, 1140-41 (2009) (quoting Richardson v.
Ruddy, 15 Idaho 488, 494-95, 98 P. 842, 844 (1908)). See also Alpine Vill. Co. v. City of
McCall, ___ Idaho ___, ___, ___ P.3d ___, ___ (June 14, 2013). The Idaho Supreme Court “has
adopted a presumption that courts of general jurisdiction have subject matter jurisdiction unless a
party can show otherwise.” Id.; Borah v. McCandless, 147 Idaho 73, 78, 205 P.3d 1209, 1214
(2009).
          No constitutional provision or statute imposes territorial limits on the power of Idaho
courts to issue warrants. Article V, § 20 of the Idaho Constitution states that “[t]he district court
shall have original jurisdiction in all cases, both at law and in equity, and such appellate
jurisdiction as may be conferred by law.” The legislature has statutorily created a magistrate
division of the district court. I.C. § 1-2201. Both district and magistrate courts are courts of
general jurisdiction in this state. See generally In re Hanson, 121 Idaho 507, 510-11, 826 P.2d
468, 471-72 (1992). Idaho Code § 19-301(1) states that for criminal prosecutions, “evidence that
a prosecutable act was committed within the state of Idaho is a jurisdictional requisite.” Idaho
Code § 19-4406 authorizes magistrates to issue search warrants upon a showing of probable
cause.
          The only authority we have found that imposed a territorial limit for warrants issued by
Idaho courts is former I.C.R. 41(a). We conclude that this rule was not a limit on a court’s
subject matter jurisdiction, but a voluntary restraint on a state court’s authority that was
judicially imposed by the Idaho Supreme Court through adoption of the rule. It is noteworthy



                                                    8
that in 2012 the rule was amended to expressly authorize warrants for property located outside
the territorial boundaries of the state. 4 Therefore, the Idaho Supreme Court apparently is not of
the view that such warrants are inherently beyond the jurisdiction of Idaho courts. We hold that
the magistrate here had subject matter jurisdiction to issue the warrant. Although the warrant
was issued in violation of limitations placed on the magistrate’s authority by former I.C.R. 41(a),
this was merely a judicial error, not an act taken without subject matter jurisdiction.
       Branigh also appears to argue that the violation of Rule 41(a) calls for suppression of the
Sprint records regardless of whether the rule’s territorial limitation is jurisdictional. We find this
argument to be without merit because the exclusionary rule requires suppression of evidence
only when constitutional restraints on searches or seizures have been violated. Decisions of both
the United States Supreme Court and the Idaho Supreme Court establish that the violation of
state statutes in the conduct of a search or arrest does not justify suppression so long as
constitutional standards are met.
       In Virginia v. Moore, 553 U.S. 164 (2008), a defendant who was arrested for a
misdemeanor driving offense and was searched incident to arrest argued that resulting evidence
must be suppressed because under state law the misdemeanor was not an arrestable offense. The
Supreme Court held that although the arrest was unlawful under state law, suppression was not
warranted because the existence of probable cause for the arrest satisfied the Fourth Amendment.
Moore, 553 U.S. at 171-72. Similarly, in Dalia v. United States, 441 U.S. 238 (1979), the
Supreme Court rejected a contention that if a court order authorizing surveillance did not
authorize a covert entry to facilitate that surveillance, the entry violated the subject’s Fourth
Amendment privacy rights. The Court said:
             The Fourth Amendment requires that search warrants be issued only
       “upon probable cause, supported by Oath or affirmation, and particularly

4
       Currently, the rule states:

               (a) Authority to Issue Warrant. A search warrant authorized by this rule
       or by the Idaho Code may be issued by a district judge or magistrate within the
       judicial district wherein the county of proper venue is located upon request of a
       law enforcement officer or any attorney for the state of Idaho. Where it does not
       appear that the property or person sought is currently within the territorial
       boundaries of the state of Idaho, such warrant may still be issued; however, no
       such issuance will be deemed as granting authority to serve said warrant outside
       the territorial boundaries of the State.

                                                  9
        describing the place to be searched, and the persons or things to be seized.”
        Finding these words to be “precise and clear,” Stanford v. Texas, 379 U.S. 476,
        481, 85 S. Ct. 506, 509, 13 L. Ed. 2d 431 (1965), this Court has interpreted them
        to require only three things. First, warrants must be issued by neutral,
        disinterested magistrates. See, e g., Connally v. Georgia, 429 U.S. 245, 250-251,
        97 S. Ct. 546, 548-549, 50 L. Ed. 2d 444 (1977) (per curiam); Shadwick v.
        Tampa, 407 U.S. 345, 350, 92 S. Ct. 2119, 2122, 32 L. Ed. 2d 783 (1972);
        Coolidge v. New Hampshire, 403 U.S. 443, 459–460, 91 S. Ct. 2022, 29 L. Ed. 2d
        564 (1971). Second, those seeking the warrant must demonstrate to the
        magistrate their probable cause to believe that “the evidence sought will aid in a
        particular apprehension or conviction” for a particular offense. Warden v.
        Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782 (1967).
        Finally, “warrants must particularly describe the ‘things to be seized,’ “ as well as
        the place to be searched. Stanford v. Texas, supra, at 485, 85 S. Ct. at 511.
                ....
        Nothing in the language of the Constitution or in this Court’s decisions
        interpreting that language suggests that, in addition to the three requirements
        discussed above, search warrants also must include a specification of the precise
        manner in which they are to be executed. On the contrary, it is generally left to
        the discretion of the executing officers to determine the details of how best to
        proceed with the performance of a search authorized by warrant--subject of
        course to the general Fourth Amendment protection “against unreasonable
        searches and seizures.”

Dalia, 441 U.S. at 255-57.
        More directly addressing the type of rule at issue here, is United States v. Berkos, 543
F.3d 392 (7th Cir. 2008), which considered whether a federal magistrate judge could properly
issue a search warrant for the production of electronic evidence where the warrant was directed
to an Internet service provider located in another state. The court was required to determine
whether the issuing magistrate’s violation of Federal Rule of Criminal Procedure 41(b), which
authorized magistrates to issue warrants only in the district where the warrant was to be
executed, rendered the warrant invalid and merited invoking the exclusionary rule. The Court
said:
               This Court has held that “violations of federal rules do not justify the
        exclusion of evidence that has been seized on the basis of probable cause and with
        advance judicial approval.” United States v. Cazares-Olivas, 515 F.3d 726, 730
        (7th Cir. 2008); United States v. Trost, 152 F.3d 715, 722 (7th Cir. 1998). The
        remedy of allowing a defendant to go free based on a violation of Rule 41’s
        requirements for obtaining a proper search warrant would be “wildly out of
        proportion to the wrong.” Cazares-Olivas, 515 F.3d at 730. This alone merits
        affirming the district court’s denial of Berkos’s first motion to suppress.



                                                 10
Berkos, 543 F.3d at 396.
       Idaho Supreme Court authority comports with the foregoing federal court decisions. For
example, in State v. Benefiel, 131 Idaho 226, 229, 953 P.2d 976, 979 (1998), a Bureau of Indian
Affairs officer stopped a vehicle driving on a state highway, which was outside the officer’s
territorial jurisdiction. The driver was eventually arrested for DUI, and he moved to suppress
evidence resulting from the stop. Our Supreme Court concluded that suppression was not
warranted because the stop was supported by reasonable suspicion, and thus no constitutional
violation had occurred. The Court did not deem the jurisdictional issue to merit suppression, or
even much mention.
       In State v. Bicknell, 140 Idaho 201, 91 P.3d 1105 (2004), a Rathdrum police officer
appeared before a magistrate judge seeking a search warrant for evidence related to an
automobile theft. The officer presented to the magistrate the affidavit of a Washington State
Patrol Detective that had been notarized by an Idaho notary public. The affidavit did not comply
with Idaho Criminal Rule 41(c), which provided, “A warrant shall issue only on an affidavit or
affidavits sworn to before a district judge or magistrate or by testimony under oath and recorded
and establishing the grounds for issuing a warrant.” The district court had construed the phrase
“sworn to before a district judge or magistrate” as requiring that the affiant appear personally
before the district judge or magistrate and execute the affidavit in the judge’s presence. The
Idaho Supreme Court said that there was no showing that the procedure to obtain the search
warrant violated either the state or federal constitution. The Court continued:
       Each time the exclusionary rule is applied it exacts a substantial social cost
       because relevant and reliable evidence is kept from the trier of fact, the search for
       truth at trial is deflected, and persons who would otherwise be incarcerated are
       allowed to escape the consequences of their actions.
               ....
               The Defendants in these cases have not shown how the alleged procedural
       error in the issuance of the search warrant here in any way impacted any of their
       substantive rights. Therefore, such error affords no basis for suppressing the
       evidence obtained during the search pursuant to the warrant. The exclusionary
       rule was not created as a remedy for errors in following procedures, whether
       imposed by rule or statute, that were not designed to implement or protect
       constitutional rights.

Bicknell, 140 Idaho at 204-05, 91 P.3d at 1108-09.




                                                11
        In State v. Zueger, 143 Idaho 647, 650, 152 P.3d 8, 11 (2006), a warrant was issued in
violation of I.C. § 19-4406, which limits those who may sign a magistrate judge’s name to a
warrant to the magistrate himself/herself or an authorized peace officer. The magistrate had
authorized a prosecutor to sign the magistrate’s name to a warrant. The Idaho Supreme Court
held that this error did not constitute a constitutional violation, stating:
        In order to rise to the level of a constitutional violation, there must be a defect
        which calls into question the Constitution’s requirement of a finding of probable
        cause to justify issuance of the warrant. Article I, section 17 of the Idaho
        Constitution provides that ‘no warrant shall issue without a finding of probable
        cause . . . .’ [A] mere procedural error, which does not implicate the defendant’s
        constitutionally protected rights, should not serve to invalidate the otherwise
        properly issued warrant. . . .
                In the present case, the magistrate stated on the record her finding of
        probable cause, clearly indicated that she intended to issue a warrant, and
        specifically directed the prosecuting attorney to sign the warrant on her behalf.
        Zueger has alleged no due process violation arising from the prosecutor’s
        signature on the warrant, and the Court finds none.

See also State v. Koivu, 152 Idaho 511, 518, 272 P.3d 483, 490 (2012) (“The exclusionary rule is
a judicially created remedy for searches and seizures that violate the Constitution.”); State v.
Skurlock, 150 Idaho 404, 405-07, 247 P.3d 631, 632-34 (2011) (where a nighttime search was
conducted, allegedly in violation of I.C. § 19-4411 and I.C.R. 41(c), which required that search
warrants be served in the daytime unless otherwise specifically authorized by the magistrate,
suppression was not warranted because no constitutional violation was shown).
        The only contrary Idaho authority we have found is State v. Card, 137 Idaho 182, 45
P.3d 838 (2002), where the defendant asserted that a search warrant was unlawfully executed
because statutes required that search warrants be executed by the peace officers named in the
warrant. Although the Caldwell police officers named in the search warrants were present for
the service of the warrants, they “played an extremely passive role in the execution of the
warrant,” which was done mostly by Tax Commission authorities.                 The Court majority5
concluded that suppression was required because this violation of the statutes rendered the search
unreasonable. Id. at 187, 45 P.3d at 843. As illustrated above, however, subsequent Idaho
Supreme Court cases uniformly hold that suppression is required only for constitutional


5
        One justice dissented, opining that suppression was not warranted because the
constitution was not violated.

                                                   12
violations. In those more recent cases, Card has never been cited or discussed, but it appears to
have been abrogated by later decisions.
          An additional case which could be viewed as requiring suppression for a statutory
violation is State v. Mathews, 129 Idaho 865, 934 P.2d 931 (1997), where a warrant that was
inadvertently left unsigned by the approving magistrate was served and executed in violation of
Idaho statutes. Although the resident whose home was being searched examined the warrant,
pointed out to the officers that it was unsigned, and objected to the search, the officers
nevertheless conducted the search with knowledge of the defect in the warrant. The Idaho
Supreme Court held that this omission required suppression of the evidence. Id. at 869, 934 P.2d
at 935.     Although Mathews could be viewed as requiring suppression for violation of the
statutory requirement that the issuing judge signed a warrant, in a subsequent decision the Idaho
Supreme Court took pains to stress that the violation in Mathews was constitutional in character.
In Bicknel, our Supreme Court described its holding in Mathews as follows:
          The Mathews Court held invalid a search warrant that had not been signed. The
          majority did not base their opinion simply upon statutory requirements that the
          search warrant be signed, but upon a “substantive right in a citizen to refuse to
          permit a search pursuant to an unsigned warrant” that was “affirmed by
          Article XXI, Section 2 of the Idaho Constitution.” 129 Idaho at 869, 934 P.2d at
          935. The Mathews majority also cited Article I, § 17, as establishing a
          substantive right to a signed search warrant. Id. Rather, in both cases the Court
          held that the error in question also impacted the constitutional rights of the
          defendant.

Bicknel, 140 Idaho at 204, 91 P.3d at 1108.
          In summary, the Idaho Supreme Court has instructed that suppression is available as a
remedy only where a constitutional right was infringed, and Branigh’s argument, predicated on
I.C.R. 41(a), does not establish such an infringement. The search warrant in question here was
issued upon a justified finding of probable cause by a neutral, detached magistrate. It therefore
satisfied Article I, § 17 of the Idaho Constitution. Branigh has not shown that any of his
substantive rights were impaired by the defect in the warrant for the production of Sprint’s
records. The Idaho warrant, though noncompliant with Rule 41(a), created no greater intrusion
on Branigh’s privacy interests than would have a warrant issued by a court in Kansas, the state




                                                 13
where Sprint’s offices were located. Consequently, the magistrate’s violation of Rule 41(a) does
not require suppression. 6
        3.      Error in address of Sprint’s premises
        Branigh raises one additional constitutional challenge to the warrant that requires
discussion, though it does not delay us long. Both the Fourth Amendment and Article I, § 17 of
the Idaho Constitution expressly require that a search warrant “particularly describe” the place to
be searched.    Branigh contends that the warrant for Sprint’s records failed in particularity
because it described Sprint’s headquarters as being located in Overland Park, Texas instead of its
actual location in Overland Park, Kansas.
        Branigh’s contention is without merit.        The constitutional particularity standard is
satisfied if the place to be searched is described with sufficient particularity as to enable the
executing officer to locate and identify the premises with reasonable effort and if there is no
reasonable probability that another location might be mistakenly searched. United States v.
Gitcho, 601 F.2d 369, 371 (8th Cir. 1979); State v. Reynolds, 148 Idaho 66, 69, 218 P.3d 795,
798 (Ct. App. 2009); State v. Young, 136 Idaho 711, 714-15, 39 P.3d 651, 654-55 (Ct. App.
2002). The error in the warrant here created no reasonable probability that the wrong place
might be mistakenly “searched.”        The warrant described the premises as “Sprint Nextel
Corporate Security, Subpoena Compliance, located at 6480 Sprint Parkway in Overland Park,
Texas (Fax #913-315-0736).” The necessary particularity was supplied by the name of the
corporate office with control of the records and the fax number. There was no risk that any
location in Texas could have been searched pursuant to this warrant. The warrant was sent by
fax to Sprint’s headquarters, wherever its location, and no executing officer needed to or did
travel to any premises to acquire the Sprint records. The district court did not err in rejecting this
argument.
        No constitutional violation having been shown, the district court correctly denied
Branigh’s motion to suppress the Sprint records acquired through a warrant that was issued in
violation of a court rule.




6
      Given this determination, it is unnecessary for this Court to address the State’s alternative
argument that the search warrant was authorized by the Federal Stored Communications Act.

                                                 14
B.     Idaho Rule of Evidence 404(b) Objections to Cell Phone Records
       At trial, the State offered into evidence Exhibit 4, a sixty-six page document consisting of
text messages exchanged between Branigh and Anderson on the day in question. The document
was created from photographs of the display screen of Anderson’s phone, taken by police with
her consent. Branigh objected to the document on a multitude of grounds including foundation,
hearsay, relevance, authenticity, best evidence rule, I.R.E. 403, and an assertion that “some of
these” messages were inadmissible under I.R.E. 404(b).           The district court sustained the
foundation objection, and after further foundation was presented, the State again offered the
exhibit into evidence. Branigh then renewed the objections “I previously listed.” The district
court overruled the objections stating, among other things, that “I’ve also not been cited anything
particular [of a] 404(b) nature, so that is also overruled.” Later in the trial, the State offered
Exhibit 64, consisting of the sixty pages of telephone records and forty-two pages of text
message information from Branigh’s cell phone produced by Sprint. Branigh objected to this
exhibit “under 404(b),” and the district court overruled the objection. On appeal, Branigh
contends that his objection to these exhibits based on I.R.E. 404(b) should have been sustained.
       Rule 404(b) provides that “[e]vidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show that the person acted in conformity therewith.”
Branigh’s broad objection based on this rule encompassed scores of text messages that were both
sent and received by Branigh. Branigh’s objection did not specify which text messages he
contended constituted evidence of “other crimes, wrongs or acts” offered for the purpose
prohibited by Rule 404(b). Our Supreme Court’s recent decision in Hansen v. Roberts, 154
Idaho 469, 299 P.3d 781 (2013) addressed an analogous circumstance. At the outset of an
opposing expert’s trial testimony, Hansen objected to “all of” the expert’s testimony as invading
the province of the jury but did not explain how, in his view, the prospective testimony could be
so characterized. The objection was overruled. On appeal, Hansen provided two specific
instances where he contended the expert’s testimony crossed the line. Nonetheless, our Supreme
Court declined to address the claims of error, concluding that regardless of their possible merit as
explained by Hansen for the first time on appeal, “Hansen’s broad, general [trial] objection that
[the expert’s] testimony invaded the province of the jury is not a proper objection to preserve
either of his challenges to [the expert’s] testimony.” Id. at 474, 299 P.3d at 786.




                                                 15
          Branigh similarly did not preserve his I.R.E. 404(b) objections for review. One of the
purposes of the contemporaneous objection requirement is to give the trial court an opportunity
to consider and resolve disputes at the time when the error can be prevented or cured, or any
prejudice attendant to an error can be lessened. State v. Adams, 147 Idaho 857, 861, 216 P.3d
146, 150 (Ct. App. 2009). Branigh’s objection that “some of” Exhibit 4 contained inadmissible
Rule 404(b) evidence and his objection “under 404(b)” to Exhibit 64 failed, for lack of
particularity, to preserve his appellate challenges to the admissibility of the documents.
          Branigh also asserts error in the admission of the documents because at a pretrial hearing
the judge ruled that before any “Rule 404(b) evidence” would be admitted, there would be a
hearing outside the presence of the jury to determine relevance. This claim of error has no merit
because the failure to conduct a hearing was not among Branigh’s asserted trial objections and
even if it had been, the claim would fail because Branigh did not make an adequate I.R.E. 404(b)
objection on either occasion.
C.        Photographs of the Victim’s Body
          Branigh next contends that the district court erred by admitting into evidence at trial three
photographs taken at the emergency room. The photographs show the victim’s wounds and a
chest-drainage tube inserted during treatment.          Branigh objected that the photos should be
excluded under I.R.E. 403 because their probative value was substantially outweighed by the risk
of unfair prejudice. Branigh argues that because there was no dispute that Johnston was shot in
the chest or that the wounds caused his death, the relevance of the photographs “was, at best,
minimal and, at worst, nonexistent.” He argues that the risk of prejudicial effect was high
because “[t]he only effect the photographs would have had was to appeal to the jury’s passion by
creating sympathy for Mr. Johnston because of the state he was in when the photographs were
taken.”
          Branigh’s argument is unpersuasive. The State was required to prove, among other
things, that Branigh shot and killed Johnston. The photographs were relevant to prove the
manner in which Johnston died, as well as to corroborate and illustrate the testimony of the
emergency room physician on this point. Branigh’s assertion that he did not dispute these
matters at trial does not make the photographs inadmissible as irrelevant. State v. Reid, 151
Idaho 80, 87, 253 P.3d 754, 761 (Ct. App. 2011); State v. Sanchez, 147 Idaho 521, 526-27, 211
P.3d 130, 135-36 (Ct. App. 2009). Nor do the photos create a risk of unfair prejudice that


                                                   16
warrants excluding them. In a murder trial where the defendant appealed the admission of
photographs that depicted the victim with her throat cut, the Idaho Supreme Court stated:
       The trial court has the discretion to admit into evidence photographs of the victim
       in a homicide case as an aid to the jury in arriving at a fair understanding of the
       evidence, as proof of the corpus delecti, the extent of the injury, the condition of
       the body, and for their bearing on the question of the degree and atrociousness of
       the crime. The fact that the photographs depict the actual body of the victim and
       the wounds inflicted on her and may tend to excite the emotions of the jury is not
       a basis for excluding them.

State v. Beam, 109 Idaho 616, 620-21, 710 P.2d 526, 530-31 (1985). The district court did not
err in overruling Branigh’s Rule 403 objection.
D.     Prosecutorial Misconduct During Closing Argument
       Branigh next asserts that the prosecutor committed misconduct during closing argument
by referring to facts not in evidence. On cross-examination, Branigh elicited testimony from a
police officer to the effect that, to the officer’s knowledge, neither Branigh’s person nor his car
were tested for gunshot residue evidence and, more specifically, that Branigh’s glasses were not
tested because “[o]ur state lab doesn’t test for gun powder residue.” No other evidence regarding
gunshot residue was presented.      During closing argument the prosecutor asserted, without
defense objection, that:
               The Defendant is likely to make a big deal of the fact that there was no
       gunshot residue testing done. But if you will recall, [the officer] told you the lab
       doesn’t do those anymore. In fact, the FBI doesn’t do them anymore because they
       are not reliable. They don’t tend to prove anything. They result in false positive.
       If you find evidence of gunshot, all that says is that at some time in the past there
       was a gun fired. You can’t identify the gun, when it was anything like that. And
       so they have taken the position they will no longer do the testing.

In rebuttal argument, the prosecutor, again without defense objection, expanded on this theme:
               Defendant brings up this what he considers very important gunshot
       residue. He said had they checked him it would have proven beyond a doubt that
       he hadn’t fired a gun. Well, you know, that’s why they don’t do it anymore
       because it wouldn’t have proven that. He had an hour and 40 minutes from the
       time of the murder--from the time the chase started during which time he could
       have washed his hands thoroughly and eliminated any trace of gunshot residue.
       Or this is--this is really the biggest problem with that. You will recall [the officer]
       saying that he was one of the individuals involved in the take down of him and he
       was one of the guys pulling the arm, tried to get out from under the bottom. We
       know that [the officer] had just fired his AR15 numerous times trying to take the
       tires out on this car. GSR transfer is one of the biggest problems that makes it

                                                  17
         unreliable. And in situations where there is [sic] gunshots, it’s highly likely
         there’s more than one gun involved. So if they found gunshot residue, it wouldn’t
         have said anything.
                 There is no way that we could have introduced evidence to say that that
         was a result of the revolver that he used to kill Michael Johnston any more than it
         was evidence that it was GSR transfer from all the--well, as a matter of fact, I
         mean here’s a--every officer in every car has got gunshot residue sitting around. I
         mean it just becomes a mess. Every one of them takes qualifications practice,
         their guns have it on them. They handle their guns. All of them have their guns
         drawn at this time. The weapons that are in their car have gunshot residue. It’s
         just--you know, it’s just unreliable evidence. So it would not have proven
         anything for the defendant regardless of what he says.

         We agree with Branigh’s complaint that, save for the prosecutor’s statement to the effect
that a police officer had testified that the state lab does not test for gunshot residue, the vast
majority of the prosecutor’s argument recounts facts not in evidence.
         Because Branigh did not object to these comments at trial, we review the issue as a claim
of fundamental error. Such a review requires a three-part inquiry in which the defendant bears
the burden of persuading the appellate court that the alleged error (1) violates one or more of the
defendant’s unwaived constitutional rights; (2) plainly exists 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) was not harmless. State v. Perry, 150 Idaho 209, 228,
245 P.3d 961, 980 (2010); State v. Felder, 150 Idaho 269, 272, 245 P.3d 1021, 1024 (Ct. App.
2010).
         It constitutes misconduct for a prosecutor to place before the jury facts not in evidence.
Felder, 150 Idaho at 273-74, 245 P.3d at 1025-26; State v. Gerardo, 147 Idaho 22, 26, 205 P.3d
671, 675 (Ct. App. 2009); State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).
Branigh has thus satisfied the first prong of the fundamental error inquiry because “[w]here a
prosecutor attempts to secure a verdict on any factor other than the law as set forth in the jury
instructions and the evidence admitted during trial, including reasonable inferences that may be
drawn from that evidence, this impacts a defendant’s Fourteenth Amendment right to a fair trial,”
and hence is reviewable as fundamental error. Perry, 150 Idaho at 227, 245 P.3d at 979. See
also State v. Frauenberger, 154 Idaho 294, 303, 297 P.3d 257, 266 (Ct. App. 2013). Branigh has
also shown that the error plainly exists. We conclude, however, that because of overwhelming




                                                 18
evidence of Branigh’s guilt, Branigh has not met his burden to show that the misconduct was not
harmless.
       At trial, the State called fourteen witnesses. Among them was a woman who lived in
the house at the intersection where the shooting occurred. She testified she had gone outside
to retrieve items from her car trunk, noticed a white car idling at the intersection, heard a
male voice, then heard a gunshot and saw a corresponding flash of light inside the white car.
As she crouched on the ground, she heard four to five more gunshots, heard a male voice say
“Oh shit, man,” and then watched the white car slowly drive away. During her testimony, the
witness looked at several pictures of Branigh’s vehicle and identified it as the same or
similar to the white car that she saw when the shots were fired.
       Another witness was a man delivering a trailer in the area where the shooting occurred.
He noticed a white Camaro with its headlights on sitting off the side of the road ahead of and
facing him. Because he was concerned about what the driver was doing, he slowed down to
around 15 miles per hour.          He then heard several pops he believed to be gunshots.
Immediately after the gunshots stopped, the white Camaro pulled over into its lane and drove
away at a normal rate of speed. The witness looked around as he drove by but, when he saw
nothing of concern, he continued on. On his return a short time later, he saw emergency
vehicles, so he stopped and told the police what he had seen. The witness said that, being a
bit of a car buff, he noted that the white car was an early 1980s IROC Camaro with a dent in
the driver’s right front fender.    After looking at pictures of Branigh’s Camaro during his
testimony at trial, the witness said the car he saw was either the same car or an identical car.
       A third wi t nes s testified he was watching TV with his wife when he heard one or two
gunshots. As he hurried to his window to look outside, he heard four or five more shots and
saw flashes of light reflecting off a nearby house. He then ran downstairs to his door where
he found Michael Johnston standing on his porch holding his chest.             Johnston told the
witness he had been shot by a man in a white car.
       In addition to witnesses that were in the area at the time of the shooting, the State
called two witnesses who testified to seeing a white Camaro near the area of the shooting a
few hours prior to the homicide.       Both described the vehicle as being driven erratically or
recklessly, both identified a picture of Branigh’s vehicle as being the same or similar to the one
they had seen in the area, and one witness identified Branigh as the driver of the white Camaro.


                                                19
        The State also presented evidence about a high-speed chase by police as they attempted to
take Branigh into custody that same night. Branigh quickly became a suspect in the shooting,
and a description of his vehicle was broadcast to police. The vehicle was soon observed by a
police officer in Clarkston, Washington who attempted to stop him. However, Branigh drove
out of Clarkston and into Lewiston at a high rate of speed, where Nez Perce County deputies and
Lewiston police officers took up the pursuit. Even after the chase had ended, Branigh continued
to resist the officers.
        Perhaps the most damning of all the evidence against Branigh was the text messages he
sent to victim Michael Johnston and Johnston’s ex-wife, Anderson. These included ominous
messages to Anderson sent on the afternoon and evening preceding the shooting, which occurred
at approximately 10:20 p.m.        The following is a sampling of the messages Branigh sent
Anderson.
        2:38 p.m.: talk 2 me or this will get bad. aint it fun. u a working woman still
        3:32 p.m.: talk to me face 2 face like the strong woman u r and stop being scared
        3:35 p.m.: im tryn 2 help u and u call cops on me. 7 i love u and cant take this shit
                   anymore. talk 2 me
        5:45 p.m.: I WILL BE FREE
        6:20 p.m.: FUK IT THEN COPS OR NO COPS
        6:21 p.m.: IM READY 2 DIE
        6:43 p.m.: I love u talk 2 me please im trying 2 stay out of trouble
        6:57 p.m.: please help me. i can only help so much
        7:24 p.m.: im not scared of mk or an of his fam
        7:28 p.m.: fuk it im not afraid 2 die
        7:55 p.m.: u got ur kids out of there? this is gonna b a mess
        8:39 p.m.: my life is yours. if u really want me 2 sacrifice myself and let u have
                   whats left, then I will. sorry it took so long. i love u my beautiful”
        8:53 p.m.: i dont care about dead bodies in old graves, ill fight till I win or die
        9:02 p.m.: good bye heart of my heart
        9:20 p.m.: mks done u wont talk 2 me, so I swear it on ur kids’ lives, mks done
        9:23 p.m.: u don’t talk 2 me and I promise u i will take this all the way

7
       This portion of the text apparently refers to the incident that occurred during the
afternoon before the shooting when Branigh appeared at the residence shared by Anderson and
Johnston and refused to leave until police arrived.

                                                  20
The following messages appear to have been sent at a point soon after Johnston was shot:
       9:34 p.m.: all u had 2 do was talk 2 me. c u in a few
       9:36 p.m.: Games r what uv always bleevd. Death is an honor. U wont b touched
                  by this. I WILL BE FREE.
       9:37 p.m.: c u in a few
       10:09 p.m.: all u had 2 do was talk 2 me
       Branigh also exchanged text messages with the victim, Michael Johnston, until moments
before Johnston was killed, as follows:
       8:58 p.m. - Johnston: She dont want 2 talk or c u so give it up
       8:59 p.m. - Branigh: bye mikey
       8:59 p.m. - Johnston: I dont control her
       9:00 p.m. - Branigh: bye mikey
       9:07 p.m. - Johnston: Who u with tough guy
       9:07 p.m. - Branigh: me
       9:08 p.m. - Johnston: I dont control her
       9:09 p.m. - Branigh: not anymore
       9:12 p.m. - Branigh: where u at little sister
       9:13 p.m. - Johnston: Home dumbass
       9:14 p.m. - Branigh: hidn behind ur family and the cops still coward
       9:16 p.m. - Branigh: bring urfukn punk ass out of there
       9:17 p.m. - Branigh: come on with ur stupid ass
       9:18 p.m. - Johnston: Ive been outside 4 almost an hour
       ....
       9:23 p.m. - Branigh: bring ur punk fukn ass out of there u fukn coward
       ....
       9:29 p.m. - Johnston: Now im done w txt
       9:31 p.m. - Branigh: ur a coward come out of the trailer park. ur kids will never
                            b harmd by me.
       9:49 p.m. - Johnston: lm out of there
       10:10 p.m. - Branigh: where
       10:10 p.m. - Branigh: waha
       10:10 p.m. - Johnston: Drive by and see
       10:14 p.m. - Branigh: come on


                                                  21
       10:15 p.m. - Branigh: u know where 2 go coward
       10:17 p.m. - Branigh: u comin
       10:19 p.m. - Branigh: u comin

       The 911 phone calls reporting the shooting establish that it occurred just after Branigh
sent the last text message to Johnston at 10:19 p.m. The messages show Branigh threatening
Johnston, and they place Branigh outside of Johnston’s trailer taunting him to come out for a
confrontation immediately before Johnston was shot. The text messages all but definitively
establish that Branigh was the killer, and this conclusion was bolstered by the eyewitness
testimony describing Branigh’s car as identical to the one from which the shots were fired.
Given the magnitude of the evidence of Branigh’s guilt, we can confidently conclude that the
prosecutorial misconduct in closing argument did not contribute to the verdict but, rather, was
harmless error.
E.     New Trial Motion
       Following his conviction, Branigh filed a motion for a new trial under I.C. § 19-2406(7)
based upon newly discovered evidence concerning Stephen Peak, the jailhouse informant who
testified for the State at trial.   Peak had testified to a number of incriminating statements
allegedly made by Branigh while the two were housed together in jail. According to Branigh’s
motion for a new trial, after the jury’s verdict he became aware of new information concerning
Peak’s relationship with former Nez Perce County Sheriff Jim Dorion.           Through post-trial
discovery allowed by the district court, it was revealed that about a year before Branigh’s trial,
and while Peak and Branigh were jailed together, Nez Perce County Prosecutor Dan Spickler
(who also personally handled this case) requested a meeting with an FBI agent and a
representative from the Idaho State Police. At that meeting, Spickler inquired whether Dorion,
who at that time was still the sheriff, was under investigation. The state and federal law
enforcement agents confirmed that he was. Spickler then reported to those agents that a number
of sheriff’s deputies and others had expressed to him their concern about Dorion’s “close
personal relationship” with Peak, that Dorion had allowed Peak personal access to a law
enforcement computer database containing information about current and past criminal cases,
and that Dorion was otherwise providing criminal investigation information directly to Peak.




                                                22
Spickler was asked to contact the State Attorney General about prosecuting Dorion 8 but to
otherwise keep the existence of the investigation confidential because it was in its preliminary
stages.
          Despite his knowledge of Peak’s close relationship with the sheriff and alleged
communications between Peak and the sheriff specifically about Branigh’s case, prosecutor
Spickler called Peak as a witness at Branigh’s trial and did not disclose any of the above
information to the defense. In Branigh’s motion for a new trial, he contended that the prosecutor
had concealed material impeachment information in violation of his duty under Brady v.
Maryland, 373 U.S. 83, 87-88 (1963), and thereby deprived Branigh of due process. Spickler
opposed the motion, contending that he had no duty to disclose to the defense “mere rumors.”
The district court disagreed, finding that the evidence was significant for purposes of impeaching
Peak’s testimony and that the prosecutor had wrongfully suppressed it. The court nevertheless
denied Branigh’s motion for a new trial on the ground that even if Peak had been thoroughly
discredited, or if all of Peak’s testimony were disregarded, the evidence of Branigh’s guilt was so
overwhelming that the jury’s verdict would have been the same.
          Branigh argues on appeal that the district court improperly applied to his motion state law
standards for entitlement to a new trial for newly discovered evidence articulated in State v.
Drapeau, 97 Idaho 685, 691, 551 P.2d 972, 978 (1976), instead of the more liberal standard
established set by the United States Supreme Court in Brady.
          In Brady, the Court held that the prosecution’s failure to disclose evidence favorable to
an accused upon request violates the defendant’s right to due process if the evidence is material
to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution.
Brady, 373 U.S. at 87. Subsequently, the Supreme Court expanded this duty of disclosure to
include an obligation to disclose exculpatory evidence even if was not encompassed within any
discovery request by the defense or was requested only in a general way. United States v.
Bagley, 473 U.S. 667, 682-83 (1985). The duty applies to evidence that is favorable to the
accused because it is either exculpatory or impeaching. Strickler v. Greene, 527 U.S. 263, 281-
82 (1999); Bagley, 473 U.S. at 676.          Such evidence is material “if there is a reasonable
probability that had the evidence been disclosed to the defense, the result of the proceeding

8
       Dorion was later removed from office and tried and convicted for being an accessory to
burglary.

                                                  23
would have been different.” Strickler, 527 U.S. at 280; Kyles v. Whitley, 514 U.S 419, 433
(1995); Bagley, 473 U.S. at 682. A “reasonable probability” of a different result is shown when
the government’s evidentiary suppression “undermines confidence in the outcome of the trial.”
Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 678.
       Quite distinct from a Brady claim, under Idaho Code § 19-2406(7) a convicted defendant
may request a new trial based upon newly discovered evidence. To prevail on such a request, the
defendant must demonstrate:
       (1) that the evidence is newly discovered and was unknown to the defendant at the
       time of trial; (2) that the evidence is material, not merely cumulative or
       impeaching; (3) that it will probably produce an acquittal; and (4) that failure to
       learn of the evidence was not due to a lack of diligence on the part of the
       defendant.

Drapeau, 97 Idaho at 691, 551 P.2d at 978. See also State v. Ellington, 151 Idaho 53, 72, 253
P.3d 727, 746 (2011). As Branigh points out, the standards for relief on a Brady claim for a
prosecutor’s withholding of exculpatory evidence is less stringent than the Drapeau standard for
a new trial based on newly discovered evidence. Under Drapeau, the defendant must show that
the evidence “will probably produce an acquittal” while under Brady the defendant’s burden is
satisfied by showing a reasonable probability of a different verdict in that the government’s
suppression of evidence “undermines confidence in the outcome of the trial.” The latter is a
lesser burden. In its written decision, the district court here considered and applied the Drapeau
test, but it should not have considered that test at all because the basis for the motion was a
Brady violation. Therefore, we must evaluate whether Branigh’s motion should have been
granted by applying the correct test.
       For a Brady analysis, three components must be shown:            the evidence at issue is
favorable to the accused because it is either exculpatory or impeaching; that evidence was
suppressed by the State, either willfully or inadvertently; and that the evidence was material
because there is a reasonable probability that its disclosure to the defense would have led to a
different result. As to the first prong, the evidence was favorable to Branigh because it could
have been used to impeach Peak. Specifically, Peak testified to statements about Johnston’s
murder and ensuing events allegedly made by Branigh. Had Branigh known that Peak may have
acquired that information about the case from police computers or directly from former sheriff
Dorion, Peak’s credibility could have been undermined on cross-examination. The second Brady


                                               24
prong is also satisfied because this information was withheld by the prosecution from the
defense.
       However, the third prong--showing a reasonable probability of a different result had the
suppressed evidence been disclosed--has not been met. Given the compelling nature of the
State’s evidence of Branigh’s guilt as summarized above, we perceive no possibility that the
verdict would have been different if the improperly withheld evidence had been available to
Branigh to use in impeaching Peak. The withholding of that evidence, although a violation of
the prosecutor’s duty, does not undermine our confidence in the outcome of the trial.
F.     Use of Perjured Testimony
       As an additional theory for relief, Branigh argues the new evidence about the relationship
between Peak and Sheriff Dorion shows that the prosecutor obtained his conviction through
perjured testimony because while Peak testified at trial that he was “acquainted” with Dorion, the
newly discovered evidence showed that his relationship with the former sheriff was much more
than mere acquaintance.     When a prosecutor knowingly uses false evidence to obtain a
conviction, a stricter materiality standard applies than that employed where the prosecution has
failed to disclose exculpatory evidence. See also United States v. Agurs, 427 U.S. 97, 103-04
(1976); Napue v. Illinois, 360 U.S. 264, 269 (1959). A stricter standard is employed because the
use of false evidence involves “a corruption of the truth-seeking function of the trial process.”
Agurs, 427 U.S. at 104. A conviction obtained by the knowing use of perjured testimony is
fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury. Bagley, 473 U.S. at 678; Agurs, 427
U.S. at 103.
       Branigh argues that Peak’s understatement of the nature of his relationship with Sheriff
Dorion constitutes perjury that was knowingly used by the State and that, under the applicable
standard for relief, he is entitled to a new trial. Branigh posits this as a claim of fundamental
error. Assuming arguendo that fundamental error may be predicated upon facts that are not
apparent from the record of the proceeding in which the error allegedly occurred (in this case,
Branigh’s trial), but developed after that proceeding, we find no fundamental error here because
the third prong of a fundamental error analysis--a showing that the error was not harmless--is not
met here. Even viewing Peak’s testimony that he was merely “acquainted” with Sheriff Dorion
to be perjurious, we conclude the State’s use of the perjured testimony was harmless beyond a


                                               25
reasonable doubt in light of the overwhelming evidence of Branigh’s guilt as outlined above.
The probative value of Peak’s testimony was slight in comparison to the other evidence
presented by the State. Even if Peak had never testified, the remaining evidence would have led
any reasonable juror to find Branigh guilty of the murder of Michael Johnston. Therefore,
Branigh has shown no right to relief on this claim of fundamental error.
       In view of this disposition, we do not need to address Branigh’s additional argument that
the district court should have applied the standard for relief established in State v. Scroggins, 110
Idaho 380, 385, 716 P.2d 1152, 1157 (1985), to determine a right to relief when a government
witness has recanted his testimony.
                                                 III.
                                         CONCLUSION
       Branigh has not shown error in the denial of his motion to suppress evidence or in the
district court’s evidentiary rulings at trial.     Although he has demonstrated prosecutorial
misconduct during closing argument and has shown that the prosecutor improperly withheld
exculpatory evidence from Branigh, this misconduct was harmless error because the evidence of
Branigh’s guilt was so compelling that we are confident the result of the trial would have been
the same had the misconduct not occurred. Even if the State can be deemed to have relied upon
perjured testimony by one witness, this misconduct was harmless beyond a reasonable doubt.
Therefore, the judgment of conviction is affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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