ID: Prosecutor’s closing argument comment on refusal of consent was fundamental error

Prosecutor’s comment in closing argument on defendant’s exercise of his right to refuse consent was prosecutorial misconduct and required reversal of the conviction. It is a fundamental error. State v. Betancourt, 151 Idaho 635, 262 P.3d 278 (2011):

The state asserts that Betancourt has failed to demonstrate the second prong of the fundamental error test because the error is not clear from a review of the record. Specifically, the state argues that the prosecutor’s comments are ambiguous, at best, and could not be considered to be plain error. However, the prosecutor’s statement that Betancourt “did not want those troopers to search that vehicle” is clearly a comment on Betancourt’s statements in the video refusing to consent to a search. Similarly, the prosecutor’s statements during rebuttal also refer to Betancourt’s concern about keeping the officers out of the vehicle. While the prosecutor focused on Betancourt’s overall demeanor during the stop, it is plain from a review of the record that the prosecutor also requested that the jury pay particular attention to Betancourt’s refusal to allow the search as evidence of his knowledge of methamphetamine in the car. Therefore, the second prong of Perry has also been established.

Under the third prong of Perry, in order to conclude that the prosecutor’s comments constituted fundamental error, the defendant must demonstrate that there is a reasonable possibility that the impermissible comments affected the outcome of the trial. Perry, 150 Idaho at 226, 245 P.3d at 978. As mentioned above, in order to prove possession of a controlled substance, the state must prove that the defendant has such dominion and control over the substance to establish constructive possession. Segovia, 93 Idaho at 598, 468 P.2d at 664. A sufficient showing of a nexus between the accused and the controlled substance is central to this requirement. Fairchild, 121 Idaho at 969, 829 P.2d at 559. Further, knowledge of the existence of controlled substances may be inferred through circumstances. Clayton, 101 Idaho at 16, 607 P.2d at 1070.