But there's more. Watch the video. You saw his demeanor on the video. He did not want those troopers to search that vehicle. His story is incredible. It doesn't make any sense. It changes. All that you can consider.In addition, during rebuttal to Betancourt's closing argument, the prosecutor also stated:
But this case, the evidence you have heard is a lot more than mere proximity. Listen to the video, watch his demeanor. It speaks volumes about his concern about these troopers not getting into that car. He's trying to lead them astray and keep them out of that vehicle. That's clear.
There was no contemporaneous objection to either of these comments. Betancourt asserted on appeal that these comments urged the jury to infer his guilt from the invocation of his Fourth Amendment right to refuse to consent to the search of the vehicle, and the appellate court agreed:
The Idaho Supreme Court addressed an instance of prosecutorial misconduct similar to the comments made by the prosecutor in this case in State v. Christiansen, 144 Idaho 463, 163 P.3d 1175 (2007). There, the Court held that the prosecutor's questioning of an officer regarding Christiansen's refusal to consent to a search of his business constituted fundamental error. Id. at 470–71, 163 P.3d at 1182–83. The Court held that the same rationale for excluding evidence of an accused's invocation of his or her Fifth Amendment rights applied to the invocation of a defendant's Fourth Amendment rights. Id. at 470, 163 P.3d at 1182. Specifically, the Court relied on prior United States Supreme Court and Idaho Supreme Court cases for the proposition that reference to a defendant's invocation of a constitutional right deprives an accused of his or her constitutional right to due process and a fair trial. Id.; see also Griffin v. California, 380 U.S. 609, 615 (1965); State v. White, 97 Idaho 708, 715, 551 P.2d 1344, 1351 (1976).
* * * *
Other jurisdictions have addressed this issue and have also concluded that a prosecutor's reference to a defendant's refusal to consent to search constitutes a violation of the defendant's right to a fair trial. See United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978) (stating that, “if the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right”); Padgett v. State, 590 P.2d 432, 434–35 (Alaska 1979) (the constitutional right to refuse to consent to a search would effectively be destroyed if the exercise of such a right could be used as evidence of guilt); State v. Palenkas, 933 P.2d 1269, 1280 (Ariz.Ct.App.1996) (invocation of a constitutional right is probative of nothing other than the defendant's awareness of his or her constitutional rights). Based on the reasoning of the Idaho Supreme Court and the other above-listed authorities, we conclude that Betancourt has established the first prong of Perry because the prosecutor's comments during closing argument and rebuttal violated Betancourt's constitutional right to a fair trial.
Concluding, the court stated "the prosecutor's improper comment during closing argument regarding Betancourt's refusal to consent to a search of the vehicle constituted fundamental error. Accordingly, we vacate Betancourt's judgment of conviction and remand for a new trial."
Editor's Note: why doesn't the law stating that evidence of a refusal to consent to a search of a vehicle is inadmissible, also apply to refusal's to consent to a search of one's blood, breath and urine? When a defendant refuses, isn't he simply stating that he demands that an independent magistrate review the facts to determine whether compliance via the granting of a search warrant is required?
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