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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40098

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MICHAEL LYNN JOHNSON,

Defendant-Appellant.

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2014 Unpublished Opinion No. 644

Filed: August 4, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Michael R. McLaughlin, District Judge. 

Judgment of conviction for felony possession of a controlled substance with the 

intent to deliver, possession of drug paraphernalia, and possession of a controlled 

substance, affirmed.

Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Chief Judge

Michael Lynn Johnson appeals from his judgment of conviction after a jury found him 

guilty of felony possession of a controlled substance with the intent to deliver 

(methamphetamine), possession of drug paraphernalia, and possession of a controlled substance 

(marijuana). Johnson argues that the district court erred by denying his motion for mistrial. 

Additionally, Johnson contends that the district court abused its discretion when it imposed a 

unified sentence of fifteen years, with three years determinate, for possession of a controlled 

substance with the intent to deliver. For the reasons that follow, we affirm.
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I.

FACTS AND PROCEDURE

Boise police officers executed a search warrant at a residence and arrested a male1 and a 

female (the co-defendant). Inside one of two bedrooms, officers located paraphernalia, mail, and 

other paperwork with Johnson’s name on it. In the residence’s garage, the officers found a safe. 

With the assistance of the fire department, the officers opened the safe and discovered a black 

bag, methamphetamine, a bag with marijuana, and paraphernalia inside. Also inside the safe 

were various documents with Johnson’s name on them, including a credit card, a social security 

card, a birth certificate, and a vehicle title. Johnson, who was not at the residence, was 

transported from his workplace to the residence where, following Miranda2 warnings, he 

informed an officer that the safe was his. 

After Johnson appeared in response to a criminal complaint, he was bound over and

charged by information with felony possession of a controlled substance with the intent to 

deliver (methamphetamine), possession of drug paraphernalia, and possession of a controlled 

substance (marijuana). Johnson and the co-defendant’s trial were consolidated and the case 

proceeded to a joint trial. In the first trial, a mistrial was granted. At the second trial, the 

prosecutor presented testimony from officers and other law enforcement personnel and 

introduced various exhibits into evidence. The co-defendant testified, but Johnson did not. In 

rebuttal, the prosecutor recalled the officer supervising the search, who authenticated a copy of 

the recording of an interview of the co-defendant, and the prosecutor published the recording to 

the jury. In the recording, the supervising officer referred to the co-defendant invoking her right 

to remain silent. Shortly after the officer’s comment was played to the jury, counsel for the 

co-defendant interrupted the recording and brought an objection before the court, outside the 

presence of the jury.

Counsel for the co-defendant asserted that a mistrial was necessary because the officer 

had referred to the co-defendant’s invocation of the right to remain silent in the recording. 

Johnson’s attorney joined in the objection and motion. After a protracted discussion between the 

 

1 The male at the residence was not a defendant in the case below, and the record contains 

little information about this individual.

2 Miranda v. Arizona, 384 U.S. 436 (1966). 
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district court judge, the prosecutor, and the defense attorneys, the judge permitted the prosecutor 

to redact the recording and the judge announced that he would provide a jury instruction. The 

redacted recording was published to the jury and was made available to the jury during 

deliberations, along with a jury instruction regarding a defendant’s right to silence. The jury 

found Johnson guilty on all counts, and the judge imposed a unified sentence of fifteen years, 

with three years determinate for possession of a controlled substance with the intent to deliver.3

 

Johnson appeals.

II.

ANALYSIS

On appeal, Johnson argues that the district court erred by denying Johnson’s motion for 

mistrial. He also argues that the district court abused its discretion when it imposed a unified 

sentence of fifteen years, with three years determinate, for possession of a controlled substance 

with the intent to deliver.

A. Motion for Mistrial

In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A 

“mistrial may be declared upon motion of the defendant, when there occurs during the trial an 

error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is 

prejudicial to the defendant and deprives the defendant of a fair trial.” I.C.R. 29.1(a). Our 

standard for reviewing a district court’s denial of a motion for mistrial is well established:

[T]he question on appeal is not whether the trial judge reasonably exercised his 

discretion in light of circumstances existing when the mistrial motion was made. 

Rather, the question must be whether the event which precipitated the motion for 

mistrial represented reversible error when viewed in the context of the full record. 

Thus, where a motion for mistrial has been denied in a criminal case, the “abuse 

of discretion” standard is a misnomer. The standard, more accurately stated, is 

one of reversible error. Our focus is upon the continuing impact on the trial of the 

incident that triggered the mistrial motion. The trial judge’s refusal to declare a 

mistrial will be disturbed only if that incident, viewed retrospectively, constituted 

reversible error.

State v. Urquhart, 105 Idaho 92, 95, 665 P.3d 1102, 1105 (Ct. App. 1983).

 

3 The district court imposed unified, determinate sentences of sixty-six days for the 

possession of drug paraphernalia and possession of a controlled substance counts. The district 

court also credited Johnson with sixty-six days served.
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Johnson argues that reversible error exists because of prosecutorial misconduct. Johnson 

contends that the prosecutor committed misconduct by playing the recording that included a 

comment on his co-defendant’s post-Miranda silence, which Johnson asserts indirectly 

commented on his own silence, allowing the jury to infer Johnson’s guilt. Johnson avers that the 

State cannot show beyond a reasonable doubt that the error is harmless. The State argues that 

Johnson cannot vicariously challenge the evidence that related to his co-defendant. To the extent 

the statement commented on Johnson’s own silence indirectly, the State contends any error is 

harmless beyond a reasonable doubt. The State further asserts that the comment on the 

co-defendant’s silence was fleeting, that the prosecutor did not intend to use the comment as 

substantive evidence against either the co-defendant or Johnson, that the court gave a curative 

jury instruction, and that there was overwhelming evidence of Johnson’s guilt.

The Fifth Amendment to the United States Constitution, as applied through the 

Fourteenth Amendment, as well as article I, section 13 of the Idaho Constitution, guarantees a 

criminal defendant the right not to be compelled to testify against himself. The United States

Supreme Court has interpreted this right also to bar a prosecutor from commenting on a 

defendant’s invocation of that right. Griffin v. California, 380 U.S. 609, 614 (1965). It is well 

established that a prosecutor may not use evidence of post-arrest, post-Miranda silence for either 

impeachment, Doyle v. Ohio, 426 U.S. 610, 619 (1976), or as substantive evidence of guilt in the 

State’s case-in-chief, Wainwright v. Greenfield, 474 U.S. 284, 292 (1986). Idaho has also 

recognized these limitations. State v. Ellington, 151 Idaho 53, 60, 253 P.3d 727, 734 (2011). 

Prosecutors are, however, permitted to use post-arrest silence “to contradict a defendant who 

testifies to an exculpatory version of events and claims to have told the police the same version 

upon arrest” because the prosecutor is using the silence to “challenge the defendant’s testimony 

as to his behavior following arrest.” Doyle, 426 U.S. at 619 n.11; accord State v. Dougherty, 142 

Idaho 1, 4-5, 121 P.3d 416, 419-20 (Ct. App. 2005). 

Johnson’s assertion of prosecutorial misconduct, which was objected to at trial, is subject 

to the State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), harmless error test. Ellington, 151

Idaho at 59, 253 P.3d at 733. 

When the alleged error is prosecutorial misconduct, first the defendant must 

demonstrate that prosecutorial misconduct occurred, and then the Court must 

declare a belief beyond a reasonable doubt that the misconduct did not contribute 
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to the jury’s verdict, in order to find that the error was harmless and not 

reversible.

Id. (citing Perry, 150 Idaho at 227-28, 245 P.3d at 979-80). Assuming without deciding that 

Johnson has demonstrated prosecutorial misconduct, we are persuaded beyond a reasonable 

doubt that the misconduct did not contribute to the jury’s verdict. 

There is no indication from the trial testimony leading up to the comment on the 

co-defendant’s invocation of her right to remain silent that the jury would have associated the 

comment with Johnson. Instead, the published recording up to the comment focused on the 

co-defendant. Even if the jury could have imputed the passing reference to the co-defendant’s 

invocation of her right to remain silent to Johnson, the jury was given a jury instruction that 

reiterated that a defendant has a right to remain silent and is not compelled to testify. We 

presume that Johnson’s jury followed this instruction. State v. Joy, 155 Idaho 1, 7, 304 P.3d 276, 

282 (2013). 

Additionally, the jury had overwhelming evidence from which it could have reasonably 

found Johnson’s guilt based on the items bearing his name found in the bedroom and in the safe. 

In the bedroom that contained paraphernalia were various pieces of mail and paperwork with 

Johnson’s name on them. Similarly, the garage safe not only contained methamphetamine and a 

bag of marijuana, but contained patently important documents exclusive to Johnson. Johnson, 

according to the testimony of an officer, claimed the safe was his. At trial, Johnson’s attorney 

asked the supervising officer whether the contents of the safe could have belonged to someone 

other than Johnson, and the supervising officer said he did not believe so “[b]ecause typically 

drug dealers don’t allow just anybody to have access to the safe where they keep their drugs.” 

Drug dealers, based on the officer’s experience, “tend not to have their drugs intermingled with a 

particular individual’s personal information, such as a social security card and other personal 

effects.” From all of this evidence, it was not unreasonable for the jury to infer that the contents 

in the safe were under Johnson’s possession.

The only evidence that weighed against this inference was the co-defendant’s testimony 

at trial. The co-defendant testified that the male who was in the house had placed the black bag 

in the safe. However, this testimony was discredited by the co-defendant’s statements in the 

redacted recording where the co-defendant stated that she did not know what was in the safe, 

even after the safe had been opened and the supervising officer had informed the co-defendant of 
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what the officers found in the safe. Moreover, other portions of the co-defendant’s testimony at 

trial were contradicted by her previous statements in the audio recording. In short, the jury likely

discredited the co-defendant’s testimony.

Because of the overwhelming evidence of guilt, we are convinced that the jury would 

have found Johnson guilty, even if the reference to the co-defendant’s invocation of her right to 

remain silent was not played to the jury. Moreover, placing the published comment in context 

demonstrates that any error was harmless beyond a reasonable doubt. Accordingly, Johnson has 

not shown reversible error, and the district court did not err by denying the motion for mistrial. 

B. Sentence

Johnson argues the district court abused its discretion when it imposed a unified sentence 

of fifteen years, with three years determinate, for Johnson’s conviction for possession of a 

controlled substance with the intent to deliver. This crime is punishable by up to life 

imprisonment. Idaho Code § 37-2732(a)(1)(A). An appellate review of a sentence is based on 

an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 

2000). Where a sentence is not illegal, the appellant has the burden to show that it is 

unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 

482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be 

unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 

(1982). A sentence of confinement is reasonable if it appears at the time of sentencing that

confinement is necessary “to accomplish the primary objective of protecting society and to 

achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a 

given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an 

appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct 

an independent review of the record, having regard for the nature of the offense, the character of 

the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 

P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the 

defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). 

Applying these standards, and having reviewed the record in this case, we cannot say that the 

district court abused its discretion.
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III.

CONCLUSION

The district court did not err by denying Johnson’s motion for mistrial. Any 

prosecutorial misconduct from the comment on the co-defendant’s invocation of her right to 

remain silent was harmless beyond a reasonable doubt. Additionally, the district court did not 

abuse its discretion when it imposed a unified sentence of fifteen years, with three years 

determinate, for possession of a controlled substance with the intent to deliver. Accordingly, 

Johnson’s judgment of conviction is affirmed.

Judge LANSING and Judge MELANSON CONCUR.