SHEPARD, Justice.
This is an appeal from a conviction of robbery following trial and a jury verdict of guilty. We affirm.
Defendant-appellant Charles Sharp was charged with the crime of robbery in Ada County, Idaho, on August 26, 1975. He pled not guilty and was tried before a jury in June of 1976. The jury returned a guilty verdict and Sharp was sentenced to a term of not to exceed twenty-five years. This appeal resulted and oral argument was had thereon on the 21st day of February, 1979. The case was reassigned to this writer August 12, 1980.
Between 8:30 and 9:00 on the morning of the robbery, Sharp appeared at the job site of his step-brother, Fred Boyce. That job site was approximately three miles from the scene of the robbery, /. e., a Circle K convenience store located in Ada County, Idaho. Sharp was riding a motorcycle and wore levi’s, a light brown jacket, and a red helmet. Sharp told Boyce he was broke and received a twenty dollar loan. He left the job site shortly after 9:00 a. m.
The Circle K store was entered by the robber between 9:00 and 9:30 a. m. He was described as wearing a light brown jacket, having long light brown hair, a full mustache and carrying a bright orange-red motorcycle helmet. Aside from an employee’s vehicle, a motorcycle was the only vehicle parked in front of the store.
The robber ordered a sandwich and then pointed a handgun at the employee (Mrs. Eberhart) and demanded money. She could only describe the weapon as dark brown or black with a long dark barrel. She gave him the money in a plain brown paper bag. She was then forced into a back room where she was struck from behind with a blunt object and then struck a second time over the head with an empty pop bottle.
Later that day, the police included a picture of Sharp in a group shown Mrs. Eberhart, but she did not select Sharp’s picture as the robber. At the preliminary hearing, although Sharp was seated next to his counsel, when Mrs. Eberhart was asked to identify her assailant, she pointed to one James Beatty, who was sitting in back of the courtroom. Beatty was called by defense counsel and questioned about his knowledge of the robbery, but he apparently was merely a by-stander awaiting the trial of a friend. Although subpoenaed by both the prosecution and the defense, he could not be located at the time of trial. At trial, Mrs. Eberhart again failed to identify her assailant. There was, however, testimony from three witnesses that the defendant had changed his appearance substantially since [500]*500the time of the robbery and at the date of the robbery, he would have more clearly fit the description given by Mrs. Eberhart.
On the evening of the robbery, Sharp went to the home of his step-sister, Vonda Dudley and asked that he be allowed to spend the night. Dudley testified that Sharp brought with him a brown paper bag containing a pistol and asked her to dispose of it. He stated that he was on parole and would be in trouble if he were caught with it. Dudley testified that she threw the gun into the Boise River. A black and/or brown automatic pistol was recovered by the police about twenty feet from where Dudley had thrown the gun. The gun recovered from the river belonged to one Vance Fleming, who testified that the gun had disappeared shortly after Sharp had been in Fleming’s apartment. Dudley insisted in her testimony that the gun recovered from the river was not the one she had thrown into the river. The gun could not be identified positively as the robbery weapon.
The evidence indicated that the shattered pop bottle, while containing blood of the victim, had only one clear fingerprint which was not that of Sharp. The neck of the bottle, however, could not be found and Sharp’s brother testified that Sharp had told him that he had touched only the top part of the bottle and had disposed of that portion.
Both the sister and brother of Sharp testified that on the evening of the robbery day, Sharp had stated that he committed the robbery. They testified, however, that it was said in a joking way and that when asked about the pistol whipping of Mrs. Eberhart, which was apparently mentioned on a news broadcast, Sharp retracted his admission. Both witnesses claimed that the police had threatened them with being charged as accessories, indicated that Sharp’s fingerprints had been found at the scene and warned that since they were both ex-felons they could lose custody of their children.
Sharp was apprehended in Oregon after initially trying to evade officers and when apprehended claimed to be his step-brother.
At this point, we note that while the evidence adduced at trial was largely circumstantial, the chain of evidence strongly pointed to the guilt of Sharp. We further note that the State’s evidence also included items which were not of assistance to the State’s case, i. e., a fingerprint on the remnant of the pop bottle which was not Sharp’s, blood on the jacket recovered from Sharp was not human, but bovine, the lack of Sharp’s fingerprints at other places, such as the telephone which had been torn loose by the robber, and the lack of any fingerprints on the weapon recovered from the river.
I.
Appellant asserts error in Jury Instruction No. 3, which he argues violated his right to a presumption of innocence. That instruction included a verbatim reading of the information containing the following language:
“Charles Sharp is accused by this Information of the crime of Robbery, I.C. 18-6501, felony upon which charge the said Charles Sharp having been duly brought before a Magistrate on the 4th day of November, 1975, and having had his preliminary examination thereon upon said charge, by said Magistrate thereupon held to answer to the District Court of the Fourth Judicial District of the State of Idaho . . .” (Emphasis added.)
Defense counsel moved to excise the above italicized language, arguing that such language could give a jury the impression that a magistrate had already found him guilty of the crime charged, thus violating his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution. That motion was denied and the argument is reiterated here. We do not agree with appellant’s contention.
I.C. § 19-2101 provides in pertinent part: “Order of trial.-The jury having been impaneled and sworn, the trial must proceed in the following order:
[501]*501“1. If the indictment is for a felony, the clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with.”
Failure to read the indictment or information and to state the plea of the defendant has been held to be reversible error. State v. Cronk, 78 Idaho 585, 307 P.2d 1113 (1957); State v. Chambers, 9 Idaho 673, 75 P. 274 (1904). Appellant cites no pertinent authority in support of his argument. We deem the case at bar to present circumstances far removed from those of State v. Wiggins, 96 Idaho 766, 536 P.2d 1116 (1975), and State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963). Those cases were concerned with a repeat or habitual offender charge and only prohibited informing the jury of
Free access — add to your briefcase to read the full text and ask questions with AI
SHEPARD, Justice.
This is an appeal from a conviction of robbery following trial and a jury verdict of guilty. We affirm.
Defendant-appellant Charles Sharp was charged with the crime of robbery in Ada County, Idaho, on August 26, 1975. He pled not guilty and was tried before a jury in June of 1976. The jury returned a guilty verdict and Sharp was sentenced to a term of not to exceed twenty-five years. This appeal resulted and oral argument was had thereon on the 21st day of February, 1979. The case was reassigned to this writer August 12, 1980.
Between 8:30 and 9:00 on the morning of the robbery, Sharp appeared at the job site of his step-brother, Fred Boyce. That job site was approximately three miles from the scene of the robbery, /. e., a Circle K convenience store located in Ada County, Idaho. Sharp was riding a motorcycle and wore levi’s, a light brown jacket, and a red helmet. Sharp told Boyce he was broke and received a twenty dollar loan. He left the job site shortly after 9:00 a. m.
The Circle K store was entered by the robber between 9:00 and 9:30 a. m. He was described as wearing a light brown jacket, having long light brown hair, a full mustache and carrying a bright orange-red motorcycle helmet. Aside from an employee’s vehicle, a motorcycle was the only vehicle parked in front of the store.
The robber ordered a sandwich and then pointed a handgun at the employee (Mrs. Eberhart) and demanded money. She could only describe the weapon as dark brown or black with a long dark barrel. She gave him the money in a plain brown paper bag. She was then forced into a back room where she was struck from behind with a blunt object and then struck a second time over the head with an empty pop bottle.
Later that day, the police included a picture of Sharp in a group shown Mrs. Eberhart, but she did not select Sharp’s picture as the robber. At the preliminary hearing, although Sharp was seated next to his counsel, when Mrs. Eberhart was asked to identify her assailant, she pointed to one James Beatty, who was sitting in back of the courtroom. Beatty was called by defense counsel and questioned about his knowledge of the robbery, but he apparently was merely a by-stander awaiting the trial of a friend. Although subpoenaed by both the prosecution and the defense, he could not be located at the time of trial. At trial, Mrs. Eberhart again failed to identify her assailant. There was, however, testimony from three witnesses that the defendant had changed his appearance substantially since [500]*500the time of the robbery and at the date of the robbery, he would have more clearly fit the description given by Mrs. Eberhart.
On the evening of the robbery, Sharp went to the home of his step-sister, Vonda Dudley and asked that he be allowed to spend the night. Dudley testified that Sharp brought with him a brown paper bag containing a pistol and asked her to dispose of it. He stated that he was on parole and would be in trouble if he were caught with it. Dudley testified that she threw the gun into the Boise River. A black and/or brown automatic pistol was recovered by the police about twenty feet from where Dudley had thrown the gun. The gun recovered from the river belonged to one Vance Fleming, who testified that the gun had disappeared shortly after Sharp had been in Fleming’s apartment. Dudley insisted in her testimony that the gun recovered from the river was not the one she had thrown into the river. The gun could not be identified positively as the robbery weapon.
The evidence indicated that the shattered pop bottle, while containing blood of the victim, had only one clear fingerprint which was not that of Sharp. The neck of the bottle, however, could not be found and Sharp’s brother testified that Sharp had told him that he had touched only the top part of the bottle and had disposed of that portion.
Both the sister and brother of Sharp testified that on the evening of the robbery day, Sharp had stated that he committed the robbery. They testified, however, that it was said in a joking way and that when asked about the pistol whipping of Mrs. Eberhart, which was apparently mentioned on a news broadcast, Sharp retracted his admission. Both witnesses claimed that the police had threatened them with being charged as accessories, indicated that Sharp’s fingerprints had been found at the scene and warned that since they were both ex-felons they could lose custody of their children.
Sharp was apprehended in Oregon after initially trying to evade officers and when apprehended claimed to be his step-brother.
At this point, we note that while the evidence adduced at trial was largely circumstantial, the chain of evidence strongly pointed to the guilt of Sharp. We further note that the State’s evidence also included items which were not of assistance to the State’s case, i. e., a fingerprint on the remnant of the pop bottle which was not Sharp’s, blood on the jacket recovered from Sharp was not human, but bovine, the lack of Sharp’s fingerprints at other places, such as the telephone which had been torn loose by the robber, and the lack of any fingerprints on the weapon recovered from the river.
I.
Appellant asserts error in Jury Instruction No. 3, which he argues violated his right to a presumption of innocence. That instruction included a verbatim reading of the information containing the following language:
“Charles Sharp is accused by this Information of the crime of Robbery, I.C. 18-6501, felony upon which charge the said Charles Sharp having been duly brought before a Magistrate on the 4th day of November, 1975, and having had his preliminary examination thereon upon said charge, by said Magistrate thereupon held to answer to the District Court of the Fourth Judicial District of the State of Idaho . . .” (Emphasis added.)
Defense counsel moved to excise the above italicized language, arguing that such language could give a jury the impression that a magistrate had already found him guilty of the crime charged, thus violating his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution. That motion was denied and the argument is reiterated here. We do not agree with appellant’s contention.
I.C. § 19-2101 provides in pertinent part: “Order of trial.-The jury having been impaneled and sworn, the trial must proceed in the following order:
[501]*501“1. If the indictment is for a felony, the clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with.”
Failure to read the indictment or information and to state the plea of the defendant has been held to be reversible error. State v. Cronk, 78 Idaho 585, 307 P.2d 1113 (1957); State v. Chambers, 9 Idaho 673, 75 P. 274 (1904). Appellant cites no pertinent authority in support of his argument. We deem the case at bar to present circumstances far removed from those of State v. Wiggins, 96 Idaho 766, 536 P.2d 1116 (1975), and State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963). Those cases were concerned with a repeat or habitual offender charge and only prohibited informing the jury of that portion of the information which referred to previous convictions of the defendant.
Instruction No. 16 particularly cautioned the jury:
“The function of the jury is to determine the issues of fact that are presented by the allegations in the information filed in this court and the defendant’s plea of ‘not guilty.’ This duty you should perform uninfluenced by pity for a defendant or by passion or prejudice against him. You must not suffer yourself to be biased against a defendant because of the fact that he has been arrested for this offense, or because an information has been filed against him or because he has been brought before the court to stand trial. None of these factors is evidence of his guilt, and you are not permitted to infer or to speculate from any or all of them that he is more likely to be guilty than innocent.”
Thus, we hold appellant’s assertion of error to be without merit. In a related argument, appellant asserts that the trial court erred in admitting the testimony of Fleming which related the circumstances of Sharp’s visit to Fleming’s apartment. Sharp argues that such testimony was highly prejudicial and erroneous in that it unnecessarily placed before the jury evidence of another unrelated crime allegedly committed by Sharp. While we agree as to the prejudice against Sharp, we do not agree that its admissibility by the trial court was erroneous. Here, the court was not faced with a situation as in State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971), wherein the defendant took the stand and was asked upon cross-examination whether he had previously been convicted of a felony and upon his affirmative answer, further inquiry was made as to what particular felony. Rather, the instant case is more similar to that of State v. Izatt, 96 Idaho 667, 534 P.2d 1107 (1975), wherein the evidence of the commission of the crime charged also included evidence of the commission of uncharged crimes. The Court said in Izatt:
“But we do not agree that the introduction of the evidence here in question does not fall within an exception concerning introduction of evidence of other crimes regardless of whether this exception fits neatly into one of the categories we listed in Shepherd. As was well stated in the Colorado Supreme Court in Monge v. People, ‘[all] facts inseparably connected to the chain of events of which the act charged in the information is a part are admissible even though the full story shows the commission of other crimes,’ Monge v. People, 158 Colo. 224, 406 P.2d 674, at 678 (1965).”
See State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974).
Here, although Fleming’s testimony included his conclusion that Sharp had stolen the weapon from his apartment, such evidence constituted “facts inseparably connected to the chain of events” in that it placed Sharp as having access to the weapon which was recovered from the Boise River at a spot close to where Dudley threw a weapon given her by Sharp. Although Dudley denied that the recovered weapon was the one she had thrown into the river, Fleming identified the recovered weapon as belonging to him and by his testimony provided the link placing it in the hands of Sharp. The probative value of the evidence [502]*502linking the defendant to the commission of the crime is to be weighed against the prejudice to the defendant and the inclusion or exclusion of such evidence is a matter for the exercise of the sound discretion of the trial court. State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971). Here, we find no abuse of that discretion.
II.
Appellant next asserts, “It is offensive to the Confrontation Clause of the United States Constitution to present prior testimony of a declarant who is not present and available for cross-examination.” Such assertion relates to the use of the preliminary hearing testimony of James Beatty. Beatty was the person whom Mrs. Eberhart had, at the preliminary hearing, identified as her assailant. Thereafter, at the preliminary hearing, Beatty had been called as a witness by the defense. His testimony was exceedingly brief and indicated he was only in the courtroom as a bystander and, while he had been identified as the robber, he had not committed the robbery. At trial, both the defense and the prosecution had subpoenaed Beatty, however, he could not be located. At trial, defense counsel had stipulated that to avoid delay, the prosecution could call Beatty upon a reopening of the prosecution’s case. Following the closing of the defense case, the prosecution was still unable to locate Beatty and proposed that his preliminary hearing testimony be read. Over defense objection, that procedure was allowed.
Sharp argues that such procedure was offensive to the Confrontation Clause of the United States Constitution. We disagree. Such argument was disposed of by the recent case of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The instant case is similar to Roberts, in that Beatty was called as a defense witness and his testimony bears adequate “indicia of reliability” and he was unavailable as a witness in the constitutional sense since “the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, at 724-25, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968).
Even though Beatty was identified by Eberhart at the preliminary hearing as the robber and was questioned as to his participation, there was never any serious contention that he committed the crime. Defense counsel, in his closing argument, stated: “I don’t think Jim Beatty committed this crime. I mean, he might have, but I don’t think he did. It would be a long shot.” We believe the record clearly establishes that the sole purpose of reference to Beatty or his testimony was to impeach the testimony of Mrs. Eberhart. The defense’s cross-examination of Mrs. Eberhart reveals reference to her identification of Beatty as the-robber.
Although Sharp makes reference to State v. Villarreal, 94 Idaho 246, 486 P.2d 257 (1971), and State v. Potter, 6 Idaho 584, 57 P. 431 (1899), such cases are not controlling as to the confrontation clause of the United States Constitution in light of Ohio v. Roberts, supra. Further, as noted in those cases, Idaho’s Constitution does not contain a Confrontation Clause equivalent to that of the United States Constitution. Potter and Villarreal were decided on state grounds of policy rather than confrontation clause grounds. We believe the policies deemed to be served by Potter and Villarreal are not present in the instant case in view of the defense advancement of Beatty as a witness at the preliminary hearing. Further, we find no possibility of prejudice resulting to Sharp from the presentation of Beatty’s preliminary hearing testimony. Since the question of possible prejudice does not arise in a United States Constitution context, we need not apply the rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
III.
We turn now to appellant’s assertion that the prosecuting attorney’s remarks contained in his closing argument constituted error of such magnitude in their prejudicial effect as to be misconduct requiring a reversal of the conviction. We disagree.
[503]*503We initially note that defense counsel entered no objection to those remarks either during or on completion of the prosecutor’s closing argument. No request was made for a cautionary instruction regarding the proper focus as to the accused’s guilt or innocence as contrasted with the prosecutor’s personal integrity. Closing arguments were made on June 18, 1976, and the guilty verdict was returned that same day. The comments in question were not alleged to be prejudicial until a week later at the time of the motion for a new trial.
The general rule in Idaho is that in the absence of a timely objection to an alleged error at trial, an appellate court will not consider the alleged error on appeal. State v. Gishe, 87 Idaho 341, 393 P.2d 342 (1964); State v. Spencer, 74 Idaho 173, 258 P.2d 1147 (1953); State v. Boyatt, 59 Idaho 77, 87 P.2d 992 (1939). Spencer did hold that the failure to object to the closing arguments of a prosecuting attorney in a criminal case may not constitute a waiver of the objection. The Spencer exception to the general rule, however, contains limiting language. In Spencer, it was held that error will be preserved despite defendant’s failure to object “where the record shows that the prosecuting attorney has been guilty of misconduct calculated to inflame the minds of jurors and arouse prejudice or passion against the accused by statements in his argument of facts not proved by evidence . . . .” The rationale of Spencer was that a timely objection would not have cured the inherently prejudicial comments.
The prejudicial comments in Spencer included: (1) the repeated reference to a gruesome, unrelated crime which had been committed in the same county shortly before the shooting in question in which a young boy’s body was found with a slit throat; (2) the reference to the unrelated killing of five persons also in the same county on the night preceding the beginning of the Spencer trial; (3) the statement that the jurors would have to “run the gauntlet of your friends when you get to the street if you free the defendant”; (4) the misstatement of certain evidence clearly disclosed by the record; and (5) the lengthy discussion of the contents of the cabin and the motive of the shooting, all of which was based on previously excluded evidence. It was held that those references to the unrelated murders could only have been calculated to inflame the minds of the jurors and arouse prejudice against the defendant while the remaining statements encouraged the jury to convict the accused on the basis of factors which were either clearly outside of or inconsistent with the record.
In the case at bar, the closing argument comments by the prosecutor relate to defense accusations of a “frame-up” of Sharp by the police and the prosecution and the injection of the personal integrity of the prosecutor. The prosecutor did not state any personal belief in or knowledge of defendant’s guilt. The purpose of the remarks was apparently to emphasize the lack of credibility of any claim of “frame-up.” It was evidently in that context that the prosecutor spoke excessively regarding his own personal integrity. Nevertheless, we do not believe that his comments were so inherently prejudicial that a timely objection, accompanied by an instruction by the court to disregard the comments, would not have cured the defect.
Assuming arguendo that appellants’ failure to object to the comments made by the State during closing argument does not foreclose appellate review, we proceed to consider the propriety of the remarks of which appellant complains. Those remarks include:
“MR. [¶] WEN: [after defense closing argument] Ladies and gentleman, Mr. Matthews has accused me at various times of having interjected myself personally in this case. He is incensed about this. Well, he is incensed about Paul Phelps and what we did with the evidence. He is, I guess, also personally involved as far as his comments are how the officers have performed in this case.
“Let’s take a look at this. Let’s make no bones about it. I am incensed at the accusations that have been made by two [504]*504witnesses that have testified in this case that this is a frame. You have heard the testimony and perhaps Mr. Matthews doesn’t recall it, but I was the one that gave the authority for the arrest and it was subsequent to the obtaining of the initial statement that was given to Lance Anderson.
“I have handled the preliminary hearing and I have prepared this case. There is no way around that. It does incense me that people will come in here and accuse the Prosecution of a frame job.”
Every person accused of crime in Idaho has the right to a fair and impartial trial. The court recognizes the duty of a prosecutor to see that the accused receives a fair trial. State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973); State v. Spencer, supra. At the same time, we have consistently pointed out that counsel for both sides have traditionally been afforded considerable latitude in their arguments to the jury and have the right to discuss fully, from their respective standpoints, the evidence and the inferences arising therefrom. State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978); State v. Sistrunk, 98 Idaho 629, 570 P.2d 866 (1977); State v. Gilbert, 65 Idaho 210, 142 P.2d 584 (1943).
In Sistrunk, we recently addressed the question of the latitude afforded a prosecutor in his closing argument. There appellant had been convicted of acting as an accomplice to a burglary and larceny. The attorney for a second defendant had introduced in evidence the fact that the principal had pleaded guilty to the larceny charge and argued to the jury that it was unfair to pursue the burglary charge against the accomplices. Appellant’s attorney argued to the jury that the principal alone was guilty since he had pleaded guilty to the offense. In closing argument, the prosecutor stated:
“It’s a mere legal maneuver, mere tactical maneuver on the counsel’s part in hopes that perhaps of getting him off on a misdemeanor and he won’t be convicted of the felony ... I submit to you, ladies and gentlemen, it’s a mere sympathy pitch to avoid prosecution for which each one of these three defendants wishes to avoid, and that’s the possible penitentiary sentence on the felony.”
In Sistrunk, this Court held that the challenged remarks were not erroneous and we specifically noted that the issue was injected in the case by the defendants, thereby inviting responsive comment by the prosecuting attorney. Quoting State v. Jaramillo, 110 Ariz. 481, 520 P.2d 1105, at 1107 (1974), we stated:
“Remarks of a prosecuting attorney, even if improper, are not grounds for reversal if invited or occasioned by opposing counsel unless the prosecutor’s remarks go beyond a pertinent reply or are necessarily prejudicial.” 98 Idaho at 631, 570 P.2d at 1107.
The State argues that those remarks of the prosecutor complained of by the appellant were only responsive to the contentions of the defendant-appellant that he was the subject of a “frame job” and that such comments by the prosecutor were justified in the context in which they were made. The record indicates the contentions by the defense that the police were out to “get him” and that the prosecution was conducted not because of the evidence but in spite of it.
Evidently, the opening statements of counsel were not recorded and in any event are not part of the record here. The State argues that the content of the opening statement by defense counsel is revealed in a colloquy between the court and the attorneys outside the presence of the jury during the State’s direct examination of the defendant’s sister, Vonda Dudley. In response to the challenged relevancy of his question, the prosecutor stated:
“Secondarily, I also note that counsel indicated by the opening statement he intends to prove that these statements were coerced, and I intend to show the opposite, at least, in my case in chief .
“There is also another factor involved in this, Judge. I anticipate there is going to be accusations towards the officers as .Mr. Matthews’ opening statement, that [505]*505this is a set up deal. I intend to show by the nature of the officer’s actions what evidence came before them in this case, to show that this was not a set up deal by any of the officers or in any way connected. This was not just a ‘let’s go pick Charley Sharp up and we will fix a case up around him.’ ”
Upon the cross-examination of Officer Clough, defense counsel propounded a series of questions clearly designed to imply to the jury that Sharp had been targeted as the suspect and that the fingerprints obtained by the police were never submitted to the FBI for comparison with the fingerprints of any other persons, but rather the fingerprints were only compared with those of Sharp.
“Q I don’t want you to mention the name of the individual, but at the time you filled out this lab request, did you specifically ask the lab to compare the prints in question with the known prints of a particular person?
“A Yes, I did.
“Q And the F.B.I. keeps a master bank of the millions of fingerprints sent into them; is that right?
“A That is correct.
“Q And on numerous occasions when prints are found, they are sent to the F.B.I. to compare with these millions of prints to see if they can pick out whose prints they are if you don’t have a known suspect?
“A Are you asking me if I do that?
“Q Well, it is done in the normal course of your police business; isn’t it?
“A Not that often.
“Q Well, it is done?
“A I’d say it is done, yes.
“Q What I am after in this particular case is you filled out a lab report and sent the prints to the lab and said compare these prints with a certain individual; is that right?
“A Yes.”
Further cross-examination of Officer Clough by the defense counsel indicated:
“Q I don’t want you to go into the reasons why, because that would be hearsay but immediately you made Charles Sharp a suspect in this robbery, did you not, and that was why his photograph was included in the group that you showed the victim?
“A Not immediately during the robbery.
“Q You can answer that. The same day of the robbery? He was alleged to have been a suspect in the crime, wasn’t he?”
Cross-examination of Officer Anderson included the following regarding one Charles French, an informant who allegedly directed police suspicion to Charles Sharp:
“MR. [¶] WEN: I am going to object to that, Judge, as calling for hearsay. If it is offered for impeachment there is nothing to impeach the record at this time.
“MR. MATTHEWS: The only thing I am after, your Honor, is the motive that this particular officer in the manner in which he proceeded to take the statement he did.
“Q Were you aware that Charles Sharp, my client, also was involved in c. b. radio in the valley?
“A Yes.
“Q Were you aware that approximately two days before this particular armed robbery for which he was charged, that Charley Sharp put out on the c. b. radio in this valley the fact that Charley French was an informant and was turning in a lot of his friends for the use of marijuana?
“A No, I wasn’t aware of that.”
One Chris Crosby was Sharp’s girlfriend at the time of the robbery, but at trial she and Sharp had established a common law marriage and she was thus incompetent to testify. Defense counsel cross-examined Officer Anderson regarding a late night statement which had been taken by him from Chris Crosby at Anderson’s home in the presence of Charles French.
[506]*506“Q Apparently this was fairly well planned, the manner in which you taped this statement because earlier in the day you picked up the necessary rights forms and assembled it at your house for this session you were going to have; is that right?
“A It wasn’t planned at that particular time, no.”
Defense counsel’s cross-examination of Officer Anderson also included questions concerning threats he had allegedly made to Chris Crosby if she refused to give a statement. Additional cross-examination of Officer Clough contained the implication that the statement of Fred Boyce had been coerced.
“Q So, you had Fred Boyce here, who is the brother of Charley Sharp, stopped on the road and brought in after an A.T.L. for his vehicle. Told him you had prints and you had this folded up statement and you told him that he better give you the right kind of statement or he was going to be charged with accessory after the fact.
[Objection overruled.]
“A That is not correct.
“Q In addition to telling him that you had fingerprints and this folded up statement from someone, you told him you now had the coat that matched the description of the victim of the crime, and there was blood on it?
“A I didn’t mention anything about the blood at that time.”
Defense counsel’s cross-examination of Vonda Dudley raised the voluntariness of her statements given to Officer Phelps.
“Q Now, when Detective Phelps came to you and said ‘You better cooperate or else,’ and he told you these things that you just testified to, did he tell you anything about some evidence that they had to confirm that Charley Sharp committed this robbery?
[Objection overruled.]
“A He told me that Chris and Fred had already made statements and he handed me Fred’s to read, but he just showed me Chris’s, but he wouldn’t let me read it. And then he said that they had Butch cold anyway, because they said that he had a sandwich when he was in the store and they found fingerprints on the wrapper from the sandwich where he throwed it in the garbage.
“Q What I am really after is, was what was in that statement your own thoughts or did he tell you what to put in the statement ?
“A There is some of the things in the statement that are things that he said and I just wrote them down. I said them, but I didn’t say that Butch said this or that, that I put in the statement.
I said that I was told that or it had been said, you know, he just said to put Butch said, and then he told me write parenthesis or put these things around it, and I put Charles Sharp on it.”
Defense counsel’s cross-examination of Fred Boyce contained questions as to whether Boyce’s statement to the police had been coerced, whether he had been told that the police had Charley “cold” and whether the police had helped draft the statement.
Officer Phelps took possession of the gun retrieved from the Boise River and he testified that he had cleaned and oiled the gun because he thought the gravel and the current of the water had already destroyed any evidence of fingerprints or blood. Cross-examination of Officer Phelps by defense counsel contained the implication that Phelps had cleaned the gun for other reasons.
“Q You took a very personal interest in this case and Mr. Sharp; didn’t you, Officer Phelps?
“A He consumed a great deal of my time for a couple of weeks after the robbery, yes.
“Q In fact, you would do anything to see him convicted, wouldn’t you?
“A Just about anything is pretty broad.
“Q I know it is.
[507]*507“A I would give my full effort, yes.
“Q I am asking you if you would do anything to see him convicted?
“A Not anything, no.”
When, upon redirect, Phelps was asked if he had framed Sharp, defense counsel objected on the basis that the question of a frame-up was for the jury to make.
“MR. MATTHEWS: Your Honor, I will object to that. I think this is an ultimate decision for this jury to make and I think also he can testify what was done or hasn’t been done, but I don’t think he can take away part of the jury in this case.”
On recross-examination of Officer Phelps by the defense counsel, the following occurred:
“Q You say you have not framed Mr. Sharp and you have not falsified any evidence, but isn’t it a fact if there was any evidence of any inculpatory nature or might assist Charlie Sharp in this particular case contained on Exhibit 33 that you took from the river, that you destroyed whatever evidence that might have been of value that might have been on it?
“A I don’t understand the question.
“MR. MATTHEWS: No further questions, your Honor.”
The record does in fact support the argument of the State and reveals that defense counsel effectively placed before the jury its theory that the police officers involved were out to get Sharp, that their methods of obtaining statements of witnesses and gathering or not gathering probative evidence established their motives to “frame” Sharp. In fact, defense counsel specifically stated that the question of a “frame-up” was an ultimate decision for the jury to make. Hence, the prosecution was legitimately entitled to point out the absurdity of such an assertion and to emphasize the improbability that Sharp was the subject of such a “frame-up.” Nevertheless, we agree that the prosecutor placed entirely too much emphasis on his own integrity. Although such is a close question, we hold that his comments were not so prejudicial as to require a reversal of the conviction.
I.C.R. 52 provides: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
In cases prior to the adoption of I.C.R. 52, the following standard was adopted regarding whether prosecutorial misconduct in closing argument was reversible or harmless:
“Where the issue of guilt is debatable or it appears from the record that the jurors could have reasonably entertained doubt as to the defendant’s guilt and the prosecuting attorney’s misconduct might have influenced the result, a conviction will be reversed.” 74 Idaho at 184, 258 P.2d at 1154.
In the more recent case of Smoot, the appellant argued that the prosecution made improper comments in the closing argument which were calculated to inflame the passions and prejudices of the jury in that the prosecutor had injected some personal comment and made several references to an irrelevant fact, i. e., that the defendant had a wife who was eight months pregnant at the time of the rape. There we cautioned prosecutors to avoid references to personal opinion and irrelevant material, but found no prejudicial error because the record, in our opinion, revealed no reasonable possibility that the prosecutorial misconduct in the closing argument contributed to the guilty verdict.
As stated in Smoot, the purpose of a harmless error rule is to “block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the results of the trial.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 750 (1967). To hold an error as harmless, an appellate court must declare a belief, beyond a reasonable doubt, that there was no reasonable possibility that such evidence complained of contributed to the conviction. Id. at 24.
We hold that beyond a reasonable doubt there was no reasonable possibility that the prosecutorial comments complained [508]*508of here contributed to the conviction of Sharp. The State’s case, albeit circumstantial, was strong and the record makes it appear highly probable that Sharp did commit the crime, a conclusion which was obviously shared by the jury in view of their guilty verdict.
Although the prosecutor injected his personal integrity into his remarks, in substance he stated he was insulted that the defense had suggested a frame-up existed and that the accusation was absurd. He further explained to the jury the purpose of closing arguments and emphasized that what he was about to say was not evidence, but only what he personally believed the evidence suggested. He cautioned the jury that it was their recollection of the evidence that should control the decision rather than his own. He further reminded the jury that it was the State who must carry the burden of proof throughout the trial and then reviewed the testimony and the inferences he believed arose therefrom.
We hold that the statements of the prosecution contained in the closing argument relating to a frame-up to be non-erroneous. As to those comments in the closing argument of the prosecution relating to the personal integrity of the prosecutor, while we hold them to be erroneous, we further hold them to be non-prejudicial.
The conviction is affirmed.
DONALDSON, C. J., BAKES, J., and SCOGGIN, J. Pro Tern., concur.