State v. Holm, 10553

CourtUnited States State Supreme Court of Idaho
Citation478 P.2d 284,93 Idaho 904
Docket NumberNo. 10553,10553
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Carl Wendell HOLM, Florence Joan Brant, aka Florence Joan Ashpole, and Florence Virginia Walker, Defendants-Appellants.
Decision Date16 December 1970

Petersen, Moss & Olsen, Idaho Falls, for appellant Holm.

St. Clair, St. Clair, Hiller & Benjamin, Idaho Falls, and Phillip Hansen, Salt Lake City, Utah, for appellants Brant and Walker.

Robert M. Robson, Atty. Gen., James R. Hargis, Asst. Atty. Gen., Boise, and Seward H. French, Pros. Atty., Idaho Falls, for respondent.

DONALDSON, Justice.

This is an appeal taken by three defendants, Carl Wendell Holm, Florence Joan Brant (also known as Florence Joan Ashpole) and Florence Virginia Walker, who were found guilty of robbery 1 subsequent to a jury trial held in July, 1969. Holm was sentenced to the Idaho State Penitentiary for a period of not more than ten years and each of the women received a sentence of not more than five years. The defendants-appellants, Holm, Brant, and Walker, appealed to this Court from their judgments of conviction on the grounds that certain remarks made by the prosecuting attorney were prejudicial to their case, several of the instructions given by the trial court were incorrect, and that certain witnesses were unlawfully impeached. This Court has decided to grant the appellants (defendant) a new trial because of the totality of errors revealed by the record in this case.

The pertinent facts are as follows.

On the afternoon of January 29, 1969, James Mason, the purported victim of the alleged robbery, underwent oral surgery. Upon leaving the dentist's office, he had several drinks at various bars in the city of Idaho Falls. At one of these establishments, the Samoa Club, Mason met the two female defendants-appellants, Brant and Walker, who were both known to him. While at the Samoa Club, Mason discussed 'gambling' with Carl Wendell Holm (the third defendant-appellant). 2 Mason had a reputation for carrying large bills and Mason testified that Joan Brant asked him to show her companion, Florence Walker, a $500 bill which he did. The two women deny this occurred and claim no knowledge of the $500 bill. The trio (Mason, accompained by the two women) left the Samoa Club and drove to the Stockmen's Bar in Mason's car. They arrived at about 9:30 P.M. (and remained there until 11:30 or 11:45 P.M.). Upon entering the Stockmen's Bar, the trio went into the back room where there were people gambling. Holm (defendant-appellant) was present in the Stockmen's Bar 'back room' when Mason (the purported victim) arrived with Joan Brant and Florence Walker. Joan Brant began to gamble and lost $20. Mason cashed a $50 check with the bartender at the Stockmen's Bar and then gave $20 to Joan Brant to cover her losses. While giving the bartender the check, Mason stated that he told the bartender that he had $500 but the bartender testified that Mason never showed it to him nor to any one else at the Stockmen's Bar that evening.

While Mason was in the back room of the Stockmen's Bar one Farrin Martin, a business acquaintance of Mason, asked Mason to accompany him to the main part of the bar and have a drink with him. After consuming several drinks with Martin, Mason and the two women left the Stockmen's Bar and proceeded to the Flamingo Bar.

Holm also left the Stockmen's Bar and, after a stop at Ann's Bar, went to the Flamingo. Holm was present at the Flamingo when the trio (Mason, accompanied by the two women) arrived. While at the Flamingo, Mason became ill, went to the restroom, and vomited. Florence Walker accompanied Mason to the men's restroom since he ws sick. Carl Holm and Joan Brant were both at the bar during this period of time. Carl Holm, informed by Joan Brant of Mason's difficulty, brought a cold glass of water to him in the restroom. room. The trio (Mason, accompanied by the two women) left the Flamingo Bar. Carl Holm left the Flamingo Bar shortly thereafter.

Although a perusal of the record indicates conflicting testimony throughout the trial, at this point (departure of Mason, the two women, and Holm from the Flamingo Bar) the relevant testimony of each party will be revealed since the several stories are strikingly incompatible. Mason, the purported victim, maintained that he and the two women drove downtown in his automobile to the Skyway Bar. Upon the trio's arrival at the Skyway and while the three were still in Mason's automobile, Mason claimed that Holm suddenly appeared and ripped Mason's wallet from his pocket assisted by Brant. Holm and the two women then disappeared from the scene. The defendant-appellant, Carl Holm, relates a very different set of facts, viz., that he left the Flamingo Bar and was picked up in an automobile and driven to a friend's home where he remained until 2:00 A.M. that morning. Holm's alibi is corroborated by three witnesses. During the trial remarks were made by the prosecuting attorney regarding the past conduct and occupations of the two female defendants-appellant. Reference was also made to the fact that one of the witnesses corroborating Holm's alibi visited in the home of a former convicted felon.

As heretofore stated, Holm, Brant and Walker were convicted of robbery subsequent to a jury trial and they have appealed to the Supreme Court from the adverse judgment and also form the order of the district cort denying their motion for a new trial. Numerous errors are urged in support of this appeal.

The three appellants claim that during the trial many prejudicial remarks were made by the prosecution, several instructions given by the trial court were erroneous, and that certain witnesses were unlawfully impeached by the prosecutor.

Allegedly Prejudicial Remarks Made by the Prosecution

The remarks complained of 3 indicate that the prosecutor expressed his personal beliefs to the jury with respect to the guilt of the appellants-defendants. Appellants maintain that such intimation by the prosecutor was prejudicial error especially since the evidence was conflicting. 4 While this Court does not deem these remarks made by the prosecutor inherently prejudicial, nonetheless when they are considered in conjunction with the many other prejudicial comments made by the prosecutor and the numerous errors occurring throughout the course of trial, they are factors which have been considered in arriving at the Court's determination to reverse and grant the appellants a new trial. See State v. Rodriguez, 93 Idaho 286, 460 P.2d 711 (1969).

Appellants maintain that the purity of the jury's verdict was affected by statements and testimony elicited by the prosecuting attorney while examining Brant and Walker. Specifically objected to are some 44 references to the fact that the two were former prostitutes. It is the appellants' position that this information was completely irrelevant to the issue presented for the jury's consideration and thus served only to prejudice it and unfairly and unlawfully influence it. Where defendants are on trial for the felony of robbery, undue emphasis placed on the past occupations of two of the defendants may have adversely influenced the jury. Representative of the remarks which the Court deems objectionable are the following which have been excerpted from the cross examination of the defendant Brant.

'Q. Okay, New here's an ex-prostitute with a man who's sick and drunk, and if she knows he carries lost of money-just what did you do, Miss Ashpole?

A. Mr. French, I'm a prostitute, but I'm not a thief.'

'Q. Now in your professional opinion as aformer prostitute would you consider this man an easy mark or not?

A. No, I wouldn't.'

'Q. Do you know that Mr. Martin's on the School Board of District Ninety-one?

a. I don't know Mr. Martin. I don't know him. I met him last night.

Q. Would he have any reason to put his hands on a common prostitute?

A. He didn't know me.

MR. BENJAMIN: Objection.

A. He didn't know me. He didn't know me from Adam, because I didn't know him either.

Q. (By Mr. French) What I'm asking-the question I asked you is, would Mr. Martin, a member of the School Board, have occasion or ever want to put his hands on a common--

MR. BENJAMIN: Your Honor, I'll have to object to this--.'

The Court does not think that this alone nor any one of the other numerous points standing alone raised by the appellants in this case is sufficient to require reversal. However the cumulative effect of all of these errors requires the granting of a new trial. State v. Rodriguez, supra. This is especially so where the prosecution's case is based principally on circumstantial evidence. The only direct evidence in the case was the testimony of the complaining witness Mason. A reading of the record in the instant case does not indicate isolated prejudicial comments made unwittingly by the prosecution but rather repeated conduct which, in this Court's opinion, requires not only rebuke, but reversal.

Errors Relating to the Instructions

Appellants (defendants) maintain that it was error for the trial court to have given Instruction No. 7 5 since it denied them constitutional due process, equal protection of the laws, and deprived them of a fair jury trial since the instruction as given, failed to define 'reasonable doubt.' Although the Court, in view of its decision to reverse, deems it unnecessary to discuss the constitutional objections raised by the appellants, it is our opinion that a short discussion of whether or not the term 'reasonable doubt' requires definition is appropriate. Idaho has had no requirement that the term 'reasonable doubt' be defined when used in criminal instructions. Certain authorities 6 have stated that the term is self-explanatory but that proposition is unsound, the instant caus being but one example of many where the expression 'reasonable doubt' has been the subject of controversy. It is ur opinion that when such term is used in an instruction, where the jurors...

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