State v. Shepherd, 10187

• Decision Date: 10 June 1971
• Docket Number: No. 10187,10187
• Citation: 486 P.2d 82,94 Idaho 227
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Douglas SHEPHERD, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 82

486 P.2d 82

94 Idaho 227

The STATE of Idaho, Plaintiff-Respondent, v. Douglas SHEPHERD, Defendant-Appellant.

No. 10187.

Supreme Court of Idaho.

June 10, 1971.

John Hjellum, II, Boise, for defendant-appellant.

Robert M. Robson, Atty. Gen., and Stewart A. Morris, Asst. Atty. Gen., Boise, for plaintiff-respondent.

SPEAR, Justice.

Appellant was indicted by a grand jury on August 11, 1967, for the crime of committing a lewd and lascivious act with a minor child under the age of 16, in violation of I.C. § 18-6607. The offensive acts allegedly occurred on or about June 19, 1966, with appellant's 12-year old stepdaughter. After the trial, on December 18, and 19, 1967, at which the stepdaughter, Bonita Kinney, and her brother, Vernon Kinney, appeared as witnesses against appellant, the jury returned a verdict of guilty.

Appellant moved to arrest the judgment, to acquit notwithstanding the verdict and for a new trial, all of which motions were denied by the district court. Thereafter the district judge rendered a judgment of conviction and sentenced appellant to imprisonment in the state prison of the State of Idaho for an indeterminate term with a maximum of ten years. From these rulings on his motions and from the judgment and sentence, appellant has appealed.

Although appellant asserts 26 separate assignments of error, none of them have any merit with the exception of his appeal from the district court's denial of his motion for a new trial. The error committed by the trial court which demands the granting of a new trial was induced by the trial judge's reliance on State v. Owen, 73 Idaho 394, 253 P.2d 203, which is overruled insofar as the holding thereof is in conflict with the opinion expressed herein.

At the trial of this cause, after the state had completed its case in chief and the appellant's motion for dismissal had been denied, the appellant took the stand and testified in his own behalf. The cross-examination by the attorney for the state began as follows:

'Q Mr. Shepherd, you have been convicted of this same crime before, haven't you?

'MR. HJELLUM: I object to this.

'THE COURT: Sustained. I will sustain the form of the question.

'Q Have you been convicted of a felony before?

'A Yes.

'Q What was that?

'MR. HJELLUM: I object to this as irrelevant, immaterial and move that the Court instruct the jury to disregard this line of questioning and disregard this as prejudicial to this defendant and ask for a cautionary instruction to be given and also cite to you-I believe there is one case. I thought there was another case-well, that is my objection.

'THE COURT: I am going to overrule the objection because of the matter that was raised in the case of State versus Owen, 73 Idaho 394 (253 P.2d 203). This type of questioning is allowable for certain purposes and I will take under advisement your Motion for a Cautionary Instruction. The objection is overruled.

'Q What was that felony?

'A That same as this.

'Q Lewd and lascivious conduct?

'A Yes.'

It is our opinion that the last two questions and answers deprived the appellant of a fair trial because of the bias and prejudice necessarily built up against him by the disclosure of a former conviction of the same offense with which he was charged at the time of trial.

To permit the introduction of such evidence under the guise of 'impeachment' is even more serious when one realizes that the prior offense had been committed more than five years before the trial in the present case. Additionally, the state had already attempted to present evidence of that prior offense through the victim and prosecutrix (the older sister of Bonita and Vernon Kinney) and objection to the same was sustained by the trial judge. This evidence was excluded on the basis the offer of proof indicated a considerable remoteness of time (more than 5 years) and the fact that the prior offense involved a person different from the prosecutrix making it irrelevant and immaterial either for purposes of corroboration or showing a course of conduct or a pattern of offenses on the part of the accused. In so ruling the trial judge was entirely correct. Yet under the ruling of Owen, the same judge later felt compelled to permit the inquiry which resulted in divulging the very information and evidence which he had earlier ruled inadmissible.

This clearly points out why the rule in Owen must be changed. I previously called attention to this deficiency in our procedure in a specially concurring opinion in State v. Dunn, 91 Idaho 870 at 878, 434 P.2d 88 (1967), and concluded that while the majority opinion unquestionably stated the majority rule in the United States, I deemed it erroneous. The present cause is an excellent example why that rule is erroneous.

Our statutes cited in Dunn, i. e., I.C. § 9-1209 ¹, § 9-1302 ² and § 19-2110 ³, do not require disclosure of either the number or the nature of the felony or felonies of which an accused has been previously convicted, to be used for impeachment purposes when he has taken the stand in his own defense. In spite of any instruction which a jury may be given, specifically limiting the consideration which the jury may or should give to evidence concerning an accused's prior criminal record, a defendant would be prejudiced in the jury's eyes for having committed those past crimes; and he well may be found guilty on the basis of this past record rather than on the evidence presented during the particular trial. Additionally, unless the scope of the inquiry into his past record is limited, a defendant may decide not to exercise his right to take the witness stand in his own defense because of his fear of resulting prejudice when the jury learns of the details of his prior criminal record.

This is particularly true when one or more of the prior offenses is for the same or substantially the same conduct for which the accused is on trial. As is pointed out by Justice Burger (now Chief Justice of the United States), when a member of the Circuit Court of Appeals of the District of Columbia, in Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), this raises a special and very difficult problem, for '* * * strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time'.'

In the cause at hand, the corroborative evidence of the alleged misconduct, which incidentally was not disclosed to anyone for over a year and a half, and then by her brother, not the alleged victim, was extremely thin; and it is not out of the realm of possibility, if not even probability, that the disclosure of the prior conviction for the same offense could well have been the deciding factor in the jury's verdict of guilty in the trial below.

Therefore, it is time to overrule the Owen case insofar as it permits such disclosure. As I stated in Dunn, we agree with the dissenting opinion of Justice Keeton in Owen and the majority opinion in State v. Coloff, 125 Mont. 31, 231 P.2d 343 (1951) and particularly the specially concurring opinion of Chief Justice Adair, beginning at page 346. Under this rule,...