State v. Drapeau

• Decision Date: 25 June 1976
• Docket Number: No. 11818,11818
• Citation: 551 P.2d 972,97 Idaho 685
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Eddie Lee DRAPEAU, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 972

551 P.2d 972

97 Idaho 685

STATE of Idaho, Plaintiff-Respondent, v. Eddie Lee DRAPEAU, Defendant-Appellant.

No. 11818.

Supreme Court of Idaho.

June 25, 1976.

C. J. Hamilton, Coeur d'Alene, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., James F. Kile, Asst. Atty. Gen., Boise, for plaintiff-respondent.

SCOGGIN, District Judge, Retired.

Defendant-appellant Eddie Lee Drapeau (hereinafter appellant) was charged by information with the commission of the following four felony counts:

COUNT 1, second degree kidnapping (I.C. § 18-4501);

COUNT 2, assault with the intent to commit the infamous crime against nature (I.C. § 18-907);

COUNT 3, attempt to commit the infamous crime against nature (I.C. § 18-6605); and,

COUNT 4, assault with intent to commit murder. (I.C. § 18-4015).

The charges grew out of an incident alleged to have occurred in the early morning hours on January 24, 1974, at Lake Gulch, in Shoshone County, Idaho. A jury found appellant guilty of all the above charges, after which a judgment of conviction was entered. The district judge sentenced appellant to an indeterminate period of not to exceed 25 years on the first count of the information; for an indeterminate period of not to exceed 14 years on the second count; for an indeterminate period of not to exceed 2-1/2 years on the third count; and for an indeterminate period of not to exceed 2 1/2 years on the fourth count. The sentences were ordered to be served consecutively.

At the time of sentencing, the district court considered and subsequently denied appellant's first motion for a new trial. The motion was filed on the grounds that error was committed in admitting into evidence, over objection, state exhibit 18. State exhibit 18 consisted of a written statement, bearing appellant's signature, which contradicted his alibi at trial that he was not in the area at the time and date the offenses occurred. The statement was made by appellant while he was incarcerated at the Shoshone County jail awaiting trial, to two of his cellmates, one of whom, John Bishop, reduced it to writing. The admissibility of the statement was first considered at a suppression hearing held prior to the commencement of the trial. Appellant's motion to suppress the statement was denied. The contents of the statement were introduced into evidence at trial for purpose of impeachment by the state while appellant was on the witness stand under cross-examination. ¹

Subsequent to the time a notice of appeal was filed with this tribunal, appellant filed with the district court a second motion for a new trial. This time appellant submitted that new evidence had been discovered which could not with reasonable diligence have been discovered and produced at trial. The 'new' evidence consisted of two affidavits written by one of the cellmates, John Bishop, alleging that appellant was tricked and threatened into signing a statement he had not read which constituted state exhibit 18. The second motion for a new trial was denied.

Appellant brings this appeal from the judgment of conviction which was entered, and from the denial of his motions for a new trial. We affirm the judgment of conviction, but modify the sentences that were imposed so that appellant's incarceration on count three runs concurrently with count two and not consecutively. The rest of the sentence as imposed by the district judge is affirmed.

In his first assignment of error, appellant contends that the trial court wrongfully admitted state's exhibit 18 into evidence. He maintains that after he denied on the witness stand that the written statement was true and correct, the burden shifted to the state to call one or both of the two parties who helped write the statement to testify as to its accuracy. Appellant submits that this failure to call one or both of the two cellmates prevented him from exercising his right of cross-examination. We find no merit to this argument.

A defendant in a criminal proceeding who voluntarily testifies in his own behalf puts his credibility in issue. Thus,

'(W)hen an accused takes the stand to testify in his own behalf, he is subject to impeachment the same as any other witness.' State v. Dunn, 91 Idaho 870, 875, 434 P.2d 88, 93 (1967). See also State v. Starry, 96 Idaho 148, 525 P.2d 343 (1974); State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971); State v. Storms, 84 Idaho 372, 372 P.2d 748 (1962).

One recognized method of impeachment is by showing that on a prior occasion, the witness made a statement inconsistent with testimony he gave at trial. State v. Bush, 50 Idaho 166, 176, 295 P. 432, 435 (1930); I.R.C.P. 43(b)(8); McCormick on Evidence, § 33, and § 34 at 66-69 (2nd ed. 1972). In this state where a prior inconsistent statement of a witness is introduced at trial as impeaching evidence, it is admitted solely for the purpose of attacking the credibility of the witness, and not as substantive evidence of its truth. ² State v. Boyatt, 59 Idaho 771, 87 P.2d 992 (1939).

In order to impeach a witness by showing a prior inconsistent statement, a proper foundation must be laid. State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945); Paurley v. Harris, 77 Idaho 336, 292 P.2d 765 (1956); Gayhart v. Schwabe, 80 Idaho 354, 330 P.2d 327 (1958). The reasons for requiring a foundation are three-fold:

1. to avoid unfair surprise to the witness;

2. to save time, as an admission by the witness may make extrinsic proof unnecessary; and,

3. to give the witness in fairness to him, a chance to explain the discrepancy.

McCormick on Evidence, supra, § 37 at 72; Gayhart v. Schwabe, supra.

This foundation requirement applies not only to the ordinary witness but to a defendant in a criminal proceeding who chooses to testify as well.

At the time of appellant's trial, a foundation for impeaching a witness through the use of prior inconsistent statements was laid by following the procedure as set forth in I.C. § 9-1210 which provided:

'Impeachment by showing inconsistent statements.-A witness may also be impeached by evidence, that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statements must be related to him, with the circumstances of times, places and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them.' ³

A careful review of the record convinces us that a proper foundation for the admission of state exhibit 18 was established.

Appellant's testimony at trial consisted of an alibi placing him out of the area where the offense occurred at the time and date of the incident. He testified that he visited his sister in Gem, Idaho, until 2:00 p. m. on the afternoon of January 23, 1974, them drove to Coeur d'Alene, Idaho arriving at his grandfather's house at 5:00 p. m. in the evening. He next testified that from his grandfather's house he proceeded to his cousin's place also in Coeur d'Alene arriving there at approximately 6:30 p. m. He further testified that he left his cousin's place at 10:30 p. m., and drove to his aunt's home in Rathdrum, Idaho, arriving there at 11:00 p. m. Appellant went on to relate that he remained in Rathdrum until 3:00 a. m. in the morning of January 24th. After 3:00 a. m., appellant's itineration returned him to his grandfather's place in Coeur d'Alene, where he claimed to have spent the rest of the night. Appellant related that his travels kept him away from Shoshone County until January 27, 1974. His testimony on direct examination concluded with the following remarks:

'Q. You were not then in Shoshone County at any time on January 24th from at least midnight until or did you come back to Shoshone County at any time on the 24th?

A. No.

Q. Then if she (prosecutrix) said she saw you here, she is mistaken, isn't that correct?

A. Yes.'

In an effort to impeach appellant's testimony as a witness, and thus discredit his alibi, the state on cross-examination attempted to introduce into evidence a written document consisting of several pieces of paper filled with handwriting and signed by appellant. Appellant was shown this document, and asked to inspect it before he was subjected to any questions concerning it. He was then questioned as to the circumstances under which the document was prepared. He related that the document was prepared in the early morning hours on or about April 10, 1974, in the presence of his two cellmates, John Bishop and Mike Cooper, in the Shoshone County jail. There was no testimony offered that the statements contained within the document were involuntarily coerced. Appellant was next asked who wrote the document. He responded that it was written in part by John Bishop and in part by himself. Appellant identified the part of the document written by John Bishop, and the part of the document bearing his writing. He admitted that he wrote in his own handwriting at the bottom of page 11 the following:

'I swear that I have read all 11 pages of this report. I told John (Bishop) and Mike Cooper what too (sic) write word for word because I am not so good at wirting (sic) and spelling. I wanted to trust Mike and John because I need hellp (sic) . . ..' (Signed) Eddy L. Drapeau.

However, despite his acknowledgement of the authenticity of this attestation, appellant testified that he did not in fact read the entire document before signing it, and that all matters contained in the statement were not true and correct. State exhibit 18 was admitted into evidence over appellant's objection.

There was no error committed in admitting this exhibit into evidence for the purpose of impeaching appellant's testimony at trial. A proper foundation was established prior to the time the exhibit was offered into evidence. Appellant was given a full opportunity to explain any inconsistency in the written statement with his...