584 P.2d 1231 (Idaho 1978), 12658, State v. Wrenn
| Judge | SHEPARD, C. J., and McFADDEN and BISTLINE, JJ., concur. |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. William WRENN and James Humphrey, Defendants-Appellants. |
| Date | 03 October 1978 |
| Docket Number | 12658. |
| Court | Idaho Supreme Court |
| Citation | 99 Idaho 506,584 P.2d 1231 |
Page 1231
Page 1232
James Humphrey and William Wrenn, defendants-appellants herein, were tried in district court before a jury and convicted of robbery. Humphrey was sentenced to an indeterminate term not to exceed eight years in the Idaho State Penitentiary, while Wrenn was sentenced to an indeterminate sentence not to exceed four years, and this appeal follows. We reverse.
[99 Idaho 508]
Page 1233
Richard Allen, the victim of the alleged robbery and the primary prosecution witness, testified at trial as follows: During the morning of March 2, 1977, he was walking through an alley in Pocatello when Wrenn and Humphrey gestured for him to come over to their car. A conversation ensued and he agreed to assist Wrenn and Humphrey in procuring transit aid from the Salvation Army. Prior to this meeting he and the appellants had never met. Allen testified he voluntarily entered the car and that he, Wrenn and Humphrey spent some time together driving around in the vehicle, buying gas, purchasing beer at a local supermarket, and going to the Salvation Army to procure transit aid for gasoline. After they purchased gasoline with the transit aid, Wrenn and Humphrey proceeded to drive him to a spot outside the city limits of Pocatello. Allen testified that Wrenn and Humphrey stated that they had guns and unless he gave them his money they would use the guns. He stated he never saw the weapons but turned over the money, between $75 and $100, out of fear of possible bodily harm.
The state produced other witnesses who indicated that they had seen Allen, Wrenn and Humphrey together on March 2, 1977. Officer McDaniel, one of the investigating officers, testified as to his initial interview of Allen and his investigation of the activities of Allen and the appellants on March 2, 1977. In the course of his testimony, Officer McDaniel stated that a license check with the National Crime Information Center of the auto in which Wrenn and Humphrey were traveling revealed the vehicle was stolen. Appellants' attorney moved for a mistrial on the ground that the testimony relative to the auto was irrelevant and highly prejudicial. The court denied the motion but ordered that the testimony of Officer McDaniel as to the auto be stricken and gave the jury a strong cautionary warning to disregard such testimony.
At trial Wrenn and Humphrey admitted to being with Allen on the date in question but denied that they had robbed him. Both testified that Allen voluntarily gave them $13 to help them out. Wrenn and Humphrey both stated that they were in transit to a possible job in Florida and had only just arrived in Pocatello on March 2, 1977. When Wrenn and Humphrey were apprehended some thirteen hours later in Billings, Montana, no weapons were found and the appellants had only $3 in their possession.
I
On appeal Wrenn and Humphrey contend they were prejudiced by the trial court giving a jury instruction as to "flight" which was not justified by the evidence. The following instruction was given:
YOU ARE INSTRUCTED, the flight of a person immediately after the commission of a crime, if any, and if you find such flight to be a fact, is not sufficient in itself to establish guilt, but is merely a fact which if proven, may be considered by you in the light of all other proven facts in deciding the question of guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.
The issue of the propriety of a "flight" instruction is one of first impression in Idaho. We are of the opinion that because of the debatable significance of flight as evidence of guilt, an instruction on flight should not ordinarily be given. It should be left to argument to the jury by the parties, unless the trial judge because of the peculiar facts in the particular case feels it is essential to the jury's deliberations. People v. Larson, 572 P.2d 815 (Colo.1978); Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960); People v. Baker, 26 N.Y.2d 169, 309 N.Y.S.2d 174, 257 N.E.2d 630 (1970); State v. McCormick, 280 Or. 417, 571 P.2d 499 (1977). 1
[99 Idaho 509]
Page 1234
We concur in the statement of the Colorado Supreme Court in Robinson v. People, 114 Colo. 381, 165 P.2d 763, 765 (1946) where they stated that an instruction on "flight":
. . . is rarely advisable and should never be given unless the peculiar facts of the case appear to make it essential. It generally impinges upon the rule that particular portions of the evidence should not be singled out and emphasized by special instructions. Again, most of the authorities which assume to enumerate the essentials of this element are based upon the peculiar facts of a given case and may not be taken as generally applicable to all.
The problems associated with a flight instruction are clearly presented in the case at bar. The trial court stated the evidence elicited at trial that was indicative of flight and supported such an instruction was the alleged hasty departure of the defendants from the actual scene of the crime and not the fact Wrenn and Humphrey departed from Pocatello and were found in Billings, Montana. However, the instruction that was given to the jury does not point to this distinction. It is entirely possible that under the instruction given the jury could have characterized Wrenn and Humphrey's departure from Pocatello to Billings, Montana as flight and therefore indicative of guilt.
The departure of Wrenn and Humphrey from Pocatello and their subsequent apprehension some thirteen hours later in Billings, Montana is not indicative of flight, but rather is consistent...
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