State v. Sharp

Citation101 Idaho 498,616 P.2d 1034
Decision Date03 September 1980
Docket NumberNo. 12376,12376
PartiesThe STATE of Idaho, Plaintiff-Respondent, v. Charles SHARP, Defendant-Appellant.
CourtUnited States State Supreme Court of Idaho
Klaus Wiebe, Ada County Public Defender, and John C. Lynn, Boise, for defendant-appellant

David H. Leroy, Atty. Gen., Arthur J. Berry, Deputy Atty. Gen., and Ronald D. Howen, Sp. Asst. Atty. Gen., Boise, for plaintiff-respondent.

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, i. 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 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 time of the robbery and at the date of the robbery, he would have more clearly fit the description given by Mrs. Eberhart.

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 exercise 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:

"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...

To continue reading

Request your trial
76 cases
  • State v. Dunlap
    • United States
    • Idaho Supreme Court
    • August 27, 2013
  • State v. Dunlap
    • United States
    • Idaho Supreme Court
    • August 27, 2013
  • State v. Flint
    • United States
    • Idaho Supreme Court
    • June 30, 1988
    ... ... See State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980); State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971); State v. Watson, 99 Idaho 694, 587 P.2d 835 (1978); State v. Ellis, 99 Idaho 606, 586 P.2d 1050 (1978) ... III. THE "DYNAMITE" INSTRUCTION ...         Defendant's next argument concerns the ... ...
  • Robertson v. Richards, 16043
    • United States
    • Idaho Supreme Court
    • October 27, 1987
    ... ... Tr. II, 489:12-18. After the lengthy recess, the court stated: ... I am going to give you an instruction at this time, and I'll state it to you, ladies and gentlemen of the jury, a question has been asked this doctor why he had been sued by the plaintiffs. The Court must be ... State v. Abel, 104 Idaho 865, 870, 664 P.2d 772, 777 (1983); State v. Sharp, 101 Idaho 498, 501, 616 P.2d 1034 (1980); Idaho Rule of Evidence 403 ...         Prior to allowing the testimony to show bias or ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT