State v. Estes

• Citation: 725 P.2d 128,111 Idaho 423
• Decision Date: 31 July 1986
• Docket Number: No. 14647,14647
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Kenneth ESTES, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 128

725 P.2d 128

111 Idaho 423

STATE of Idaho, Plaintiff-Respondent, v. Kenneth ESTES, Defendant-Appellant.

No. 14647.

Supreme Court of Idaho.

July 31, 1986.

Rehearing Denied Sept. 19, 1986.

John C. Hover, McCall, for appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., D. Marc Haws, Deputy Atty. Gen., Boise, for respondent.

BAKES, Justice.

Kenneth Estes appeals from his 1983 conviction for the rape of a Valley County woman. Because we find no merit in Estes' many allegations of error, we uphold the judgment of conviction.

An understanding of the full factual background of this case is necessary in order to fully evaluate the claimed error in this case. In the early morning hours of May 18, 1979, at approximately 2:00 a.m., Julie Ann Somerton, an 18 year old who was working in Cascade, Idaho, and staying at the Cascade Hotel, was raped. Immediately after the rape, Ms. Somerton told the bartender that Estes was her assailant. Ms. Somerton was readily able to identify Estes because the evening before Estes had offered to buy her a drink at the bar, which she had declined.

Later that same night Estes was arrested while he slept in his car on a road outside of McCall, Idaho. He was charged with assault with the intent to commit rape, and rape. Charles Nicholas was appointed to defend him. Prior to trial, Estes was released on $35,000 bond. After Estes expressly waived his right to a speedy trial, trial was set for November 29, 1979.

At trial, Julie Somerton testified as a witness for the state. She testified that Estes had entered her room and forcibly raped her four times. She also testified that Estes had accomplished this by holding a knife to her throat and threatening to kill her. She further testified that after Estes left she screamed for help.

Many parts of Julie Somerton's story were corroborated by testimony from Mr. Kirtland Kitchen, the bartender at the Cascade Hotel. Kitchen testified that, during the evening prior to the rape, Estes had offered to buy Julie a glass of wine. Kitchen also testified that Estes later inquired as to Julie's room number, and had purchased a bottle of Julie's favorite wine. He stated that after hearing Julie's screams he heard someone running down the stairs and an automobile leaving. He stated that he later noticed that Estes' car, which had previously been parked in front of the hotel, was gone. Kitchen also testified that at approximately 1:00 a.m. Estes had rented a room for the night and had been given a room four or five doors from Julie's apartment.

Estes, testifying on his own behalf, completely denied any involvement with the victim. While admitting that he had considered going to Julie's room, he stated that he had thought better of it and ultimately decided to leave the hotel. He testified that although he had just paid for a room, at 2:00 a.m. he decided to drive the 30 miles to McCall because he wanted to submit an application for employment at the Shore Lodge. Estes claimed that he had merely decided not to use the room. In his testimony, Estes admitted that at the time he was apprehended, while sleeping in his car outside McCall, he was in possession of a pocket knife like the one used in the rape of Julie Somerton. He also admitted that at the time of his arrest he had only $9.91 in his possession.

At his first trial, Estes called two witnesses on his behalf. The first witness, a friend of Estes, admitted on cross examination that he could recall none of the events of the evening of May 17, 1979, or the early morning hours of May 18, 1979. The second witness testified that Estes was not the man that the witness had seen outside Julie Somerton's room the night of the rape. However, on cross examination, the witness admitted that the light had been poor, that he had been drinking and was groggy, and that he had not been wearing his glasses. The testimony which this witness presented at trial differed substantially from the information the witness had given to the police the night of the rape.

After a three-day trial, the jury returned a verdict finding Estes guilty of rape. Estes remained free on bond pending sentencing. On January 7, 1980, District Judge Walters sentenced Estes to a ten year indeterminate sentence in the Idaho Penitentiary.

After the sentencing hearing, James Schoenhut was appointed to represent Estes on appeal. An appeal was filed and ten days later, on January 17, 1980, Estes was again released on bond pending his appeal. Subsequently it was determined that only part of the transcript could be located. The portion of the transcript containing the testimony of seven of the state's witnesses could not be located. ¹ Accordingly, this Court vacated the district court's judgment and remanded the cause for a new trial. Meanwhile, Estes remained free on bond.

A new trial was set for January 31, 1983. At this trial Estes was represented by Schoenhut, his counsel in the earlier appeal. The record contains an affidavit from Schoenhut stating that the partial transcript of the first trial was available to Schoenhut and that Schoenhut extensively studied that transcript. That transcript included the testimony of the victim, Julie Somerton.

At the second trial, Julie Somerton again testified for the state, with Kitchen corroborating her story. The state similarly re-introduced expert testimony seeking to link Estes to the rape. Estes also testified on his own behalf again. However, the two witnesses who had formerly testified for Estes did not testify at this second trial.

On February 2, 1983, a jury again returned a verdict of guilty as to the crime of rape. It was at this time that Estes was actually taken into custody. Then, on March 4, 1983, Estes was resentenced, receiving a seven year indeterminate sentence.

On March 16, 1983, Schoenhut filed a notice of appeal on Estes' behalf. On June 10, 1983, Estes filed a pro se motion for post conviction relief alleging, inter alia, inadequacy of counsel. Subsequently, John Hover, Estes' present counsel, was appointed. Hover has represented Estes both on the second appeal and in the post-conviction proceeding.

On July 9, 1984, the district court denied Estes' motion for post conviction relief on several grounds but left open, pending an evidentiary hearing, the question of whether Estes had effective assistance of counsel. On November 14, 1984, Estes filed a motion for a new trial pursuant to Idaho Criminal Rule 34. After an evidentiary hearing, the district court, on February 20, 1985, denied Estes' motion for a new trial as well as Estes' motion for post conviction relief. In this opinion, we consider only the issues raised in Estes' direct appeal from his conviction. The appeals from the district court's denial of Estes' petition for post conviction relief and denial of his motion for new trial are considered in Estes v. State, 111 Idaho 430, 725 P.2d 135 (1986).

I

Estes alleges that he was somehow prejudiced by the partial loss of the transcript from his first trial in 1979. Since the record clearly reflects that Estes was awarded a new trial because the transcript was missing, we fail to see how the loss of the transcript possibly prejudiced his case. In fact, it is difficult to view the loss of the transcript as anything but a windfall for Estes. Not only did the lost transcript result in a retrial for Estes, providing him with a second opportunity to vindicate himself, but the sentence imposed upon Estes after the second conviction was three years shorter than the sentence imposed after the first trial. Moreover, Estes remained free on bail until the jury in the second trial returned a guilty verdict. Accordingly, we reject this argument as being completely frivolous.

II

Nor do we find merit in Estes' allegation that insufficient evidence was presented to corroborate Julie Somerton's testimony that Estes was her assailant. In support of his position, Estes relies upon State v. Byers, 102 Idaho 159, 627 P.2d 788 (1981). ² In Byers, this Court reversed the defendant's conviction for rape because of significant discrepancies between the victim's uncorroborated description of her assailant and the defendant's physical characteristics. Specifically, the victim's description of her assailant in Byers as being 5' 6"'', 175-180 lbs, heavyset with a pot belly and with black collar-length hair, conflicted with Byers' actual physical description. In fact, the evidence indicated that Byers was 5' 9"", weighed 185-190 pounds, without a pot belly, and always wore his hair short. Such an obvious discrepancy between the victim's description and the defendant's physical characteristics is not present in this case.

Moreover, it is clear that in this case there is more than adequate corroboration for Julie Somerton's testimony. As this Court stated in State v. Adair, 99 Idaho 703, 587 P.2d 1238 (1978):

"All of the bits and pieces of evidence may, of course, be taken and considered together by the jury. State v. Tope, 86 Idaho 462, 387 P.2d 888 (1963). The testimony of witnesses is ordinarily the crucial evidence in cases such as this, and rightly so. For as was once observed, 'If she tells the truth, where is there any better evidence than that of the victim?' State v. Flitton, 52 Idaho 374, 377, 15 P.2d 397, 399 (1932). Corroboration is simply corroboration. The required corroboration need only tend to support her testimony that the offense was committed and make it appear probable that the accused was the perpetrator. [State v. Elsen, 68 Idaho 50, 55, 187 P.2d 976, 978 (1947).] Whether there is sufficient corroboration is, in the first instance, a question for the jury; and unless we can say, as a matter of law, that such evidence is insufficient, we will not reverse upon that ground. State v. Hines, 43 Idaho 713, 254 P. 217 (1927)." State v. Adair, 99 Idaho at 707, 587 P.2d at 1242 (emphasis in original).

The evidence in this case, taken together, is more than ample to...