768 P.2d 1331 (Idaho 1989), 17239, State v. Hedger

Docket Nº:17239.
Citation:768 P.2d 1331, 115 Idaho 598
Opinion Judge:BAKES, Justice. BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Marvin Dee HEDGER, Defendant-Appellant.
Attorney:Michael J. Wood, Public Defender, Twin Falls, for defendant-appellant. Jim Jones, Atty. Gen., Boise, for plaintiff-respondent. Deputy Atty. Gen. Michael A. Henderson argued.
Judge Panel:SHEPARD, C.J., and HUNTLEY and JOHNSON, JJ., concur. BISTLINE, Justice, dissenting.
Case Date:February 10, 1989
Court:Supreme Court of Idaho
 
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Page 1331

768 P.2d 1331 (Idaho 1989)

115 Idaho 598

STATE of Idaho, Plaintiff-Respondent,

v.

Marvin Dee HEDGER, Defendant-Appellant.

No. 17239.

Supreme Court of Idaho.

February 10, 1989

Page 1332

[115 Idaho 599] Michael J. Wood, Public Defender, Twin Falls, for defendant-appellant.

Jim Jones, Atty. Gen., Boise, for plaintiff-respondent. Deputy Atty. Gen. Michael A. Henderson argued.

BAKES, Justice.

Defendant Marvin D. Hedger (Hedger) appeals from a conviction of rape, second degree kidnapping, aggravated battery and robbery. He seeks either reversal and a new trial due to prejudicial error at trial or

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[115 Idaho 600] sentence reduction. We affirm the conviction and sentence.

Hedger's crimes stem from events which took place between Hedger and his ex-wife, Donna Hedger (Donna), in the early morning hours of June 10, 1987. Viewing the evidence most favorably in support of the jury's verdict, as we must, Ross v. Coleman Co., Inc., 114 Idaho 817, 761 P.2d 1169 (1988); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968), the record reflects that Hedger entered Donna's house in Filer without her permission around midnight. Donna awoke to find him standing in her kitchen. He said that "if he couldn't have [her] nobody else would," and then grabbed a knife. Hedger told Donna not to make a noise or he would slit her throat. When he ordered her to take off her pants and she refused, Hedger demanded, "Take your pants off or I will slit your throat and wake the girls [Donna's two daughters, aged 11 and 8] ... and have them watch." She did so and Hedger forced her to have sexual intercourse with him on the floor while holding the knife to her throat. Her neck bore a small cut from the knife.

Hedger then ordered Donna into her car with him. The two children, one of whom was ill, were left alone sleeping in their bedrooms. With Hedger holding a knife to her side, Donna drove to Jackpot, Nevada, as ordered. After passing through Jackpot without stopping, Hedger told Donna to pull into a rest area and get out of the car. She did so. Hedger then held the knife to her back and announced that he would kill her because if he couldn't have her then nobody could. He said he didn't care if he went to prison for life. Donna begged for her life and promised to take him back. Hedger was persuaded by her pleas and threw away the knife. Hedger and Donna returned to her car. He drove them to Twin Falls, stopping once at a service station for oil, cigarettes and soda. To pay for these, Hedger took money from Donna's purse. Hedger got out of the car in Twin Falls, and Donna drove herself home, arriving at 4:35 a.m. Later that day Donna reported the crimes to the police.

I

Hedger raises nine issues on appeal. We consider them in the order presented.

First, Hedger contends the trial court erred by denying his challenge for cause of a prospective juror. Hedger later used a peremptory challenge to dismiss the prospective juror from the jury. The prospective juror in question indicated during voir dire that her first husband had been convicted of rape fifteen years earlier, that he was a "bully" who had threatened to kill her, that her current husband had pleaded guilty to sexual abuse three years earlier, and that about five years earlier she worked with a support group for victims of domestic abuse for nearly two years. In response to questions from the trial judge and counsel, the prospective juror stated that she thought she could put aside her prior experiences and fairly judge the case on the facts. Hedger asserts that the juror should have been excused for cause as a matter of law, and that the trial court erred in not excusing her for cause.

It is for the trial court to use its discretion when determining whether a juror can render a fair and impartial verdict. Quincy v. Joint School Dist. No. 41, 102 Idaho 764, 640 P.2d 304 (1981); State v. Rose, 121 Ariz. 131, 589 P.2d 5 (1978) (en banc ). For reversal on appeal, Hedger must show an abuse of discretion by the trial court. State v. Rose, supra; State v. Davis, 137 Ariz. 551, 672 P.2d 480 (Ct.App.1983). "When an exercise of discretion is reviewed on appeal, the appellate court conducts a multi-tiered inquiry. The sequence of the inquiry is (1) whether the lower court rightly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason." Associates Northwest, Inc. v. Beets, 112 Idaho 603, 605, 733 P.2d 824, 826 (Ct.App.1987). Here, the trial court applied the applicable law and concluded

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[115 Idaho 601] that "notwithstanding her past experience, [the prospective juror] has given every indication that she can decide this case on its merits and will attempt to do so." Accordingly, there has been no showing of an abuse of discretion and no error. Associates Northwest, Inc. v. Beets, supra.

II

Second, Hedger contends the trial court erred in allowing a minister, Jim Sommer, to testify concerning an alleged privileged conversation that he had with Hedger three days before the rape. Sommer testified that immediately following the morning service on Sunday, June 7, 1987, Hedger approached him. Sommer indicated that "many people were hanging around as they usually do, and we [Sommer and Hedger] talked with quite a number of people." Another man, Craig Shepherd, was present when Hedger told Sommer that he "was really hurting and that he couldn't live without Donna." Though this comment was not addressed specifically to Shepherd, he was still within hearing distance. The record supports the trial court's finding that the conversation had not taken place in private and therefore was not a privileged confidential communication protected by I.R.E. 505.

III

Third, Hedger contends a reference in the testimony of the victim, Donna Hedger, that Hedger had been in jail, was reversible error and that the trial court erred by denying Hedger's motion for mistrial. At trial, Donna was questioned about her locking up doors and windows:

"Q. [By the prosecutor] ... When you went to bed that night, do you know whether or not the doors and windows were locked?

"A. [By Donna] Yes, they were.

"Q. How do you know that?

"A. I made double sure since the time Marvin had gotten out of jail.

"Q. So it was part of your nightly routine?

"A. Yes.

"Q. When was it Marvin got out of jail?

"A. He got out of jail on a Tuesday, the Tuesday before the 9th. It was on a Tuesday that he had gotten out."

At this point Hedger's counsel objected, and the trial court promptly struck Donna's references and instructed...

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