State v. Byers

• Decision Date: 01 April 1981
• Docket Number: No.13142,13142
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Harvey Wilson BYERS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 788

627 P.2d 788

102 Idaho 159

STATE of Idaho, Plaintiff-Respondent, v. Harvey Wilson BYERS, Defendant-Appellant.

No.13142.

Supreme Court of Idaho.

April 1, 1981.

Rehearing Denied May 26, 1981.

Howard L. Armstrong, Jr., Pocatello, Ronald J. Yengich, Salt Lake City, Utah, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BISTLINE, Justice.

Defendant-appellant Harvey Byers appeals from a jury conviction of rape. His principal contention on appeal is that there was insufficient corroboration of the prosecutrix's testimony to support the conviction.

The prosecutrix, who was separated from her husband and living with her infant, testified that on June 30, 1976, a man whom she had never seen before came by her apartment after 9:30 p. m. looking for another person. She gave him a glass of water, and he left. About 2:30 that night the prosecutrix heard a knock on her door. She attempted to turn on the porch light, but it was no longer functioning. She pulled back the curtain on the door and saw the same man, this time holding a gun with a blue barrel. He threatened her with the pistol to gain entrance and then raped her. After the rape, the prosecutrix and her assailant sat in the living room and talked for several minutes with the light on.

Immediately after her assailant left, the prosecutrix ran upstairs to her neighbors, appearing very distraught, and told them she had been raped. The prosecutrix described her attacker to the police as about 33 years old, 5'6 , 175-80 lbs., heavy set with a pot belly and with black collar-length hair. She also told the police that he wore a wristwatch with a snap band and that the first time he came to her apartment he wore a green suit. A subsequent medical exam revealed prostatic fluid and dead sperm in the victim's vagina.

About a month and a half later the prosecutrix saw her assailant in a restaurant, but, apparently due to her stepmother's advice to forget the incident, she did not call the police. On March 9, 1978, twenty months after the rape, the police told the prosecutrix they had developed a new suspect and showed her five photos. She became upset on seeing Byers' photo and identified him as her assailant. She subsequently identified Byers in a line-up and at trial.

At the close of the state's case-in-chief, Byers moved to dismiss or advise the jury to acquit due to a lack of corroboration. The motion was denied. Byers then tried to establish his innocence by showing that he did not match the description given to the police by the prosecutrix and by showing his good reputation for truth, honesty and morality. Byers testified that he was and had been 5'9 , 185-90 lbs. without a pot belly. Both he and his wife testified that he did not have a suit or watch as described by the prosecutrix, and that his appearance had not changed. Byers himself brought out that he owned several guns with blue barrels, and that he often carried one in the car with him. Byers' barber also testified that Byers always wore his hair short.

Finally, a number of witnesses testified as to Byers' reputation for truth, honesty and morality. In response to this, the prosecutor in cross-examination, over objections, established that Byers had gone out with his present wife while still married to his former wife. ¹

I.

The first issue before us is whether there was sufficient corroboration of the testimony of the prosecutrix to support the verdict. The rule in Idaho has been that there must be corroboration both (1) that a crime has been committed and (2) that the accused committed that crime. State v. Adair, 99 Idaho 703, 587 P.2d 1238 (1978); State v. Elsen, 68 Idaho 50, 187 P.2d 976 (1947); State v. Mason, 41 Idaho 506, 239 P. 733 (1925). See State v. Haskins, 49 Idaho 384, 289 P. 609 (1930); State v. Andrus, 29 Idaho 1, 156 P. 421 (1916). As stated in State v. Mason, supra:

"We think what is meant by the rule 'the facts and circumstances surrounding the commission of the offense are corroboration and not contradictory of the statements of the prosecutrix' is that they must not only support the testimony of the prosecutrix that her person has been violated, but should also be of such a character as to make it appear probable that the accused committed the offense." 41 Idaho at 510, 239 P. at 734.

Thus, the rule was recently stated in State v. Adair, supra, that "(t)he 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." 99 Idaho at 707, 587 P.2d at 1242.

Although there is sufficient corroboration here that the crime occurred, missing is any corroboration of the testimony of the prosecutrix that Byers was the person who committed the crime. The state suggests that the fact that Byers owned blue-barreled pistols, that he wasn't sure where he had been the night of the crime and that the prosecutrix became upset when she saw his picture are sufficient corroboration. We disagree. None of these factors make it appear probable that Byers was the perpetrator the mere fact that he owned blue-barreled pistols does not separate him from countless others, nor does his failure, almost two years after the alleged crime, to remember where he was. Finally, corroboration must be by circumstances external to the testimony of the prosecutrix; the reaction of the prosecutrix to the accused or a photo of the accused cannot supply the needed corroboration any more than her own testimony can. There is therefore no corroboration in this case to support the testimony of the prosecutrix that Byers was the person who committed the rape.

II.

The next question we take up is whether the requirement of corroboration in sex crime cases ² has any continued validity. ³ There are three major suggested justifications for requiring corroboration: (1) the ease of fabrication and the fear of frequent false charges due to the emotion connected with the act of intercourse; (2) the chance of conviction solely because of the emotional reaction of the jury to the alleged facts of the charge; and (3) the difficulty of disproving an accusation of rape. See United States v. Sheppard, 569 F.2d 114 (D.C. Cir. 1977); State v. Cabral, 410 A.2d 438 (R.I. 1980); The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L. J. 1365 (1972) (hereinafter Rape Corroboration Requirement).

These justifications, like the corroboration requirement itself, have come under increasingly heavy attack in recent years. See, e. g., State v. Adair, 99 Idaho 703, 705 n.2, 587 P.2d 1238, 1240 n.2 (1978). The latter two justifications seem insubstantial in light of available evidence which indicates that it is more difficult to convict for rape than for other major crimes, see People v. Rincon-Pineda, 14 Cal.3d 864, 123 Cal.Rptr. 119, 129-30, 538 P.2d 247, 257-59 (Cal.1975); Rape Corroboration Requirement, supra at 1382-84. As to the first justification, there is no evidence showing that sex crime charges are frequently falsified or that sexual victims are an inherently unreliable class whose testimony should not be believed in the absence of corroboration. See People v. Rincon-Pineda, supra, 123 Cal.Rptr. at 118-119 at 256-57; Rape Corroboration Requirement, supra at 1373-78. None of the three major justifications are therefore sufficient to support the absolute requirement of corroboration both as to the fact of the crime and the perpetrator thereof. Moreover, the rational against a corroboration requirement, that it prevents both the reporting and the successful prosecuting of sex crimes, seems indisputable. See, e. g., Ludwig, The Case for Repeal of the Sex Corroboration Requirement in New York, 36 Brooklyn L. Rev. 378 (1970).

An examination of other jurisdictions shows that apparently only Nebraska and Idaho judicially (or legislatively) maintain the absolute requirement of corroboration in all rape cases. All other courts that have recently considered the question have held that the crime of rape should be treated no differently from any other crime. The court in State v. Cabral, supra, for instance, explained its reasoning as follows:

"The requirement for independent corroboration in sex-offense cases has been the subject of ever increasing criticism. Contemporary empirical studies suggest that the factors employed to support the corroboration requirement do not justify the rule. There is a great reluctance to report a rape. Amir, Patterns In Forcible Rape 27-28 (1971); Note, Rape and Rape Laws: Sexism in Society and Law, 61 Cal.L.Rev. 919, 921 (1973). Juries generally tend to view rape charges with skepticism and suspicion, especially when there is a suggestion of willingness or agreement on the part of the victim, Kalven and Zeisel, The American Jury 249-254 (1966), see also Commonwealth v. Bailey, 370 Mass. 388, 394, 348 N.E.2d 746, 750 (1976), and convictions, in the absence of aggravating circumstances, are the exception rather than the rule. Holstrom, The Victim of Rape Institutional Reactions 238 (1973) (the study of 109 rape cases: eighteen cases were tried; four concluded with a guilty verdict, ten not guilty, one with a hung jury, and three with a guilty verdict on a lesser charge).

"The corroboration requirement poses a major hurdle to a legitimate conviction for a sex offense. Due to the nature of sex crimes, eyewitnesses are seldom available. Stapleman v. State, 150 Neb. 460, 464, 34 N.W.2d 907, 910 (1946).... Most women, when confronted with a weapon-wielding assailant, make the sensible decision not to resist physically. Thus, they lack the bruises and torn clothing that would otherwise corroborate the crime. Juvenile complainants are more likely to be attacked by some one with whom they are acquainted and, therefore, are less likely to encounter a weapon and threat of battery and are less likely to scream and resist. Amir, Patterns in...