State v. Cherry

• Decision Date: 08 September 2003
• Docket Number: No. 24440.,24440.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Stephen A. CHERRY, Defendant-Appellant.
• Court: Idaho Court of Appeals

83 P.3d 123

139 Idaho 579

STATE of Idaho, Plaintiff-Respondent, v. Stephen A. CHERRY, Defendant-Appellant.

No. 24440.

Court of Appeals of Idaho.

September 8, 2003.

Review Denied January 27, 2004.

Molly J. Huskey, State Appellate Public Defender; Charles Isaac Wadams, Deputy Appellate Public Defender, Boise, for appellant. Charles Isaac Wadams argued.

Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent. Ralph R. Blount argued.

LANSING, Chief Judge.

Stephen Allan Cherry appeals from the judgment of conviction entered after he was found guilty by a jury of first degree murder, aggravated battery, and aggravated assault. He contends that the prosecutor's office should have been disqualified due to a conflict of interest that arose when one of Cherry's appointed attorneys changed employment and went to work for the prosecutor's office, that statements that Cherry made to police while he was hospitalized should not have been deemed admissible to impeach him at trial, that evidence of Cherry's prior misconduct was erroneously admitted, and that the reasonable doubt instruction given to the jury was inadequate. We affirm.

I. BACKGROUND

According to the State's evidence at trial, Cherry went to the home of his former girlfriend, Susan Foutz, and shot her three times with a rifle as she was sitting in the driver's seat of her car in front of her house. Charles Babb, who was sitting in the passenger's seat, was also injured by one of the bullets. Cherry then entered Foutz's house by shooting the lock off the door. He chased Foutz's roommate out of the house, threatening to shoot her as she ran. Thereafter, Cherry shot himself in the chest. While he was hospitalized for this wound, police officers interviewed him several times.

Cherry was charged with murder in the first degree, Idaho Code §§ 18-4001, -4002, -4003, -4004, aggravated battery, I.C. §§ 18-903, -907, and aggravated assault, I.C. §§ 18-901, -905(b). The State also requested sentencing enhancements for use of a deadly weapon during the commission of these crimes, I.C. § 19-2520. After a trial, a jury found Cherry guilty of all charges.

II. ANALYSIS

A. Use of Cherry's Statements Made at Hospital as Impeachment

After the shooting, Cherry was transported to Kootenai Medical Center where he underwent surgery and remained for approximately ten days. Police officers spoke with Cherry at the hospital on four occasions, the first occurring one day after Cherry's surgery, when he was sedated and breathing with the aid of a ventilator. This interview lasted only ten minutes because Cherry was drifting in and out of consciousness. At each of the following three interviews, Cherry was informed of his Miranda rights and consented to the questioning. On each occasion, after interrogating Cherry about the incident, officers asked him several general questions, such as his name, date of birth, social security number, address, and phone number, to test his understanding of their questions, his memory and his orientation. Cherry was able to respond accurately.

Before trial Cherry moved to suppress the statements he made during these interviews on the grounds that they were made involuntarily and in violation of his Sixth Amendment right to counsel. The State responded that it would not offer Cherry's statements in its case-in-chief, but sought a ruling that such statements were admissible for purposes of impeachment if Cherry chose to testify. As to the first interview, the district court found that Cherry was incapable of making a knowing, intelligent and voluntary waiver of or exercise of his rights. As to the remaining three interviews, however, the court found that although Cherry was under medication, he was lucid and oriented. The court therefore held that although the statements were made in violation of Cherry's right to counsel, they were given voluntarily and consequently could be used for impeachment. As a result of the court's ruling, Cherry chose not to testify at his trial but did make an offer of proof of the testimony he would have given had he not been subject to impeachment with these prior statements.

On appeal, Cherry contends that the district court erred in its ruling because the statements he made while hospitalized were not voluntary. He argues that the statements were not the product of free will, but rather a result of "a mind blurred with drugs, pain, and fear." The State responds that the district court's ruling was correct because there was no evidence of any coercive tactics by the police and the police did not force Cherry's statement against his will. The State also contends that Cherry has waived this claim of error by not testifying at trial.

Statements obtained by police in violation of an accused's right to counsel may not be used in the State's case-in-chief, but are admissible to impeach the accused if he testifies at trial. Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1, 3-4 (1971); Michigan v. Harvey, 494 U.S. 344, 350-51, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293, 302 (1990). Even this limited use is not permissible, however, for statements that an accused made involuntarily. The use of a defendant's involuntary statements in a criminal trial is a denial of due process, Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290, 303 (1978), and therefore involuntary statements are inadmissible for all purposes, including impeachment. Harvey, 494 U.S. at 351,110 S.Ct. at 1180-81,108 L.Ed.2d at 302-03; Mincey, 437 U.S. at 398,98 S.Ct. at 2416,57 L.Ed.2d at 303. When a defendant seeks suppression of a confession as having been involuntarily given, it is the prosecution's burden to prove by a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 481, 92 S.Ct. 619, 622-23, 30 L.Ed.2d 618, 622-23 (1972); State v. Dillon, 93 Idaho 698, 710, 471 P.2d 553, 565 (1970); State v. Rounsville, 136 Idaho 869, 874, 42 P.3d 100, 105 (Ct.App.2002); State v. Fabeny, 132 Idaho 917, 922, 980 P.2d 581, 586 (Ct.App.1999).

Before considering whether the district court's ruling allowing the use of Cherry's statements for impeachment was erroneous, we must first address the State's argument that this issue has not been preserved for appeal because Cherry elected not to testify and the statements therefore were never admitted. The State relies upon Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), where the United States Supreme Court held that a defendant who did not testify would not be allowed to appeal an in limine ruling that permitted use of a prior conviction for impeachment purposes under Federal Rule of Evidence 609(a). The Luce procedural bar was adopted by this Court in State v. Garza, 109 Idaho 40, 45, 704 P.2d 944, 949 (Ct.App.1985), where the defendant sought to overturn an in limine ruling allowing use of a prior conviction for impeachment. The State argues that, by application of Luce and Garza, Cherry is barred from challenging the ruling on his suppression motion because he did not testify at trial.

The Luce and Garza courts dealt only with evidentiary objections that were based on rules of evidence. The State urges that we broaden the procedural bar of Luce and Garza to also preclude appeals by non-testifying defendants where the challenge to the impeachment evidence is based on constitutional violations. In Luce, the Supreme Court left this question open, noting that its ruling dealt with a preliminary ruling "not reaching constitutional dimensions," Luce, 469 U.S. at 43, 105 S.Ct. at 464, 83 L.Ed.2d at 448; and a concurring opinion acknowledged that if a constitutionally based objection to the impeachment evidence were presented, "the calculus of interests" might be different. Id. at 44, 105 S.Ct. at 464, 83 L.Ed.2d at 449 (Brennan, J. concurring). The federal circuit courts that have addressed this appealability issue have held that the Luce rule does not apply to bar appeals by non-testifying defendants who sought the suppression of evidence on constitutional grounds. United States v. Chischilly, 30 F.3d 1144, 1150-51 (9th Cir.1994); Biller v. Lopes, 834 F.2d 41, 43-44 (2nd Cir. 1987); United States ex rel. Adkins v. Greer, 791 F.2d 590, 594 (7th Cir.1986). Regardless of the scope of the Luce procedural bar for the federal courts, because it is not based upon constitutional principles, it is not binding upon state courts. We conclude that, where a defendant elects not to testify due to the trial court's decision allowing impeachment with evidence allegedly obtained in violation of constitutional rights, and where the defendant has made an adequate offer of proof as to the testimony that otherwise would have been introduced, he should not be precluded from raising the constitutional question on appeal. Accordingly, we will consider Cherry's argument that the court erred in holding that his statements made to police in all but the first interview were voluntary.

In determining the voluntariness of statements made by a defendant to police officers, the court must look to the "totality of the circumstances." State v. Radford, 134 Idaho 187, 191, 998 P.2d 80, 84 (2000); State v. Fabeny, 132 Idaho 917, 922, 980 P.2d 581, 586 (Ct.App.1999); State v. McLean, 123 Idaho 108, 111, 844 P.2d 1358, 1361 (Ct.App. 1992). A statement will be deemed involuntary if the defendant's will was overborne by police coercion or overreaching. Arizona v. Fulminante, 499 U.S. 279, 287-88, 111 S.Ct. 1246, 1252-53, 113 L.Ed.2d 302, 316-17 (1991); Radford, 134 Idaho at 191,998 P.2d at 84; State v. Langford, 136 Idaho 334, 339, 33 P.3d 567, 572 (Ct.App.2001). When reviewing the trial court's determination on a voluntariness issue, we defer to the factual findings that are supported by substantial evidence, but we independently determine whether those facts demonstrate a violation of...