State v. Curry

• Decision Date: 29 June 1982
• Docket Number: No. 13682,13682
• Citation: 647 P.2d 788,103 Idaho 332
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Willard Don CURRY aka Roger Matthews, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 788

647 P.2d 788

103 Idaho 332

STATE of Idaho, Plaintiff-Respondent, v. Willard Don CURRY aka Roger Matthews, Defendant-Appellant.

No. 13682.

Court of Appeals of Idaho.

June 29, 1982.

Starr Kelso, Coeur d'Alene, for defendant-appellant.

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

WALTERS, Chief Judge.

Willard Don Curry, aka Roger Matthews, was tried before a jury and found guilty of burglary in the first degree. The trial court denied Curry's motion for new trial, denied Curry's motion for a withheld judgment, entered judgment, and sentenced him to the custody of the Board of Corrections for an indeterminate period not to exceed fifteen years. Curry appeals from the judgment, the sentence, and the orders denying his motions.

Numerous errors are alleged by Curry on his appeal. In general, he contends as follows: that the trial court improperly instructed the jury; that the court erred in allowing the admission of several items of evidence at trial; that several procedural defects occurred which prejudiced his right to a fair trial; and that the trial court imposed an improper sentence.

We reverse the judgment upon the ground that the trial court erroneously refused to give Curry's requested instruction regarding circumstantial evidence, and remand the case for new trial. In light of this remand and for guidance in a new trial, we will also address the contested evidentiary rulings made at trial.

The record discloses the following facts. Around midnight, October 22, 1979, Post Falls police officer Webb Trojan observed a vehicle turn onto a city street and move toward him. The vehicle did not have its headlights on. Due to the distance involved and the street lighting when the vehicle was first observed, Trojan was unable to determine whether the vehicle turned out of an alley or from a nearby street. Soon after the car passed his vehicle, its headlights were turned on. The officer made a U-turn and pursued the car with his overhead lights flashing. Both cars pulled to the side of the road and stopped. Officer Trojan observed four persons in the vehicle: a woman driver, another woman in the front passenger seat, and defendant Curry and another man in the rear. The officer asked some routine questions of the occupants of the vehicle. The driver had a temporary Illinois driver's license and the car was registered in her name in Illinois. A computer check disclosed no outstanding warrants on either the driver or the vehicle. The officer then released the vehicle, after informing the occupants how to find the highway to Spokane and where to find the nearest open gas station. A back-up patrol car followed the vehicle on its way out of town.

After releasing the vehicle, officer Trojan proceeded to an alarm call at the Ben Franklin Pay Rite Drug Store. It first appeared to be a false alarm because the drugstore's front doors were securely fastened. Driving down the alley behind the drugstore building, however, officer Trojan discovered a hole knocked through its red, cinder-block rear wall. Because the vehicle he had just released was first observed proceeding in a suspicious manner from the vicinity of this drugstore, Trojan radioed for the back-up patrol car to stop the vehicle before it left town. This was done. Trojan rendezvoused with the back-up patrol car and assisted in further questioning of the vehicle's four occupants. At this time, the defendant Curry gave his name as "Roger Matthews." All four occupants were read Miranda warnings, were placed in the back seat of the two patrol cars, and were returned to the burglary scene for questioning by detectives who were investigating the incident. Also at the scene was a security guard who had responded to the drugstore's alarm.

During the course of investigating the break-in, police detective Randy Bohn discovered a piece of cardboard lying on the muddy ground just below the hole in the drugstore wall. The ground near the hole and the piece of cardboard were covered with concrete fragments and white dust. There were muddy footprints on the piece of cardboard. Bohn checked the shoes of the security guard and the other police officers at the scene, as well as those of Curry and the other male suspect, to see if their shoes might have made the footprints on the cardboard.

Bohn concluded that Curry's shoes had a tread design which matched the tread mark of the muddy footprints on the piece of cardboard. The police told Curry he was under arrest for first degree burglary. Curry was asked to remove his shoes. He complied, removing one shoe himself, with Trojan assisting him in removing the other. Fresh mud and white dust were stuck in the treads on the bottom of Curry's shoes. The police seized the shoes as evidence.

A magistrate issued a warrant to search the vehicle occupied by Curry when he was first observed by officer Trojan. Seized in this search were fifty-seven dollars cash, concrete fragments, and several tools, including a sledgehammer which had red paint marks on the hammerhead and was covered with white dust.

At the preliminary hearing, Curry swore under oath that his true name was Willard Don Curry, not Roger Matthews. He was bound over to the district court for trial.

I.

The first question we address on this appeal is the failure of the trial court to give Curry's requested jury instruction number 15. This requested instruction dealt with circumstantial evidence, as follows:

A finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.

Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.

Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to his guilt.

If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and reject the unreasonable.

In denying this requested instruction, the trial court remarked, "Number 15, expansion of circumstantial evidence, I think that's sufficiently covered." The instruction which the court felt sufficiently covered this area merely distinguishes between direct and circumstantial evidence, as follows:

Evidence may be either direct or circumstantial. It is direct evidence if it proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact. It is circumstantial evidence if it proves a fact from which an inference of the existence of another fact may be drawn.

An inference of fact is one which may logically and reasonably be drawn from another fact or group of facts established by the evidence.

The law makes no distinction between direct and circumstantial evidence as to the degree of proof required; each is accepted as a reasonable method of proof and each is respected for such convincing force as it may carry.

In the present case, the evidence linking Curry to the burglary was entirely circumstantial. Curry cites State v. Holder, 100 Idaho 129, 594 P.2d 639 (1979), where the Idaho Supreme Court held reversible error occurred when a trial court gave an instruction identical to the one given here after rejecting a requested instruction which was substantially similar to Curry's instruction number 15. Id. at 132, 594 P.2d at 642.

The state argues that the rejected instruction was sufficiently covered by other instructions given by the court. Without listing those instructions, suffice it to say that we have thoroughly examined them and find the state's position to be without merit. The state further asserts that the evidence against Curry, though circumstantial, indicated his guilt much more than the weak circumstantial evidence against the defendant in State v. Holder, supra, thus distinguishing the two cases. We view this argument also to be without merit.

We are unable to distinguish between the case of State v. Holder, supra, and the case at hand. Holder stands for the proposition that where-as here-the evidence linking a defendant to a burglary is entirely circumstantial, it is not sufficient that the court give instructions which only distinguish between direct and circumstantial evidence. The case holds that it is error to refuse to give an instruction requested by the defendant informing the jury that a conviction cannot be based solely on circumstantial evidence, unless the circumstances are consistent with guilt and inconsistent with innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt. Id. at 133, 594 P.2d at 643. See also State v. Davis, 69 Idaho 270, 206 P.2d 271 (1949); State v. McLennan, 40 Idaho 286, 231 P. 718 (1925); State v. Marcoe, 33 Idaho 284, 193 P. 80 (1920).

As in Holder, Curry's requested instruction was a proper statement of the law, and it was erroneously refused. The judgment of conviction must be reversed, with directions to the trial court to grant a new trial.

II.

We will next discuss certain evidentiary rulings of the trial court raised as issues on this appeal. The first such question is whether the court erred in admitting in evidence the sledgehammer found in the vehicle. Curry argues this evidence should have been...