State v. Frederick
| Decision Date | 23 September 1994 |
| Docket Number | No. 20202,20202 |
| Citation | 126 Idaho 286,882 P.2d 453 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Jeffery T. FREDERICK, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Kirk J. Anderson, Boise, for appellant.
Larry EchoHawk, Atty. Gen. and Michael J. Kane, Deputy Atty. Gen. (argued), Boise, for respondent.
Jeffery Frederick was found guilty by a jury of lewd conduct with a minor under sixteen, I.C. § 18-1508, and was sentenced to a unified term of fifteen years, with a minimum period of five years' incarceration. Frederick appeals from the judgment of conviction, alleging that "other crimes" evidence was improperly admitted. Frederick also raises an ineffective assistance of counsel claim, asserting that his counsel's failure to object to hearsay statements denied him a fair trial. For the reasons stated below, we affirm the judgment of conviction.
At trial, the state called three witnesses, including the victim, A.W., who was seven years old at the time of the alleged offense, A.W.'s mother and a Cascade City police officer who had investigated the case. A.W. testified that Frederick had touched her between her legs, sometimes with her pants on and sometimes with them off, and that he had her touch and rub his genitals. During the direct examination by the state, A.W.'s mother testified that Frederick was living with her and her children at the time of the alleged misconduct, but he had moved out of the house by the time her daughter revealed Frederick's illicit conduct toward her.
In response to the prosecutor's question whether she continued to have a relationship with Frederick after he moved out of the house, A.W.'s mother testified:
Frederick asserts as his first issue on appeal that the district court erred in admitting evidence of Frederick's criminal history, over objection by defense counsel. The evidence in question is the unexpected disclosure by A.W.'s mother that Frederick "was coming up for parole in May." He argues that the reference to his parole constituted evidence of other crimes, which is generally inadmissible to prove the character of a person or his propensity to commit crime. Therefore, he contends that the district court abused its discretion when it failed to sustain his objection to testimony which he claims was irrelevant to prove the crime and was prejudicial to his case.
When considering a trial court's admission of evidence of prior misconduct, we exercise free review of the trial judge's admissibility determination under I.R.E. 404(b). However, when reviewing the determination that the probative value of the evidence is not outweighed by unfair prejudice--the second step of the analysis--we use an abuse of discretion standard. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App.1993), cert. denied, Atkinson v. Idaho, --- U.S. ----, 114 S.Ct. 1659, 128 L.Ed.2d 376 (1994).
In support of his argument, Frederick cites authority wherein this Court reviewed the impact of unexpected or volunteered testimony which alerted the jury to the defendant's prior criminal history. In each case, we concluded that the unexpected or volunteered testimony may have contributed to the verdict and remanded for a new trial. State v. Shepherd, 124 Idaho 54, 855 P.2d 891 (Ct.App.1993); State v. Guinn, 114 Idaho 30, 752 P.2d 632 (Ct.App.1988); State v. Simonson, 112 Idaho 451, 732 P.2d 689 (Ct.App.1987). The analysis undertaken in each of these cases, however, was directed to the question of whether the event which precipitated the defense's motion for mistrial represented reversible error when viewed in the context of the full record. See State v. Urquhart, 105 Idaho 92, 665 P.2d 1102 (Ct.App.1983). Frederick did not request any relief from the district court in the form of a motion to strike, a motion for mistrial or a curative instruction to the jury. Because Frederick made no motion for mistrial, these cases are inapposite.
Our review of the transcript of the trial in Frederick's case discloses that A.W.'s mother blurted out the reference to Frederick's prior felony on direct examination during the state's case in chief. The testimony was not solicited by the prosecutor's questioning nor introduced for the improper purpose of showing character evidence, or for any other admissible purpose. The defense's objection came after the witness had answered, and the defense did not thereafter make a motion to strike or a motion for mistrial. Finally, the defense had the benefit of an instruction given by the Court at the conclusion of the trial limiting the use and purpose of the testimony.
We can only speculate why defense counsel did not move the district court to strike the objectionable portion of A.W.'s mother's testimony which revealed Frederick's connection with other crimes. It is not our function on appeal to look for error and order a mistrial. Error will not be presumed upon appeal but must be affirmatively shown by an appellant and, with limited exceptions, error at trial must be properly objected to and preserved to merit review. State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971). Based on our review of the entire trial record before this Court, we conclude that the admission of A.W.'s mother's unexpected mention of Frederick's parole was not reversible error on the part of the district court.
Frederick next claims that he is entitled to reversal of his conviction due to the ineffective assistance of his trial counsel. He asserts that he was denied a fair trial by his counsel's failure to object to the hearsay testimony of A.W.'s mother, relating her initial conversation with her daughter about the incident which resulted in the lewd conduct charge. Frederick asserts that had the hearsay testimony not been put before the jury, there is a reasonable probability that the jury would not have convicted him solely on the basis of the victim's testimony.
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State v. Maki
...the State cites to a case where a witness testified that the defendant was coming up for parole. See State v. Frederick, 126 Idaho 286, 288-89, 882 P.2d 453, 455-56 (Ct. App. 1994). There, we affirmed the district court's decision to admit this evidence. However, the question presented was ......
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State v. Aspeytia
...therefore consider the claim. See State v. Pugsley, 128 Idaho 168, 174, 911 P.2d 761, 767 (Ct.App.1995); State v. Frederick, 126 Idaho 286, 289, 882 P.2d 453, 456 (Ct.App.1994). To prevail on a claim of ineffective assistance of counsel the appellant must show that counsel's representation ......