State v. Gooding
| Decision Date | 12 May 1986 |
| Docket Number | No. 15812,15812 |
| Citation | 110 Idaho 856,719 P.2d 405 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Clair A. GOODING, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Michael J. Vrable, of Coeur d'Alene, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Michael A. Henderson, Deputy Atty. Gen., for plaintiff-respondent.
Clair Gooding was found guilty by a jury of three counts of lewd conduct with minor children, under former I.C. § 18-6607. 1 He received an indeterminate life sentence on each count, to be served concurrently. On appeal, Gooding presents four issues. First, because the charges against him involved two victims, Gooding contends the trial court erred in refusing to sever the counts and hold two separate trials. Second, Gooding asserts the trial court committed prejudicial error by improperly commenting on the evidence, when ruling on an objection to a question asked by defense counsel. Next, Gooding argues that reversible error occurred when the prosecutor cross-examined him regarding postarrest silence and made references to that silence in summation to the jury. Finally, Gooding urges that the trial court abused its discretion by imposing a life sentence on each count. We find no reversible error and affirm.
The charges against Gooding entailed allegations that he had fondled the penises of two eleven-year old neighbor boys in the privacy of his home. Counts I and II related to one of the boys, occurring on separate dates; Count III related to the other victim, on another date.
On the morning of Gooding's trial, Gooding's counsel filed a "Motion To Sever," requesting that Count III be tried separate and apart from Counts I and II. Gooding's counsel asserted that trying all charges concerning the two victims together would be highly prejudicial "because of the obvious building or stair stepping that the prosecutor could do with the two separate victims that are involved." In response, the prosecutor argued that the motion was not timely and further, on its merits, the motion should be denied. The court agreed with the prosecutor and proceeded with the trial. On appeal, Gooding contends the trial court's denial of his severance motion was an abuse of discretion.
No written order denying Gooding's motion appears in the record. However, when ruling from the bench on the motion, the trial court orally gave two reasons for denying Gooding's motion. First, the court found the motion was untimely presented and the court was not persuaded that the time requirements of I.C.R. 12 should be excused under the discretionary authority of the court. Second, the court denied the motion on its merits, based on the prosecutor's representation that the alleged incidents with the two victims involved similarity of conduct. The court held "that on the face of it, the situation is close enough in time and activity to warrant consolidation."
We find no abuse of discretion. Idaho Criminal Rule 14 authorizes the trial court to order separate trials where it appears that a defendant or the state is prejudiced by joinder of offenses in multiple count informations. A motion for separate trials is directed to the court's discretion. State v. Abel, 104 Idaho 865, 664 P.2d 772 (1983). A motion for separate trials under Rule 14 must be filed within fourteen days after the entry of a plea of not guilty or seven days before trial, whichever is earlier, 2 and must be heard within fourteen days after filing or forty-eight hours before trial, whichever is earlier. I.C.R. 12(b), (c). The trial court in its discretion may shorten or enlarge those time limits, and for good cause shown, or for excusable neglect, may relieve a party of failure to comply with the rule. I.C.R. 12(c).
Here it is undisputed that Gooding's motion for separate trials was untimely under Rule 12(c), because it was filed on the morning of the trial without obtaining discretionary permission from the trial court to file and argue the motion. Ordinarily, failure to comply with Rule 12(c) would be deemed a waiver of the request. I.C.R. 12(f) (formerly I.C.R. 12(e)). See, e.g., State v. Greene, 100 Idaho 464, 600 P.2d 140 (1979); State v. McNeely, 104 Idaho 849, 664 P.2d 277 (Ct.App.1983). Gooding's counsel made no showing why the motion was not timely asserted in accordance with Rule 12. Thus, it would have been permissible for the district court to deny the severance motion solely on the basis of untimeliness, absent a showing of cause to enlarge the time.
In any event we believe the motion was properly denied on its merits. Unlike the trial court when presented with Gooding's pretrial motion, we have--through the appellate record--the opportunity to determine whether any prejudice likely resulted to Gooding from not having separate trials involving each of the victims. In State v. Abel, supra, our Supreme Court addressed the denial by a trial court of a defendant's request for severance of trials on two counts involving separate assaults against different persons in different locations but occurring on the same evening. As in the present case, the Court had the benefit of post-trial review. The Court reviewed the trial proceeding to determine whether one or more of the following "potential sources of prejudice" appeared: (a) the possibility that the jury may confuse and cumulate the evidence, rather than keeping the evidence properly segregated; (b) the potential that the defendant may be confounded in presenting defenses; and (c) the possibility that the jury may conclude the defendant is guilty of one crime and then find him guilty of the other simply because of his criminal disposition, i.e. he is a "bad person."
Here the evidence was straightforward. Both victims testified that Gooding had molested them; Gooding denied that he had committed the acts. Evidence relating to the credibility of all witnesses was submitted. After a close review of the entire transcript and record, we conclude that the facts relating to each incident were so distinct and simple that there was little risk the jury would confuse or cumulate the evidence in applying the court's instructions to the evidence in the case. The jury was properly instructed on the reasonable doubt standard, and that each count charged a separate and distinct offense which must be decided separately on the evidence and the law applicable, uninfluenced by the jury's decision on any other count.
Applying the approach in Abel, we conclude there was little likelihood that the jury would confuse and cumulate the evidence; that Gooding was not confounded in presenting his defenses; and that the clarity of the evidence of similarity of conduct involving the charged offenses weighs against the likelihood Gooding was found guilty of any count simply on the basis of criminal disposition. There was ample evidence presented from which the jury could find, beyond a reasonable doubt, that Gooding was guilty of each of the counts filed against him. Because it appears that no prejudice would, or did, flow from the court's refusal to grant separate trials, the court did not err in denying Gooding's severance motion.
Gooding next contends the trial court committed prejudicial error by commenting on evidence in the course of ruling on an objection. The court's ruling, and asserted comment, came about under the following circumstances. Gooding's defense was that he had not engaged in any sexual activity with either of the victims; that the victims were lying; and that the charges had been brought against him because the boys' parents were upset over some dealings they had had with Gooding. One of those transactions involved marijuana. While Gooding was testifying on his own behalf during the trial, he was asked by his counsel about a conversation with the father of one of the victims, concerning the sale of marijuana by the father. The testimony, objection and ruling are as follows Q Where did this conversation take place?
A In my trailer house mostly.
Q What was said by Mr. ______?
Gooding subsequently moved for a mistrial on the ground that the court's remark, "[r]eaching pretty far," was a comment on the evidence, prejudicial to the defendant and denied him a fair trial. He argues that his hope of convincing the jury of his innocence by casting doubt on the veracity of the state's witnesses was undercut by the court's comment indicating that the court did not think that Gooding's testimony was credible.
We disagree with Gooding's analysis. In context, the court's statement simply reflected the court's concern over the relevancy of the information sought by the objectionable question. Our Supreme Court has held:
The true tests, to determine if the remarks of a trial judge are prejudicial, are whether those remarks constitute comment on the weight of the evidence, [citation omitted]; or indicate an opinion of the court as to the guilt or innocence of the defendant, or tend to ridicule counsel or reflect upon his conduct in handling the case, [citation omitted]; or on the other hand,...
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