State v. Higgins
| Decision Date | 10 August 1992 |
| Docket Number | No. 17241,17241 |
| Citation | 122 Idaho 590,836 P.2d 536 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Gary HIGGINS, Defendant-Appellant. Boise, May 1992 Term |
| Court | Idaho Supreme Court |
Blaser, Sorensen & Hansen, Chartered, Blackfoot, for defendant-appellant. Scott H. Hansen, argued.
Larry EchoHawk, Atty. Gen., and Jack B. Haycock, Deputy Atty. Gen., Boise, for plaintiff-respondent. Jack B. Haycock, argued.
This is a criminal case involving convictions for six counts of rape, two counts of incest, and one count of lewd conduct with a minor. two trials were held. in the first trial, the jury could not reach a unanimous verdict, and the trial court declared a mistrial. In the second trial, the jury found the defendant guilty of all nine counts. We affirm.
THE BACKGROUND AND PRIOR PROCEEDINGS.
Prior to the first trial, the defendant, Gary Higgins, made a request for discovery which included a request for "any written or recorded statements made by the victims or any witnesses or any other parties which were interviewed or talked to by the [state] or [its] agents which may have any relevancy to the matter." The state filed a response that listed a tape recorded interview of the alleged victim as an item of tangible evidence. Attached to the state's response was a police report that listed two video tapes under the category of physical evidence. The police report also contained this handwritten notation: "[The alleged victim] was video taped with her consent." The state included the transcript of one of the video-taped interviews of the alleged victim with the state's response to discovery.
The first trial took place in the fall of 1986. Following a mistrial because the jury could not agree on its verdict, the district judge who conducted the first trial retired. The new district judge ordered that a new trial begin in April 1987. Higgins' attorney in the first trial withdrew, and the trial court appointed a public defender to represent Higgins. The new defense attorney filed motions for a continuance and requesting a transcript from the previous trial. The trial court granted the continuance. Counsel for the parties stipulated that only the testimony of Higgins and the alleged victim be transcribed, and the trial judge ordered that these parts of the transcript be prepared.
On the day Higgins' second trial was to begin, Higgins' attorney filed a motion in limine to exclude the testimony of one of the state's witnesses, an expert in sexual abuse. The motion stated:
To allow [the expert] to testify as to the truthfulness of the alleged victim would, in fact, take away the obligation and rights of the jury to make that decision and invade their duties and rights.
This defense motion also challenged the admission of evidence of uncharged bad acts.
The trial court allowed the state's sexual abuse expert to testify concerning background material to help the jury generally understand the area of child sexual abuse. The trial court refused to allow Higgins' evidence regarding his polygraph, hypnosis, and truth serum results, stating that this evidence lacked sufficient scientific reliability. The trial court also ruled that the state could present evidence of uncharged prior bad acts under an exception to I.R.E. 404 because this evidence would have "probative value of [Higgins'] motive, intent and inclination." The trial court, apparently referring to evidence of prior, uncharged acts, then stated, "However, I'm going to limit it to what was admitted in the last trial."
In the second trial, the jury returned a verdict of guilty on all nine counts. Following a presentence investigation and a sentencing hearing, the trial court sentenced Higgins to two indeterminate terms of eight years for each of the two incest counts, and seven indeterminate terms of twenty years for each of the other counts. The trial court ordered the sentences to run concurrently.
Higgins filed two motions for new trial. In the second motion for new trial, Higgins argued that the trial court in the second trial improperly admitted evidence that had been excluded at the first trial after promising to follow the evidentiary rulings of the judge in the first trial. Higgins also asserted that the trial court improperly allowed the testimony of the state's sexual abuse expert, because the testimony was more prejudicial than probative.
Sometime after the second motion for new trial, counsel for Higgins discovered that the state had in its possession two video tapes of interviews of the alleged victim. State social workers and law enforcement personnel made these tapes in August 1985 (the 1985 video tape), and in January 1986 (the 1986 video tape). Higgins filed an amended motion for new trial in March 1990. In this motion, counsel for Higgins argued: (1) Higgins had requested all information like these video tapes, (2) the state had failed to disclose the existence of the tapes, (3) the tapes were exculpatory in nature, and (4) Higgins' access to these tapes would have substantially changed the outcome of his trial.
The trial court ruled that the state had substantially complied with Higgins' discovery request because:
1. The state's response to discovery listed a tape recorded statement by [the alleged victim] as an item of tangible evidence.
2. The state provided a transcript of the January 1986 video tape to defense counsel with the state's response to discovery.
3. A police report attached to the response to discovery listed "two video tapes" as tangible evidence. The report also stated that "[the alleged victim] was video taped with her consent."
The trial court noted that Higgins The trial court also noted:
By affidavit, attorneys for both the [state] and [Higgins] in the first and second trials state that they did not know of the existence of the two video taped interviews. Apparently none of the attorneys reviewed in detail the police reports and the statements and interview material.
The trial court concluded that while defense counsel could have used the videos to attempt to impeach the alleged victim, the video tapes would not have created a reasonable doubt as to Higgins' guilt. The trial court refused to grant a new trial based on the video tapes.
In addressing Higgins' claim that the trial court improperly admitted certain evidence after promising to follow the evidentiary rulings from the first trial, the trial court pointed out that defense counsel in the second trial made no specific objections to the admission of the evidence in question when that evidence was offered. The trial court concluded that admission of this evidence was not a basis for the granting of a new trial.
Concerning the admission of the testimony of the state's sexual abuse expert, the trial court ruled that the testimony was properly admitted and could not be the basis for ordering a new trial. The trial court said that the expert testified generally regarding "the child abuser profile," but did not evaluate Higgins' conduct in light of that profile, and "never related [the expert's] testimony to Higgins, in particular, at all." Therefore, the trial judge concluded that the expert's testimony was admissible.
Following the trial court's denial of a motion to reconsider its decision, Higgins appealed his convictions to this Court.
THE TRIAL COURT DID NOT PROMISE BUT FAILED TO FOLLOW CERTAIN EVIDENTIARY RULINGS FROM THE FIRST TRIAL.
Before the second trial started, Higgins filed a motion in limine requesting the trial court to exclude certain evidence that he anticipated the state would try to present during the trial. The evidence Higgins sought to exclude included the testimony of two witnesses "as to any matters which occurred prior to 1985." Higgins' motion in limine continued:
The basis of this Motion is that such prior alleged sexual conduct of the Defendant could be of high prejudicial nature that to allow such extraneous testimony will insight [sic] the minds of the jury, has very little probative value because of the age of such purported evidence and, in fact, is very difficult if not impossible to refute because of the length of time since the incidences [sic] which will be attempted to be testified by the parties.
In ruling on the part of Higgins' motion regarding prior sexual conduct, the trial court stated:
I have looked at [I.R.E. 401]. I've looked at [I.R.E. 404(b) ]. Concerning evidence not admissible to prove conduct of other crimes, and related matters. And again, I think it's soundly within the discretion of the trial court. I think we have to look at the probative value as weighed to the prejudicial effect of it. [Higgins] points out that it could be very prejudicial. It appears to the court that it is relevant.
....
There, of course, is a limit. I've reviewed the minute entries and the briefs filed in the prior trial, and prior hearing. The court is going to deny [Higgins'] motion. For all practical purposes, I think, so there's no misunderstanding where the court stands. I do think that the testimony [concerning prior sexual misconduct] has probative value. It falls within the exception of Rule 404 of the Idaho Rules of Evidence. It's within the discretion of the trial court to admit it, for its probative value to help the jury.
However, I'm going to limit it to what was admitted in the last trial. I know [the first trial judge] spent quite a bit of time analyzing the evidence. I have a lot of respect for [the first trial judge's] legal abilities. In addition to that, on my own, I have made my own independent search. So based on my own independent decision, that evidence will be admissible in line with what it was in the last trial. And I caution counsel for the State and for [Higgins] that I...
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