State v. Ireland

Decision Date11 May 1989
Docket NumberNo. 870225,870225
Citation773 P.2d 1375
PartiesSTATE of Utah, Plaintiff and Appellee, v. Louis Fred IRELAND, Defendant and Appellant.
CourtUtah Supreme Court

Nathan Hult, Logan, for defendant and appellant.

R. Paul Van Dam, Kimberly K. Hornak, Salt Lake City, for plaintiff and appellee.

DURHAM, Justice:

Defendant Louis Fred Ireland was convicted of sodomy on a child, a first degree felony. On appeal, he claims (1) that the prosecutor committed reversible error by using leading questions, (2) that statements made by a witness were hearsay and were improperly admitted at trial, (3) that testimony concerning a conversation between defendant's ex-wife and defendant was improperly excluded at trial, (4) that there is insufficient evidence to sustain the verdict because of an improperly amended information, and (5) that a jury instruction on reasonable doubt was improperly worded. We affirm defendant's conviction.

During the summer of 1986, when the abuse occurred, the victim, defendant's eleven-year-old son, lived with defendant and the victim's sister in Smithfield, Utah. Defendant and the victim's mother had been divorced for several years, and he had custody of the children. At the beginning of August, the two children went to Idaho Falls, Idaho, for a two-week visit with their mother. At the end of the visitation period, the mother failed to return the children to defendant, and he contacted the Idaho Falls and Cache County Utah police departments. He was informed by the Cache County Sheriff that sexual abuse charges were pending against him.

While the children were visiting their mother, the victim revealed to a social worker, Robin Pelham, that his father had sexually abused him in early August before he left for Idaho. At trial, the victim testified that defendant had entered the victim's bedroom in the evening, asked the victim to pull his underwear down, and then fondled the victim's penis for approximately five minutes. Defendant then put his mouth over the victim's penis for about three minutes. The victim testified that defendant then left the room to watch television. 1

Defendant attempted to establish that the victim was capable of lying if he felt that it would get him what he wanted and that the victim's mother had initiated the accusations in order to gain custody of the two children.

Defendant was convicted of sodomy on a child pursuant to Utah Code Ann. § 76-5-403.1 (Supp.1987) and sentenced to five years to life, with a minimum mandatory term of ten years.

Leading Questions

We first address defendant's contention that the prosecutor's use of leading questions in eliciting the victim's testimony was error. Rule 611 of the Rules of Evidence states in part:

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

....

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Utah R.Evid. 611(a), (c). The advisory committee note to this rule states, "This rule is the federal rule, verbatim, and restates the inherent power of the court to control the judicial process."

The allowance or exclusion of leading questions is within the discretion of the trial court. A ruling on the use of leading questions will therefore be overruled only if the trial court has abused its discretion. Leading questions have been allowed by many courts when attempting to elicit testimony from children. See, e.g., United States v. Littlewind, 551 F.2d 244 (8th Cir.1977); State v. Jones, 204 Kan. 719, 466 P.2d 283 (1970); Barcus v. State, 92 Nev. 289, 550 P.2d 411 (1976); see also McCormick on Evidence ch. 2, § 6, at 13 (3d ed. 1984).

We recognize that the use of leading questions with children may create a greater danger of eliciting the answer suggested by the question. However, we believe that with a child witness who is testifying about a sensitive subject, leading questions may more often be necessary "to develop [the child's] testimony" than with adult witnesses. See Utah R.Evid. 611(c).

We do not believe that the trial court abused its discretion when it allowed the prosecutor to use leading questions with the victim. The victim, although speaking very softly, had very little difficulty testifying until the prosecutor asked him to describe what defendant had asked him to do after defendant entered his bedroom. After trying to elicit the information from the victim using several different approaches, the court interjected, "You can liberally use leading questions if you wish." The prosecutor then carefully used leading questions to get the victim to discuss the events leading up to the act of abuse. When the prosecutor reached another impasse with the victim, the court again stated, "You can use leading questions or proceed as to what happened as opposed to conversations." The prosecutor then used leading questions combined with the victim's use of anatomically correct dolls to elicit what had occurred. In response to an objection from defendant's counsel, the court stated, "Well, I understand they're leading, but I also understand that in view of the witness's age and also the difficulty that he's obviously showing and exhibiting and testifying, I feel that leading questions are appropriate as long as it's not carried too far."

In light of the victim's use of dolls to demonstrate that defendant had sodomized him, the prosecutor's careful use of leading questions, and the trial court's considered opinion that leading questions were necessary to develop the victim's testimony, we do not believe that the allowance of leading questions was error. Nor does the trial court's suggesting that leading questions be used demonstrate an abuse of the court's discretion.

Hearsay Testimony

Defendant makes two assertions of error concerning rulings the trial court made on the admissibility of hearsay evidence. First, he challenges the court's allowance of Pelham's testimony that the victim had told her that "it [the abuse] first started happening when I was five." Defendant claims that this statement is not admissible because it does not come within an exception to the hearsay rule. The State supports the admission of the statement on the ground that either it was not a hearsay statement or it was admissible under rule 803(4) or Utah Code Ann. § 76-5-411 (Supp.1987).

The challenged statement was offered by Pelham on cross-examination by the State. Defendant's counsel called Pelham as a witness in an effort to discredit the victim's earlier testimony. Defense counsel asked her, "On that occasion that you talked with him is it not true that [the victim] told you on that occasion that his father never had any oral contact with his genitals in Utah?" Pelham answered, "He said--at one point he did say that; he also said that he had. He told me both ways, so it was kind of confusing." In order to clarify both Pelham's and the victim's testimony, the State questioned Pelham about several claims of abuse made by the victim against defendant. After answering that the victim claimed to have been abused by his father at several locations, Pelham was asked "how far back" the claims went. It was to this question that defendant objected. The court allowed an answer, agreeing with the State that the statement was a basis of Pelham's investigation. Pelham answered, "He told me that he first--that 'it first started happening when I was five.' "

We agree with the trial court that the statement was properly admitted. Defendant's counsel introduced Pelham's testimony on direct examination in order to discredit the victim. We do not believe that defendant can offer this type of testimony and then complain when the State attempts to clarify a seeming inconsistency on cross-examination. By questioning Pelham on direct examination about the victim's statements to her, defendant has waived his right to complain that Pelham's rehabilitation of the victim was improper. Cf. Trouser Corp. of America v. Goodman & Theise, Inc., 153 F.2d 284, 288 n. 6 (3d Cir.1946) ("Where the objection is ... to the substance or subject-matter, the objecting party may also waive objection by himself introducing evidence of the facts objected to....").

Next, defendant challenges the trial court's exclusion of defendant's testimony about a conversation he had with his ex-wife concerning custody of the children. Defendant claims that the testimony should have been allowed pursuant to rule 803(3), which permits a statement concerning the declarant's state of mind, emotion, sensation, or physical condition to be excepted from the rule prohibiting hearsay, rule 802.

Although defendant had the right to use his ex-wife's statement regarding her state of mind to establish a motive to induce the child to lie about the abuse because of the custody dispute, defendant was not in fact attempting to use the statement for that purpose. The basis of the trial court's ruling on this evidentiary question is not altogether clear. It appears, however, that the trial judge understood that the evidence tended to show that the declarant had a motive for influencing the victim, but ruled that the evidence was inadmissible because counsel admitted that the defense was not attempting to show that she did try to influence the victim's testimony. For that reason, we do not believe the trial court erred in its ruling.

Amended Information and Sufficiency of Evidence

Defendant claims that...

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  • State v. Young
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    ...(no apparent reason to mandate one particular instruction on reasonable doubt); see also Johnson, 774 P.2d at 1147-49; State v. Ireland, 773 P.2d 1375, 1380 (Utah 1989); State v. Standiford, 769 P.2d 254, 266 (Utah 1988) (framing of instructions lies in the trial court's discretion).64 Inst......
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    ...ruling on the use of leading questions will therefore be overruled only if the trial court has abused its discretion.” State v. Ireland, 773 P.2d 1375, 1377 (Utah 1989). Rule 611(c) of the Utah Rules of Evidence governs the circumstances under which the trial court should allow leading ques......
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    ...validity of reasonable doubt instructions, which had been articulated by Justice Stewart in his dissent in State v. Ireland, 773 P.2d 1375, 1381 (Utah 1989) (Stewart, J., dissenting), had been adopted by a majority of this court in State v. Johnson, 774 P.2d 1141, 1147-49 (Utah 1989). Rober......
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15 books & journal articles
  • Say what? Confusion in the courts over what is the proper standard of review for hearsay rulings.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy Vol. 18 No. 1, February - February 2013
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    ...test); see discussion supra Part V.B.4 (elucidating two-part test applied in Oregon and Nebraska). (290) Compare State v. Ireland, 773 P.2d 1375, 1378 (Utah 1989), and State v. Auble, 754 P.2d 935, 937 (Utah 1988) (applying correctness standard to finding of admissibility under Rule 803(3))......
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    • May 1, 2022
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