State v. Kerchusky

• Citation: 138 Idaho 671,67 P.3d 1283
• Decision Date: 22 April 2003
• Docket Number: No. 27998.,27998.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gregory Paul KERCHUSKY, Defendant-Appellant.
• Court: Court of Appeals of Idaho

67 P.3d 1283

138 Idaho 671

STATE of Idaho, Plaintiff-Respondent, v. Gregory Paul KERCHUSKY, Defendant-Appellant.

No. 27998.

Court of Appeals of Idaho.

April 22, 2003.

Molly J. Huskey, State Appellate Public Defender; Sara B. Thomas, Deputy Appellate Public Defender, Boise, for appellant. Sara B. Thomas argued.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

LANSING, Chief Judge.

This is an appeal from a judgment of conviction for robbery. Gregory Kerchusky claims that the district court committed fundamental error at trial by admitting evidence of Kerchusky's silence prior to his arrest and prior to Miranda¹ warnings, that the court erred by excluding defense evidence that two other persons had access to a wig like the one worn by the robber, and that the sentence imposed was excessive.

I. BACKGROUND

Kerchusky was charged with robbery, Idaho Code § 18-6501. The evidence presented at trial showed that on August 22, 2000, at approximately 4:30 p.m., a man approached a teller at the U.S. Bank branch in Boise. The man was wearing black sunglasses or safety glasses, a black wig, a blue shirt, a baseball cap, jeans, and a fanny pack. He was described as a white male, age thirty to thirty-five, and of average height and build. The man handed the teller a note demanding money and referring to a gun. The teller gave the man bills with a total value of $507.

At approximately the same time, fourteen-year-old Josh Piper, who lived next to the bank, saw a man with a wig and sunglasses run through Piper's yard and hop over a brick wall into a neighbor's yard. As Piper watched, the man went behind a dumpster, pulled off his jacket or shirt, pants, wig, and glasses, and threw them in the dumpster. Piper then saw the man run toward Quinn's Lounge, a nearby tavern. When Piper later saw police responding to the bank robbery, he told one of the officers what he had seen.

Within the same time frame, Kerchusky entered Quinn's Lounge. Kerchusky bought drinks for himself and an acquaintance and then left Quinn's to buy cigarettes. As he left, he was confronted by two police officers who detained him. Kerchusky did not ask why he was being detained, nor did he respond when told that he matched the description of a person who had robbed a bank.

Piper was then brought to the scene and asked if he recognized Kerchusky as the man who had run through his yard, but Piper could not make an identification. Piper said that Kerchusky's clothing was unlike that which he had seen on the man, but he also observed that Kerchusky's build, height, and hair length matched the man he had seen. A bank employee was also brought to the scene and said that she recognized Kerchusky as the robber by his mannerisms, his profile, and his boots.

Kerchusky was then arrested and searched incident to the arrest. The money found in his wallet and in a pouch he carried, together with the sum he had spent on drinks at Quinn's Lounge, totaled $507, the precise amount stolen from the bank. Police found a wig, gloves, glasses, and a baseball cap in the dumpster where Piper had seen them being discarded. Police also saw a boot print near the dumpster with tread similar to the boots Kerchusky was wearing at the time of his arrest. During a subsequent search of Kerchusky's bedroom, police found black nylon hair which matched that in the wig found in the dumpster. Kerchusky's former roommate testified that, until just prior to the robbery, his daughter had possessed a wig like the one left in the dumpster.

At Kerchusky's trial, witnesses testified that Kerchusky had regularly worn a baseball cap like the one retrieved from the dumpster. However, testing of fabric from the cap showed that the "major contributor" of DNA found on the cap was not Kerchusky, and the test did not yield a DNA profile from a second person who was deemed a "minor contributor" to the DNA on the fabric.

Defense evidence included the testimony of Kerchusky's brother, who said that during the month of August 2000, he had paid Kerchusky approximately $1,200 for doing yard work, including approximately $400 paid the day before the robbery.

Kerchusky also sought to introduce evidence that during the month of August 2000, two men stayed in Kerchusky's apartment and therefore had access to the child's wig, and that one of the men was similar in appearance to Piper's description of the man who removed items of clothing behind the dumpster. The district court excluded the evidence, concluding that the offered evidence would do no more than raise a "mere suspicion" that one of the two men who stayed at the apartment committed the crime.

The jury found Kerchusky guilty, and the district court sentenced Kerchusky to a unified term of fifteen years with six years determinate. Kerchusky filed a motion for reduction of sentence, which the district court denied. Kerchusky appeals, asserting that there were errors in evidentiary rulings at his trial and that his sentence is excessive.

II. ANALYSIS

A. Exclusion of Evidence of Alternative Perpetrator

Kerchusky first argues that the district court erred by excluding his proffered evidence of alternative perpetrators, the men who had stayed at Kerchusky's apartment during the month of the robbery and who therefore had access to the wig belonging to the daughter of Kerchusky's roommate.

The district court excluded the evidence based on the "direct connection" doctrine expressed by the Idaho Supreme Court in State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966). In Larsen, the defendant, who was on trial for murder, wanted to introduce evidence about another man who had been investigated in connection with the crime. This evidence, which was excluded by the trial court, would have shown that bloodstains were found on the back seat of this former suspect's car and on a spare tire in the trunk. The former suspect had claimed that the stains were hamburger blood, but tests revealed that they were human blood. The car had been in the vicinity on the day of the murder and on several days thereafter. The defendant's proffer included evidence that the former suspect had engaged in sexual relations with the deceased. The deceased had told a schoolmate that she was pregnant with the child of a married man, but the schoolmate could not remember the married man's name, and no evidence was offered to show that the other suspect was married. The deceased had also told the same schoolmate that she knew someone was going to kill her, but no offer was made as to whether the deceased had revealed the name of this person. The Idaho Supreme Court affirmed the exclusion of this evidence of an alternative perpetrator. The Court held that "there must be such proof of connection with the crime, such a train of facts or circumstances, as tend clearly to point out someone besides the accused as the guilty party." Id. at 47, 415 P.2d at 690 (quoting State v. Caviness, 40 Idaho 500, 507-08, 235 P. 890, 892 (1925)). The Court concluded that the proposed evidence did not meet this standard, but, instead, merely offered conjectural inferences that another person committed the crime. Id. at 47-48, 415 P.2d at 690-91.

It has been observed that the direct connection doctrine applied in Larsen is merely a specialized application of the requirement, now embodied in Idaho Rule of Evidence 403, that a trial court balance the probative value of evidence against countervailing considerations, such as confusion of the issues, undue delay, or waste of time.² David McCord, "But Perry Mason Made it Look So Easy!:" The Admissibility of Evidence Offered by a Criminal Defendant to Suggest that Someone Else is Guilty, 63 Tenn. L.Rev. 917, 975 (1996). Thus in State v. Gibson, 202 Ariz. 321, 44 P.3d 1001, 1003-04 (2002), the Arizona Supreme Court held that evidence of third-party culpability should be analyzed under Arizona Rules of Evidence 401, 402, and 403, which are identical to the corresponding Idaho rules. And in People v. Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d 99, 104 (1986), the court observed that "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion" (citations omitted).

Thus, our review of the exclusion of Kerchusky's proffered evidence is essentially an inquiry into whether the district court correctly applied I.R.E. 403, which authorizes the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." We will not disturb a trial court's determination under I.R.E. 403 unless an abuse of discretion has been shown. State v. Baer, 132 Idaho 416, 419, 973 P.2d 768, 771 (Ct.App.1999); State v. Birkla, 126 Idaho 498, 500, 887 P.2d 43, 45 (Ct.App.1994).

Examination of the manner in which other courts have treated proffers of third-party perpetrator evidence is illuminating. In United States v. Armstrong, 621 F.2d 951 (9th Cir.1980), the defendant was charged with three bank robberies and had been identified as the robber through the eyewitness testimony of tellers. The defendant attempted to introduce evidence that another person, who matched the description of the robber, had purchased a car with $3,000 in bait bills that were taken during one of the robberies. The trial court excluded the evidence as irrelevant, but the appellate court held that the exclusion was prejudicial error, and reversed the conviction for that robbery. Id. at 953.

In United States v. Robinson, 544 F.2d 110 (2nd Cir.1976), three armed men robbed a bank, and the entire incident was captured on film by a surveillance camera. The trial court excluded...