State v. Lute

• Decision Date: 03 July 1985
• Docket Number: No. 14928,14928
• Citation: 108 Idaho 905,702 P.2d 1365
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Dan LUTE, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1365

702 P.2d 1365

108 Idaho 905

STATE of Idaho, Plaintiff-Respondent, v. Dan LUTE, Defendant-Appellant.

No. 14928.

Court of Appeals of Idaho.

July 3, 1985.

Laird B. Stone, Alan E. Trimming, and George M. Parham (argued), Ada County Public Defender's Office, Boise, for defendant-appellant.

Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Rinda Ray Just, Deputy Atty. Gen., (argued), Boise, for plaintiff-respondent.

BURNETT, Judge.

While seventeen years of age, Dan Lute was charged as an adult with the crime of forcible rape. A jury found him guilty. He received an indeterminate life sentence. On appeal, he raises four principal issues: (1) whether the statutes under which he was charged as an adult violated his constitutional rights to due process and equal protection; (2) whether testimony regarding Lute's conduct at trial should have evoked a declaration of mistrial; (3) whether the evidence was sufficient to support the jury's verdict; and (4) whether the indeterminate life sentence represented an abuse of the district judge's discretion. For reasons explained below, we affirm the judgment, including the sentence.

Most unlawful conduct by juveniles falls within the exclusive jurisdiction vested in magistrates under the Youth Rehabilitation Act--title 16, chapter 18, Idaho Code. However, such jurisdiction may be waived, and the juvenile may be tried as an adult, if criteria set forth in I.C. § 16-1806 are satisfied. Moreover, I.C. § 16-1806A provides that exclusive YRA jurisdiction may be bypassed entirely, and juveniles may be charged as adults, for certain violent offenses. Included among the enumerated offenses is the crime of rape. Lute argues that the constitutional guarantees of due process and equal protection require a hearing and the application of waiver criteria when a minor is charged as an adult under I.C. § 16-1806A. The same argument recently was made and rejected in State v. Anderson, --- Idaho ---, 700 P.2d 76 (Ct.App.1985). Anderson is dispositive here.

Lute next contends that the district court erred in denying a motion for mistrial. The motion was prompted by testimony by the rape victim's husband. Under questioning by the prosecutor, he stated that during a recess in the trial he observed Lute grinning at him and his wife. Defense counsel did not object immediately to this testimony; rather, he cross-examined the victim's husband concerning the incident. Later, following another recess, counsel moved unsuccessfully for a mistrial, arguing that the testimony had been inflammatory.

The state urges us not to address the question on its merits but instead to hold that defense counsel's failure to object promptly to the testimony waived any claim of error. It is generally true that timely objections must be made to perceived trial errors. See State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980). However, an exception to this general rule applies in cases of fundamental error, where the constitutional right to a fair trial has been abridged. State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). As a variation on this theme, our Supreme Court also has held that prosecutorial misconduct may be reviewed on appeal, despite the lack of a timely objection below, if the prosecutor has undertaken "to inflame the minds of jurors and arouse passion or prejudice...." State v. LaMere, 103 Idaho 839, 844, 655 P.2d 46, 51 (1982), quoting State v. Spencer, 74 Idaho 173, 183-84, 258 P.2d 1147, 1154 (1953). These exceptions, it seems to us, apply with even greater force where, as here, defense counsel has not wholly failed to object to a perceived error but merely has raised the issue tardily in the trial court. We will address the mistrial issue in this case on its merits.

We think it clear beyond cavil that the prosecutor elicited the testimony in question for whatever emotional impact it might have on the jury. Responding to the motion for mistrial, the prosecutor offered no theory upon which the evidence could be deemed relevant to a material issue in the case. Rather, he said:

"[It] is offensive to me, that someone charged with a rape would leer at the rape victim and grin from ear to ear.... I was here. I saw it.... I think it truly reflects an attitude and the actions on the part of the defendant that I think are relevant for a jury to know about."

It has long been established that evidence of a bad "attitude," or of a defendant's seemingly bad character, is inadmissible to prove criminal conduct. E.g., State v. Henry, 66 Idaho 60, 154 P.2d 184 (1944); see generally Rule 404, Idaho Rules of Evidence. The prosecutor introduced error into the trial by eliciting such testimony.

However, this does not end our inquiry. Where the denial of a motion for mistrial is challenged on appeal, the issue is whether the event producing the motion represents reversible error. State v. Urquhart, 105 Idaho 92, 665 P.2d 1102 (Ct.App.1983). If an error is harmless it provides no occasion for reversal. "The core inquiry ... is whether it appears from the record that the event triggering the mistrial motion contributed to the verdict, leaving the appellate court with a reasonable doubt that the jury would have reached the same result had the event not occurred." State v. Palin, 106 Idaho 70, 75, 675 P.2d 49, 54 (Ct.App.1983). Reasonable doubt would exist if the evidence of guilt were debatable. State v. Spencer, supra. But in the present case, we are left with no such doubt. It was undisputed at trial that a rape occurred; the only genuine issue was whether Lute committed it. The evidence tying Lute to the crime was overwhelming. When the rape occurred, Lute was staying with a family near the victim's home. He had met the victim the previous day. The victim unhesitatingly identified Lute as her assailant. She selected his picture from a photographic lineup and she recognized him at trial. She testified that the assailant threatened her with a knife; that he had a dark birthmark on his left arm; and that he wore a gold necklace, a "fishnet" shirt and trousers with deep "painter's" pockets in which he carried a red pack of cigarettes. Lute had such a birthmark. The gold necklace and knife were found in his possession and identified at trial. The state also adduced evidence that Lute was known to wear clothing of the type described, that he smoked a brand of cigarettes sold in red packages, and that he carried the cigarettes in a deep "painter's" pocket of the trousers.

The only point of uncertainty in the state's case was how much time the rape incident consumed. The victim estimated that it extended from a few minutes past 6:00 a.m., when her husband went to work, until about 6:45. However, another witness testified that she saw Lute at the neighboring residence at 6:30. In our view, this discrepancy detracts little, if at all, from the strength of the state's case. We conclude that testimony concerning the "smiling" incident did not materially contribute to the verdict. No reversible error has been shown. We further conclude that the evidence was sufficient to support the verdict. Indeed, it could not reasonably have yielded any other outcome.

Finally, we consider Lute's contention that the district court abused its discretion by imposing an indeterminate life sentence. The state initially responds that this issue is not properly before us because Lute moved for reduction of the sentence, under I.C.R. 35, after filing his notice of appeal. No second or amended notice of appeal was filed after the Rule 35 motion was denied. However, this sequence of events does not preclude us from reviewing the sentence imposed in the judgment. At most, it would merely preclude...