State v. Morris
| Decision Date | 05 February 1976 |
| Docket Number | No. 11891,11891 |
| Citation | 546 P.2d 375,97 Idaho 420 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Steven Ray MORRIS, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Vernon K. Smith, Boise, for defendant-appellant.
Wayne L. Kidwell, Atty. Gen., Lynn Thomas, Deputy Atty. Gen., Gordon S. Nielson, Senior Deputy Atty. Gen., Boise, for plaintiff-respondent.
Defendant-appellant, Steven Ray Morris, was arrested on December 28, 1974 and charged with robbery under I.C. § 18-6501. The charges stemmed from an incident on December 24, 1974. At approximately 5 a. m. that morning, the duplex apartment of James Thornburg was broken into by two persons, one of whom was carrying a shotgun. Thornburg was present at the time and visiting with two friends, Henry Heckathorn and Tom Archer. Both Thornburg and Heckathorn were beaten by the intruders. Archer managed to escape out the back window.
Thornburg's next door neighbor, Craig Harris, heard the commotion and called the police. When the police arrived Thornburg was on the front lawn and two persons were observed standing on the front porch. One of these had a nylon stocking pulled over his face and ran immediately from the scene. He was pursued for several blocks by a police officer. However, the officer was unable to apprehend him. The other person also attempted to run from the scene but was apprehended and taken to the police station. He was released after being identified as Henry Heckathorn, one of the victims.
Another person, identified as William Junior Hughes, was apprehended as he came out of a window in the apartment. Hughes later pled guilty to robbery. Thornburg's Bulova watch, three rings and $11.96 in currency were found on Hughes.
At trial of this matter, Thornburg testified on cross-examination that a similar incident had occurred the previous Sunday, December 22, 1974 at about 5:00 a. m. His testimony was supplemented by that of Craig Harris. The testimony indicated that Thornburg was in his apartment with at least one other person when two intruders broke in, one of them carrying a shotgun. On this occasion Craig Harris heard the commotion and came over. He and the other occupants were beaten or roughed up but the incident was not reported to the police.
On appeal the defendant alleges that evidence of the prior incident was improperly admitted. He also claims that the identification of him by the victim Thornburg was the result of a prejudicially suggestive photographic lineup. Neither of these matters were objected to at trial and defendant claims that this failure to object, together with the lack of pretrial discovery and failure to request proper instructions, amounted to incompetence on the part of trial counsel. Furthermore, the defendant alleges the trial court erred when it failed to make limiting instructions on its own and when it failed to instruct the jury that assault and battery was a lesser included offense. Finally, he claims the district court judge made certain prejudicial remarks in the presence of the jury and asserts there was not sufficient evidence to sustain the verdict. Defendant is represented by new counsel on appeal and where applicable we will consider his assignments of error on the merits despite the lack of objection at trial since they relate to the competence of trial counsel.
The defendant here was identified by two witnesses, both Thornburg and Harris, as one of the perpetrators of the prior incident. That incident was similar in virtually every respect to the crime charged. In both, two men broke into Thornburg's apartment, in both one of the men carried a shotgun, both crimes took place at about 5:00 m. m., and in both the occupants were beaten. These similarities amount to a distinctive modus operandi. The introduction of evidence concerning the prior incident was not the result of an 'over zealous' prosecution as the defendant suggests, but was relevant to the issue of identity and properly admitted.
Apart from his connection with this prior incident, the defendant was identified with the crime charged only by the incourt identification by Thornburg. Defendant argues this identification was tainted by an improper pretrial photographic lineup. The record reveals that prior to trial the defendant was identified in a mugshot lineup prepared by the police. The lineup was described as follows of Officer James Merritt:
'I had spoken with Mr. Thornburg and Mr. Harris, and the only leads they could give me as to the identity of a second suspect would be that they believed his name was Steve, and that he lived in Middleton.
'I was also brought, or my attention was brought to another possible suspect known as Roger Collins.
'Mr. Thornburg was then shown the same series of photographs.
'Mr. Thornburg also stated that this was the subject that was the second suspect with Mr. Hughes.
'During the photo lineup Mr. Collins was eliminated as a suspect.'
Defendant argues that the record establishes that he was identified by one witness in the presence of another. He claims that the identification by Harris, who did not see defendant on the December 24 incident, affected Thornburg's subsequent identification of defendant as a perpetrator in both incidents.
We stated in State v. Grierson, 95 Idaho 155, 504 P.2d 1204 (1972), that 'law enforcement officers should avoid the practice of having witnesses view a lineup and make identifications in the presence of one another.' The same is true where the witnesses view a photographic lineup. The faulty procedure may well render evidence of the photographic lineup inadmissible, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), or taint later identifications where 'the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Annot.39 A.L.R.3d 1000, § 6 (Supp.1975).
In the present case, however, the record fails to establish that the two witnesses viewed the photographs simultaneously, nor does the record establish any other 'impermissibly suggestive' procedure. Hence, we find no error.
Nor does the remark by Officer Merritt that he pulled the defendant's photograph from a previous investigation necessitate reversal. This remark, taken together with all the evidence, was not prejudicial. State v. Tisdel, 94 Idaho 329, 332, 487 P.2d 692 (1971); I.C. § 19-3702.
It is clear then that trial counsel's failure to object to the photographic lineup procedures or introduction of evidence of the prior incident do not amount to incompetence. No standard of trial court competency requires counsel to make needless objections only to have his objections overruled. To do so 'risks alienating the jury even if he does not test the patience of the presiding judge.' Williams v. Beto, 354 F.2d 698, 703 (5th Cir. 1965).
Defendant argues, however, that trial counsel's 'failure to perform pretrial discovery procedures' establishes counsel's incompetence. He cites our recent decision in State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). In that decision we recognized that inadequate preparation prior to trial has been held to be sufficient grounds to constitute a denial of the right to counsel. Here, as in Tucker, the record indicates no discovery motions were filed. It is devoid of any direct references to trial counsel's pretrial investigation or lack thereof. It should be noted, however, that in the present case the...
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State v. Abel, 13498
...(testimony relating to defendant's recent imprisonment relevant and admissible as to identity of the perpetrator); State v. Morris, 97 Idaho 420, 422, 546 P.2d 375, 377 (1976) (testimony concerning incident similar to that from which charges arose admissible as relevant to the issue of iden......
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State v. Sharp
...common to the other crimes and the crime with which the defendant is charged." 95 Idaho at 864, 522 P.2d at 72. Accord, State v. Morris, 97 Idaho 420, 546 P.2d 375 (1976). Izatt, after citing Shepherd, explained what could be presented from a different viewpoint, that of the "inseparable "T......
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State v. Stuart
...was clear in Idaho that the burden was upon the defendant to request the court to instruct on lesser included offenses. State v. Morris, 97 Idaho 420, 546 P.2d 375 (1976); State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976); State v. Boyenger, 95 Idaho 396, 509 P.2d 1317 (1973). This Court rec......
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...may have viewed the escape as evidence of guilty knowledge. A cautionary instruction was not given or requested. See State v. Morris, 97 Idaho 420, 546 P.2d 375 (1976). However, even if error is prejudicial, a verdict will not be set aside where the evidence of guilt, absent the error, is s......