State v. Myers, 10733

• Decision Date: 10 March 1972
• Docket Number: No. 10733,10733
• Citation: 494 P.2d 574,94 Idaho 570
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Donald D. MYERS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 574

494 P.2d 574

94 Idaho 570

STATE of Idaho, Plaintiff-Respondent, v. Donald D. MYERS, Defendant-Appellant.

No. 10733.

Supreme Court of Idaho.

March 10, 1972.

McDermott & McDermott, Pocatello, for defendant-appellant.

W. Anthony Park, Atty. Gen., Martin R. Ward, Deputy Atty. Gen., Boise, and Hugh C. Maguire, Jr., Pros. Atty., Pocatello, for plaintiff-respondent.

SHEPARD, Justice.

Defendant-appellant Myers appeals from a judgment of conviction entered following a jury trial and verdict of guilty of the crime of lewd and lascivious conduct with a minor child under the age of sixteen. We affirm the judgment of conviction.

The evidence of the prosecution need not be reviewed herein. It is sufficient to say that it was completely uncontradicted by the defense. The evidence of the prosecution consisted largely of the testimony of the prosecuting witness (the thirteen year old stepdaughter of Myers) and her brothers and sisters who either observed the attempted sexual assault or were in the family home at the time in question. The only evidence tendered by the defense touched upon the sanity of the defendant. Defendant-appellant first complains that the testimony of the prosecuting witness, his stepdaughter, was not adequately corroborated. The record is clear that the direct eyewitness testimony of the brother of the prosecuting witness and the indirect evidence of the surrounding circumstances, together with an admissionary statement by the defendant, furnished adequate corroboration of the testimony of the prosecuting witness.

This court has previously held that corroboration of the prosecuting witness in a case of this type may be by direct evidence or by evidence of surrounding circumstances where, as in the case at bar, the reputation of the prosecutrix for truth and chastity is unimpeached and her testimony is not contradictory nor inconsistent with the admitted facts of the case, nor inherently improbable. State v. Ross, 92 Idaho 709, 449 P.2d 369 (1968); State v. Tope, 86 Idaho 462, 387 P.2d 888 (1963).

Defendant-appellant next asserts that he did not receive a fair or impartial trial, citing that two of the jurors trying the instant case had been among those called for a panel in a prior trial upon the same complaint. That prior trial ended in a mistrial. The appellant argues that, even though the two jurors in question were excused from the first trial, they were nevertheless 'exposed to the facts of the case.' The record demonstrated, however, that no challenge was made by trial counsel for the defendant to the seating of the two jurors in question. The record further indicates that of the jurors drawn, only four were excused upon their voir dire. Appellant had ample opportunity to challenge the two jurors in question if he believed them to be in fact prejudiced or biased. Such opportunity to challenge was not exercised and defendant will not be heard to complain at this level. Appellant has in no way demonstrated that the two jurors in question were in fact 'exposed to the facts of the case' nor that they had in any way received improper knowledge of the purported facts of the case. The failure of the defendant-appellant to exercise his right to challenge indicates a satisfaction with the jury as finally constituted. State v. Bitz, 93 Idaho 239, 460 P.2d 374 (1969).

Defendant-appellant next assigns error in the refusal of the trial court to allow a jury view of the scene of the crime. I.C. § 19-2124 provides in pertinent part:

'When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body * * *.'

In State v. Kleier, 69 Idaho 491, 495, 210 P.2d 388, 391 (1949), the court stated:

'The record shows the physical condition at the scene of the crime had changed. Under these circumstances, the court did not abuse its discretion by denying the application.'

In the instant case the record demonstrates ample testimony indicating that the physical condition of the scene of the crime had been changed in the interim between the criminal act and the jury trial, and no valid observation of that scene so changed could have assisted the jury in its determinations. Under such circumstances it is clear that the discretionary authority of the trial court was not exercised erroneously in denying defendant's motion for a jury view.

Defendant-appellant's last and principal assignment of error asserts that the jury ignored the instructions of the trial court relating to the defense of insanity. Appellant asserts that the defense 'evidence' on the question of sanity of the defendant was in no way contravened by the prosecution and therefore required a finding of not guilty. The testimony on behalf of the defense consisted largely of two witnesses. One of those witnesses had worked for some years in the field of psychology and considered himself an expert in the field of psychological testing. He indicated that he had administered a battery of psychological tests to defendant a number of months after the date of the alleged offense. That witness was asked 'from these tests that you gave Mr. Myers in September of 1969, with a reasonable medical certainty, can you tell us what the state of mind of the defendant was on June 24, 1969 (the date of the alleged offense)?' The witness answered 'No, I can't do that.' Thus, regardless of the qualifications or lack thereof possessed by that witness, and regardless of his tendered so-called psychiatric evaluation, his entire testimony was valueless since it did not relate, nor could it relate, to the state of mind of the defendant at the time of the offense.

The second witness to testify on behalf of defendant was a physician employed at a state hospital. These were the sole credentials advanced on behalf of that witness to qualify his testimony as expert in the field of psychiatry. He was not shown to be educated or to possess any experience in the field of psychiatry. Nevertheless, he stated that he had arrived at a psychiatric diagnosis of the defendant and suggested that the defendant was suffering from 'marital maladjustment, (and) habitual excessive drinking' which he defined as 'the patient could have been intoxicated for the past twelve months more than twelve times.' He also suggested that the defendant was suffering from 'depressive neurosis' which was brought on by 'habitual excessive drinking.'

At the time of cross-examination that witness acknowledged that during the time the defendant was under observation, pursuant to court order, at State Hospital South, the witness had recommended that the defendant be returned to court to face the charges against him rather than being retained at the hospital for treatment. The recommendation by the witness to the trial court was couched in the language of the then standard of the State of Idaho for determining the sanity of a defendant in a criminal trial, to-wit: that the defendant knew the difference between right and wrong and was able to appreciate the significance of his acts and was competent mentally to assist his counsel at trial. At the time of trial that witness had rather obviously changed his opinion as to whether or not the defendant should be held responsible for his acts. At trial the witness stated his diagnosis of the defendant as being insane in terms of the then changed standard for determining the sanity of a defendant as defined by this court in State v. White, 93 Idaho 153, 456 P.2d 797 (1969).

The above cited and quoted testimony of the witnesses for the defense evidently was completely disregarded by the jury in arriving at its verdict. The appellant contends 'that the evidence established a reasonable doubt as to his sanity at the time of the alleged commission of the acts with which he was charged.' Defendant further asserts that the evidence of the defense witnesses was competent and unrefuted by the State's evidence and that the jury was not at liberty to disregard that testimony and in fact that the verdict of the jury is not supported by the evidence since a reasonable doubt of the sanity of the defendant had been raised and not controverted.

In this state, once the sanity of the defendant has been 'put in issue,' the state must prove that sanity beyond a reasonable doubt. State v. White, supra. Other jurisdictions hold:

(i) That the showing of insanity is in form an affirmative defense, and must be shown by the defendant by a preponderance of the evidence;

(ii) That the defendant must prove his insanity beyond a reasonable doubt (see, e. g.: Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952)). The approach chosen in this jurisdiction is the most protective of the defendant, and the least rigorous on him in terms of proof. See generally: 17 A.L.R.3d 146.

Among jurisdictions holding to the 'reasonable doubt' burden on the state, there is a further split as to the quantum of evidence necessary to rebut the presumption of sanity and 'put in issue' the question of sanity so that the burden of proof is on the state. A number of federal courts and a very small minority of the states have held that 'some' evidence is sufficient to rebut the presumption. Some of those courts use the terms 'slight' or 'any' evidence. (But see: Hartford v. United States, 362 F.2d 63 (9th Cir. 1966), cert. den. 385 U.S. 883, 87 S.Ct. 174, 17 L.Ed.2d 110 (1966), wherein 'substantial' evidence was required). However, the application of these terms has been neither clear-cut nor uniform, and has not been as liberal towards the defendant as a first reading of the terms themselves might suggest:

'The subject matter being what it is, there can be, of course, no sharp quantitative or qualitative definition of some evidence. 'Certainly it means more than a scintilla, yet, of course, the amount need not be so substantial as...