State v. Pearce

• Decision Date: 28 August 2008
• Docket Number: No. 34491.,34491.
• Citation: 192 P.3d 1065,146 Idaho 241
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Sarah Kathleen PEARCE, Defendant-Appellant.
• Court: Idaho Supreme Court

192 P.3d 1065

146 Idaho 241

STATE of Idaho, Plaintiff-Respondent, v. Sarah Kathleen PEARCE, Defendant-Appellant.

No. 34491.

Supreme Court of Idaho, Boise, April 2008 Term.

August 28, 2008.

Greg S. Silvey, Boise, for appellant.

Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth Jorgensen argued.

J. JONES, Justice.

Sarah Kathleen Pearce appeals from her conviction of conspiracy to commit robbery, robbery, conspiracy to commit first degree kidnapping, first degree kidnapping, aggravated battery, and aiding and abetting attempted first degree murder. She contends that the district court (1) erred when it declined to allow her expert witness to testify on lineup procedures and the effect of such procedures on identifications, (2) erred by failing to instruct the jury regarding dangers inherent in eyewitness identification, and (3) violated her due process rights when it failed to admit the prosecutor's arguments from co-defendants' trials. The Court of Appeals concluded that the district court erred in failing to allow Pearce's expert to testify, but that any error was harmless. The Court of Appeals affirmed her conviction. Pearce petitioned this Court for review and we granted it.

I. FACTUAL AND PROCEDURAL SUMMARY

In the early morning hours of June 15, 2000, as Linda LeBrane was driving eastbound on Interstate 84, she was forced off the road by a vehicle carrying three men and one woman. The woman, later identified as Pearce by LeBrane and other witnesses who saw the group either before or after the attack, entered LeBrane's vehicle and unlocked her driver's side door. The three men, since identified as John David Wurdemann (John), Kenneth Wurdemann (Kenneth), and Jeremy Sanchez, along with Pearce, forced LeBrane from her vehicle and demanded money and drugs. John, Sanchez, and Pearce punched, struck, stabbed, and cut LeBrane with their fists and sharp instruments while Kenneth struck LeBrane with an aluminum baseball bat. The assailants took money and property from LeBrane, including a credit card, and transported her to a location on Farmway Road in Canyon County. LeBrane was again forced from the vehicle, beaten, stabbed, cut, and struck repeatedly before John and Sanchez set fire to her vehicle. The group left her lying in the dirt at the scene.

On March 13, 2003, Pearce was charged by indictment, which alleged that she was the female assailant. At trial, Pearce steadfastly contended she was not the woman involved. Her defense rested, in part, on the allegedly questionable ability of LeBrane to identify the female perpetrator. Evidence at trial indicated that prior to the attack LeBrane had smoked two marijuana cigarettes and was "loaded" by the time her car reached the Caldwell area. Additionally, LeBrane lost her glasses during the attack. Although the point at which she lost them is not clear, she admitted being nearsighted and unable to see without them. In the course of the investigation, LeBrane incorrectly identified two different women in two separate photo lineups. Pearce was in neither of the photo lineups. When questioned at trial, LeBrane admitted that the first woman she identified was the one most resembling the composite picture created after the incident¹ and that the second was the woman most resembling the actress who portrayed the female assailant in a television episode of America's Most Wanted, which featured the crime. LeBrane eventually identified Pearce in the third lineup — a video lineup that did not have any persons from the two previous photo lineups.

The methods employed in showing LeBrane the photo and video lineups were called into question at trial. Robert Miles, a detective with the Canyon County Sheriff's Office and the primary investigator on the case, testified that he had never received any training on how to conduct a photo lineup. In addition, when Miles instructed LeBrane regarding the photo lineup, he told her to identify the person who "most closely resembled" the perpetrator rather than telling her to pick the perpetrator if she was in the lineup. In one photo lineup, after LeBrane identified one person who she was positive was the female assailant, Miles told LeBrane she had picked the wrong person. With respect to the video lineup, Miles notified LeBrane prior to her identification that the lineup contained a person of interest.

In addition to LeBrane, several other people who allegedly saw the four perpetrators near the time and place of the attack identified Pearce as the female in the group, both in lineups and eventually in court. Keith Mower, who encountered the group at a rest stop on the night of the attack, identified Pearce as the female accompanying the Wurdemann brothers and Sanchez, both in a video lineup and later at trial. Steve Rupert, a clerk at a motel where the perpetrators allegedly stopped after the attack, also identified Pearce in the video lineup and in court, as having been with the three men. Rupert's son, Joseph, also identified Pearce in the video lineup and at trial as having been at the motel.

LeBrane complained the photo lineups made identification difficult, but that the video lineup was more helpful. During one of the photo lineups, she told the deputy, "I need to see these people in person. I need to see height. I need to see body movements. I need to see body language. I need to hear voices." She repeated this concern during the investigation. Mr. Mower also testified that the video lineup was "much, much better" than the photo lineups, and that it was much easier to make an identification with the video lineup.

Pearce offered Dr. Charles Honts, a psychology professor at Boise State University, to testify as an expert regarding the reliability of eyewitness identification, including commentary on lineup procedures. The state moved to exclude the testimony of Dr. Honts prior to trial. The district court allowed Dr. Honts to testify as an expert witness, but limited his testimony to the characteristics of memory without relation to the identifications in Pearce's case. Additionally, the court did not allow Dr. Honts to testify regarding lineup procedures and resulting identifications in general, finding he was not sufficiently qualified as an expert in this area, either as to his background or his knowledge of the facts of Pearce's case.

Pearce also called Kenneth as a defense witness. Kenneth, who had confessed to his participation in the attack, had previously testified for the state at the trials of John and Sanchez, who were both convicted for their involvement. During Sanchez' first trial,² he testified that Pearce was not the woman involved, but at Sanchez' second trial he testified he did not know whether she was the woman. At Pearce's trial, Kenneth testified on direct examination that he had never seen the female participant prior to the night of the attack and that he did not believe the woman was Pearce. The state then impeached Kenneth's credibility on cross-examination, focusing on his dishonesty throughout the investigation of the crime and his potential motive to lie.

Following the state's cross-examination of Kenneth, Pearce brought a motion to dismiss. She asserted a due process violation based on the state's inconsistent treatment of Kenneth's testimony for different defendants charged with the same crime. Pearce also moved to admit as admissions of a party opponent the closing arguments from Sanchez' first trial, where the state asserted that the jury should believe Kenneth's testimony, specifically that regarding Pearce, as well as the sentencing argument in Kenneth's case. The district court denied both the motion to dismiss and the motion to admit the arguments. The jury subsequently found Pearce guilty of all charges except aiding and abetting arson.

On appeal to the Court of Appeals, Pearce asserted the district court erred in refusing to allow Dr. Honts to testify as to lineup procedures and resulting identifications, failing to instruct the jury about the weaknesses of eyewitness identifications, denying her motion to dismiss, and excluding arguments from prior proceedings. Finding the record insufficient to determine whether the exclusion of certain expert testimony by Dr. Honts was erroneous or whether any such error would have been prejudicial, the Court of Appeals issued an order for temporary remand, directing the district court to receive an offer of proof by Pearce as to the specific testimony that would have been proffered at trial by Dr. Honts if it had not been excluded by the trial court on the state's motion in limine. The district court held an evidentiary hearing on the matter and such record was before the Court of Appeals for its consideration and for ours on review.

II. ISSUES ON APPEAL

The following issues are presented for determination: (1) whether the district court erred by declining to allow Pearce's expert witness to testify about lineup procedures and the effect of such procedures on identifications; (2) whether the district court erred by failing sua sponte to instruct the jury as to the dangers inherent in eyewitness identifications; and (3) whether the district court erred in denying the motion to dismiss and the related motion to admit prior prosecution arguments.

A.

The district court did not abuse its discretion in excluding certain testimony of Dr. Honts.

Pearce argues the district court abused its discretion in finding that Dr. Honts lacked the necessary education, experience, and factual background, to testify about police lineup procedures and the effect of procedures on identifications. A trial court's decision regarding the admission of expert testimony is reviewed for abuse of discretion. State v. Merwin, 131 Idaho 642, 645, 962 P.2d 1026, 1029 (1998). When determining whether the district court abused its discretion, we consider: (1) whether the lower court rightly perceived the issue as one of discretion; (2) whether ...