State v. Perry

• Citation: 150 Idaho 209,245 P.3d 961
• Decision Date: 07 December 2010
• Docket Number: No. 34846.,34846.
• Court: United States State Supreme Court of Idaho
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Joseph Everett PERRY, Defendant–Appellant.

150 Idaho 209

245 P.3d 961

STATE of Idaho, Plaintiff–Respondent,

v.Joseph Everett PERRY, Defendant–Appellant.

No. 34846.

Supreme Court of Idaho, Boise, September 2008 Term.

Dec. 7, 2010.

Rehearing Denied Dec. 7, 2010.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Elizabeth A. Allred, Deputy State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. John Charles McKinney, Deputy Attorney General argued.

SUBSTITUTE OPINION

THE COURT'S PRIOR OPINION DATED JULY 23, 2010 IS HEREBY WITHDRAWN.

BURDICK, Justice.

Appellant Joseph E. Perry was convicted of two counts of sexual battery of a child under the age of sixteen, for acts against T.P., and two counts of misdemeanor battery for acts against H.P. Perry asks us to reverse his conviction based on several alleged errors committed during trial, including the exclusion of I.R.E. 412 evidence offered to impeach T.P.'s allegations against Perry, the exclusion of I.R.E. 613 evidence offered to impeach the foster mother's testimony, and various acts of prosecutorial misconduct. Perry argues that these errors, individually, are either fundamental and/or not harmless. Alternatively Perry contends that even if each error is individually found to be harmless, in the aggregate they constitute reversible error under the cumulative error doctrine.

We hold that the evidence proffered by Perry was properly excluded. In addition, we hold that the trial court properly sustained the only objection made at trial that pertained to prosecutorial misconduct, and the unobjected to acts of prosecutorial misconduct do not rise to the level of fundamental error. Finally, we find that the cumulative error doctrine is inapplicable as Perry did not preserve any error for consideration on appeal. Therefore, we affirm Perry's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

From February to April, 2005, while T.P. (age 11) and H.P. (age 13) were living in foster care, Appellant Joseph E. Perry started taking the girls for overnight visits at his home in an attempt to reunite with his two daughters. Later that June, T.P. and H.P. revealed to their foster mother that Perry had occasionally invited one girl to sleep with him during these visits, and while the girl was lying in bed facing away from her father, Perry moved against her and rubbed his penis against the girl's back or buttocks in an up and down motion. Based on these allegations Perry was charged with four counts of lewd and lascivious conduct with a minor under sixteen years old, I.C. § 18–1508.

Before trial, Perry filed a motion in limine to present testimony/evidence that T.P. made a prior false allegation of a sex crime against H.P., i.e., that in 2004, T.P. had made statements, which were subsequently partially retracted, that H.P. touched T.P.'s breasts twice and sprayed T.P.'s genitals with a shower head during a family camping trip. The incident was reported to the girls' social worker, but after investigation, the Idaho Department of Health and Welfare (Department) determined that no further action was necessary.

At trial, the prosecutor called the foster mother as her first witness. Without objection from defense counsel, the prosecutor asked the foster mother whether the girls had ever been dishonest with her. She replied that they had, but only about "normal kid stuff." Later, on redirect examination, the prosecutor asked the foster mother to specify what types of things the girls had lied about in the past. Again, the foster mother indicated relatively minor things, such as messes in the house. Defense counsel made a tactical decision to not object to this testimony in order to lay the foundation for the I.R.E. 412 evidence. On re-cross-examination, defense counsel asked the foster mother if she recalled T.P.'s statements regarding the 2004 camping incident, and whether the foster mother considered that more than a minor thing. Before the foster mother could answer, the prosecutor objected to defense counsel's line of questioning. The district court sustained the objection, but indicated that admissibility of the I.R.E. 412 evidence could be addressed later in the trial.

Before T.P. took the stand, defense counsel reasserted his request to present the I.R.E. 412 evidence to impeach T.P.'s allegations against Perry. The report detailing T.P.'s allegations against H.P. stated that H.P. had grabbed T.P.'s breasts twice and placed a shower head on T.P.'s genitals and buttocks, and defense counsel quickly focused the district court's attention on the incident with the shower head. Defense counsel argued that because the shower spraying incident between the girls constituted a "sex crime" under I.R.E. 412(e)(2), and therefore T.P.'s later retraction of her statement—that H.P. did not stop spraying when asked—placed the evidence under the purview of I.R.E. 412(b)(2)(C) as a prior false allegation of a sex crime. The district court agreed with defense counsel that the shower spraying incident theoretically constituted a "sex crime," but noted that it was a "real stretch." However, after determining the evidence's probative value was "about zip" for I.R.E. 412 purposes, the district court held that the probative value was outweighed by the danger of allowing extraneous issues to come before the jury. The court also concluded that the jury's consideration of the evidence would be a waste of trial time. As such, the district court excluded the evidence under I.R.E. 412.

Defense counsel also sought to introduce this evidence under I.R.E. 613 to impeach the foster mother's testimony. Defense counsel argued that evidence demonstrating T.P. had made a prior false allegation of a sex crime against H.P., and the foster mother's documented concern that T.P. had lied or exaggerated about the shower spraying incident, was inconsistent with her trial testimony that T.P. had only lied about "normal kid stuff."¹ Although the district court acknowledged that the prosecutor had impermissibly opened the door to this line of questioning, the court also determined further evidence on the issue would be unhelpful to the jury and would waste trial time. Accordingly, the district court held the evidence inadmissible under I.R.E. 403.

Later, the prosecutor called the foster father to testify. This time, defense counsel initiated questioning about the girls' truthfulness during cross-examination. However, on redirect, the prosecutor continued with her theme of eliciting vouching testimony by asking the foster father if he noticed any signs of dishonesty on the girls' faces when they told him what had happened with Perry, to which the foster father replied "no." Defense counsel neither objected to the prosecutor's line of questioning, nor did he conduct re-cross-examination of the foster father.

Next, the prosecutor presented the testimony of Scott Teneyck, the investigating officer who interviewed T.P. and H.P. regarding their allegations against Perry. After the prosecutor asked a series of questions that established Teneyck's training and experience in interviewing children, and elicited testimony regarding the signs children typically give off during interviews which indicate that they are being untruthful, the prosecutor went on to inquire about Teneyck's interviews with T.P. and H.P. First, the prosecutor asked the Teneyck for his opinion as to whether T.P. was being truthful when she reported her allegations against Perry. Teneyck replied that he saw no indication of untruthfulness during his interview with T.P. When the prosecutor asked the same question regarding H.P., defense counsel objected before Teneyck could answer. The district court sustained the objection, noting that the prosecution was attempting to vouch for the girls' credibility and it was up to the jury to decide whether or not the girls were telling the truth.

Nevertheless, during closing argument the prosecutor referred to testimony from the foster mother, the foster father, and the officer that vouched for the girls' credibility. On four separate occasions, either directly or indirectly, the prosecutor reiterated that these witnesses believed the girls' allegations.

Once again, defense counsel did not object to any of the prosecutor's statements.

The jury found Perry guilty of two counts of sexual abuse of a child under sixteen years of age, for acts against T.P., and two counts of misdemeanor battery, for acts against H.P. The district court sentenced Perry to two concurrent fifteen-year terms, with five years determinate, for the two counts of sexual abuse, and two concurrent 180–day terms for the two counts of battery. Perry appealed and the Court of Appeals affirmed his conviction. This Court granted Perry's Petition for Review.

II. STANDARD OF REVIEW

"On review of a case from the Court of Appeals, this Court gives due consideration to the Court of Appeals' decision, but directly reviews the decision of the trial court." State v. Clements, 148 Idaho 82, 84, 218 P.3d 1143, 1145 (2009) (quoting State v. Bishop, 146 Idaho 804, 810, 203 P.3d 1203, 1209 (2009) ).

III. DISCUSSION

A. Prior False Allegation of a Sex Crime under I.R.E. 412

Perry argues that the district court abused its discretion in excluding evidence that T.P. made a prior false allegation of a sex crime against H.P. under I.R.E. 412 to impeach T.P.'s accusations against Perry. We agree with the district court's determination that Perry's proffer of I.R.E. 412 evidence was limited to the shower spraying incident between the girls, but disagree with the district court's interpretation that the incident constituted a "sex crime" under I.R.E. 412(e)(3). We affirm the district court's exclusion of the evidence.

1. The district court did not abuse its discretion in limiting the I.R.E. 412 evidence to the shower spraying incident between T.P. and H.P.

At the onset, we must address Perry's claim that the district erred in limiting its ruling on the admissibility of the ...