State v. Simonson, 16221
| Decision Date | 26 January 1987 |
| Docket Number | No. 16221,16221 |
| Citation | 112 Idaho 451,732 P.2d 689 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Larry SIMONSON, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
David W. Cantrill and Frank Kotyk (argued), Cantrill, Skinner, Sullivan & King, Boise, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.
A jury found Larry Simonson guilty of injuring a child, a felony under I.C. § 18-1505(1). 1 On appeal, he raises three issues for our review. First, he contends he was deprived of a fair trial when the mother of the victim--during cross-examination in the presence of the jury--disclosed that Simonson previously had pled guilty. Second, he asserts the trial court erred in allowing the state to present evidence that the child had suffered injuries on occasions other than the particular incident with which Simonson was charged. Finally, Simonson requests that we alter the record on appeal by excising the affidavit and order of probable cause for his arrest. For reasons explained below, we vacate the judgment of conviction because of the disclosure to the jury of Simonson's guilty plea. We remand the case for a new trial.
Larry Simonson was charged with felony injury to a 2 1/2 year-old child. The prosecuting attorney's information alleged that on October 5, 1983, Simonson caused "a subdural hematoma to be formed in the brain of said child...." Following his arrest, Simonson pled not guilty and the case was scheduled for trial. Shortly before the trial date, Simonson changed his plea to guilty and the trial was vacated. Simonson later moved to withdraw his guilty plea. The motion was granted, a plea of not guilty was reentered and the case was rescheduled for trial.
When the trial commenced, but before any evidence was presented to the jury, Simonson moved for an order in limine to exclude evidence of any injuries suffered by the child other than the subdural hematoma on October 5, 1983, as stated in the prosecutor's information. The court denied Simonson's motion and a continuing objection by Simonson to such evidence was noted for the record.
The child-victim and his mother were living with Simonson at the time of the alleged offense. The mother testified concerning apparent injuries to the child which had occurred while the child was in the care and custody of Simonson, both on October 5, 1983 and on other previous occasions. The mother also made reference to Simonson's guilty plea. Because we hold this latter point resulted in a reversible error and is therefore dispositive of the appeal, we shall discuss it first.
The mother's reference to Simonson's guilty plea came about as follows. The mother was the first witness called by the state. She testified that she became acquainted with Simonson in early 1983 when he began working for the same business where she was employed. She testified that they commenced living together in June of that year. In September Simonson was laid off, and they agreed that he would remain at home looking after her five children (including the victim) while she continued working. She testified that between September 6 and October 5, 1983, she noticed scratches, bruises, scalp wounds and other injuries to the victim on several occasions. She related the explanations given to her by Simonson for these contusions and lacerations, including a statement that he may have spanked the boy "too hard" on one occasion.
She described the events of October 5, 1983. She stated she had called her home in the early afternoon, around 2:00 p.m. Simonson answered the telephone. He told her the victim had fallen into the bathtub and had inhaled water into his lungs, but that the boy was alright. About 3:30, one of the other children called her and told her to come home because "something was wrong with [the victim]." When she arrived at the house, she found the boy slumped on the couch, incoherent and unable to make eye contact. After calling a doctor, she took the boy to the regional medical center for emergency treatment. 2
On cross-examination, the victim's mother recounted the events she had related on direct examination. Simonson's counsel then pursued a line of inquiry showing that she had continued to have contact, and to have maintained her relationship, with Simonson after the incident on October 5, 1983. The following then occurred:
At that point, Simonson's counsel interrupted and informed the court he wanted to make a motion. The court excused the jury and, after the jury left the courtroom, Simonson's counsel moved for a mistrial. Following a recess, the court denied the motion, but did give the jury a cautionary instruction. 3
After presentation of additional evidence from other witnesses, the jury found Simonson guilty as charged. Simonson then filed a motion for a new trial, asserting he was prejudiced by the mother's reference to his guilty plea. The trial judge denied the motion, ruling:
[H]aving heard the entire testimony after the motion for mistrial, particularly the testimony of the defendant and his explanations of what occurred, I have no reason to believe that a jury would have reached any other decision than they did reach regardless of any tainted testimony that got before the jury. And for this reason, I am going to deny your motion for a new trial.
On appeal Simonson argues that the court erred in refusing to grant either the motion for a mistrial or the motion for a new trial, predicated on the reference to his guilty plea. Simonson's challenge to the admission of this evidence requires analysis of several related questions. First, did error occur at all? Second, if so, was the error cured by the court's cautionary instruction? Third, if error occurred which was not cured by the instruction, was the error harmless or should the court have granted either Simonson's motion for a mistrial or his motion for a new trial?
In Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), the United States Supreme Court held it was error for a federal trial court to allow the government, in a criminal prosecution, to present evidence of an earlier plea of guilty to the charge, which plea had been withdrawn by leave of the trial court. This rule has since been followed by most state courts. Annotation, Propriety and Prejudicial Effect of Showing, in Criminal Case, Withdrawn Guilty Plea, 86 A.L.R.2d 326 (1962). 4 See also, E. CLEARY, McCORMICK ON EVIDENCE § 159, at 423-24 (3d ed.1984); 29 AM.JUR.2D Evidence § 528 (1967); 24B C.J.S. Criminal Law § 1915(2), at 58 n. 99 (1962).
The Kercheval rule was recently accepted by the Idaho Supreme Court through adoption of Idaho Rule of Evidence 410. That rule recites in part:
Except as otherwise provided in this rule, 5 evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn; ... 6
Here, in all fairness to the state, we recognize that the reference to Simonson's guilty plea was not adduced by the prosecution as part of its case in chief to prove Simonson's guilt. Neither was it a likely response to any inquiry put to the witness by defense counsel, and thus did not amount to invited error. Rather, the statement was simply volunteered by the witness in explaining certain events that, apparently to her, were related in time. However, in light of the great weight of authority concluding that such evidence is inadmissible, 86 A.L.R.2d 326, supra, we hold that error occurred. Our decision is supported in particular by cases where such evidence--received as volunteered, non-responsive statements from a witness during trial--has been held to constitute error.
In State v. Jensen, 74 Utah 299, 279 P. 506 (1929), the defendant pled guilty to larceny, was then allowed to withdraw his plea, and subsequently went to trial. After the defendant had testified as to a conversation with an alleged accomplice which had taken place in the presence of the local sheriff, the sheriff was called by the state as a rebuttal witness. The sheriff gave his version of the conversation, and added--referring to the defendant--"That was in my office, the same day that he pleaded guilty in this case." Defense counsel immediately objected and moved to strike the answer. The trial court refused to do so. On appeal the Utah Supreme Court reversed, applying the principle expressed in Kercheval v. United States, supra. The court held:
We also are of the opinion that the admission of such objectionable testimony was prejudicial. The natural tendency of it was to do harm. From such kind of error prejudice will be presumed, until by the record it is affirmatively shown the error was not or could not have been of harmful effect. Jensen v. Utah Ry. Co. (Utah) 270 P. 349. From the record it cannot be told that the objectionable testimony did not influence the jury in the rendition of the verdict. Upon such evidence it might be argued, and the jury induced to believe, that the defendant knew better than any one else whether or not he was guilty, and, as stated in Kercheval v. U.S., supra, the introduction of such evidence "may have turned the scale against" the defendant. The introduction of such kind of evidence was in the Kercheval Case held to be prejudicial, and upon that ground alone the judgment of the court below was reversed. Such, too, was the holding in other cases where the...
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