State v. Smith
| Decision Date | 31 January 1990 |
| Docket Number | No. 17136,17136 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Henry William SMITH, Jr., Defendant-Appellant. |
| Court | Idaho Supreme Court |
John C. Arkoosh, Gooding, for defendant-appellant.
Jim Jones, Atty. Gen., Michael A. Henderson (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.
This is a criminal case in which a father was convicted of lewd conduct with his ten-year-old daughter. There are three issues presented on this appeal:
1. Should the trial court have instructed the jury that they were not required to reach a verdict, but might be a "hung jury?"
We hold that the jury instructions were sufficient to advise the jury that they were not required to change their opinion simply to reach a verdict.
2. Did the trial court violate its own prior ruling or the rules of evidence in not restricting the daughter from testifying that her father had improperly touched her on other occasions?
We hold that in allowing this testimony the trial court did not violate its prior ruling and did not violate the rules of evidence.
3. Should the trial court have restricted the cross-examination of the father's wife and rebuttal evidence offered by the state? The rebuttal evidence indicated that, contrary to her testimony on cross-examination, the father's wife had told investigating officers about other possible incidents of sexual misconduct by the father with his daughter.
We hold that the trial court did not abuse its discretion in allowing the cross-examination or in allowing the rebuttal evidence.
THE BACKGROUND AND PRIOR PROCEEDINGS.
Smith was charged with fondling his ten-year-old daughter's vaginal area. He was tried twice for this offense. The first trial ended in a mistrial when the jury was unable to reach a verdict. In the second trial the jury found Smith guilty.
At the first trial the defense attorney attempted to impeach the testimony of Smith's daughter by referring to inconsistent testimony she had given in the preliminary hearing. This testimony concerned whether Smith had touched his daughter outside or inside her clothes. On redirect examination Smith's daughter testified, without objection, that Smith had touched her previously outside her clothes. The prosecutor then asked her how many times her dad had touched her in a place that she felt uncomfortable. In ruling on an objection to this question by the defense attorney, the trial court allowed the prosecutor to go into the daughter's explanation that the touching had happened at other times. However, the trial court refused to allow any other testimony as to other similar acts of Smith.
Before the second trial the defense attorney moved the trial court to reaffirm its previous ruling as to the testimony of Smith's two sons, "as well as that of any other third party, dealing with any other uncharged acts of misconduct [that] are not admissible under the provisions of Rule 404 of the Idaho Rules of Evidence." In ruling on this motion the trial court reaffirmed its "evidentiary ruling from the previous trial ... subject only [to] the Court's review of said rulings concerning rebuttal testimony."
During the second trial, Smith's daughter testified, without objection, that her father had done some touching of her "private spots," which she explained was her vagina. She also testified, without objection, that the touching took place "in his house and in the recliner and in his pickup and the van." Over objection by the defense attorney, the prosecutor was allowed to ask Smith's daughter where the last touching that she could recall took place. Also over objection, she was allowed to state how many other times he had touched her in places where she didn't think he should touch her.
Smith's wife, who was not his daughter's mother, was called as a witness for the defense during the second trial. On direct examination she testified that Smith's daughter never told her about the incident for which Smith was being tried. On cross-examination she testified, without objection, that Smith's daughter never told her about any incident of molestation by Smith. She was also asked by the prosecutor whether she told investigating officers that Smith's daughter had come to her and talked about Smith molesting her. The trial court overruled the objection of Smith's attorney that this question was outside the scope of direct examination. Smith's wife then answered: "She came to us and talked about the boys." The prosecutor then asked the question again. The defense attorney objected on the ground that the question had been asked and answered. The trial court overruled the objection. Smith's wife then answered that she did not remember Smith's daughter coming to talk to her about Smith molesting the daughter.
On rebuttal the state offered the testimony of two former deputy sheriffs who had questioned Smith's wife within three weeks after the incident for which Smith was tried. Over the objection that it was hearsay the first deputy was allowed to testify that Smith's wife told him that Smith's daughter and the daughter of Smith's wife had come to Smith's wife and told her that Smith had been sexually touching them. The second deputy testified, without objection, that Smith's wife told him that Smith's daughter and the daughter of Smith's wife had told Smith's wife that Smith had been touching their private parts.
In the second trial the jury instructions included these:
Both the citizens of the State of Idaho and the defendant are entitled to the individual opinion of each juror. It is the duty of each of you to consider the evidence for the purpose of arriving at a verdict if you can do so. Each of you must decide the case for yourself but you should do so only after a discussion of the evidence and instructions with the other jurors.
You should not hesitate to change an opinion you are convinced is erroneous. However, you should not be influenced to decide any question in a particular way because the majority of the jurors, or any of them, favor such a decision.
You shall now retire and select one of your number to act as foreman who will preside over your deliberations. In order to reach a verdict, all twelve jurors must agree to the decision and to a finding you have been instructed to include in your verdict. As soon as all of you have agreed upon a verdict, you shall have it dated and signed by your foreman and shall return it to this courtroom.
The defense attorney did not object to these instructions. The jury found Smith guilty of lewd conduct with his daughter.
Within a few days after the trial the defense attorney moved for a new trial based on the affidavit of one of the jurors. A transcript of an interview of the juror by the defense attorney and the prosecutor was also presented to the trial court. The thrust of both the affidavit and the interview was that the juror was not aware that the jury did not have to reach a verdict of guilty or not guilty and could be a "hung jury." The trial court denied the motion for new trial. Smith appealed.
THE JURY INSTRUCTIONS.
Smith asserts that he was deprived of his constitutional right to a jury trial because the jury instructions did not properly instruct the jury that if they could not reach a unanimous verdict of guilty or not guilty, they could simply fail to render a verdict and become a "hung jury." We disagree.
We first note that the affidavit and transcribed interview of the juror are irrelevant to our consideration. If the instructions were adequate, it does not matter whether the juror misunderstood them or not. If the instructions were inadequate, the testimony of the juror is unnecessary to support reversal.
Next, we note that this Court has previously held that the failure to object to an instruction in a criminal case constitutes a waiver of the right to raise the instruction as an issue on appeal. State v. Carter, 103 Idaho 917, 919, 655 P.2d 434, 436 (1981). In support of this principle the Court in Carter cited I.C.R. 30 (effective July 1, 1980). The trial in Carter took place in 1978. Therefore, we conclude that the Court misspoke when the version of I.C.R. 30 that became effective in 1980 was cited. The reference should have been to the version of the rule in effect before the amendment.
Prior to July 1, 1980, I.C.R. 30 provided: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto prior to the time that the jury is charged." The 1980 amendment to I.C.R. 30 deleted this sentence. The amended rule contains subsections (a) and (b). The new I.C.R. 30(a) provided in 1980, as it does now: "The court shall inform counsel of its proposed actions upon the requested instructions and shall allow counsel a reasonable time within which to examine and make objections outside the presence of the jury to such instructions or the failure to give requested instructions."
Since the amendment of I.C.R. 30 in 1980 this Court has not spoken definitively about the effect of the amendment on the requirement to object to a proposed instruction at trial as a prerequisite to raising the propriety of the instruction on appeal. But see Country Ins. Co. v. Agricultural Dev., Inc., 107 Idaho 961, 964 n. 4, 695 P.2d 346, 349 n. 4 (1985). In recent years there has been some difference of opinion in the decisions of our Court of Appeals as to the effect of the 1980 amendment on the right to appeal the giving of an instruction to which no objection was interposed at trial. See State v. Eisele, 107 Idaho 1035, 695 P.2d 420 (Ct.App.1985); State v. Koch, 115 Idaho 176, 765 P.2d 687 (Ct.App.1988); State v. Randles, 115 Idaho 611, 768 P.2d 1344 (Ct.App.1989) aff'd in part and rev'd in part, 117 Idaho 344, 787 P.2d 1152 (Idaho 1990). In Eisele Justice Huntley of this Court, sitting as acting chief justice of the Court of Appeals, together...
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