State v. Smoot
| Decision Date | 22 November 1978 |
| Docket Number | No. 12299,12299 |
| Citation | 99 Idaho 855,590 P.2d 1001 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Lester Daniel SMOOT, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Wayne L. Kidwell, Atty. Gen., James Kile, David G. High, Asst. Attys. Gen., Boise, for plaintiff-respondent.
The defendant-appellant, Lester Daniel Smoot, was charged with forcing a 22 year old Pocatello woman to have intercourse with him under threat of bodily harm. The rape was alleged to have taken place during the early morning hours of May 16, 1975. A jury found Smoot guilty of rape upon which a judgment of conviction was entered and he was sentenced to six years in the state penitentiary.
The victim testified at trial as follows: At approximately 7:30 to 8:30 p. m. on May 16, 1975, one of the victim's co-workers, picked her up at her home with the intention that they go to a local bar and listen to a band. They met other mutual acquaintances at the bar and stayed until closing time. At approximately 1:00 a. m., as they were preparing to leave, one of the friends suggested that they all go out to breakfast but the victim told the group she preferred to go home. Since she had not driven her own car, this presented problems because her friend wanted to have breakfast. After some discussion, the defendant, who was not part of the group urging they go out to breakfast, agreed to follow the victim while she drove her friend's car to her friend's house in Chubbuck, and then give the victim a ride back to her residence in Pocatello.
According to the victim, the defendant was not a total stranger; she had met him several times before and had danced with him earlier that evening. At that time he had suggested that they go to bed, but she had been offended at this remark, and he apologized. She also knew that he was married.
After she drove her friend's car to Chubbuck, she got into the defendant's pickup expecting to be driven home. She stated that Smoot proceeded to drive in a different direction from the correct route to her home. She contended that she protested and Smoot stated: "I thought we would just go for a ride." Smoot drove her to a point south of the Pocatello airport, stopped the pickup, and then forced her to have sexual intercourse while he held her arms to prevent her from resisting. Afterwards, they drove back to Pocatello and he returned her to her home. She then called a friend and went to the friend's house; the friend in turn called the police, who arranged for her to be examined by a physician.
The examining physician, Dr. Henry S. Byrd, was on emergency room duty that morning. He testified that the victim had Smoot testified in his own defense and stated that he and the victim had seen each other several times before. He admitted that he had offered to give her a ride home on the night in question and that after picking her up in Chubbuck he had driven west toward American Falls. He testified, however, that he had gone that way with the intention of making a loop through the surrounding country and into Pocatello from the southwest. They did not drive this loop because the defendant missed the proper turn. While they were in Power County and preparing to drive back to Pocatello, the two of them agreed to have intercourse. However, because the defendant had been drinking all night he was unable to attain an erection and thus he neither penetrated the complaining witness nor ejaculated. After this unsuccessful attempt at sex, they returned to Pocatello and he let her off at her residence at approximately 2:40 a. m.
told him that she had been forcibly raped earlier that morning. His examination, conducted at approximately 4:00 a. m., revealed that semen was deposited in her vagina; and based upon the motility of the sperm in the sample he extracted, he concluded that she had had intercourse within the previous six to eight hours.
Smoot submits nineteen assignments of error. However, the assignments fall basically in the areas of discovery, prosecutorial conduct during trial, trial court rulings as to evidence, courtroom procedure, jury instructions, and sentencing.
Assignments of error which were not supported by argument or authorities in the brief will not be considered on appeal. Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976); V-1 Oil Co. v. Lacy, 97 Idaho 468, 546 P.2d 1176 (1976); Church v. Roemer, 94 Idaho 782, 498 P.2d 1255 (1972). We shall discuss only such assignments that have been adequately briefed or argued and which we deem material.
Smoot raises three assignments of error relating to the state's failure to disclose and preserve material evidence specifically requested by the defense in their pretrial motion for discovery.
Smoot argues that he was denied due process by the state's failure to provide him prior to trial with a copy of a written statement given by the victim to the Power County Sheriff's Office. On December 8, 1975, the state responded to Smoot's specific discovery request for every relevant written or recorded statement made by any witness, by stating the victim had made an oral statement to the Power County Sheriff's Deputy who made a written report pertaining to his initial investigation. On December 31, 1975, the prosecution discovered the written statement given by the victim to the Power County Sheriff's Office and mailed a copy to Smoot's attorney. However because the state affixed insufficient postage this copy of the witness's statement was not delivered prior to trial. Smoot's attorney was furnished a copy of the victim's statement, a two-page handwritten account of the rape incident, after the victim's direct testimony at trial.
Smoot argues that the standard adopted by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 183 S.Ct. 1194, 10 L.Ed.2d 215 (1963) should be utilized in determining whether the prosecution's failure to supply the defense with a copy of the victim's statement prior to trial constituted prejudicial error. We do not believe this is the correct inquiry in the instant case.
Brady deals with the complete suppression during trial of exculpatory material while in the instant case the defense learned of the material at trial, albeit not until the second day of trial. The Ninth Circuit in United States v. Miller, 529 F.2d 1125 (1976), set down what this Court feels is the appropriate focus of review for such situations. The Court in Miller in holding Brady inapplicable stated:
Thus, our inquiry on appeal is not whether the evidence had it been disclosed, might reasonably have affected the jury's judgment on some material point. Rather 529 F.2d at 1128.
it is whether the lateness of the disclosure so prejudiced appellant's preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial. (our emphasis)
In United States v. Kaplan, 554 F.2d 577, 580 (1977) the Third Circuit, dealing with the issue of belated production of documentary evidence stated:
But even so, we cannot accept defendant's contention that there was a Brady violation here. This is not a situation where the withheld information was discovered only after conviction, but one where the evidence became available to the defense during trial. Any failure to produce exculpatory matter came to the attention of the defense before the government concluded its case, and the defense utilized the evidence.
If exculpatory evidence can be effectively presented at trial and the defendant is not prevented by lack of time to make needed investigation, there is no reversible prosecutorial conduct in ill-timed presentation.
A delayed disclosure by the prosecution is not per se reversible error. United States v. Kaplan, supra; United States v. Diaz Rodriguez, 478 F.2d 1005 (9th Cir. 1973) Cert. dismissed 412 U.S. 964, 93 S.Ct. 3024, 37 L.Ed.2d 1013 (1973). When the statement was received by the defense it had not been completed its cross-examination of the victim. Defense counsel made no request for a continuance in order to investigate any new line of defense suggested by the statement. Rather, defense counsel cross-examined the victim as to discrepancies between the statement and her testimony on direct examination. Smoot's attorney had the written statement marked as an exhibit but did not introduce it into evidence and thus place it before the jury.
The victim's statement is in all material portions consistent with her testimony at the preliminary hearing and at trial. This is not a situation where the prompt disclosure of the statement would have enabled the defense to discover new witnesses or documents in support of their theory of defense. The receipt of the statement during trial, defense counsel's failure to request a continuance and defense counsel's extensive use of the statement during cross-examination of the victim militate against a finding of prejudice based on late disclosure. We cannot hold in the present case that the state's belated disclosure of the victim's statement so prejudiced Smoot's preparation and presentation of his case that he was denied a fair trial.
Smoot next argues that error was committed by the prosecution's failure to provide him with a complete list of witnesses that they intended to call pursuant to pretrial discovery motions. Smoot contends the failure of the prosecution to supply him prior to trial with the names of Robert Lamb and Susan Wood, both of whom testified for the prosecution at trial, denied him due process of law.
I.C.R. 16(a)(1)(vi) provides for the discovery by the defendant of the names and addresses of all persons having knowledge of the relevant facts who may be called by the state as witnesses. This is essentially the same purpose accomplished by the endorsement requirement of I.C. § 19-1302. State v. Nelson, 97 Idaho 718, 552 P.2d 226 (1976); State v. Fisk, 92 Idaho 675, ...
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