State v. Terry

• Court: Idaho Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Terry, 561 P.2d 1318, 98 Idaho 285 (Idaho 1977)
• Decision Date: 29 March 1977
• Docket Number: No. 12365,12365
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Patrick A. TERRY, Defendant-Appellant.

Page 1318

561 P.2d 1318

98 Idaho 285

The STATE of Idaho, Plaintiff-Respondent, v. Patrick A. TERRY, Defendant-Appellant.

No. 12365.

Supreme Court of Idaho.

March 29, 1977.

Ellison M. Matthews, of Matthews, Lee & Wilson, Boise, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., L. Mark Riddoch, Asst. Atty. Gen., Boise, for plaintiff-respondent.

PER CURIAM.

The facts of the present case are not disputed. Defendant-appellant Patrick Terry was tried before the Magistrate Division of the Fourth Judicial District on the charge of driving under the influence of intoxicating liquor or drugs. The state called James Thompson, one of the arresting police officers, to testify at trial. A portion of his testimony is challenged on appeal. When asked to describe the defendant's speech at the time of the arrest, Officer Thompson replied, 'Well, from the experience I've had with him in the past, he seemed to be much slower, much more definite in his speech. He didn't seem to be able to remember things that he was told. Asked us several times what he was charged with, and he was advised several times of the same charge.' The defendant's counsel objected and asked for a mistrial. The trial court refused the objection. The district court upheld the trial court's decision and this appeal followed.

Appellant argues on appeal that Officer Thompson's reference to prior experience with the defendant was prejudicial in that it amounted to a comment on the defendant's prior criminal conduct. We do not agree.

An identical issue came before the Arizona Supreme Court in State v. Finn, 111 Ariz. 271, 528 P.2d 615 (1970). The arresting officer in that case testified that he had known the defendant 'from before.' On appeal the defendant-appellant contended that the officer's testimony was 'a clear suggestion that the appellant had previous substantial involvement of a criminal nature of which the (officer) was aware.' The Arizona Supreme Court rejected appellant's argument. After citing the general rule in Arizona that evidence of prior criminal activity is inadmissible, the Court stated:

'We do not believe, however, that taken in the context of the trial before us, that the statements necessarily indicate that the defendant has a prior record or has had previous trouble with the police. Policemen do know other people than criminals and given the size of the community in the instant case, it is just as reasonable to assume that the officer's prior contract with the defendant was not as the result of any prior bad acts or criminal conduct on the...