State v. White, 11829

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMcFADDEN; SHEPARD
Citation97 Idaho 708,551 P.2d 1344
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Russell Lee WHITE, Defendant-Appellant.
Docket NumberNo. 11829,11829
Decision Date07 July 1976

Page 1344

551 P.2d 1344
97 Idaho 708
STATE of Idaho, Plaintiff-Respondent,
v.
Russell Lee WHITE, Defendant-Appellant.
No. 11829.
Supreme Court of Idaho.
July 7, 1976.

Page 1346

[97 Idaho 710] Gary E. Radke, of Brauner, Fuller, Doolittle & Radke, Caldwell, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., James F. Kile, Asst. Atty. Gen., Gordon S. Nielson, Senior Deputy Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

ON REHEARING

McFADDEN, Chief Justice.

The previous opinion issued in this case on March 2, 1976, is hereby withdrawn and this opinion is substituted therefor.

Defendant-appellant Russell Lee White (hereinafter appellant), was found guilty by a jury of one count of second degree kidnapping. 1 Judgment of conviction was entered on the verdict and appellant was sentenced to a term not to exceed twenty-five years. 2 This appeal is from the judgment of conviction and from the order of the district court denying appellant's amended motion for a new trial. Defendant alleges error at trial in that the judge improperly commented on the evidence, limited his cross-examination of the complaining witness, and allowed the prosecuting attorney to comment on defendant's silence at the time of arrest. We reverse and remand for a new trial.

Appellant and the victim of the alleged kidnapping, Karen Jean Rose, first became acquainted when they met at Lake Lowell on the afternoon of July 26, 1974. They engaged in friendly conversation and passed the time for several hours. This much was undisputed at trial. However, appellant and Miss Rose differ as to the events that followed.

Miss Rose testified at trial as follows. She and appellant agreed to exchange phone numbers, and he then went to his truck to get a card with the number on it. When he returned to her car he allegedly displayed a knife, threatened her, and forced her to drive him in her car away from the lake. They drove along the river towards Marsing, waited on a road near the river until dark, and then took the Winnemucca-Jordan Valley road south. Appellant struck her when she refused his order to turn off the main road onto a dirt road outside of Jordan Valley; she later did drive the car off the main highway and down a dirt road where appellant made sexual advances towards her.

Following this stop they drove to a Jordan Valley tavern arriving at approximately 11:00 p. m. The two left the car and went inside where each consumed at least one beer. Miss Rose testified that she considered attempting to obtain help at the tavern, but that she was unable to do so. After about half an hour at the tavern, they returned to Nampa. The appellant got out of the car near his home, and Miss Rose proceeded to her parent's home, where she arrived at about 12:45 a. m.

Appellant, on the other hand, testified that the evening excursion with Miss Rose was a mutually agreed upon date. He stated that he and Miss Rose became friendly during the afternoon and that they both desired to continue the relationship into the evening. They agreed to go first to Marsing for a beer, which they drank in a roadside

Page 1347

[97 Idaho 711] park. They later went to Jordan Valey at Miss Rose's suggestion after she declined appellant's invitation to go to Winnemucca. Appellant testified that she was free at any time during the evening to leave him and go. He denied that he threatened Miss Rose or forced his attention upon her, and he denied that he had a knife with him at any time. He maintained that Miss Rose initiated the sexual advances and that she became angry and hostile when he was unresponsive.

Appellant was arrested at his home between 2:00 and 3:00 a. m. on the morning of July 27. He testified that he initially was unaware of the nature of the charge, and volunteered to the police that he had an alibi: that he had been with Karen Rose the entire evening. The police informed him that he was being charged with the kidnapping of Miss Rose. Appellant then determined to say no more to the police and he made no further statements to the police at the time of his arrest.

Appellant first assigns error to a remark made by the trial judge in ruling on a prosecution objection to a question asked of the complaining witness by defense counsel. On cross-examination, Miss Rose admitted that she and appellant had stopped at a tavern in Jordan Valley for a beer. The appellant was the first to leave the car and at her request he had locked the door on his side when he got out. At this point Miss Rose was sitting in the driver's seat of the car with the car keys; the defendant was out of the car and the door on his side was locked. The complaining witness was then asked why she had not attempted to drive away. She replied that she was scared. Then the following question was asked:

'Q. Have you told the Prosecutor and everybody the whole story in this case?

A. Yes.

Q. Did you tell the police this, that you had an opportunity to drive away?

MR. OWENS: Your honor, I am going to object to that. We don't know-we talk about opportunity to drive away, an opportunity exists in her mind, not in the mind of the Prosecutor or Defense Counsel is not a fact.

COURT: I don't think there is any evidence she had an opportunity to drive away. I don't know anything about cars. Some of them you can-you have to lock them with the keys, and one thing and another. I can't say.

I am going to sustain the objection.' (Rptr trans. p. 54.) (Emphasis added.)

Appellant contends the remark was clearly a comment on the weight of the evidence and expressed an opinion of the trial court on an issue which was critical to the guilt or innocence of the defendant. Both Miss Rose and appellant agreed that they had driven together from Lake Lowell, through Marsing, to Jordan Valley and directly back to Nampa. The critical question before the jury was: had the complaining witness willingly allowed the defendant to accompany her that evening, or had she been threatened and forced to drive him along that route? If Miss Rose had chosen to pass up an opportunity to escape, that would be important circumstantial evidence bearing on the issue. Appellant maintains that the trial judge, in effect, answered the question for the jury by his comment.

Respondent argues that the remark cannot be interpreted as expressing an opinion as to the evidence. Rather, respondent argues that the judge intended only to make the ruling clear and elucidate the issue under consideration. Such remarks are not considered error. State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959); State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952); State v. Neil, 58 Idaho 359, 74 P.2d (1937).

Remarks or comments by a trial judge which would tend to prejudice either of the parties to a jury trial are proscribed because of the great possibility that such an expression will influence the jurors. State v. Rutten, supra; State v. Linebarger,

Page 1348

[97 Idaho 712] 71 Idaho 255, 232 P.2d 669 (1951); State v. Miller, 60 Idaho 79, 88 P.2d 526 (1939); Bell, Handbook of Evidence for the Idaho Lawyer (2d ed. 1972), pp. 10-11. Remarks which are prejudicial are those which constitute comment on the weight of the evidence, State v. Polson, supra; State v. Ward, 51 Idaho 68, 1 P.2d 620 (1931); Kinzell v. Chicago, etc., Ry. Co., 33 Idaho 1, 190 P. 255 (1920); or indicate an opinion of the court as to the guilt or innocence of the defendant, State v. Polson, supra; State v. Brewer, 73 Idaho 191, 249 P.2d 189 (1952); State v. Rutten, supra. As this court stated in State v. Polson,

'the true tests, to determine if the remarks of a trial judge are prejudicial, are whether those remarks constitute comment on the weight of the evidence, State v. Ward, 51 Idaho 68, 1 P.2d 620; * * *.' 81 Idaho 147, 162, 339 P.2d 510, 519 (1959).

The comment made by the trial judge in ruling on the prosecution objection was made in such terms as to express his belief that certain evidence critical to the defense position was not present. The statement 'I don't think there is any evidence she had an opportunity to escape' was not rendered less noxious merely because it was made to give clarity to a ruling. 3 The statement went beyond the bounds of mere elucidation; the statement constituted expression of opinion about the evidence in the presence of the jury. When, as here, a statement reflects the court's opinion as to the evidence in a clear and unambiguous manner, and when it relates to a critical issue in the case, then that statement constitutes prejudicial error.

As his second assignment of error appellant alleges that the trial court unduly restricted and limited cross-examination of the complaining witness 4 and that in this he was denied his constitutional right to confrontation. Defense counsel was attempting to challenge the credibility of the complaining witness by exploring a possible source of motivation that may have led her to tell parents and police that she had been kidnapped. The trial judge objected on his own motion to this line of questioning. 5

A. Yes.

Defense counsel attempted to cross-examine Miss Rose on the effect of a recent pregnancy and miscarriage on her relationship with her parents. Appellant maintains that the relationship with the parents was critical. At the time of the incident, Miss

Page 1349

[97 Idaho 713] Rose was staying at home with them; she was expected home at suppertime, but, because of the drive with appellant, did not arrive until 1:00 a.m. the following morning. If the relationship was already strained, and if Miss Rose was concerned about this, then she may have anticipated that the late arrival would have serious detrimental effect on the relationship, and may have grasped for an excuse for the tardiness. Appellant contends that she fabricated the kidnapping in order to avoid a confrontation with her parents. Thus, cross-examination on this issue was important in that it pertained to a possible motivation...

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