State v. Wilson

• Decision Date: 23 July 1969
• Docket Number: No. 10164,10164
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert WILSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 433

457 P.2d 433

93 Idaho 194

STATE of Idaho, Plaintiff-Respondent, v. Robert WILSON, Defendant-Appellant.

No. 10164.

Supreme Court of Idaho.

July 23, 1969.

Kerr & Williams, Blackfoot, for appellant.

Robert M. Robson, Atty. Gen. and Gale M. Merrick, Asst. Atty. Gen., Boise, and Thomas E. Moss, Pros. Atty., Blackfoot, for appellee.

DONALDSON, Justice.

Defendant (appellant) Robert Wilson was convicted and adjudged guilty of the crime of rape. ¹ He was sentenced to fifteen years in the Idaho State Penitentiary. He has appealed from the conviction and judgment to the Supreme Court of Idaho.

On the evening of June 15, 1967, Don Bingham, age 21, Arlen Genta, a high school student, and defendant, age 27, all were driving around the American Falls-Pocatello area, drinking beer and looking for girls. Near Chubbuck they observed the complanining witness, a sixteen year old girl, walking down the road. They stopped the car nearby and she ran over to it, evidently in the belief that it was her mother's automobile. According to the three men, they asked her if she wanted a lift; after some hesitation she accepted and entered the car. According to the complaining witness she was forced into the back seat of the car by Wilson. They drove to a dirt road near Fort Hall, the girl and Bingham in the back seat, the defendant Wilson driving, and Genta in the front passenger seat. The car was halted on the dirt road, Wilson and Genta left the vehicle, and Bingham attempted intercourse with the girl on the back seat of the car. She resisted his attentions, and there is some question whether Bingham was able to accomplish penetration, although he did have an ejaculation. After half an hour to forty-five minutes Bingham got out of the car and defendant entered.

According to the girl, Wilson at first tried to soothe her and help her to dress; after a few minutes, however, he too attempted intercourse with her, and despite her resistance, there was penetration.

The defendant Wilson contends that up until the time he returned to the car, he thought Bingham and the girl only had been 'making out;' that when he learned that the girl had been sexually assaulted, he attempted to console her; and that he never tried to have sexual relations with her. A little while after Wilson entered the car, Genta and Bingham saw the lights of other vehicles, and returned to the car. Both claimed that they observed Wilson on top of the girl in a coital position. Wilson's pants had been dropped sufficiently for his naked buttocks to be visible. Likewise the girl's shorts were pulled down. Bingham started the car, and Genta sat in the front seat. After they had driven a short distance, the complaining witness demanded that she be let out of the car. She was allowed to leave the car about a mile from Fort Hall. Unfortunately, thereafter a carload of inebriates happened to drive by the road where she had been let out of the car. Several of them raped her.

A medical examination made shortly after all of these incidents revealed that until the night in question the complaining witness had been virginal. The examination also showed that some person or persons had had forcible intercourse with her one or more times.

Appellant has listed thirty-six assignments of error. We shall limit our opinion to those issues meriting serious discussion.

Defendant strenuously objects to the admission in evidence of the following testimony, elicited by the prosecuting attorney from the physician who examined the complaining witness soon after she was raped.

'Q (By Mr. Moss) Doctor, I want to ask this question: In your experience as a physician-now, you have testified that this girl was definitely virginal prior to whatever it was that created her physical condition. Now, can you describe to the Jury just what your feeling is when-to a young girl at the time when her hymen is ruptured? How would this sensation be described?

A This, of course, I can only tell what is written in medical literature. It varies, of course, depending on whether we are talking about, say, a newlywed who on her wedding night is having her hymen ruptured through her initial first act of intercourse versus whether it is a forced rupture of the hymenal ring. In other words, this depends on the ease with which this is done.

MR. KEER: Just a moment, I think we are going to object to any testimony of this as speculative and again neither proving or disproving any evidence here of a prior-

THE COURT: I'll overrule the objection. Go ahead, Doctor.

Q (By Mr. Moss) Would you continue, Doctor?

A Yes, in a condition where there is a forced rupture of the hymenal ring there would be a sudden feeling of a possibility of a tearing sensation with an exquisite pain after which the girl would probably feel a warmth of the trickling of blood as it runs down and on each subsequent penetration of the penis you would have increased pain until the openings through the hymen were widened sufficiently to allow the penis to penetrate without touching the sides of the vaginal wall or the hymenal ring which had been broken and this would depend, sometimes up to a week after intercourse before they would have no pain whatsoever on subsequent intercourse.

Q And could you tell from your examination whether (the girl) at the time she was injured and in the way you have described was like this new bride that was prepared for intercourse or the other type of intercourse? Can you tell from your examination?

MR. KERR: We submit that this would be speculative.

THE COURT: I'll overrule the objection.

Q (By Mr. Moss) Could you tell, Doctor?

A Yes.

Q Do you have an opinion?

A Yes, a hymenal ring that is ruptured and is still bleeding after approximately six hours, is still bleeding from the torn edges of the hymenal ring and torn in at least three or four places has to have been brutally done to rupture the hymenal ring.

'Q This would be opposed to the situation where the young lady is prepared like the marriage situation?

A Yes. Often times with an easy type of intercourse that one would hope would happen on the first night of intercourse in marriage, usually you do not get a bleeding, you get a gradual widening of the ring as one would dilate some article to a larger size without a tear in the hymen.'

Legal evidence which logically tends to prove or disprove a material fact in issue is relevant and therefore admissible, provided it is not too remote or speculative or otherwise of such slight probative value as to justify the court in excluding it on the ground of immateriality. State v. Sandoval, 92 Idaho 853, 452 P.2d 350 (1969); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968); State v. Farris, 48 Idaho 439, 282 P. 489 (1929).

"An accused in a criminal prosecution is entitled to a trial upon competent, relevant evidence; evidence which at least tends to establish his guilt or innocence; and evidence which has no such tendency, but which, if effective at all, could only serve to excite the minds and inflame the passions of the jury should not be admitted." State v. Fleming, 182 Neb. 249, 154 N.W.2d 65, at 66 (1967); accord, People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436 (1964); People v. Tassiello, 300 N.Y. 425, 91 N.E.2d 872 (1950).

'A fundamental principle of criminal law is that where the offense charged 'is of itself sufficient to inflame the minds of the average person, it is required that there be rigorous insistence upon observance of the rules of the admission of evidence'.' People v. Jones, 42 Cal.2d 219, 266 P.2d 38 (1954).

If allegedly inflammatory evidence is relevant and material to the proof of an issue of fact, the trial court may excercise a sound discretion in determining whether or not the probative value is outweighed by the possible prejudicial effect, to admit or exclude the evidence accordingly. In such a situation the court must balance the policy of protecting a defendant from undue prejudice, against the rule of logical relevance. People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974 (1957); see, State v. Martinez, 92 Idaho 183, 439 P.2d 691 (1968); People v. Love, 53 Cal.2d 843, 3 Cal.Rptr. 665, 350 P.2d 705 (1960); People v. Curtis, 232 Cal.App.2d 859, 43 Cal.Rptr. 286 (Dist.Ct.App.1965); Commonwealth v. D'Agostino, 344 Mass. 276, 182 N.E.2d 133 (1962); State v. Wall, 243 N.C. 238, 90 S.E.2d 383 (1955).

However, reception at trial of irrelevant and immaterial evidence, which serves no probative function, but serves only to inflame the minds and passions of the jury to the prejudice of the defendant is reversible error. State v. Whitney, 43 Idaho 745, 254 P. 525 (1927); State v. Wheeler, 70 Idaho 455, 220 P.2d 687 (1950); Landsdown v. United States, 348 F.2d 405 (5th Cir. 1965); United States v. Tomaiollo, 249 F.2d 683 (2d Cir. 1957); State v. Hudson, 89 Ariz. 103, 358 P.2d 332 (1960); Rand v. State, 232 Ark. 909, 341 S.W.2d 9 (1960); Hatifield v. Commonwealth, 395 S.W.2d 768 (Ky.1965); People v. Gougas, 410 Ill. 235, 102 N.E.2d 152, 28 A.L.R.2d 852 (1951).

Representative examples of irrelevant, immaterial and inflammatory material, the admission of which into evidence was held to be reversible error, include the following:

Evidence that defendant, accused of Mann Act Violation, failed to file income tax returns; ² evidence that defendant, accused of murder, was a deserter from the army; ³ evidence that defendant, accused of arson, had been treated for venereal disease; ⁴ evidence that defendant, accused of murder, while in the army offered a friend $500.00 to shoot him in the foot in order to avoid frontline duty; ⁵ evidence, in prosecution for 'Malicious shooting at and wounding another with intent to kill,' of victim's prognosis for recovery and future ability to perform manual labor; ⁶ evidence, in rape prosecution, that victim was pregnant as a result of the rape; ⁷ evidence, in murder prosecution, that victim was married and a parent; ⁸ evidence that married defendant, accused...