State v. Woodbury, 21476

CourtCourt of Appeals of Idaho
Citation127 Idaho 757,905 P.2d 1066
Docket NumberNo. 21476,21476
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Brian WOODBURY, Defendant-Appellant.
Decision Date06 November 1995

Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, and Catherine L. Derden, Arkansas, for respondent. Catherine L. Derden argued.

PERRY, Judge.

Brian Woodbury was found guilty of one count of robbery, I.C. §§ 18-6501, -6502, and one count of burglary, I.C. § 18-1401. He contends that during his trial the district court erred in admitting hearsay testimony. On appeal, Woodbury seeks reversal of his judgments of conviction and a new trial. We affirm.


Harley Hansen was beaten and robbed in his home on the evening of November 16, 1993. Brian Woodbury was apprehended shortly after the attack and was charged with robbery and burglary. Woodbury pled not guilty.

At trial before a jury, Hansen described the incident and his assailant on direct examination. He was also subject to cross-examination and questions in aid of objection on these matters. The prosecution later sought to admit the testimony of officer Knight, the responding officer, regarding the initial report Hansen made about the incident. Woodbury's counsel objected to this line of questioning on hearsay grounds. The district court found that although the officer's testimony was hearsay, it fell within the present sense impression exception to the hearsay rule, I.R.E. 803(1), and admitted the officer's testimony.

Officer Knight testified to the description of the assailant which Hansen gave on the night of the incident. During this testimony, the officer indicated that Hansen had provided greater detail regarding the assailant's description on the night of the incident than Hansen had in his trial testimony. 1 Officer At the conclusion of the trial, the jury found Woodbury guilty of both robbery and burglary. Woodbury appealed, arguing that the district court erred in allowing the officer to testify concerning Hansen's statement on the night of the incident because Hansen's out-of-court statement was inadmissible hearsay.

[127 Idaho 759] Knight also testified regarding Hansen's account of the attack. This portion of Knight's testimony, however, was largely repetitive of Hansen's own testimony.


A trial court has broad discretion in the admission of evidence at trial. Its judgment will only be reversed when there has been a clear abuse of discretion. State v. Zimmerman, 121 Idaho 971, 829 P.2d 861 (1992); State v. Smith, 117 Idaho 225, 786 P.2d 1127 (1990).

A. The District Court Did Not Abuse its Discretion in Admitting Officer Knight's Testimony Regarding Hansen's Out-of-Court Description of the Assailant.

The district court found that the out-of-court statement by Hansen, as repeated by officer Knight, was hearsay but qualified for the present sense impression exception to the hearsay rule, I.R.E. 803(1), and was therefore admissible. Woodbury argues that the forty-five minute period between the incident and Hansen's statement to the officer precludes the statement from qualifying as a present sense impression. The state, however, contends that Hansen's out-of-court statement constitutes "identification" evidence which I.R.E. 801(d)(1)(C) excludes from the definition of hearsay. Thus, as non-hearsay, the statement need not be shown to meet any exception to the hearsay rule. Therefore, the state argues, it was not error for the district court to admit the testimony.

The first step in a court's analysis of alleged hearsay testimony is to determine if the testimony is, in fact, hearsay. Hearsay is defined as testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion of the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Isaacson v. Obendorf, 99 Idaho 304, 309, 581 P.2d 350, 355 (1978); I.R.E. 801(c). Here the out-of-court statement by Hansen was the subject of testimony in court by officer Knight. The testimony was offered to prove the truth of the matters asserted therein--specifically a description of what the assailant looked like for the purpose of proving identification. Certain communications are explicitly excluded, however, from the definition of hearsay. I.R.E. 801(d). One such excluded communication is the "identification of a person made after perceiving the person." I.R.E. 801(d)(1)(C).

Idaho appellate courts have not specifically addressed the proper interpretation of I.R.E. 801(d)(1)(C). The Idaho and federal rules on prior identification by a witness are identical. See, I.R.E. 801(d)(1)(C) and Fed.R.Evid. 801(d)(1)(C). Because the rules are the same, federal case law is relevant and helpful. State v. Carrasco, 117 Idaho 295, 298, 787 P.2d 281, 284 (1990); State v. Vaughn, 124 Idaho 576, 580, 861 P.2d 1241, 1245 (Ct.App.1993).

The rationale behind Fed.R.Evid. 801(d)(1)(C) is "the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions." Fed.R.Evid. 801, advisory committee's notes (1972); See S.Rep. No. 199, 94th Cong., 1st Sess. 2 (1975). "Admitting these prior identifications therefore provides greater fairness to both the prosecution and the defense in a criminal trial." United States v. Brink, 39 F.3d 419, 425 (3rd Cir.1994), quoting S.Rep. No. 199, 94th Cong., 1st Sess. 2 (1975).

Third party accounts of the prior identification have been accepted in the federal courts. United States v. Elemy, 656 F.2d 507 (9th Cir.1981); United States v. Jarrad, 754 F.2d 1451 (9th Cir.1985); United States v. Brink, 39 F.3d 419 (3rd Cir.1994). In Elemy, the statement came thirty to forty-five minutes after a lineup where the declarant saw Elemy. The Ninth Circuit followed the reasoning that out-of-court identifications are believed to be more reliable than those made under the suggestive conditions prevailing at trial. Elemy, 656 F.2d at 508.

The Third Circuit has examined this rule and found that a description qualifies as a prior identification under Fed.R.Evid. 801(d)(1)(C). Brink, 39 F.3d at 426. In that case, Brink was on trial for robbing a bank. At trial, one of the bank tellers testified that she could no longer remember the color of the robber's eyes. An FBI agent, however, testified that the day after the robbery, the teller told him that the robber had dark eyes. Brink had light hazel eyes. Brink sought to admit the bank teller's out-of-court statement as substantive evidence. The trial court in that case admitted the bank teller's out-of-court statement for impeachment purposes only. The appellate court concluded that the trial court should have found the bank teller's out-of-court statement was non-hearsay under Fed.R.Evid. 801(d)(1)(C) and admitted it as substantive evidence. Brink, 39 F.3d at 426.

Hawaii Rule of Evidence 802.1(3) is also identical to Fed.R.Evid. 801(d)(1)(C). State v. Motta, 66 Haw. 254, 659 P.2d 745, 750 (1983). In interpreting their rule, the Supreme Court of Hawaii reviewed the admissibility of composite sketches. Motta, 659 P.2d at 750. They compared a composite sketch to a verbal description. "Just because the sketch is in picture form does not change the fact that it is being offered as a statement made out of court to prove what the suspect looked like." Id. The court then found the sketch admissible as substantive evidence of the suspect's appearance. Id. The court reasoned that the primary reason for the exclusion of hearsay is the danger associated with admission of statements at trial without an opportunity for the trier of fact to assess the declarant's credibility. Id. at 751. Pursuant to Fed.R.Evid. 801(d)(1)(C) and the states' equivalents, the out-of-court declarant must be a "witness," and hence available for cross-examination, in order for the identifications to be admissible. The Hawaii Supreme Court found the composite sketch admissible.

Here, the identifying declarations made by Hansen qualify under the federal interpretation of Fed.R.Evid. 801(d)(1)(C). Idaho adopted the Federal Rules of Evidence as the Idaho rules in order to obtain uniformity in trial practice in Idaho. Chacon v. Sperry Corp., 111 Idaho 270, 275, 723 P.2d 814, 819 (1986). In the absence of a ruling from the Idaho Supreme Court to the contrary, we deem it appropriate to follow federal precedent in order to maintain, to the extent possible, consistency between the federal and Idaho rules.

Hansen's descriptive statement was a prior identification and therefore not hearsay. I.R.E. 801(d)(1)(C). The district court found that the testimony was hearsay, but fell within one of the exceptions to that rule. Where a ruling in a criminal case is correct, though based upon an incorrect reason, it still may be sustained upon the proper reason. State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct.App.1984). Pursuant to federal precedent interpreting Fed.R.Evid. 801(d)(1)(C), the descriptive statement, made forty-five minutes after the incident as repeated by the officer in his testimony, was admissible as a prior identification by a witness and was not hearsay. The district court therefore did not err in admitting the descriptive testimony.

B. The District Court Did Not Commit Reversible Error in Admitting Officer Knight's Testimony Repeating Hansen's Out-of-Court Statements Regarding the Attack.

The remainder of the officer's testimony which Woodbury claims is error consists of Knight's repetition of Hansen's out-of-court account of the attack on the night of the incident. Although we agree that admission of this portion of Knight's testimony In order to mandate a reversal it must be shown that the objectionable evidence contributed to the verdict and thereby...

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