State v. Wrenn, 12658

• Decision Date: 03 October 1978
• Docket Number: No. 12658,12658
• Citation: 99 Idaho 506,584 P.2d 1231
• Parties: STATE of Idaho, Plaintiff-Respondent, v. William WRENN and James Humphrey, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 1231

584 P.2d 1231

99 Idaho 506

STATE of Idaho, Plaintiff-Respondent, v. William WRENN and James Humphrey, Defendants-Appellants.

No. 12658.

Supreme Court of Idaho.

Oct. 3, 1978.

Ronald J. Jarman, Pocatello, for defendants-appellants.

Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Arthur J. Berry, Asst. Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Justice.

James Humphrey and William Wrenn, defendants-appellants herein, were tried in district court before a jury and convicted of robbery. Humphrey was sentenced to an indeterminate term not to exceed eight years in the Idaho State Penitentiary, while Wrenn was sentenced to an indeterminate sentence not to exceed four years, and this appeal follows. We reverse. Richard Allen, the victim of the alleged robbery and the primary prosecution witness, testified at trial as follows: During the morning of March 2, 1977, he was walking through an alley in Pocatello when Wrenn and Humphrey gestured for him to come over to their car. A conversation ensued and he agreed to assist Wrenn and Humphrey in procuring transit aid from the Salvation Army. Prior to this meeting he and the appellants had never met. Allen testified he voluntarily entered the car and that he, Wrenn and Humphrey spent some time together driving around in the vehicle, buying gas, purchasing beer at a local supermarket, and going to the Salvation Army to procure transit aid for gasoline. After they purchased gasoline with the transit aid, Wrenn and Humphrey proceeded to drive him to a spot outside the city limits of Pocatello. Allen testified that Wrenn and Humphrey stated that they had guns and unless he gave them his money they would use the guns. He stated he never saw the weapons but turned over the money, between $75 and $100, out of fear of possible bodily harm.

The state produced other witnesses who indicated that they had seen Allen, Wrenn and Humphrey together on March 2, 1977. Officer McDaniel, one of the investigating officers, testified as to his initial interview of Allen and his investigation of the activities of Allen and the appellants on March 2, 1977. In the course of his testimony, Officer McDaniel stated that a license check with the National Crime Information Center of the auto in which Wrenn and Humphrey were traveling revealed the vehicle was stolen. Appellants' attorney moved for a mistrial on the ground that the testimony relative to the auto was irrelevant and highly prejudicial. The court denied the motion but ordered that the testimony of Officer McDaniel as to the auto be stricken and gave the jury a strong cautionary warning to disregard such testimony.

At trial Wrenn and Humphrey admitted to being with Allen on the date in question but denied that they had robbed him. Both testified that Allen voluntarily gave them $13 to help them out. Wrenn and Humphrey both stated that they were in transit to a possible job in Florida and had only just arrived in Pocatello on March 2, 1977. When Wrenn and Humphrey were apprehended some thirteen hours later in Billings, Montana, no weapons were found and the appellants had only $3 in their possession.

I

On appeal Wrenn and Humphrey contend they were prejudiced by the trial court giving a jury instruction as to "flight" which was not justified by the evidence. The following instruction was given:

YOU ARE INSTRUCTED, the flight of a person immediately after the commission of a crime, if any, and if you find such flight to be a fact, is not sufficient in itself to establish guilt, but is merely a fact which if proven, may be considered by you in the light of all other proven facts in deciding the question of guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.

The issue of the propriety of a "flight" instruction is one of first impression in Idaho. We are of the opinion that because of the debatable significance of flight as evidence of guilt, an instruction on flight should not ordinarily be given. It should be left to argument to the jury by the parties, unless the trial judge because of the peculiar facts in the particular case feels it is essential to the jury's deliberations. People v. Larson, 572 P.2d 815 (Colo.1978); Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960); People v. Baker, 26 N.Y.2d 169, 309 N.Y.S.2d 174, 257 N.E.2d 630 (1970); State v. McCormick, 280 Or. 417, 571 P.2d 499 (1977). ¹ We concur in the statement of the Colorado Supreme Court in Robinson v. People, 114 Colo. 381, 165 P.2d 763, 765 (1946) where they stated that an instruction on "flight":

. . . is rarely advisable and should never be given unless the peculiar facts of the case appear to make it essential. It generally impinges upon the rule that particular portions of the evidence should not be singled out and emphasized by special instructions. Again, most of the authorities which assume to enumerate the essentials of this element are based upon the peculiar facts of a given case and may not be taken as generally applicable to all.

The problems associated with a flight instruction are clearly presented in the case at bar. The trial court stated the evidence elicited at trial that was indicative of flight and supported such an instruction was the alleged hasty departure of the defendants from the actual scene of the crime and not the fact Wrenn and Humphrey departed from Pocatello and were found in Billings, Montana. However, the instruction that was given to the jury does not point to this distinction. It is entirely possible that under the instruction given the jury could have characterized Wrenn and Humphrey's departure from Pocatello to Billings, Montana as flight and therefore indicative of guilt.

The departure of Wrenn and Humphrey from Pocatello and their subsequent apprehension some thirteen hours later in Billings, Montana is not indicative of flight, but rather is consistent with the fact the defendants were transients. Mere departure from the area where a crime allegedly took place is not by itself sufficient to support an instruction on "flight." State v. Rodgers, 103 Ariz. 393, 442 P.2d 840 (1968).

For departure to take on the legal significance of flight, there must be other circumstances present and unexplained which, together with the departure, reasonably justify an inference that it was done with a consciousness of guilt and in an effort to avoid apprehension or prosecution based on that guilt. State v. Lincoln, 183 Neb. 770, 164 N.W.2d 470 (1969); State v. Sullivan, 43 N.J. 209, 203 A.2d 177 (1964); State v. Bruton, 66 Wash.2d 111, 401 P.2d 340 (1965); 29 Am.Jur.2d, Evidence, § 228 (1967); 2 Wigmore, Evidence § 276 (Chadbourn rev. 1974); 1 Wharton's Criminal Evidence § 14 (13th ed. 1973).

Since the jury, under the instruction given, might have considered evidence of the defendants' departure from Pocatello as constituting "flight" and evidence of guilt, we are of the opinion that it was error to give such instruction.

II

Wrenn and Humphrey also contend the trial court erred in denying their motion for mistrial following testimony by Officer McDaniel, a prosecution witness, that Wrenn and Humphrey were traveling in a stolen automobile on the date the robbery allegedly took place. Evidence of other unrelated criminal activity of the accused is generally inadmissible to show that the accused committed the crime for which he is on trial. State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974); State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971); State v. Tisdel, 94 Idaho 329, 487 P.2d 692 (1971); McCormick on Evidence § 190 (E. Cleary ed. 1972). Only in limited areas is evidence of past criminal activity allowed to come before the jury. Evidence of other crimes is admissible when relevant to prove:

(1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of the crime on trial, and (6) other similar issues.

State v. Shepherd, supra, 94 Idaho at 230, 486 P.2d at 85; e. g., State v. Hatton, supra ; McCormick on Evidence, Supra.

The other crime alluded to by Officer McDaniel in his testimony, i. e. theft of an automobile, was in no way linked to, or connected with, the crime with which Wrenn and Humphrey stood charged. It does not fit under any of the exceptions mentioned above. Officer McDaniel's testimony as to the status of the automobile was irrelevant and prejudicial to the defendants. The prejudicial effect of such testimony is that it induces the jury to believe the accused is more likely to have committed the crime on trial because he is a man of criminal character. It, therefore, takes the jury away from their primary consideration of their guilt or innocence of the particular crime on trial. People v....