State v. Abel

664 P.2d 772, 104 Idaho 865, 1983 Ida. LEXIS 456

• Court: Idaho Supreme Court
• Decided: June 8, 1983
• Docket: 13498
• Status: Published

Opinions

DONALDSON, Chief Justice.

During the early morning of April 28, 1979, two women were separately assaulted. Both incidents occurred in downtown Boise within approximately forty-five minutes and five blocks of each other. The first involved one assailant and the second involved two. The defendant-appellant Abel was subsequently identified by the victims as their assailant. Later regarding the two incidents, a single information charging Abel with six criminal counts was filed. The counts included assault with intent to rape, attempted kidnapping in the second degree, and a misdemeanor battery relating to each incident. Abel made a pretrial motion for separate trials regarding the two incidents which was denied. This motion was renewed at trial and again denied.

A jury found Abel guilty of four of the six counts and guilty of a lesser included offense. Following a motion to dismiss based on I.C. § 18-301, the trial court entered judgment against Abel for attempted kidnapping in the second degree with respect to the first incident and for assault with intent to commit rape in the second incident. Abel has perfected this appeal. Abel presents two issues — (1) whether the trial court abused its discretion in denying the appellant’s motions for separate trials of the counts arising out of the separate incidents and (2) whether the trial court abused its discretion in allowing testimony of a remark made by one of the assailants in the second incident. We affirm.

I.

Abel argues that the offenses arising from the two incidents were improperly joined in the same information. Our examination begins with former I.C.R. 8(a) (applicable to this case). Former I.C.R. 8(a) provided that:

“(a) JOINDER OF OFFENSES. Two (2) or more offenses may be charged on the same complaint, indictment or information and a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or based on the same act or transaction or on two (2) or more acts or transactions connected together or consistituting [constituting] parts of a common scheme or plan.”

The offenses charged with respect to the first incident were of “the same or similar character” as those relating to the second incident.¹ Joinder under former I.C.R. 8(a) was therefore proper.²

II.

Our attention next focuses on the question of separate trials under former I.C.R. 14 which provided that:

“Relief from prejudicial joinder. — If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in a complaint, indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the state to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.” (Emphasis added.)

Abel made a pretrial motion which was renewed at trial for separate trials of the counts arising from the first incident from those counts arising from the second incident. The motions were denied. We hold that such motions are directed to the trial court’s discretion. I.C.R. 14 (“the court may order”) (emphasis added); see, e.g., Catlett v. State, 585 P.2d 553 (Alaska 1978); Stevens v. State, 582 P.2d 621 (Alaska 1978); People v. Matson, 13 Cal.3d 35, 117 Cal.Rptr. 664, 528 P.2d 752 (1974); People v. Rivas, 197 Colo. 131, 591 P.2d 83 (1979); State v. Matias, 57 Haw. 96, 550 P.2d 900 (1976); State v. Adams, 218 Kan. 495, 545 P.2d 1134, 1143 (1976) (“The crimes charged herein are either the same or similar offenses”); State v. Campbell, 615 P.2d 190 (Mont.1980); State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct.App.1976); State v. Weddel, 29 Wash.App. 461, 629 P.2d 912 (1981).

The federal courts have addressed the similar question of separate trials of counts under Fed.R.Crim.P. 14 upon which former I.C.R. 14 is based.³ See, e.g., Bradley v. United States, 433 F.2d 1113 (D.C.Cir.1969); United States v. Foutz, 540 F.2d 733 (4th Cir.1976); United States v. Rox, 692 F.2d 453, 454 (6th Cir.1982) (“A defendant is prejudiced if the jury would be unable to keep the evidence from each offense separate and unable to render a fair and impartial verdict on each offense”); United States v. Neal, 692 F.2d 1296, 1305 (10th Cir.1982) (“For prejudice resulting from denial of a severance motion to justify reversal, the defendant must show more than just a better chance of acquittal at separate trials”); United States v. Harper, 680 F.2d 731, 733 (11th Cir.) (requires showing of compelling prejudice), cert. denied, ---U.S. ---, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982). In most federal cases motions for separate trials have been denied. See, e.g., Bradley v. United States, supra; see also 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 222 (1982) (citing cases).

Appellant relies upon United States v. Foutz, 540 F.2d 733 (4th Cir.1976) (reversal of convictions of two bank robberies), as support for his argument that the trial court erred in denying his motions for separate trials. The Foutz court with respect to a motion for severance of counts which had been properly joined as counts of the “same or similar character” stated that

“[wjhen two or more offenses are joined for trial solely on this theory, three sources of prejudice are possible which may justify the granting of a severance under Rule 14: (1) the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict him of either if it could keep the evidence properly segregated; (2) the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not the other; or (3) the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his criminal disposition.” Id. at 736 (footnotes omitted); see also Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964) (reversal of convictions of robbery and attempted robbery); 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 222 at 778-79 (1982).

We will consider each of these potential sources of prejudice in turn.

A.

The first involves the potential prejudice that “the jury may confuse and cumulate the evidence.” In this case, we believe that there was little likelihood that such would occur. See, e.g., Drew v. United States, 331 F.2d 85, 91-92 (D.C.Cir.1964) (noting the “simple and distinct” test). After a close review of the entire transcript and record, we conclude that the facts relating to each incident were so distinct and simple that there was little risk that after having received proper instruction that the jury cumulated or confused the evidence. The jury was properly instructed on the reasonable doubt standard and that each count charged a separate and distinct offense which must be decided separately on the evidence and law applicable to it uninfluenced by the jury’s decision on any other count.

Appellant argues that the jury cumulated evidence. We consider it worth noting that the different verdicts with respect to the two charged counts of assault with intent to rape—not guilty with respect to the first incident and guilty with respect to the second—are indicia that the jury properly differentiated and separated the evidence relative to each count. See Nix v. State, 653 P.2d 1093, 1099 (Alaska Ct.App.1982). We hold that the trial court did not abuse its discretion in refusing the motions on this argued ground.

Appellant also contends that the prosecution’s closing argument was prejudicial and constituted reversible error. The thrust of this argument is that the prosecution requested the jurors to view the evidence cumulatively. We find no error. Even assuming prosecutorial misconduct in the closing argument, the misconduct would have to have been shown to have materially contributed to the verdict. See State v. LePage, 102 Idaho 387, 396 n. 9, 630 P.2d 674, 683, cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981). Here, because the jury was properly instructed in the law and because of the simple and distinct nature of the evidence, we conclude that, even if the prosecutor’s comments were misconduct, that the comments did not materially contribute to the verdict. See State v. LePage, supra; State v. Griffiths, 101 Idaho 163, 167 n. 1, 610 P.2d 522, 526 (1980); State v. Garcia, 100 Idaho 108, 111, 594 P.2d 146, 149 (1979).

B.

The second potential source of prejudice under Foutz is not germane under the present circumstances. Since Abel’s defense to each count was alibi, it is our opinion that he was not confounded in his defense by the joinder.

C.

The third source under the present circumstances involves the potential risk of prejudice. The risk is that the jury may conclude that the defendant while not guilty of the specific charged offense is a bad person and will reach a guilty verdict on that basis.

Often other courts when considering similar situations have engaged in an analysis of the evidence of the separate counts to determine whether, if the counts had been tried separately, the separate evidence could have been admitted in evidence in the different trials. United States v. Foutz, 540 F.2d 733, 739 n. 6 (4th Cir.1976) (“Joinder of similar offenses remains proper where evidence of one crime could be admitted at a separate trial for the other”); Bradley v. United States, 433 F.2d 1113, 1117-21 (D.C.Cir.1969); Stevens v. State, 582 P.2d 621, 629 (Alaska 1978); Nix v. State, 653 P.2d 1093 (Alaska Ct.App.1982); see also 8 J. Moore, Moore’s Federal Practice ¶ 14.03[1] at 14-22 (2d ed. 1982); 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 222 at 780-83 (1982). We believe that such an approach is useful and will therefore perform such an analysis.

Idaho has long embraced the general rule that evidence of other criminal acts or offenses is inadmissible to show criminal propensity, State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978); State v. Boothe, 103 Idaho 187, 646 P.2d 429 (Ct.App.1982). Idaho has also recognized certain exceptions to this rule: evidence of other crimes is admissible if relevant to issues of (1) motive, (2) intent, (3) absence of mistake or accident, (4) common scheme or motive, (5) identity, and (6) other similar issues. State v. Needs, supra at 892-93, 591 P.2d at 139-40; State v. Wrenn, supra at 510, 584 P.2d at 1235; State v. Shepherd, 94 Idaho 227, 230, 486 P.2d 82, 85 (1971); State v. Boothe, supra; see generally, E. Cleary, McCormick’s Handbook of the Law of Evidence § 190 (2d ed. 1972).

We have recognized that the admission of such evidence of other crimes requires a balancing, see State v. Sharp, 101 Idaho 498, 501-02, 616 P.2d 1034, 1037-38 (1980), and that the admissibility of such evidence is within the discretion of the trial judge, State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971).

Here without question the defendant by presenting an alibi defense directly placed his identity as the perpetrator of the charged offenses in issue. This Court has previously considered evidence of separate criminal activity admissible if relevant to the issue of identity. E.g., State v. McCormick, 100 Idaho 111, 114, 594 P.2d 149, 152 (1979) (testimony relating to defendant’s recent imprisonment relevant and admissible as to identity of the perpetrator); State v. Morris, 97 Idaho 420, 422, 546 P.2d 375, 377 (1976) (testimony concerning incident similar to that from which charges arose admissible as relevant to the issue of identity); State v. Hatton, 95 Idaho 856, 864, 522 P.2d 64, 72 (1974) (“Evidence of other crimes committed by the defendant is relevant to the issue of identity if it discloses a distinctive modus operandi common to the other crimes and the crime with which the defendant is charged”).

While we acknowledge that the incidents at bar contain some factors which are dissimilar, most notably the first involved one assailant and the second involved two assailants, we believe the evidence of either incident when the totality of circumstances is considered would have been admissible in a separate trial of the other.

A consideration of the similarities of the incidents relating to the identity of the perpetrator reveals that: the incidents were temporally and geographically close in occurrence (45 minutes and about five blocks apart); the common assailant was dark complected, with dark hair, between five feet eight inches and six feet tall, in his late twenties, appearing to be of Mexican descent, wearing a light-blue T-shirt; the common assailant struck both victims in the face with a closed fist; and he placed his hand underneath the clothing on the chest area of both victims. Further, we note that the second victim testified that the other assailant was a thin, blond-haired man between five feet eight inches and six feet tall and the first victim testified that she saw her assailant the day following the incident in the company of a skinny, blond-haired man. The incidents were sufficiently similar to permit evidence of either to be introduced at a separate trial of the other. See Bradley v. United States, 433 F.2d 1113, 1120 (D.C.Cir.1969); Nix v. State, 653 P.2d 1093, 1097 (Alaska Ct.App.1982); People v. Casper, 631 P.2d 1134, 1136 (Colo.App.1981), cert. denied, (1981); Cook v. State, 629 S.W.2d 233, 236 (Tex.App.1982). We agree with the following language from Bradley v. United States, supra at 1120-21:

“The rule admitting proof disclosing another crime to show the accused’s identity as the perpetrator of the offense on trial does not demand that the two episodes possess factual sameness in every detail. The inquiry, rather, is whether the two have enough in common to justify a cautious judgment that the probative force of the common details received in evidence is appreciable, and so much so as in the scheme of jurisprudential values to outweigh the potential harm to the accused.” (Footnotes omitted.)

Even if some part of the evidence of either of the incidents were inadmissible in a separate trial of the other, we would still find no error in the trial court’s ruling because the evidence was simple and distinct. See, e.g., Drew v. United States, 331 F.2d 85, 91 (D.C.Cir.1964); State v. Campbell, 615 P.2d 190, 199 (Mont.1980); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264, 271 (1973).

We conclude that Abel has failed to demonstrate that the district court abused its discretion by denying the motions for separate trials.

III.

Appellant also argues that the trial court abused its discretion in allowing testimony of a remark made by one of the assailants in the second incident. Appellant cites no authority and fails to demonstrate an abuse of discretion by the trial court in permitting the victim of the second incident to testify as to a remark she thought was made by the appellant during the incident. The degree of certainty of the witness as to which of her assailants made the remark goes to the probative value and not to its relevance. The trial court is vested with discretion to determine whether the probative value of evidence outweighs any prejudicial effect, see State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971), and we find no abuse of that discretion here.

We affirm.

BAKES and SHEPARD, JJ., and McFADDEN, J., pro tern., concur.

1 . Former I.C.R. 8(a) was essentially identical to its federal counterpart Fed.R.Crim.P. 8(a). While this Court has never before considered the propriety of joinder of “same or similar character” offenses, federal courts considering the question under the federal rule have found such joinder proper. See, e.g., United States v. Cartwright, 632 F.2d 1290 (5th Cir.1980); Bradley v. United States, 433 F.2d 1113 (D.C.Cir.1969); Drew v. United States, 331 F.2d 85 (D.C.Cir.1964); see generally 8 J. Moore, Moore’s Federal Practice ¶ 8.05[1] at 8-20 (2d ed. 1982) (“[T]he particular facts of each case are crucial in determining whether joinder is proper, but questions of prejudice become even more important”); 1 C. Wright, Federal Practice and Procedure; Criminal 2d § 143 (1982). While joinder may be proper under Rule 8(a), Fed.R. Crim.P. 14 to prevent prejudice may provide relief. Similarly, I.C.R. 14 allows an Idaho trial court to order separate trials of counts. This case presents our first opportunity to review a denial of a motion for separate trials of counts under I.C.R. 14. See part II, infra.

2 . We note the amendment of I.C.R. 8(a) (effective July 1, 1980) which now provides:

“(a) Joinder of Offenses. Two (2) or more offenses may be charged on the same complaint, indictment or information and a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or transaction or on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.”

By this amendment, I.C.R. 8(a) no longer permits joinder of “same or similar character” offenses; therefore, our decision has potentially limited precedential effect.

3 . I.C.R. 14 was amended July 1, 1980, to provide clarification of the types of available relief from prejudicial joinder. The amendment does not impact the instant case.