State v. Carter

655 P.2d 434, 103 Idaho 917, 1982 Ida. LEXIS 333

• Court: Idaho Supreme Court
• Decided: December 20, 1982
• Docket: 13040
• Status: Published

Opinions

BAKES, Chief Judge.

The defendant, Joseph Carter, appeals his conviction for voluntary manslaughter. On September 4, 1977, the defendant was arrested for the shooting death of Larry Tolley. Although there is some conflict in the evidence, the events leading up to the arrest of Carter appear to be substantially as follows. For some time prior to the death of Larry Tolley, the defendant and Larry Tolley’s wife had developed an intense dislike for each other. Every time Mrs. Tolley would pass by the defendant, regardless of where it might be, she would make a particular rude gesture to him. The night before the killing, the defendant and Mrs. Tolley exchanged some angry words, the defendant calling Mrs. Tolley several offensive names. Larry Tolley, who was present, remained quiet. The defendant and Larry Tolley appear to have been good friends, despite the animosity existing between Mrs. Tolley and defendant.

The next evening, the date of the shooting, Larry Tolley drove up to the residence of the defendant. Tolley had been drinking heavily, his blood alcohol level later being measured at .20%. Tolley was visibly upset about the proceedings of the previous night, and the defendant’s derogatory remarks concerning Mrs. Tolley. After exchanging heated words while standing in the yard, the defendant walked away from Tolley and went up to the porch. The defendant’s wife told Tolley to get off the property, and Tolley said, “I will get you.” He went to his truck and pulled out a handgun. At that point, the defendant’s son, age V/2 years, ran out into the yard, and the defendant’s wife ran after him. The defendant went into the house and got an antique shotgun. By then the defendant’s wife had caught the little boy, and she was running back toward the house. Tolley was aiming the gun in her direction, saying “I am going to get you.” At that point, the defendant shot Tolley with the shotgun. Tolley retreated and jumped inside the pickup. The defendant testified that Tolley raised up with his gun a second time after he got in the pickup, and the defendant shot him again.

The defendant went back in the house, obtained more shotgun shells, and returned to the scene. The door to the pickup truck was now shut, and the defendant approached the truck. He testified that he was going to get Tolley’s gun and see how badly he was hurt. The record discloses that the defendant stuck his shotgun through the window and shot Tolley again at close range. The defendant testified that he thought Tolley was raising up again with his gun; however, there was evidence from which the jury could have found that Tolley dropped his gun before entering the truck. Tolley died as a result of the inflicted injuries.

On appeal, the defendant raises several issues, each of which will be discussed in turn.

I

The defendant first challenges the sufficiency of the evidence supporting his conviction for voluntary manslaughter. His contention is that the evidence clearly reveals a case of justifiable homicide.

Although a person has the right to use deadly force to defend his spouse and children as well as himself from the infliction of great bodily injury, the exercise of that right must be grounded upon a reasonable apprehension of imminent harm, and a reasonable belief that the killing is necessary to protect against such injury. I.C. § 18-4009; People v. Pierson, 2 Idaho 76, 3 P. 688 (1884). Once the victim has retreated and the danger is abated, the privilege of self defense expires. People v. Pierson, supra; see also State v. Powers, 117 Ariz. 220, 571 P.2d 1016 (1977); Peterson v. State, 86 Okl.Cr. 302, 192 P.2d 286 (1948). However, whether a retreat by the victim is sufficient to abate the danger, reasonable apprehension, and necessity supporting the privilege of self defense is a question properly left to the jury. See People v. Pierson, supra. In the present case, we find that there was substantial and competent evidence to support the jury’s conclusion that the defendant was guilty of voluntary manslaughter. Under such circumstances, the verdict of the jury will not be disturbed on appeal. State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980); State v. Clayton, 101 Idaho 15, 607 P.2d 1069 (1980).

The next issue raised concerns whether an instruction on self defense impermissibly shifted the burden of proof to the defendant. However, the defendant did not object to the instruction at trial and is therefore deemed to have waived any objection to it. I.C.R. 30 (effective July 1, 1980); State v. Owens, 101 Idaho 632, 619 P.2d 787, 795 (1980). Therefore, we do not decide that issue. State v. Owens, supra; Hankerson v. North Carolina, 432 U.S. 233, 244 n. 8, 97 S.Ct. 2339, 2346, 53 L.Ed.2d 306 (1977).

II

The defendant also asserts that he was denied his right to a speedy trial based on I.C. § 19-3501, I.C. § 19-106, Idaho Constitution Art. 1, § 13, and the sixth and fourteenth amendments to the United States Constitution.¹ On September 6, 1977, a criminal complaint was issued charging Carter with voluntary manslaughter. An information setting forth the same charge was filed on October 7, 1977. Various pretrial matters were then raised by both parties. Trial was set for mid-March, 1978, although the record is not specific as to the date. The defendant indicates March 16, 1978, was the date for trial, and this date does not appear to be disputed by the state. On March 6, 1978, the defendant moved to quash the information, claiming that the jury panel had not been selected according to proper procedure. Although the judge’s order in response to the motion is not contained in the record, it appears undisputed that the judge agreed that the jury panel had not been selected in conformance with state law. Instead of dismissing the information, however, he rescheduled the trial for April 18, 1978. On April 7, 1978, the defendant moved for dismissal on the ground that he had been denied his right to a speedy trial. The motion was denied on April 10,1978, and trial was held from April 18, 1978, to April 20, 1978.

On October 7, 1977, when the information was filed, I.C. § 19-3501 required that a criminal action be dismissed if the defendant is not tried during the next term of court after the information is triable, unless good cause to the contrary is shown.² State v. Hobson, 99 Idaho 200, 202, 579 P.2d 697, 699 (1978). However, effective March 31, 1975, the Idaho legislature repealed I.C. § 1-706 which required at least two court terms per year in each county. This repeal was in response to this Court’s promulgation of I.R.C.P. 77(a), effective January 1, 1975, which abolished terms of court. While I.R.C.P. 77(a) did not expressly apply to criminal cases, the action of the legislature in repealing § 1-706 was general, and applied to both civil and criminal actions. Therefore, we conclude that the action of the legislature in repealing I.C. § 1-706, and the action of this Court in promulgating I.R.C.P. 77(a) precludes determining the right to a speedy trial by reference to terms of court for cases filed after the effective date of the repeal of I.C. § 1-706.³

That is not to say, however, that there was no provision in the Idaho law for a speedy trial after the repeal of I.C. § 1-706. The right to speedy trial is guaranteed by Idaho Const. Art. 1, § 13, and I.C. § 19-106 which merely restates the protection granted by Idaho Const. Art. 1, § 13. Both are comparable to that protection provided by the sixth and fourteenth amendments to the United States Constitution. In State v. Lindsay, 96 Idaho 474, 531 P.2d 236 (1975), we held that the “balancing test” laid down in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for interpreting the federal guarantee of speedy trial, is consistent with the protection afforded by our own state constitution and statutes.

The factors to be considered in the balancing test are as follows: (1) length of delay, (2) reasons for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. The length of delay in this case as measured from the date the criminal complaint was issued to the date of trial was seven and one-half months. There is no contention that the prosecution engaged in dilatory tactics. In fact, although the defendant had a legitimate right to complain about the jury panel selection procedure, nevertheless delay past the March 16, 1978, trial date followed from the defendant’s motion to dismiss. The defendant lodged no objection to the March 16, 1978, trial date, and objection to the later trial date was not raised until just eleven days before trial. Finally, the defendant admits in his brief that “[t]he last criteria actual prejudice, cannot be demonstrably asserted by the record.” The facts of this case are certainly no more compelling than those in State v. Lindsay, supra, where we found no violation of a right to speedy trial after a delay of fourteen months. Consequently, we find no violation of the defendant’s right to speedy trial.

Ill

Error is also claimed in the admission of the defendant’s “mug shot” as evidence, over the objection of defense counsel. The photograph in question was taken at the police station following the defendant’s arrest and showed him with long hair, beard, and generally unkempt appearance. The numbers and language at the bottom of the photograph, indicating it was a “mug shot,” were removed prior to the photo’s admission into evidence. The defendant argues that there was no issue of identity in the case and that the photograph was therefore irrelevant and was presented merely to inflame and impassion the jury against him. However, the defendant opened up the subject of the appearances of the parties at the ■time of the incident by first admitting a photograph of the victim during the cross examination of Mrs. Tolley. The victim’s photo was also a police “mug shot” photo, apparently taken sometime before the shooting, showing him with long hair and unkempt appearance, and was admitted for the purpose of indicating the victim’s general appearance at the time of the shooting. The victim’s wife testified that Tolley’s appearance at the time of the shooting was similar to that represented in the photograph. The state offered the photograph of the defendant for the same purpose.

Photographs showing the contemporaneous scene of a crime or appearance of a person are generally admissible in the discretion of the trial court, unless the photograph is so inflammatory that its probative value is outweighed by the prejudice which might result from its inflammatory nature. As was stated in State v. Kleier, 69 Idaho 278, 286, 206 P.2d 513, 518 (1949),

“Photographs and pictures relevant to describe a person, place or thing are admissible for the purpose of explaining and applying the evidence and assisting the jury in understanding the case. Such evidence is used to clarify and present a more comprehensive explanation of the physical facts than could be obtained from the testimony of witnesses.”

Both the photograph of the victim and the photograph of the defendant were offered and admitted into evidence for the purpose of showing the appearance of the parties at the time of the incident. In State v. Cunningham, 97 Idaho 650, 653, 551 P.2d 605, 608 (1976), we upheld the admissibility of a “mug shot” of a defendant, in part, for the reason that “the mug shot showed a change in the appellant’s appearance from the time the photo had been taken to the time of the trial.” Here, the record discloses that the defendant, at the time of the trial, had changed his appearance from what it was at the time of the crime by cutting his long hair and removing his beard. It is clear from the record that at least part of the reason for Mrs. Tolley’s dislike of the defendant was his appearance. Also, the court in overruling the defendant’s objection to admission of the photograph stated,

“It seems to me that it might help to explain some of the things in this case. For instance, the first witness said that she didn’t like him and the reason she didn’t like him was because his hair was long and he had a long beard and he looked sloppy and this bears out her testimony.”

Certainly, the photograph of the defendant aids in “explaining and applying the evidence and assisting the jury in understanding the case.” We conclude, therefore, that the trial court did not err in admitting the photograph of the defendant in order to permit the jury to have an accurate contemporary view of the circumstances of the crime.

Even assuming that the admission of the defendant’s contemporaneous photograph was immaterial and erroneous, this Court has held that a party may not object to immaterial evidence which is introduced to counteract immaterial evidence of the same nature which he himself has introduced. State v. Breyer, 40 Idaho 324, 338, 232 P. 560, 565 (1925). Stated another way, “An opponent may reply with similar evidence if it is needed to eradicate an unfair prejudice which might ensue from the original [immaterial] evidence.” People v. Wilbert, 15 Ill.App.3d 974, 305 N.E.2d 173, 180 (1973). The right to rebut such unfair prejudice applies to the state as well as the defendant. E. g., People v. Wilbert, supra. The victim’s “mug shot” showing his long hair and beard, particularly when coupled with the defendant’s change in appearance at trial, might well have created a false impression in the minds of the jurors. Consequently, under the circumstances of this case, we find no error in the admission of the defendant’s “mug shot” into evidence.

IV

The defendant next argues that the court committed error in allowing the state on rebuttal to call the defendant’s wife to testify solely for the purpose of setting up her own impeachment. It is asserted that a party is not allowed to call a witness to lay a foundation for impeachment when the party has already had the opportunity to impeach during a prior cross examination. A review of the facts pertinent to this issue is necessary. Mrs. Carter was the closing witness for the defense. She testified among other things that she had seen Tolley take his gun out of the truck and point it in her direction. She also testified on cross examination that she had talked to Larry Hanner the day following the incident and had related to him the events of the preceding day. However, the specific content of that conversation was not disclosed. The defense then rested. The state on rebuttal called Hanner to testify that Mrs. Carter had told him she had not seen Tolley with a gun, but that she had seen her husband get a gun out of Tolley’s truck after the shooting. Before the questioning was completed, however, the defense objected and the court determined that there was insufficient foundation for impeachment, since Mrs. Carter had never been questioned concerning specific statements. See I.R.C.P. 43(b)(8). . The prosecution was then permitted, over the objection of defense counsel, to recall Mrs. Carter to the stand. Mrs. Carter was then questioned concerning her conversation with Hanner. She denied having said that she had not seen a gun in Larry Tolley’s hand. Hanner was then recalled, and he gave his testimony concerning the conversation with Mrs. Carter.

The Idaho Rules of Civil Procedure govern the admission of testimony in criminal proceedings. I.C.R. 26. I.R.C.P. 43(b)(5) states that “after the examinations on both sides are once concluded, the witness cannot be recalled by the same party without leave of the court. Leave shall be granted or withheld by the court in the exercise of sound discretion.” In the present case the prosecution wished to recall Mrs. Carter for further cross examination to lay a foundation for impeachment pursuant to I.R.C.P. 43(b)(8).

In State v. Anthony, 6 Idaho 383, 55 P. 884 (1899), after both sides had concluded, the prosecution was permitted, over defendant’s objection, to recall the defendant for the purpose of laying a foundation for impeachment. The defendant was questioned concerning certain prior bad acts, which he denied. Another witness was then called for the first time and testified that the prior acts had in fact occurred. Although the case was reversed because the prior bad acts were irrelevant and not a proper basis for impeachment, the procedure through which the impeachment was conducted was recognized as proper under Idaho Rev.Stat. § 6081 (1897). Idaho Rev. Stat. § 6081 is the predecessor to, and substantially the same as, I.R.C.P. 43(b)(5). We therefore find that the recall of Mrs. Carter solely for the purpose of establishing a foundation for her own impeachment was a discretionary matter for the court, and we find no abuse of that discretion.

V

As a final issue, the defendant urges that he was denied his constitutional right to the effective assistance of counsel before and during the trial in this case. The claimed deficiencies are as follows: (1) failure to request a change of venue; (2) failure to request the suppression of certain evidence; (3) failure to request the exclusion of witnesses from the courtroom when not testifying! (4) failure to challenge the ability of a lay magistrate to conduct the preliminary hearing.

As was stated in State v. Tucker, 97 Idaho 4, 10, 539 P.2d 556, 562 (1975):

“This Court will not attempt to ‘second guess strategic and tactical choices made by trial counsel’. ... However, when counsel’s strategy decisions are made upon the basis of inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation, the defendant may well have been denied the competent assistance of counsel.”

The items listed above fall into the area of strategic and tactical choices of counsel. The record in this proceeding is devoid of any indication that such choices were a result of inadequate preparation or ignorance of counsel. Absent such evidence, it must be presumed that defense counsel’s actions were not due to inadequate preparation or ignorance, and that defendant’s representation by counsel was competently carried out. State v. Tucker, supra.4 In addition, as for Item No. 4 listed above, it is clear from out statutes and rules that lay magistrates may be assigned to conduct preliminary hearings in all criminal proceedings. I.C. § l-2208(3)(d); I.R.C.P. 82(c)(1)(A). There is no evidence to indicate that the magistrate in this case was not properly assigned by the district judges of his district to conduct the preliminary hearing. Consequently, we find no error.

The judgment of the conviction is affirmed.

McFADDEN and DONALDSON, JJ., concur.

1 . “[I.C. §] 19-3501. WHEN ACTION MAY BE DISMISSED. — The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:

“2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial at the next term of the court in which the indictment is triable, after it is found.”

“[I.C. §] 19-106. RIGHTS OF DEFENDANT. —In a criminal action the defendant is entitled:

“1. To a speedy and public trial.

“[Art. 1] § 13. GUARANTIES IN CRIMINAL ACTIONS AND DUE PROCESS OF LAW. — In all criminal prosecutions, the party accused shall have the right to a speedy and public trial;

United States Constitution, Amendment 6: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

2 . 1980 Idaho Sess.Laws, ch. 102, § 1, amended I.C. § 19-3501 to read as follows: “19-3501. WHEN ACTION MAY BE DISMISSED. — The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:

“2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the indictment or information is filed with the court.”

3 .Although the trial in this case took place during the Jefferson County term of court which began March 14, 1978, no terms of court were officially designated for the year 1977. The defendant argued below that had custom been followed in setting terms of court for 1977, the trial date in this case would have been later than that permitted under I.C. § 19-3501. In considering this argument, the court indicated that while terms were customarily set to begin in March and September, and usually continued for approximately six months, fall terms had been set on occasion for as late as October 13. Had the fall 1977 term begun on October 7, the date the information was filed, or earlier, there would have been no § 19-3501 problem. However, to pinpoint a date in time when the fall 1977 term might or should have begun is mere speculation and would serve no purpose. The district court refused to speculate on such a date, and we also decline to do so.

4 . If evidence to the contrary is available outside the record, it may be presented only by way of a petition for post conviction relief pursuant to I.C. § 19-4901 et seq. State v. Blackburn, 99 Idaho 222, 579 P.2d 1205 (1978); State v. Kraft, 99 Idaho 214, 579 P.2d 1197 (1978).