STATE of Idaho, Plaintiff-Respondent, v. Brent W. HIGLEY, Defendant-Appellant.
No. 36784.
Court of Appeals of Idaho.
Dec. 21, 2010.
253 P.3d 750
Had the defense been able to both impeach Cpl. Rice‘s statements with his own inconsistent statements at a previous trial as well as with the information contained within his own training manuals for the ISP, and at the same time lend support to its theory of the case by bolstering Dr. Skelton‘s testimony regarding perception-reaction times and debris fields, the jurors would have been presented with a very different picture of what was already a very close case. The jury would have been given more evidence to support the theory that Mr. Ellington did not have time to react to the Honda, that the crash occurred in Mr. Ellington‘s correct eastbound lane as he was trying to flee while being shot at by unknown assailants, and that Mr. Ellington did not have time to react to Mrs. Larsen‘s presence in the road. It simply cannot be said that it was not probable that this new evidence that showed Cpl. Rice testified falsely, and likely intentionally, in the Ellington trial would have affected the jury‘s determination of reasonable doubt, because it went straight to the heart of the defense‘s main theory of the case.
We also note that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair” as a violation of due process. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, 349 (1976). We have no way to know whether or not the prosecutor had any knowledge of the falsity of Cpl. Rice‘s testimony given his past testimony and training materials, but we recognize the serious constitutional implications of the possibility. It is extremely disturbing to this Court that an officer of the law would present false testimony in any case, especially a murder case. In this case, however, it is impossible to believe there was any truth to the testimony of Cpl. Rice. It is abhorrent to this Court, as it would be to any other court, that a man can be sentenced to twenty-five years for second-degree murder based primarily on the false testimony of a trooper of this State.
For these reasons, we find that the district court abused its discretion in failing to grant Mr. Ellington a new trial.
V. CONCLUSION
We find merit in several of Mr. Ellington‘s assignments of error at trial. However, we hold that the district court abused its discretion in denying Mr. Ellington‘s motion for new trial. Because our resolution of the new trial issue is dispositive, we do not reach the issue of whether each trial error was reversible or whether there was cumulative error. Mr. Ellington‘s conviction and sentence are vacated, and his case is remanded to the district court for a new trial.
Chief Justice EISMANN, Justices BURDICK, J. JONES and HORTON concur.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.
SUBSTITUTE OPINION
THE COURT‘S PRIOR OPINION DATED DECEMBER 15, 2010 IS HEREBY WITHDRAWN
GUTIERREZ, Judge.
Brent W. Higley was convicted of conspiracy to commit robbery for his role in the robbery of a Maverik convenience store. He appeals from the district court‘s order of restitution following his guilty plea. We affirm.
I.
FACTS AND PROCEDURE
Robert Hainline worked full-time at Wal-Mart and also as a clerk at a Maverik convenience store. During a shift at Maverik, he was confronted by a man armed with a gun who demanded all of the money from the till. After a few days off, Hainline returned to work, but after one day found that he could not “focus” and that he “panicked” whenever a customer entered. He sought the assistance of a counselor, who recommended that he quit his job at Maverik because of the symptoms he was experiencing that were consistent with post-traumatic stress disorder.
Hainline followed the counselor‘s advice, but continued to work his full-time job at Wal-Mart. Approximately two and a half months later Hainline was able to find a job at Burger King for a slightly lower hourly wage than he had received at Maverik. He
Based on his role in the Maverik robbery, Higley pled guilty to conspiracy to commit robbery. He was sentenced to a period of imprisonment and ordered to pay restitution. Pertinent to this appeal, Hainline requested restitution for lost wages for the period after he stopped working at Maverik and began working at Burger King. After a hearing during which Higley objected to an award of restitution, the court granted Hainline‘s request and ordered Higley to pay Hainline a total of $2,665.88. Higley now appeals the order of restitution.
II.
ANALYSIS
Higley contends that the district court erred in finding that Hainline‘s lost income was “economic loss” as defined in
Orders for the payment of restitution to crime victims are governed by
Restitution may be ordered only for actual economic loss suffered by a victim.
One of the purposes of restitution is to obviate the need for victims to incur the cost and inconvenience of a separate civil action in order to gain compensation for their losses. Schultz, 148 Idaho at 886, 231 P.3d at 531; Gonzales, 144 Idaho at 778, 171 P.3d at 269; State v. Parker, 143 Idaho 165, 167, 139 P.3d 767, 769 (Ct.App.2006); State v. Waidelich, 140 Idaho 622, 624, 97 P.3d 489, 491 (Ct.App.2004). However, the statute disallows restitution for noneconomic damages that might be available in a civil lawsuit, such as pain and suffering, wrongful death, emotional distress, and the like. Gonzales, 144 Idaho at 778, 171 P.3d at 269; Parker, 143 Idaho at 167, 139 P.3d at 769.
The district court ordered restitution for Hainline‘s lost wages between the date that Hainline quit his job at Maverik and when he found a new job at Burger King. In doing so, the court stated:
The court‘s understanding of the testimony is that Mr. Hainline, because of the crime itself, being confronted with a firearm in an armed robbery, that that created post traumatic stress disorder for him. He attempted to return to work. He was
unable to work his job following that incident. On the recommendation of a counselor . . . [Mr. Hainline] terminated his job at Maverik and sought additional employment at Burger King, which was at an income less than what he was earning at Maverik.
The court does believe that the lost income directly resulting from the recommendations of [the counselor] are economic loss. It is not something that happened in the future. It‘s something that is happening in the present. It‘s a reaction that the victim is experiencing as a result of the event in question.
The court, however, denied restitution for lost wages for the period of time that Hainline was unemployed following his move to Rupert, deciding that “[t]hat income could very well fall within the statements of Gonzales that it relates to a future event, not something that‘s occurred presently.”
The evidence regarding the counselor‘s assessment and recommendation was in the form of a letter from Hainline‘s counselor to the deputy prosecuting attorney, wherein she stated:
Mr. Hainline had an assessment counseling session with me in late January 2008 just days after he was the victim of an armed robbery while he was clerking at the Jerome Maverik store. Among other aspects of the robbery, he reported that a weapon had been pointed directly at him during the incident causing him great fear and, as a result, he kept reliving the incident.
Mr. Hainline presented with symptoms consistent with post traumatic stress disorder. Directly after the incident he kept clerking at the Maverik and the robber had not been apprehended. This was compounding his symptoms. Given this situation, the most reasonable course of action to ameliorate his post traumatic stress was for him to remove himself from the situation where the terrifying incident occurred. Therefore, a recommendation that he leave his employment at Maverik and seek another job was made.
Higley‘s primary argument on appeal is that Hainline‘s lost wages were due to a decision that Hainline made subsequent to the crime in order to prevent similar crime from occurring again—in other words it was a preventative step—which is not reimbursable under the statute pursuant to Waidelich, 140 Idaho at 624, 97 P.3d at 491, and Gonzales, 144 Idaho at 778, 171 P.3d at 269. In Waidelich, the victim sought restitution for the cost of boarding her puppies during the day because she was afraid that the defendant, who had been convicted of previously attempting to steal them, would return to take them. While recognizing that the victim‘s fear of a future violation may have been valid, we noted that the victim‘s own assessment of actions necessary to prevent future harm was not a legal basis to sustain the restitution order. Id. at 624, 97 P.3d at 491. Accordingly, we held that the cost of preventative measures taken by a victim after a crime are not direct out-of-pocket expenses that are reimbursable under the restitution statute. Id.
In Gonzales, the defendant was convicted of unlawful penetration by use of a foreign object, and his victim requested restitution for vocational school tuition and supplies that she forfeited after the crime because she felt afraid to return to school fearing that another similar incident would occur. We noted that the victim did not state that she was unable to attend the program because of being physically injured by the crime or because she was busy meeting with police or testifying in the case. We concluded that like the victim in Waidelich, the Gonzales victim incurred the expenses because of her efforts to prevent possible future harm and therefore they were not subject to restitution under the statute. Id. at 779, 171 P.3d at 270.
Higley contends that where the record shows that Hainline suffered no physical injuries and that he was able to maintain full-time employment at Wal-Mart during the period in question, the expense at issue was incurred because Hainline, like the victims in Gonzales and Waidelich, was attempting to “prevent possible future harm.” Upon examination of the record, we conclude that this
Despite Higley‘s attempt to characterize Hainline‘s action as preventative, the letter submitted by his counselor indicates that she recommended he quit his job based on the symptoms he was experiencing at the time (including “reliving” the incident), not upon a desire to help him dissolve any fear that such an incident would happen again in the future. In addition, Hainline testified that he quit because he “worked there one day and I couldn‘t focus.... Every time the—a customer came in, I panicked and I couldn‘t—I just couldn‘t work there anymore.” Thus, he testified as to an inability to continue work at Maverik, as distinguished from our recognition in Gonzales that the victim had never indicated her inability to continue school.
Higley also contends that the district court‘s finding that Hainline‘s inability to return to work was due to post-traumatic stress disorder was “inaccurate” because there was “no evidence that Mr. Hainline was actually diagnosed with, or suffered from, post traumatic stress disorder.” Specifically, Higley points out that counselor‘s letter only indicated that Hainline had presented with symptoms “consistent” with post-traumatic stress disorder and that determination had been made after only one meeting. As we noted above, a court‘s findings of fact will not be disturbed if supported by substantial evidence and we conclude here that there was sufficient evidence to support such a finding. The record establishes that Hainline began exhibiting symptoms immediately following his return to work after being robbed at gunpoint, that he sought counseling as a result, and that the counselor attributed his symptoms to the robbery incident and recommended that he quit his job due to those symptoms. That the counselor only saw him once and described his symptoms as merely “consistent with” post-traumatic stress disorder are not facts which render the court‘s finding unsupported by substantial evidence.1
We conclude that restitution for lost wages in this instance was appropriate under the restitution statute, and the district court‘s restitution order was not an abuse of discretion. The order of restitution is affirmed.
Judge GRATTON and Judge MELANSON concur.
253 P.3d 754
STATE of Idaho, Plaintiff-Respondent, v. Corey Skii REID, Defendant-Appellant.
No. 37107.
Court of Appeals of Idaho.
April 8, 2011.
Review Denied May 23, 2011.