*1 making. The primarily it is of his own rules denial Mr.
that result in a of relief to Waller inappropriate
are well and would be settled rules to allow
for the Court to bend those
relief here. hand, Department has
On the other ability Mr. Waller off hook. to let
September Department of 2004 the made an It acknowledged
effort to do the error so. paternity stipu-
regarding Mr. Waller’s judgment
lated to set and order for aside judge support. magistrate
child de- aside, judgment finding
clined to set the untimely.
effort to be It would seem that Department simply could then
dropped support further efforts to collect
arrearages.
STATE of PEARCE,
Sarah Kathleen
Defendant-Appellant.
No. 34491. Idaho,
Supreme Court of
Boise, April 2008 Term.
Aug.
failing to instruct regarding dangers identification, inherent in process rights violated her due when it failed *3 prosecutor’s arguments to admit the from co- Appeals defendants’ trials. The Court of concluded that the district court erred in failing testify, to allow Pearce’s error was harmless. The Court of Appeals affirmed her pe- conviction. Pearce granted titioned this Court for review and we it.
I. FACTUAL AND PROCEDURAL SUMMARY early morning hours of June 2000, as driving Linda LeBrane was east- bound on Interstate she was forced off by carrying the road a vehicle three men and woman, one woman. The later identified as by Pearce LeBrane and other witnesses who group saw the either before or after the attack, entered LeBrane’s vehicle and un- locked her driver’s side door. The three men, since identified as John David Wurde- (John), (Ken- mann Kenneth Wurdemann neth), Sanchez, Jeremy along Pearce, forced LeBrane from her vehicle and John, money Sanchez, drugs. demanded struck, stabbed, punched, and Pearce and cut sharp LeBrane with their fists and instru- ments while Kenneth struck LeBrane with aluminum baseball bat. The assailants money LeBrane, property took in- card, cluding transported a credit her to Boise, Greg Silvey, appellant. S. for Farmway Canyon a location on Road Wasden, Attorney Honorable Lawrence G. County. again LeBrane was forced from the General, Boise, respondent. vehicle, Kenneth beaten, stabbed, cut, and struck re- Jorgensen argued. peatedly before John and Sanchez set fire to group lying
her vehicle. The left her in the JONES, J. Justice. dirt at the scene. appeals
Sarah Kathleen Pearce from her On March charged by Pearce was indictment, robbery, conspiracy alleged conviction of to commit that she was the robbery, conspiracy degree to commit first female At steadfastly assailant. Pearce kidnapping, degree aggra- first kidnapping, contended she was not the woman involved. rested, battery, aiding abetting vated in part, allegedly at- Her defense tempted degree questionable ability identify first murder. She contends of LeBrane to perpetrator. that the district court erred when it de- the female Evidence at trial prior clined to allow her witness indicated to the attack LeBrane procedures lineup marijuana cigarettes and the effect of two such smoked identifications, procedures erred was “loaded” the time her car reached the perpetrators a motel where the Additionally, lost a clerk at LeBrane area. Caldwell attack, Although stopped after the also iden- during allegedly the attack. glasses her clear, court, lineup is not she and in lost them Pearce the video point at which she tified nearsighted Rupert’s and unable to see being three men. having admitted been with the investiga- son, In the course them. Pearce Joseph, without also identified incorrectly two dif- tion, identified having LeBrane been at lineup and at trial as lineups. separate photo in two women ferent the motel. photo lineups. neither of the was in complained photo lineups LeBrane trial, LeBrane admitted questioned at When difficult, but that the vid- made identification identified was the woman she that the first During helpful. more one of eo *4 composite picture resembling the one most deputy, “I photo lineups, she told sec- incident1 and that the after the created people person. in I need need to see these resembling most woman ond was the body height. I need to see move- to see in the female assailant portrayed actress who body language. I to see need ments. need America’s Most Want- episode a television repeated this concern to hear voices.” She ed, the crime. LeBrane which featured investigation. Mr. Mower also during the in the third line- eventually Pearce identified “much, lineup the video testified any did not have up lineup that video —a photo lineups, and much better” than the previous photo lineups. persons from the two much easier to make an identifica- that it was employed showing Le- The methods lineup. with the video tion lineups were photo and video Brane the Honts, psy- Pearce offered Dr. Charles Miles, at trial. Robert question called into University, chology professor at Boise State Canyon County Sheriffs detective with testify expert regarding the reliabili- as an investigator on the primary Office and the identification, including ty com- case, that he had never received mentary lineup procedures. The state photo lineup. conduct a training on how to testimony of Dr. Honts moved to exclude the addition, LeBrane In when Miles instructed prior to trial. The district court allowed Dr. lineup, he told her to photo witness, testify an Honts to as closely resem- identify person who “most testimony to the characteristics of limited his telling rather than her perpetrator bled” the memory relation to the identifica- without if in the pick perpetrator she was Additionally, in Pearce’s case. tions lineup, lineup. photo after LeBrane one testify court did not allow Dr. Honts to re- person positive who she was identified one lineup procedures resulting garding assailant, LeBrane was the female Miles told general, finding he was not identifications picked wrong person. With she had sufficiently qualified as an lineup, Miles notified respect to the video area, background as to his or his either that the prior LeBrane to her identification case. knowledge of the facts of Pearce’s lineup person of interest. contained Pearce also called Kenneth as defense LeBrane, peo- In addition to several other Kenneth, who had confessed to his witness. perpetrators the four ple allegedly who saw attack, previously participation place identi- near the time and of the attack trials of testified for the state at the John group, the female both fied Pearce as Sanchez, convicted for who were both lineups eventually in court. Keith During Sanchez’ first tri- Mower, their involvement. group at a rest who encountered the al,2 attack, testified that Pearce was not the he stop night of the identified involved, trial but at Sanchez’ second accompanying Wur- woman Pearce as the female Sanchez, whether she was in a he testified he did not know demann brothers and both Rupert, At Pearce’s Kenneth testi- and later at trial. Steve the woman. Parks, giving prepared preventing an accurate her 1. Carrie the forensic artist who Pearce, composite description. testified at trial that large eyes described to her LeBrane were too anger intense adult due to LeBrane's trial ended in a mistrial. 2. Sanchez' first toward her attacker and that LeBrane’s emotions by declining on direct examination he had never erred to allow Pearce’s fied night participant prior female to the lineup procedures seen the witness to attack and that he did not believe the procedures the effect of such on identifi- Pearce. The state then im- woman was cations;- whether the district court erred credibility peached on cross-exam- Kenneth’s by failing sponte sua to instruct the ination, dishonesty through- focusing on his dangers inherent in identi- investigation of the crime and his out the fications; and whether the district court potential motive to lie. denying erred in the motion to dismiss and prior prosecution the related motion to admit Following the state’s cross-examination of arguments. Kenneth, brought a motion to dis- process asserted a due violation
miss. She the state’s inconsistent treatment of based on A. testimony for different defendants Kenneth’s charged crime. with the same Pearce also The district court did not abuse its dis- party moved to admit as admissions of a excluding cretion in certain opponent closing arguments from San- Dr. Honts. *5 chez’ first where the state asserted that argues Pearce the district court testimony, Kenneth’s should believe abused its finding discretion in that Dr. Pearce, specifically regarding as well as education, necessary Honts lacked the expe sentencing argument in Kenneth’s case. rience, background, and factual testify to The district court denied both the motion to police lineup procedures and the effect argu- dismiss and the motion to admit the procedures on identifications. A trial jury subsequently ments. The found Pearce court’s decision the admission of guilty charges except aiding of all and abet- expert testimony is reviewed for abuse of ting arson. Merwin, 642, discretion. State v. 131 Idaho appeal Appeals, On to the Court of Pearce (1998). 645, 1026, 1029 962 P.2d When deter refusing the district court asserted erred mining whether the district court abused its testify to allow Dr. Honts to as to discretion, (1) we consider: whether the low identifications, procedures resulting fail- rightly perceived er court the issue as one of ing to instruct the about the weaknesses discretion; (2) whether the court acted with identifications, denying her in the boundaries of such discretion and con dismiss, excluding arguments motion to sistently any legal applicable standards prior proceedings. Finding the record choices; specific to and whether the court insufficient to determine whether the exclu- by reached its decision an exercise of reason. testimony by sion of certain McDaniel v. Inland Northwest Renal Care Honts was erroneous or whether such LLC, 219, 221-22, Group-Idaho, 144 Idaho prejudicial, error would have been the Court (2007). 856, 159 P.3d 858-59 an Appeals temporary issued order for
remand, directing the district court to re- give expert testimony, To a witness proof by ceive an offer of qualified must first be as an on the specific prof- that would have been Trevino, matter at hand. State v. 132 Idaho at trial Dr. Honts if it had fered not been (1999). 888, 895, 552, 980 P.2d 559 Idaho excluded the trial court on the state’s appropriate Rule of Evidence 702 is the test motion in limine. The district court held an measuring reliability for of evidence for evidentiary hearing on the matter and such Merwin, 646, expert testimony. 131 Idaho at Appeals record was before the Court of for scientific, technical, P.2d at “If 962 or its consideration and ours on review. specialized knowledge will other assist the trier of fact to understand the evidence or to II. issue, qualified a fact in determine a witness ON APPEAL
ISSUES skill, expert by knowledge, experience as an specialized may testify following presented knowledge are for de- or thereto issues opinion termination: whether district court the form or otherwise.” Idaho 246 persuaded,” stated, it “was not based the rule tions because Otherwise
R. Evid. 702.
proof, that Dr. Honts was
may testify in
on the offer of
experts
qualified
provides that
testify
particular issues.
qualified to
on these
special
opinion only if their
the form of
legal
applied
the same
The district
trier of fact to
knowledge
assist the
will
ized
on this issue as it did to the issue
standards
a fact
or determine
the evidence
understand
testify
qualified
of whether
must be some demonstration
There
issue.
memory, and
regarding the characteristics of
acquired, through some
has
that the witness
reliability
identifications
experience,
or
type
training, education
Dr. Honts’
generally. The court examined
knowledge
necessary
to render
expertise
performed
thoughtful
qualifications and
Eytchison,
v.
proffered opinion. State
analysis
ability
testify regarding
of his
988,
210, 213,
(Ct.App.
P.3d
991
136 Idaho
lineup issues:
2001).
qualified
render
A
be
witness
concludes, however,
The court further
things but not others.
opinions about some
permitted
Dr. Honts will not be
Sonke,
968 P.2d
v.
132 Idaho
West
testify concerning photo line-ups and video
(1998).
228,
qualified
the witness is
Once
First,
line-ups
resulting
identification.
trial court must determine
expert,
as an
persuaded,
the court is not
based
opinion testimony will
whether such
possesses
proof,
offer of
that Dr. Honts
understanding
trier of fact
assist the
necessary qualifications
con-
Hopkins,
Idaho
evidence. State
cerning
He
that he
(cit
these issues.
680-81,
(Ct.App.1987)
P.2d
89-90
participated
police line-up,
in a
has never
Inc.,
ing
Prym,
Sidwell v. William
line-up,
that he has never conducted
(1986)).
80-81,
If
1000-01
spoken
that he has never interviewed
here,
concludes, as it did
that the
the court
*6
any
in this ease
of the witnesses
testify
qualified to
as to a
witness is not
testimony was relevant to those is-
whose
matter,
whether
particular
it is irrelevant
LeBrane,
Mower,
Linda
Keith
Ja-
sues:
testimony would assist the trier of fact.
such
Rupert,
Waggoner,
nine
Steven
Officer
case,
court first ad-
In this
the district
Smith,
Miles,
Chris
Officer
Bob
Officer
testify
could
dressed whether
the witness
John,
Hally,
Gary
Dan
or Carrie Parks.
reliability
eyewitness testimony,
about the
Further,
acknowledged having
he
viewed
citing Idaho Rules of Evidence
only
many composite drawings
two of the
relying
prior
on numerous
and
Although
in this case.
he has
involved
cases,
Hoisington,
including
v.
104 Ida-
State
line-ups,
only
viewed three video
he
did so
(1983),
Alger,
ho
possesses sufficient
Although
grounds
there are
for concern
line-up
photo
identifica-
ence in the area
aspects
lineup pro-
various
identification,
tion,
line-up
and rec-
cedures, particularly
photo lineups,
conducting
procedures for
line-
ommended
likely
though
helpful
it would
have been
to
ups
photo spreads
so as meet
from an
on the mat-
necessary
qualify him as an
threshold
ters the district court found Dr. Honts did
analyzing
purpose
for the
proper
upon
have the
credentials
case,
lineups in
particular
this
the witness
opine,
we cannot find that
the court
therefrom,
arising
and offer-
identifications
excluding
abused its discretion in
his testimo-
ing
opinion
jury.
as an
his
ny on these matters. An examination of the
Additionally,
opinion
might
Dr. Honts
clearly
court’s decision
demonstrates
concerning
particular
offer
witness
discretion,
court viewed the issue as one of
case, including, e.g.,
identifications
discretion,
acted within the boundaries of its
memories, begins
suggestability or tainted
and reached its decision
an exercise of
ground:
impermissible
to tread into
adequately supports
reason. The record
identification,
credibility of the witness
which,
reasoning,
logically
court’s
flows from
province
jury
which is the absolute
legal
expressly
upon
standards it
relied
fact.
as the finders of
in its decision.
amply supports
The record
B.
reasoning
judge
court’s
here. The
acted
determining
within her discretion in
that Dr.
by failing
The district court did not err
skill,
possess
necessary
did not
sponte
sua
to instruct
as to the
experience,
specialized knowledge specific
dangers
inherent
identifica-
contrary,
lineup procedures.
To the
tion.
expertise
actually in
Honts’ area of
Pearce asserts the district court
polygraph testing,
field of
which was not at
failing
erred
instruct
only
issue in this case. Dr. Honts had dealt
identification,
*7
dangers
eyewitness
inherent
peripherally
lineup procedures
and is
arguing
jury
should have been instructed
sues, having
eyewitnesses,
“talk[ed]
determining
on factors to consider in
lineups,
to
how to do
how
conduct inter
accuracy
eyewitness
of
identifications.3
views,”
class,
Psychology
in his
and the Law
jury
properly
Whether
has been
instructed
having
heard about the .issue at confer
Gleason,
question
law.
of
State v.
123
together by
Psychol
put
ences
the American
(1992).
62, 65,
691,
Idaho
844 P.2d
694
This
ogy-Law Society.
expressly
Dr. Honts
ad
questions
exercises free
Court
review over
of
“specifically
mitted that he had not
done”
law. Id.
research in the
identifica
area
Although
Department
charging
jury,,
tion.
he located
the court
“Eyewitness
article entitled
Evidence must state to them all matters of law neces
Justice
Guide,
Enforcement,”
sary
§
A Guide for Law
he
their
information.
I.C.
19-
2132(a).
party may present
admitted he had not read the entire article.
Either
trial,
charge
request
noted at
written
that it
As counsel for the state
merely
given.
“acted as librarian” for the
be
Id. “A defendant is entitled to an
Honts
record reveals
evi
instruction where ‘there is a reasonable view
defense. The
sufficient
support
presented
dence to
the district court’s conclu of the evidence
in the case that
prae-
support’
theory.”
that Dr.
lacked academic or
would
State v. East-
sion
objects
prior
party
was tried
to the amendment to
the instruction to
and the
Pearce
30(b).
grounds
objection.”
Rule
Prior to the amend
Idaho Criminal Rule
30(b)
Idaho Criminal
ment,
party may assign
object
says
a failure to
at trial did not constitute
“[n]o
now
as error
objection
giving
give
appeal. State v.
of or failure to
an instruction
a waiver of an
Cuevas-Hernandez,
party objects
jury
thereto
140 Idaho
93 P.3d
unless
before
verdict,
704,
(Ct.App.2004).
stating distinctly
to consider its
retires
90,
555,
87,
Finally, at Pearce’s
Kenneth
man,
831 P.2d
558 involved.
122 Idaho
(1992). However,
again
that he did not believe Pearce
duty
no
for a trial
there is
attempt-
The state
jury
was the female assailant.
sponte to instruct
court sua
credibility by using
impeach
Kenneth’s
may
ed
theory
have. “It is
every
the defendant
dishonesty throughout
instances of his
defendant to submit
upon the
incumbent
investigation of the crime.
other man-
requested
some
instruction
credibility
Kenneth’s
dur-
state
defended
specific
the trial court
apprise
ner
trials,
ing
despite defense coun-
the Sanchez
Id.
requested.”
instructions
veracity using
sel’s similar attack on his
es-
failed to offer an instruc
Pearce
dishonesty.
sentially
same instances of
dangers inherent
tion on the
Pearce moved to dismiss at
the close
not allow a
This Court will
identification.
testimony, claiming
op-
the state’s
Kenneth’s
an instruction which was
appeal
defendant to
positions
credibility
posing
about Kenneth’s
level,
at the trial
unless that
never offered
right
pro-
violated her constitutional
to due
necessary
constitutes a
matter
instruction
cess.
omission
constitute funda
law whose
would
appellant
When
asserts the
Anderson, 144 Idaho
mental error. State v.
right,
give
violation of a constitutional
we
748-49,
886,
743,
891-92
findings
to the trial court’s factual
deference
though
(holding that even
new Idaho Crim.
findings
clearly
those
are
erroneous.
unless
objection
expressly requires
pre
R. 30
658, 152
Henage,
State v.
P.3d
appeal,
instruction issue on
defen
serve
(2007).
16, 19
We exercise free review over
instructions,
may
appeal jury
dant
still
even
the trial court’s determination as to whether
objection,
error
without
where fundamental
instructions).
requirements
constitutional
have been satis
occurs
light
fied in
of the facts found. Id. The Due
obligation
It
is the defendant’s
guarantees every
Process Clause
defendant
court,
present his theories to the trial
right
comporting
trial
to a
with basic
duty
the trial court is not under a
to deter
tenets of fundamental fairness. Lassiter v.
jury.
mine on which theories to instruct the
Soc. Servs.,
18, 24-25,
Dept.
452 U.S.
Eastman,
249
trials,
tually
at
trial.” Id. Unlike in
separate
offer
adduced
each
at
vict two defendants
Calderon,
guilty of
both defendants could be
theories and facts
inconsistent
Groose,
-crime due to the nature of the
Id.;
the same
v.
see also Smith
same crime.”
Id.;
Moody,
Cir.2000) (use
see also State v.
208
(8th
crime.
1045,
1052
205 F.3d
(2004) (“[The
1119,
424,
P.3d
1134
Ariz.
94
in
statement
trial of one de-
witness’s first
only
person,
one
and the theo-
defendant]
second,
use of witness’s
fendant and then
necessarily
are not
inconsistent.
ries offered
contradictory
against different de-
statement
inapposite.”).
[Calderon ]
Thus
trial, in
subsequent
order to con-
fendant
crime,
of same
violated
vict both defendants
case,
prosecution
In this
was not ad-
process).
due
vancing
theory
a different
or inconsistent
challenging
credibility
Kenneth’s
evidence
substantially
differs
This case
contrary,
at Pearce’s trial. To the
the state
courts were
these federal cases. Those
throughout each trial that San-
maintained
multiple
being
defendants
guarding against
Kenneth, John,
chez,
and Sarah Pearce were
crime,
committing the same
for
convicted
culpable
all
in the attack.
only
could
have
the evidence showed
Here,
prosecutor,
agent
perpetrator.
While a
as the
one
been committed
state;
people
unique duty
and the
has the
changed
position
its
the state
fundamentally
cases,
to ensure a
fair trial
seek
In the federal
credibility of a witness.
convict,
only
ing not
but also to vindicate
theory
government changed its
and evi
justice,
the truth and to -administer
courts
perpetrator of the crime.
dence about the
recognized
largely
punish
have
the limits of
a crucial distinction. The Calderon
This is
ing prosecutors
apparent
inconsistencies
difference, citing
recognized the
court itself
approach
criminal
their
trials absent
by then-judge Kennedy where
opinion
to an
Sanchez,
inconsistency. See
142 Ida
“core”
required
in he concluded that “reversal is
Groose,
322, 127
(citing
at
P.3d
205
ho
at
underlying theory
‘remains consis
when
”
1052).
no
F.3d at
We also note there is
(quoting Haynes
Pearce
trial
first
and Kenneth’s
ments from Sanchez’
subsequent
in a
trial
admissible
as
admis
sentencing hearing to the
as evidence of
(1)
they
party opponent
sion of a
where
are:
these
inconsistency.4
contended
equivalent
of fact
to a testimonial
assertions
have been allowed in as
statements
should
(2)
client;
statement
inconsistent with
opponent. The trial
party
of a
admissions
trial;
in a subsequent
similar assertions
in the admission of
court has broad discretion
(3)
subject
explanation
to an innocent
for
judgment
and its
will be
evidence at trial
inconsistency.6
Id. at
33.
United
only
there is an
of that
reversed
where
abuse
(2d
Salerno,
797,
States v.
937 F.2d
811-12
Howard,
727,
135
discretion. State v.
Idaho
Cir.1991),
grounds,
rev’d on other
505 U.S.
(2001);
731-32,
44,
24
48-49
State v.
P.3d
322,
2503,
S.Ct.
L.Ed.2d 255
Zimmerman,
971, 973-74,
(1992),
specifically applied
the Second Circuit
(1992).
P.2d
863-64
prosecutorial
the McKeon factors to
state
question
party may
whether a
ad-
There,
ments.
the court allowed the admis
prosecutor’s prior
mit a
statements in related
prosecu
sion of certain statements where the
party opponent
of a
cases as admissions
tor,
previous
in a
had characterized the
impression in
one of first
Idaho. Courts
defendant contractor as the victim of extor
elsewhere have varied
their treatment of
by a
enterprise,
tion
RICO
a subse
Historically,
the issue.5
such statements
quent bid-rigging
attempted
trial had
rarely
admissible. While some courts
Salerno,
paint him culpable
as
in the scam.
persist
refusing
to admit such statements
811-12;
937 F.2d at
see also United States v.
party
admissions under Federal Rule of
DeLoach,
(11th
34 F.3d
1005-06
Cir.
see,
801(d)(2),
e.g.,
Evidence
United States v.
1994)
Salerno,
(citing to McKeon and
(7th
Zizzo,
Cir.1997),
120 F.3d
1351 n. 4
upheld
prosecutor’s
court
exclusion of
state
recently
several federal courts
endorsed
ments
from earlier
trial of co-defendant
the use of counsel’s inconsistent statements
prosecutor argued against
where
defendant’s
they
concluding
per
are not
se inadmissi-
culpability in the first trial
it in
and for
example,
ble.
For
in United States v.
(2d
McKeon,
Cir.1984),
finding
prosecutor’s
second after
251 314, 345, Ill.2d 643 government’s position 162 205 Ill.Dec. N.E.2d not inconsistent defendant).7 636, (affirming 664-65 exclusion evi prosecution in its prosecution’s strategy earlier, in dence of reasoning relies While Pearce competing policy trial to related due con Salerno, eases, specifically support to these cerns); Morrison, People Ill.App.3d 178 v. admission, a exami closer her contention 1077, 127 N.E.2d Ill.Dec. 532 1088 actually they refute it. Both nation shows (1988) (refusing prosecutor’s admission of recognized “seri and Salerno that McKeon closing argument given pri- in co-defendant’s consequences could result from ous collateral trial). Consequently, conclude the or we dis use of such statements.” Sal the unbridled trict court did not err when barred admis erno, fact, In McKeon F.2d at 811. 937 prosecutor’s previous arguments. sion explicit an limitation to ad court carved out “[sjpeculations that missibility saying counsel, advocacy credibility as to the III.
witnesses,
arguments as to-weaknesses
We find that the district court committed
[opponent’s]
invitations
a
to
case or
to
proceedings
no error
and therefore
draw
inferences”
excluded from
certain
affirm
judgment
Pearce’s
of conviction.
admitting
pronouncement
prose
certain
its
McKeon,
cuting attorney
statements.
Justices BURDICK and HORTON concur.
added).
(emphasis
F.2d
court
at 33
implied
not
fact
these were
statements of
EISMANN, specially
Chief Justice
equivalent
by the
to testimonial statements
concurring.
client,
advocacy regarding
constituted
majority opinion. My
I concur in the
con-
credibility and
be
witness
inferences to
currence in Part II.A. is not an affirmation
Id.;
drawn from the evidence.
accord Saler
every
that
factor mentioned
the district
no,
(requiring prosecutor’s
I. population male inmate Canyon at the Coun- ty against Jail. The six all stood in a line AND FACTUAL PROCEDURAL wall; height white was not indicated on the SUMMARY only wall. height reference to is a com- composite The first were sketches created parison amongst persons other in the video immediately following the June 2000 attack Next, lineup. individually each was instruct- hospital while Ms. LeBrane was still in the say “give [expletive ed to me the deleted] photo-spread and the first was conducted in drugs; give [expletive me the deleted] mon- photo-spread December of 2000. The was ey.” [Emphasis speaking After added]. prompted Vegas police when the Las contact- phrase, person instructed was instructed Canyon County person ed with a matching direction, allowing to face each pro- for two description composite drawings file and a views back view. When Pearce’s the female the LeBrane attack. The sec- came, individual turn phrase the instructed in January ond was conducted when “give [expletive was switched to me the de- Jeremy girlfriend Sanchez’ at the time of the money; give [expletive leted] me the deleted] person attack was considered a of interest. drugs” and throughout remained switched Ms. LeBrane person identified one from each lineup. the remainder of [Emphasis add- photo-spreads, of the two being neither person ed]. Pearce was the fourth in the Repeatedly Pearce. throughout process, lineup. requested Ms. LeBrane lineup a video be- According presentence report, Sa- body cause she was concerned about lan- (D.O.B. 11/01/1982) rah Kathleen Pearce was guage height specifically. On numerous years age seventeen on the date of the occasions, during photo-spreads and dur- Pearce, attack. presen- at the time of the ing her expressed she 5'6, report, tence weighing pounds. concern identifying person without hair, eyes, She has red brown and fair com- (in seeing height their comparison to her plexion. arrest, At the time of Pearce was height) seeing body and without their lan- 5'6, weighing pounds. She is listed as a guage.8 Ms. LeBrane testified that she was white eyes. female red hair and brown seeing adamant about lineup a video after she made the second incorrect identification. Ms. LeBrane has described the woman Police officers did in fact make a video very pretty attacker as and attractive with at that time. persons no from the light Hispanic freckles and skin tones. The previous photo-spreads video, were in the height woman’s has varied from shorter than disputed whether Ms. LeBrane was 5'1 age to around 5'4 and her varied from person told that a in custody. interest was mid to late twenties. Other witnesses have Ms. LeBrane identified her third described young the woman as with reddish- identification, which lineup, was a video hair, color, blond blond hair with ash April of 2002.9 height brown hair. Her has been described viewing
A of the video lineup shows that it weighs as 5'0-5'6 and she around 110-120 consisted of six females. All pounds. six of the fe- age Her varies teens to thir- males are clothed in orange jumpsuits. ties. Some witnesses describe her as His- Three of the six ponytail. had their hair in a panic specifically. agree All witnesses judge height by people 8. "I how tall begun witnesses because the detectives had standing by me.” Ms. LeBrane (rather is 5'1 or shorter. investigation focus the on Pearce than an suspect). earlier lineups suspects 9. Two video of female were cre- However, only ated. one was ever shown to the *12 eyes. driving Ms. she standing has brown addition to saw a man in the she was waving his LeBrane’s account and identifica- middle road arms. Ms. tion, eyewit- spoke following Waggoner the the the man State offered with and noticed testimony in the ease: that two other men a woman in the ness were and shoulders, car. The woman narrow had and four Keith Mower: Mr. Mower witnessed sitting in was the front seat. The woman stop at a.m. on individuals a rest around 1:15 hair had blond with an ash color it and it June, group described the as 2000. He might golden; styled have been a little was strange, consisting of one woman and three messy spiked Waggoner up. Ms. did not unique was because she men. woman identify Pearce that woman. as She was young to be men. appeared be too with the identify able John and Kenneth Wurde- nice, young, was looked dressed She mann, Jeremy Sanchez from the video tight jeans simple wore white shirt. lineup. hair, was The woman had reddish-blond weighed Rupert: Rupert around 5'5 and between 110-120 Steve that Steve only working He her she pounds. saw face when he was at a motel off the Caldwell entering night the turned and looked back before exit on the of the attack. A woman stop. at testi- man came restroom the rest Mr. Mower in to rent a room around 3:30 They paid that he most to the paid fied the attention am. cash for the in the room stop Rupert at the be- woman out of the four rest amount of $38.55. Steve made belonged did she with copy Washington cause she not look like of the woman’s State driv- slowly group really and she walked er’s license. the He described woman as being But cross-examination he ad- in her to early bathroom. late teens twenties. good get mits that he as of a look at about did not was 5'5 or 5'6 with brown hair. She people waiting the woman as the men because was the There were two he more room, at as Mr. leaving the same time the men. car. After for the woman bathroom returned, prob- did stating Mower testified that he not have and man that the room was images dirty, verbalizing money lems in his head and asked for the return of the copy composite images artist because the and the of the driver’s license. Steve Rupert complied. Rupert fresh mind. still his Steve believes he morning has seen the woman before the He admits could not the wom- that he view June 15 that Pearce is woman that well, very during face the video line an’s but he saw June 2000. On cross-examina- recognize Mr. up realized that he could her. tion he stated he had not seen the woman photo- Mower also a woman in a identified later, June had seen before' but her (hot spread conducted on November year. or November of the same He October Pearce). pick person He told to that was composite created a sketch of woman stop. most looks like the woman the rest composite Rupert artist. sketch Steve photos chose a from He woman lineup. chose also Pearce out of most looked like the woman from the rest stop, Previously he think that Rupert but “didn’t that was her. Steve stated to the police ... was the one that the closest to and sketch artists that the was [It] looked woman Mr. light-colored Hispanic, her.” Mower identified Pearce at trial tall five-feet night. stop pounds. age as the woman from the rest and 110 Her varied mid- from younger picture twenty-five thirty. He also identified a of her as twenties to He has stop night. woman the rest brown also described her hair as to red with wearing eyes. Mr. Mower note that Pearce was dark brown did styled differently hair than her darker and Rupert: Joseph Joseph with his works stop. the woman at the rest times Several dad, Rupert, at motel in Steve Caldwell. having before Mr. Mower admitted to nineteen-years-old was at the time of trial He pictures Pearce on seen television. sixteen-years-old at the and was time of Waggoner: Waggoner checking Ms. testi- He into the Jeanene attack. saw the woman driving age that she mid- woman his fied home around motel described the night night recognized she older. woman attack. While a little He (Susan Davis),10 lineup procedures. prosecu- The crux mutual friend did
from a *13 eyewit- Joseph against tion’s ease Pearce of initially police report. make a consists not testimony that identified as lineup. ness Pearce on the video chose Pearce woman who committed the attack. Pearce’s he and his dad He testified that also on entire defense rested the contention that May in he had moved Caldwell that was not the who committed she woman before but doesn’t seen Pearce June attack and that the identifications were made Davis, or Susan the al- know when where. testimony in offered in error. Pearce an Pearce, by leged friend of was hired attempt against to rebut the state’s evidence July definitely August. Joseph in or motel her, but trial court refused that testimo- believes that he saw Pearce with Susan Davis ny. Specifically, the trial court refused to point. at some qualify expert testify as an Honts on majority opinion The fails to take sufficient procedures developed standardized to ensure that Ms. stolen note of evidence LeBrane’s accuracy conducting lineups. maximum Valley credit card was used Jordan 30 Although generally ga- the trial court is allegedly checking minutes after was Pearce evidence, tekeeper admissibility this Caldwell, into the motel which is inconsis- idly by Court should not sit and allow a clear jury making guilt. a finding tent with authority. that blatant abuse of Without Rupert Steve that the woman testimony, oppor- this Pearce was denied man entered the motel around 3:30 a.m. on tunity present evidence to refute the nu- 15, and a June credit card statement shows against cleus state’s evidence her. I that card Ms. LeBrane’s credit was used opportunity find that this denied Pearce the Valley. Valley, 4:01 a.m. Jordan Jordan I, therefore, fair respectfully to a trial. dis- Oregon in the same time zone as Caldwell Majority’s from opinion sent and find away Highway miles A is 60 95.11 the trial that court abused discretion. its gas attendant station testified that the credit analysis trial suggests court’s that an by Hispanic card used a was man in ma- experienced must be the best or most Hispanic roon ear with one or two men and a field, clearly required which is Hispanic passenger. woman Any Idaho Rules of shortcomings Evidence. unanimously Appeals The Court of held training, experience, in Dr. knowledge Honts’ testimony that the exclusion of Dr. Honts’ expertise weight go or towards the of his police lineup techniques resulting testimony, than admissibility. rather identifications was an abuse discretion The district court committed reversible error erroneous, therefore but the court held it when failed to find that Dr. Honts sur- agree error was harmless. with the Court passed required the minimum hurdle for ex- of Appeals, that it error qualification. to exclude the pert testimony, firmly believe such con- error stitutes reversible error because of the im- A.
portance identifications The district court abused discretion its particular case. by refusing qualify as an lineup pro- witness to as to
II. any resulting eye- cedures and effects on ANALYSIS witness identifications.
I disagree
majority’s holding
with the
This Court will not overturn an erroneous
the district court
err
did not
when it failed to
lower court
it
decision unless
affects
sub-
qualify
of the defendant. See I.C.R.
right
Dr. Honts
witness on stantial
Joseph’s
10.
testimony
Highway
mostly
It is unclear
through
whether
11.
95 is
two lane road
recognized
night
he
on
of the attack
mountainous terrain.
knew,
person
recognized
as a
he
whether
or
he
night
the woman from the
of the attack and later
made the connection to Pearce
same
as that
woman.
reviewing
invades the
if
done so
the basis
harmless
the-
An error is
jury.
doubt
Id.
like all
beyond
province
a reasonable
court determines
reject
same
testimony,
accept
have reached the
is free
would
that the
Gomez,
weight
testimony
assign
based
result. State
(2002).
If
con
Traditionally,
the error
credibility.
Id.
the witness’
evidence, “the
for harm
test
reliability
cerns omitted
has
this Court
found
there is a reasonable
is whether
less error
un-
outside the
*14
lack of excluded evidence
possibility that the
juror,
derstanding
average
of
and there-
the
Gomez, 137 Ida
to
verdict.”
the
contributed
fore,
-expert testimony.
would not warrant
(citations
673,
at 317
and
52 P.3d
ho at
420,
415,
Bingham, 116 Idaho
776
v.
State
omitted).
It
the
quotations
within
is
internal
(1989).
424,
Bingham
429
this Court
P.2d
In
conflicting evi
jury weigh
province of the
to
eyewit-
although
reliability
that
the
of
found
credibility
the
of wit
and determine
dence
testimony
typically
the
outside
ness
353-54,
Crea,
352,
v.
119 Idaho
State
nesses.
understanding
average juror,
of the
there
(1991) (citations
445,
omit
P.2d
446-47
806
average
may
a circumstance where the
be
ted).
will not
overturned
A
verdict
be
juror
equipped
is not
to understand the relia-
Crea,
clearly
appeal
unless
erroneous.
eyewitness testimony
bility of
without
the
353-54,
at
at 446-47
806 P.2d
119 Idaho
expert.
116
Bingham,
of an
Idaho at 420-
use
(citations omitted).,
bur
The state bears the
21,
(holding
Honts to
authorize a lower court
identifications.
bounds
discretion
individual
on the merits of the
to reach decision based
expressly
decision
stated
The lower court’s
presently
ease
individual
front of
traditionally ruled that
this Court has
Specific
training
partic-
court.
academic
in a
reliability
eyewit-
testimony
required
qualify
has
ular field
never been
testimony
it
is not admissible because
ness
interpreted
expert. “Idaho has
the five
an
province
in determin-
invades the
disjunctive, holding
qualification areas as
Although
credibility of witnesses.
ing the
training
always
is not
neces-
academic
expert is
may be true if an
that statement
practical experience
special
sary and that
or
accuracy
or
proffered to vouch for
refute the
knowledge
training
...
related
identification, I find that it
particular
aof
field
Hopkins, 113
at
might suffice.”
Idaho
discretion
was an abuse of the district court’s
added)
90(emphasis
(citing
IHC
Dr. Honts’
it excluded
when
Commissioners,
Hosp., Inc. v.
Board
procedures
accepted
relates to
(1985);
why
studies which show that the
non-compliance
effects of
does
invade the
accuracy in
identification is de-
province
jury.
accepted lineup procedures
creased when the
used;
aspects memory
are not
present
issue is
whether
and how different environmental stimulus
opportunity
present
afforded
fair
de-
*17
may
memory
per-
affect the retention of
and
ability
fense in
case.
this
Without the
to
ception.19
present expert testimony
may help
a
jury assign weight towards the state’s case
qualify
The failure of the trial
to
Dr.
her,
against
deprived
opportu-
she was
the
of
Honts
clear
as a witness was a
abuse of
nity
present
fully
fairly.
to
her case
and
A
discretion.
district court misconstrued
requires
fair trial
a
lineup,
fair
and in in-
previous decisions of
and
this Court
incor-
present
stances
the
such as
where “fair”
case
rectly applied the
of
standard
law. Direct
reality,
would be a far stretch from
a defen-
in-depth
research of the immediate case
dant should be afforded
pres-
the chance to
is
required
testify
general
not
to
proce-
on
jury,
ent'
through
expert
testimony,
they
employed
dures and whether
were
in
eyewitness
how
why
may
identifications
Further,
specific
this
instance.
the fact that
However,
be flawed.
it remains within the
Dr. Honts has never
as an
testified
on
province
jury
assign weight
to that
particular
virtually
this
signif-
matter is of
no
evidence and under no
icance.
most
circumstance should
At
that Dr.
means
testimony
express
be
has not
a
of
allowed to
a
providing
made
career out
ex-
words,
opinion
direct
on
pert testimony;
particular
whether a
wit-
other
he is not a
ness
professional
Additionally, expert
is credible.
Additionally,
witness for hire.
testi-
mony
testimony
eyewitness
few
on
cases warrant
identification
lineup
should
procedures,
only
and as
be available
the
previously,
stated
most extreme cases.
courts
typically
Regardless
expert testimony
find that
if a
qualified
on wit-
witness is
as an
perception
province
expert,
ness
invades the
of
a trial court is free
testimony
the
to limit
jury.
a
extraordinarily
Unless
case falls
in an
into
instance where the information will not
circumstances,
case,
narrow
help
such as this
it
the
understand or
a
determine
fact
qualified
previously
testimony
19. Dr.
was
previous
Honts'
and al-
from the
but to state
by
testify
aspects
lowed
correctly
the trial court
that the trial court
found that Dr. Honts
memory.
qualified
of
I do not
to limit Dr.
was
Honts’
on those matters.
mean
conducting procedures
Bingham,
program
for
ized
generally
See
in issue.
available to them.
no
hi. reasons, foregoing I would reverse
For the and remand to the dis- conviction
Pearce’s trial. court for a new
trict Idaho, Plaintiff-Respondent,
STATE COOK, Defendant-Appellant. K.
Jack
No. 33775. Appeals of
Court of Idaho.
May 2008. Sept. 11, Denied
Review