State v. Walters

Idaho, Plaintiff-Respondent, STATE WALTERS, Deveral

James

Defendant-Appellant.

No. 17249.1

Supreme Court of Idaho.

Jan. 1990.

Rehearing Granted March 1991. Rehearing July

On proceeding post-con- Walters. No. viction relief filed 1. Consolidated with S.Ct. suggests me that it

the evidence was deliberately set. A case arson. Q you opinion as And do have an started that fire? who IA do. opinion

Q your And what is as to who that fire? started defendant, IA believe it was the Mr. Rosenheim, Boise, Tway defen- & for Walters. dant-appellant.2 Gustav A. Rosenheim and you Q And base that? what do Tway, argued. William J. During my A the course interview Jones, Atty. Gen., Jim A. and Michael Walters, readily admits with Mr. he that Gen., (argued), Atty. Deputy Henderson premises. he the last one on the was Boise, plaintiff-respondent. for established, Dallman, Mr. through also put neighbor], Cecil Dallman who [the BISTLINE, Justice. fire, out the that he in fact saw the by; right past in defendant drive came Walters was convicted of two felonies Bronco. And within five minutes of his incident, arising one and de- out of arson sighting, noticed flames in the appeal property. struction of insured On window; house, up flames that’s not (1) argues: Reversible error occurred happen. going investigator when the state’s arson testi- I, Tr., p. (emphasis Vol lines 7-25 add- fied to his Walters started ed). Walter’s counsel did not fire; (2) pro- trial and counsel did asked, questions they these when were nor vide Walters with effective assistance did he move that the answers these given that counsel allowed the to be questions be stricken. challenge. without sentencing appealed.

After Walters Be- appeal heard, he fore the was also filed a I. petition post-conviction peti- for relief. The morning On the of November preserved tion was denied and all issues fire occupied by occurred at house Wal- proceedings below in both were consolidat- ters and Allen Tarter. Tarter also the was ed presentation appeal. house; paid owner of the Walters rent to neighbor fire, spotted live there. A II. telephoned fire department, argues Walters tes brought gar- fire under control with investigator timony deprived arson den department hose until the fire arrived. right jury him of to a trial because neighbor testified that he Walters saw it thereby investigator, was the rather than driving away only from the three house jury, who first made the determination neighbor minutes spotted before guilt. post-conviction of Walters’ At the fire. hearing acknowledged trial court Dillard, investiga- At trial Donald a fire testimony the contested would have been tor with the Fire office Marshal’s made, timely if excluded had been prosecution, testified was the for the and the state its brief has conceded that State’s first most witness: dramatic testimony probably “would have been mind, (Brief 9). A all Keeping plus this in resp. Clearly excludable.” fact that it evidence that was because of inadmissible hot, opposed function, usurpation jury fast fire to a small or as its obvious fire, slow, opposed smoldering yes, highly prejudicial upon the to a and its effect subsequent proceedings. counsel counsel Walters’s trial was other than all appeared sentencing and who on his behalf at might our decision reaching agree We controlled a verdict. Haggard, Walters that constituted an State v. province we P.2d 260 where held that

unwarranted invasion into error has been jury, and that Walters’ constitutional where a fundamental trial, this Court was therefore violated. committed a criminal though objection it no testifying may to consider even The witness Dillard was im- in the trial ultimate fact which the alone was was made court. namely, panelled try, Walters to whether appellant contends that was earli- guilty charged. was as As mentioned deprived process and of a denied due opinion testimony er was admitted prosecuting fair trial because the at- error, challenge. without This constituted torney Haggard elicited at trial question but the remains whether that er- his at the judge did not tell the alibi ror necessitates that Walters allowed a preliminary hearing. Appellant main- new trial. should not tains that this information jury’s for the have been made available

III. doing consideration and so the low- deprived er court him of fair trial. legislature The territorial of Idaho failed to raise Counsel defendant passed early as concern legislation as 1864 an to the cross-examination ing the effect of error on a criminal convic ordinarily of trial and this at time legislation has to this tion. That survived assign- Court would not consider this pro as It day, codified I.C. 19-3702. § obligation ment error. However vides, disregarded.— “Immaterial errors of the state to see that re- departure form or Neither a from the mode primary ceive fair trial is and funda- respect prescribed by any code in this [Citing In case of fun- mental. cases] pleading proceeding, nor an error or in a case the damental error criminal therein, invalid, mistake renders it unless may Supreme Court consider the same defendant, actually prejudiced the has though objection had been even no respect to a prejudice tended to his sub 251, made time trial. 94 Idaho at has been right.” stantial Section 19-3702 at 262. the vari- 486 P.2d Because many proposition for the cited times complaint ance and con- between “non-prejudicial error constitute does pro- appellant viction denies the due grounds McNary, for reversal.” v. State law, not waived her cess she has 244, 417 100 Idaho 596 P.2d though objec- object even no opinions, Hag- v. Two unanimous State previously tion has been made. Nei- 249, (1971), P.2d gard, 94 Idaho ignore this the issue ther can Court Cariaga, and State v. 95 Idaho assigned because it has P.2d 32 committed Court It original in the briefs. was error in circum- error doctrine of fundamental assigned supplemental in the reg- counsel failed to stances where trial during brief ordered filed Haggard the first objection. ister an was argument. oral Cariaga In the Court point of time. 903-04, Cariaga, v. State again its opportunity consider took added). (1974) (emphasis 35-36 holding. In the fail- addition to Haggard objec- an ure of accused to have voiced Bakes was on the Court Justice Chief proceedings Cariaga, tion trial court decided in and he Cariaga when assignment error in there had been doctrine of readily Haggard embraced the response appellant’s brief. following year, error. In the argument that the failure Wright, state’s Idaho when State the due complaint waived ap- to a defective the Court before process reasoned: objection the Court Shepard the non-unani- peal, wrote Justice opinion. dealt with the He or not mous feel issue of whether [W]e alleged as follows: objections errors any she

appellant has waived appeal long principle of This is an from a conviction of to. It is a established robbery trial that, after and a verdict of exception, with limited this Court questions guilty. presented involve subject error at must be reporter the failure of court to record objection to proper merit review argument closing of counsel and the [Citing appeal. cases] arresting officer recognized exception We appellant divulge refused name his principle in Haggard, time of arrest.3 While we find (1971) P.2d 260 in a situa- proceed- error in the failure to all record error.’ involving tion ‘fundamental We ings, appellant has not demonstrated falls agree do not the instant case resulting prejudice therefrom. af-We exception. within that firm.

Appellant Wright Willie asserts in prejudicial error is found the testimo- assuming alleged Even that the error ny arresting officer that at non-reporting is of constitutional di- appellant of his arrest time refused showing mensions is there of result- divulge requested his name and an attor- ing prejudice. Not all er- constitutional (albeit ney testimony said came in with- prejudicial. is Chapman ror harmful objection); testimony out that such ‘was 824, v. U.S. S.Ct. [386 California emphasized’ again during (1967)], supra. 17 L.Ed.2d 705 Al- prosecuting attorney’s closing argument though Supreme held the U.S. Court has (again any objection); absent and be- precludes the Fifth Amendment closing argument cause the of counsel argument concerning comment or de- was not recorded. trial, fendant’s silence a criminal Stew- States, art v. 366 U.S. United S.Ct. Appellant argues here that the failure (1961); 6 L.Ed.2d 84 v. Cali- Griffin closing arguments record has denied U.S. 85 S.Ct. [380 fornia protections him the process of the due (1965)], supra; Chap- L.Ed.2d 106 clauses of the constitutions United California, supra, man v. is rule Idaho, preju- States and the State of is interpreted light of reason. dicial and resulted lack of fundamental language ‘... the test is whether the reaching fairness constitutional dimen- manifestly used was intended or was agree sions. We do not that the failure of such closing character that argument per to record se a process. naturally necessarily denial due Error in ab- take it to necessarily stract not does rise a comment on failure level of constitutional dimensions unless testify.’ accused to Knowles v. Unit- properly presents and until a defendant (10th States, Cir.1955). ed 224 F.2d 168 specific prejudice resulting er- from such See also Fay, United States v. ror. (2nd Cir.1965); F.2d 957 United States (7th Cir.1962). Wright, 309 F.2d 735 Here, appellant prejudicial contends er- 229, 230-33, Wright, ror was committed in references 64-67 Wright’s give refusal to his name Finally, conceding after oc- an error had request time of arrest and his declaring curred and there was no attorney. Those references were con- showing prejudice, majority opinion tained Officer Rossiter’s fact dealt the unassailable which he described the circumstances apprehension prejudice defendant was unable to show surrounding arrest appellant. No was taken there- because of the trial court’s error in arresting give. 3. The officers advised defendant of his fendant refused to name, rights Miranda and asked de- prosecuting at- reporter report clos- to this requiring the court closing argument as ing argument: torney in his evi- guilt, does not If, dence of the appellant, prejudicial argued by fundamental or constitutional por- constitute lies hidden in the unrecorded argument, to a closing it is error which entitles the defendant tions of counsel’s this Court. Rule trial. nevertheless before new augmentation of permits 37 of this Court of the United upon motion and the trial court record States, in decision of Mi- the landmark motions has granting such Arizona, randa v. State of Here, liberally permitted by this Court. 16 L.Ed.2d 694 said augmentation no such record was following regarding reference to an or oral requested nor have briefs Amend- arrestee’s exercise of his Fifth argument precise nature of described the ment to remain silent as evidence alleged objectionable conduct com- guilt: of his Rather, ment. this Court is asked today, it In accord with out decision presume from silent fundamental error impermissible penalize an individ- therefore record. The instant case is exercising his Fifth Amend- ual for distinguishable from and Mar- Ebersole police privilege he is ment when under States, v. United tinez Fowler prosecu- interrogation. The custodial (5th Cir.1962). F.2d not, therefore, may use at trial the tion at 542 P.2d Wright, 97 Idaho his he stood mute or claimed fact that opinion failed Wright at 67. the privilege in the face of accusation. in in to mention that both Ebersole 37], 86 U.S. at [footnote the convictions were reversed Martinez at footnote 37. non-reporting because such the failure of Thus, allowing I it into think is clear that impossible for the defen- failure made police response the officer’s evidence transcript a which in produce to Eber- dant to tell the offi- appellant refused prosecutor’s have the sole would shown given cer he had been the his name after identify refusal to use of the defendant’s warnings which advised him Miranda himself, precluded in and which Martinez right he a to remain silent was that showing he had the defendant from appellant’s in constitu- violation the right to “When waived his counsel. not rights; reference to this silence tional deprived, through no fault of person ... argument during prosecutor’s closing the affirmatively own, opportunity of his necessarily compound this viola- establishing to demonstrate facts appellant’s rights. tion of the incarceration, a illegality of his legality judi- in lack fundamental of fairness regard alleged prejudicial With Martinez process cial established.” closing prosecutor in his 148, 149-50, comment of State, states, majority at argument, ante (1968) added). (emphasis 894-95 page that: demonstrate that Martinez and Ebersole If, argued by appellant, prejudicial fairness, or doctrine fundamental por- error, lies hidden the unrecorded stated, conversely closing argument, it of counsel’s prior Hag- tions operating Idaho even Bakes, by not before this Court. joined Jus- is nevertheless gard. Justice Chief augmen- permits McQuade, clearly recognized this when Rule 37 of this Court tice the trial court record Wright: tation of dissented such mo- granting motion and agree majority that I cannot with the permitted by liberally has been tions (1) testimony that af- police officer’s Here, augmenta- such Court. no this his warning the consti- ter nor requested of the record was tion the defen- right to remain silent tutional argument de- name, the briefs or oral his give the officer dant refused al- precise nature of the (2) reference scribed conjunction possible leged objectionable very conduct com- dant from the situation now be- ment. fore this Court. appellant argued prose- here cuting attorney improper made referenc- When there is such breakdown during closing argument es application procedures, of established appellant fact that the exercised his con- record, as is reflected this stitutional to remain silent. The parol necessitated resort evi- prosecuting attorney’s closing argument ap- dence court officials and of the report- was never recorded the court pellant himself to establish what took er, so of course the defendant cannot record, place ain court of is such there augment argument. the record with that lack fundamental fairness and de- has found failure proce- viation from established rules of record to be error. Yet the majority dure as to necessitate conclusion appellant’s augment cites the failure appellant has been afforded error, the record to show the which of protection process of the due claus- impossible appellant course it is for the es of Constitutions of United do, why as one of the reasons it will States State. not consider whether such reference prejudicial would be error. Further- requirements Ebersole’s are clear—when more, majority says that the nature proceedings record certain before objectionable comment was not available, the district court is but had a described in agree the briefs. do might record been available it have sub- with that statement. page On 3 of his stantiated the allegation appellant brief following: states the prejudicial there pro- was error in those Appellant’s upon reliance his Fifth a ceedings, judgment of conviction based rights again Amendment empha- was upon proceedings sustained; cannot be closing in argument sized the state’s otherwise, the has been denied objection. without process due in violation of the Constitu- surely This apprises the of Court ‘the tion of the United States and of State the

precise alleged objectiona- nature of Idaho. Thus, ble conduct or comment.’ I can In essence rule is that Ebersole accept neither the majority’s ratio- in this case we must reach our decision for concluding nales that comment dur- shows, if the record appellant ing closing argument would itself alleges brief, his prosecuting in prejudicial constitute error. in attorney argument his closing referred When this Court unable review appellant’s exercise of his Fifth proceedings court lower be- right Amendment to remain as evi- silent cause, in violation of the statutes of this guilt. dence his To do otherwise state, proceedings record those deny would him In process due of law. properly was not preserved, taken and circumstance, adopt I would and due to the record’s deficiencies we holding of the Tenth Circuit in United unable are to determine wither defen- Nolan, (1969), States v. F.2d judgment dant’s of conviction has been following which said the in connection in proceeding obtained tainted with with this matter: error, apply then we must State, rule of Ebersole v. 91 Idaho We no in principle see difference 630, 428 P.2d 947 where we stat- exercise the defendant of his consti- ed: right testify tutional not to his

Appellant’s right dilemma constitutional silent was of his remain making. statutory provisions making own and refrain from an in- either requiring recording pro- culpatory or exculpatory of oral statement ceedings by reporter the court custody ... are the officers when taken into fairly designed protect case, ... a defen- for a federal offense. either statement would be [by prosecutor that circumstances this comment corroborative evidence. failure make excul- the defendant’s arresting offi- patory statements to at 528 P.2d at 674. 96 Idaho guilt] his evidence of cer was agreed that defendant’s majority pe- impair privilege and greatly such timely objection counsel did make Apposite thereof. nalize the exercise statement and admission of the husband’s language is the although objection was over- noted that California, v. ruled, Griffin appeal assignment of “no page page at at 96 Idaho predicated point.” on this penalty “It is a L.Ed.2d [14 106]: Justice Bakes at 528 P.2d at 674. exercising a constitu- imposed ... dissenting opin- correctly pointed out cuts down on the privilege. tional It clearly hearsay, testimony was ion by making its assertion cost- privilege pointed also out that citing authority. He ly.” establishing testimony there was committed was so think the error We her husband’s state- the defendant heard fundamental, plain, and serious that But, addition, pointed out that ment. it, although timely we should consider ar- was at that time under the defendant not made in the rest, rights thereto of her Miranda advice (footnote at 416 F.2d Bakes trial court. to remain silent. Justice omitted). rule announced observed “[t]he attempts to construe that and Kansas The state courts Colorado admission, and thus corrobo- silence as People similar decisions. have reached evidence, rating flies in the face P.2d 181 Colo. 390 Mingo, right.” constitutional (1973); Ritson, 210 Kan. these to be I believe would hold reasoned cases and the better worked prejudice He then discussed the the admission of defendant, concluding re- that it upon the prosecutor’s comment question and the quired evidence could a new trial. “What fundamental er- damning fundamentally and more be more Therefore, judg- ror. would vacate to stand prejudicial to a defendant than of and remand for a new ment conviction damage spouse. The by one’s own accused trial. jury is incal- could have on a such evidence 96 Idaho at 528 P.2d at culable.” 234-36, 542 Wright, 97 Idaho at State added). (emphasis P.2d at 68-70 point, Bakes was careful At this Justice majority of the fundamental closely by followed remind the case was Wright Bakes, place: in joined error doctrine then well in another case which Justice by McQuade, by was disturbed Justice rights of To overlook the constitutional again majority declined opinion which on the tenuous criminal defendant in Hag- precedent established assignment follow was no ground that there Swenor, case, 96 Ida- That State v. gard. a manifest appears to me to be (1974), a similar- ho 528 P.2d 671 bears process, especially view of due denial defen- in that the ity to this case history application Walters Court’s this degree first arson. charged with appellate dant was and rules of of that rule other police offi- stand a placed on the 94 Ida- Haggard, state In procedure. who, opinion: according majority to the appellant-de- cer ho of as- Haggard was convicted fendant time the defendant that at the [Testified burglary deadly weapon and arrested, Swenor, sault with a Larry the defen- nighttime. During the course her, ‘See, in the I told stated to dant’s husband prosecution, in the cross-ex- you the trial you for what you they would catch appel- appellant, questioned amination of made in the did.’ This statement his concerning to disclose his failure reply was lant presence and no hearing. Counsel preliminary alibi at the Under the to it the defendant. made objection prior to the con- appellant failed to raise an two and one-half months for readily cross examination the time trary Cariaga, decision in ruling upon appellant’s In conten- why trial. it understandable such uneven makes deprived a fair trial tion that he was application doc- of the fundamental error statement, this stat- because of the Court McQuade trine caused Justices Bakes and ed: expressed strongly adhere to views to raise previously

Counsel defendant failed in the dissent issued. objection an to the cross-examination 528 P.2d at 679. The frustration ordinarily at the time of and this must have suffered at which Justice Bakes assign- this Court would consider seeing practically the Court at the same ment of error. the obli- did, opinions one issuing time two where gation of the state see that defen- not, recognize apply and the other did primary dant receives a fair trial is readily error is the doctrine State, 93 fundamental. Pulver v. Ida- short, imaginable. dissent Swenor (1970), quoting ho persuading was aimed at one three Commonwealth, Ky., McIntosh v. 368 justices degree some (Ky.Ct.App.1963). S.W.2d 331 In case slightest re- consistency. But not of fundamental error a criminal case sponse by anyone in majori- was made Supreme may consider the ty. Facially inexplicable, unless though same even more serious arson was considered been made at time of trial. [Citations prostitution. Obviously than there was no omitted.] predicated gender, de- discrimination Swenor, 332-33, 96 Idaho at 528 P.2d at being fendants in both cases of the same competent authority 676-77. Substantial genus, sapiens, gender, homo and the same views, support was cited the above in- female. cluding a case from Court of States, the United Pollard v. United IV. States, L.Ed.2d 393 Near the conclusion of places The defendant Walters also that, aptly stated “[w]hile reliance doctrine of fundamental assignments having helpful of error are attorney. error. Walters is not an Caria reasonably rigidly issues but not clarified ga Wright an attorney. was not was not advance, they should not become a ve- attorney. Each of those defendants regresses hicle which this court necessarily had to faith in their re Century 19th technicalities common attorneys, prosecutors, tained pleading system.” law 96 Idaho at courts they district to ensure that received 528 P.2d at 678. highly a trial free from prejudicial funda The opinions Court’s initial in Swenor mental error. The has Court acknowl 12,1974, were February issued on followed edged the existence of the doctrine of fun petition grant rehearing, for ap damental error. The doctrine must be being reargued. which resulted in the case plied consistently justice insure that rehearing The Court’s decision on was not evenhandedly administered and that forthcoming nine for months and one week. every doctrine is afforded to Meanwhile, opin- after the initial Swenor appellate whose case comes before either filed, 30,1984, April ions were the Court on court. Cariaga opinion, issued From our examination of the entire following petition which a for doubting there is error record rehearing summarily was filed and denied at Walters’ trial was fundamental. The unanimously June 1984. State, however, urges us given its to hold that this let stand which had Caria- ga justify not should reversal because Walters benefit fundamental error Bakes, course, planned ultimately testify to and did at doctrine. Justice dissenting opinion fire, authored his trial that he started the accidental- Swenor but argu- sentence of the 14; In the second (Brief resp. Hearing tran- 1990. ly. at contention, brief, agrees 37-38). part were we the State script This ment its at it, necessarily require accept would fire in- state in which state’s ignore the context we ex- vestigator probably have been Dillard, gave witness, jury objection to it. been an cluded if there had Dillard, an guilty. arson that Walters was that de- Attorney General contends investigator, prosecution wit- was the first did fense counsel’s failure addition, certified as an he was ness. because, so constitute heavily the state relied expert in arson and goes, it the intention of argument throughout trial and on his concede that from the outset to the defense argument. Mr. Dillard’s testimo- closing fire, so but had done defendant started the fire followed ny started the that Walters brief, filed accidentally. June State’s of his testimo- immediately upon the heels accepted State’s If we the fire was set inten- ny that he believed had such that defense counsel contention as point the trial was tionally. At intention, cause us to it would an ill-advised all by the State. Almost good won as a reason- it was a decision which doubt that against Walters was other evidence competent defense counsel ably criminal concerning his be- circumstantial —evidence would make. fire—for which and after the havior before could proffered explanations which “issue,” the purported As second testimony. This hardly Dillard’s overcome petition support of the for State’s brief function, instigated by invasion innuendo, that a suggested, by rehearing by the countenanced prosecutor and granted rehearing because should be court, fun- clearly Walters’ foreclosed trial by only three was rendered court’s decision trial. Walters’ a fair damental only justices, one of whom concurred assist- received ineffective claim that he course, We, well aware of were result. course, is, inter- of counsel ance only three There were that circumstance. failure to defense counsel's twined However, three votes con- sitting justices. hearing attempt prevent from In this of the Court. stitutes investigator’s in- considering arson three votes for the there were instance against Walters. dictment petition opinion issued. The and the result vacated, are The convictions garnered sufficient rehearing also a new trial. remanded for cause votes, had the benefit of the Court has argu- further oral briefing and additional J.,. JOHNSON, concurs. ment. Tem., McFADDEN, J. Pro concurs presently of the Court The consensus the result. constituted, i.e., complement, full J., sat, SHEPARD, partic- but did argument that our agree with the State’s untimely opinion due to his ipate in this basing a reversal conclusion earlier death. inappro- error was of fundamental doctrine sat, J., partic- HUNTLEY, but did not published opinion, earlier Our priate. 7, resignation August on ipate prior to that: above, the statement with concluded 1989. ineffective that received claim “Walter’s course, is, of of counsel at assistance REHEARING ON failure counsel’s defense intertwined with hear- prevent jury from attempt BISTLINE, to Justice. investiga- considering arson ing and INTRODUCTION Accord- against Walters.” indictment tor’s of the reversal conclude that ingly, nowwe petitioned this Attorney General on the lack aptly based is more judgment rehearing and reconsider grant a Court to counsel. 24, assistance of effective January Opinion No. filed our 1990

55 expert’s case func- decide the ... INEFFECTIVE ASSISTANCE [T]he provide testimony subjects on tion is to OF COUNSEL sense, expe- beyond that the common are rehearing, On the State contends average juror of the rience and education opinion that an an ultimate issue is under the rules of admissible evidence and Lindsey, Ariz. P.2d at State v. 149 720 case law. Idaho Rule Evidence pur- Generally, expert testimony 704 states that: ports particular to determine whether Opinion Rule 704. on ultimate issue.— particular truthful occasion witness is on Testimony opinion in the form of an or reason permitted is not because there is no inference otherwise is not ob- admissible quali- are experts to believe that more jectionable because it embraces an ulti- opinions ju- fied to such than are render mate issue to be decided the trier of Rimmasck, rors. v. 775 P.2d 388 State fact. (Utah 1989). In a criminal trial where added). (emphasis I.R.E. 704 Rule 704 has case, expert opinion, as in this involves opened opinions every to all on door weighing credibility of the of witnesses subject, particularly in a criminal trial. statements, upon based their out-of-court Pinero, (Hawaii, P.2d State v. 778 711 special caution must be exercised 1989). light Rule 704 must be read in expert’s trial court to make certain that the Expert testimony only of Rule 702. ad- opinion upon expertise is based his or her expert’s specialized when missible it will fact in assist trier of knowledge will of fact assist trier determining Historically, a fact in issue. understand the evidence determine a credibility evaluation of witness- Opinions fact in issue. I.R.E. 702. solely es has been committed to the directly pass credibility on the of witnesses and they responsibility alone have the generally are not allowed. v. Lind- State guilt of the determine or innocence sey, Ariz. P.2d 149 720 73 State accused. (Iowa 1986), Myers, v. 91 N.W.2d State experts may range render a While wide Rimmasck, (Utah 1989), v. opinions special based their skills (Hawaii Pinero, State v. knowledge, prepared go or we are not so 1989)., The Arizona expert may far as to hold tender his case, Lindsey, State v. a child sexual abuse opinion to the fact in criminal ultimate explained precluding for ex- basis guilt trial —the defendant’s or innocence pert testimony credibility of a wit- charged. expert’s opinion crime danger ness of usurpation from cry given case is far jury function and the lack of need ex- Crawford, State v. 716 P.2d pert testimony on the truthfulness of wit- (Ct.App.1986), where the It nesses. said that: permitted which was was a medical doc- Thus, expert testimony even where on tor’s evaluation that a victim had suffered behavioral characteristics affect great bodily See, injury. Lampkins v. credibility accuracy observation States, (D.C.App. United A.2d allowed, experts allowed should 1979); Carlin, Wash.App. State give accuracy, their relia- (1985). Although credibility bility particular of a wit- opinion in involved an Crawford being in the ness case tried. Nor should issue, clearly ultimate based experts opinions give such be allowed to expertise doctor’s area and would have respect accuracy, reliability one of helpful resolving type or truthfulness of witnesses of the did not issues before it. The experts Nor under consideration. should involve a statement of belief about innocence, give guilt be allowed to similar testi- and his guilt mony, credibility, clearly such as their belief of which is the situation permit The does ex- before Court in case. is no innocence. law this There pert expert arson who testimony on how the should reason to believe that the 56 counsel’s, any quali- performance in show that was de- this case was better

testified jury. ficient, than the fied to evaluate truthfulness that counsel made errors ‘so seri- testimony no need for the functioning There was ous that counsel was not clearly danger that a by there was guaranteed the “counsel” sixth might give expert’s opinion Second, the arson un- at amendment.’ 104 S.Ct. 2064. weight. due the defendant must show that counsel’s prejudiced errors the defense. ‘The de- admissibility As to the of Dillard’s there is rea- fendant must show that candidly opinion, acknowledges the State that, probability sonable but coun- timely objection testimony “a to this errors, unprofessional sel’s the result of sustained.” probably could have been have proceeding been differ- Rehearing, Support of Petition for Brief ent.’ 104 at 2068. S.Ct. timely objec not a 5. Because there was 794-95, tion, although Carter, 108 at 702 P.2d at we concluded Idaho recog error doctrine has been 832-33. the ineffective assist- Carter instance, Court, in this this where post- nized ance of issue was raised counsel appeal on the main thrust of was based proceedings the defen- conviction because right effective assist the constitutional prosecution in the action dant counsel, apply we had no reason to ance counsel at the time denied the assistance of properly, it. More we should have and being subjected to custodial interro- that the should could have decided reversal gation. Trial failed to move for counsel have been based on the ineffective assist suppression any deputy ground. ance regarding sheriff a statement defen- interrogation, during made custodial dant State, As stated Carter v. ruled that counsel’s failure this Court (1985): to ineffective assistance of coun- amounted above, As was indicated trial counsel Carter, test. sel under Strickland suppress failed to move to these state- Idaho at 833. amount- ments. Carter asserts prong The test is first the Stickland reasonably provide com- ed a failure to inexplic- inmet this case. Trial counsel’s right The petent assistance counsel. object extremely able failure to Dillard’s to counsel under both the sixth amend- damaging that the defendant was ment to United States Constitution setting the fire an error so guilty of and art. the Idaho Constitution § that we rule that counsel was not serious encompasses the to effective coun- functioning guaranteed by as the “counsel” Washington, sel. Strickland Trial fail- the sixth amendment. counsel’s 104 S.Ct. L.Ed.2d 674 damaging opinion (1984); Tucker, ure to Dillard’s State v. par on with the failure counsel is P.2d 556 damaging suppress to move to Carter recently set out The deputy sheriff. See Car- as- analyzing the test for an ineffective ter, 108 Idaho at under the sixth sistance counsel claim amendment. test prong of the Strickland second judging claim The benchmark for satisfy also met in this case. To is must whether

of ineffectiveness “must show prong, second the defendant that, conduct so undermined counsel’s probability that there a reasonable pro- proper errors, function adversarial unprofessional for counsel’s but trial cannot be relied cess would have been proceeding result of the having result. produced just probability is a A different. reasonable Strickland, at 2064. supra, undermine confi- probability sufficient to Strickland, 466 in the test dence outcome.” two-pronged Court outlined S.Ct. at 2068. There to U.S. at defendant must meet order opinion was that Dillard’s question little prevail on ineffective assistance an When First, defense. prejudicial must Walters’ claim. the defendant counsel expert petition rehearing arson declares that it was the defen- of Idaho filed a house, dant fire in there who set the granted on March 1990 and which was jury can be little that the was im- doubt However, I am followed. trou- pressed by and influenced the authoritative solely basing today’s bled decision on about statement. prevented Had Dillard been originally the doctrine enunciated Strick- declaring damaging opinion, from there Washington, land is at probability the least a reasonable 80 L.Ed.2d 674 Because proceeding outcome of the have open all were left for this Court’s issues proba- certainly, been different. Most rehearing, sepa- I write determination on undermine bility is “sufficient confi- rately my supporting indicate rationale dence in the outcome.” Since of the all today’s decision. evidence led to the con- which defendant’s majority holding I with the on the concur (there viction was circumstantial were expert’s opinion of Rule 704. An meaning eyewitnesses confessions), impossi- it is by on the “ultimate issue to be decided say ble to by that the accusation the arson weighing trier of fact” does not expert include did not substantial influence on the of evidence to form an as to testimony, verdict. Absent Dillard’s who overwhelming there guilty party is no evidence of the is in a criminal trial. guilt. The prong second of the guilt The I.R.E. 704. determination of met, Strickland test is therefore and the innocence criminal matters is within the showing defendant has met the burden of province jury. exclusive of the While an that he was denied effective assistance here, expert may, testify in his counsel at trial. “deliberately a fire was set” and arson,” “a opin- that it was case of these judgment reversed, The of conviction is permissible they ions are because are the and the cause remanded for a new trial. expert’s exper- “ultimate issues” within the BAIL, Tern., J. Pro concurs. contemplated tise as under Rule 704. expert if we allow an on the BOYLE, Justice, concurring in the weigh cause the evidence and fires specially result and concurring. testify guilty to who he believes of the I concur with result of the arson, allowing crime of we would be opinion. however, specially, I write to ex- “expert” expertise to leave the of his realm press my why on views conviction province jury. and invade the The this case must be vacated and the case has responsibility weigh alone remanded new for a trial. the evidence and conclude “ultimate ap- This consolidated case two involves guilt issue” of or innocence. peals which are before this Court. Court, Like the other I members appeal, first September No. 16630 filed by am appeal is a troubled issue of ineffective judgment direct from the assistance of counsel. discussed in the appeal, conviction. second No. As 11,1987, appeal majority opinion, filed December is an defense counsel did not post-conviction from the by denial of relief expert testifying on the ulti- appeals district court. The two were guilt. mate based issue This was on the by consolidated order the Court Janu- strategy fire by defense was set ary 18,1988, leaving open all issues for our by strategy the defendant This accident. decision. apparently formulated mistaken understanding that Rule allowed an 24, 1990, January On issued this Court expert testify on the ultimate issue of opinion vacating the conviction of defen- guilt ain criminal trial. Defense counsel remanding dant and for a new trial on the post-conviction hearing at the testified basis that the defendant’s to a had, “any I abridged expert’s objections that believe were trial had been testimony and that this resulted in funda- taken care Rule time, questions requiring making mental error reversal. The State effect hav- objectiona- ing strategy to with fact “when decisions do ultimate not counsel’s trial ble.” upon inadequate the are made basis of preparation, ignorance the relevant in of counsel was incorrect While defense law, shortcomings capable ob- or other of understanding of Rule there was- his evaluation, jective may the defendant well interpretation. precedent In some for this competent arson, have been denied the assistance involving police expert a civil case testify regarding the in was allowed who of counsel.” Because defense counsel in criminal suspects chief were the investi- "ignoran[t] of the this case was relevant Co., gation. Pacheco Ins. strategy faulty law” his was based on Safeco Idaho P.2d 116 Pacheco misperception, proper this does not seem states: say representation was that defendant’s being prejudicial In there addition to no adequate. error, investigator’s tes- admission the Chief Bakes indi- as Justice complied require- timony also with the dissent, cates in his claim of ineffective ments of Idaho Rules of Evidence must counsel show that “but counsel’s 703, 704, carefully and 705 in that he errors, unprofessional pro- the result the the evidence relied when described ceeding would have been different.” as to the cause of stated Strickland, at the fire. out, clearly points 2055-56. As dissent the P.2d at While ex- the district court concluded that the interpret I discussion of Pacheco’s pert’s impermissible prob- statements were dicta,3 uneasy I Rule 704 as am with the While, ably harmless error.4 after a care- the be Court’s conclusion that ease should record, join majority ful I the review the solely because defense counsel remanded otherwise, concluding this I am Court in inadequate, especially the was when status the can that reasonable minds of Rule 704 was unclear before this current the of the error differ on harmfulness when, circumstances, opinion and under the particular case the where evidence strategy of an counsel’s defense accidental against very damaging. was defendant may possible. fire all that was Regardless of is correct on the harm- who hand, I dissatisfied On the other am also error, point fulness of this is that repre- view that defense counsel’s impact expert’s really one knows the adequate sentation was because counsel’s guilt on assertions the individual purely one of strate- lack Therefore, jurors. than rest our rather gy. strategy can so Even errors solely decision on whether the ineffective- they represent grave that circumstances ness of counsel altered the ultimate result exists. which an issue of ineffective counsel case, I prefer in this to rest our decision State, 110 This Court stated Gibson v. grounds other well. Pacheco, opin- I interpret ble under Rule conclusion with which 3. As the Court in that judgement af- agree. concluded that should be ion by relying on the harmlessness of firmed prejudicial by allowing expert’s caused Bakes that the 4. Chief Justice also concludes indicating By into evidence. essentially expert and defense counsel State’s error, prejudicial was not evidence thing and therefore the error said the same simultaneously have held that could not testimony However, taken could not have been harmful. In error under Rule 704. only together, expert testified that event, implicate opin- Pacheco does not defendant, set as defense counsel fire was case because Pacheco was ion the instant acknowledged, but that the defendant deliberate- case, is a criminal case. civil whereas this guilty ly set fire to the home and therefore was Moreover, expert’s expressed in Pa- including everyone, As of the crime of arson. vastly opin- absolute checo is different from the State, agrees, testimony is also error such in the instant case in which ion allowed clearly beyond expert’s expertise because it "deliberately” expert testified that Accordingly, and thus contravenes Rule 704. language Finally, from started the fire. expert was not same expert's quoted only above found Pacheco testimony been harmful. permissi- the State asserts could have “as to the cause of fire” mind, the my judgment Haggard conviction elicited at trial that did not tell vacated, ground solely judge preliminary must be of alibi at the inadequate, hearing. that counsel that Appellant defense but maintains this ground originally by also on the raised information not have been made should jury’s and defendant addressed this Court in available for consideration and allowing expert deprived its doing initial decision—that so the lower court him to to of testify guilty as who was the crime of a fair Counsel defendant trial. objection so that it error fundamental contra- failed to an the cross- raise to right venes the defendant’s to a fair trial. examination at the time of trial and ordi- trial, When fundamental error in a narily occurs would not this Court consider However, is assignment irrelevant whether that would error have of error. the obli- jury. gation altered the ultimate of the verdict In the state to see that of my view, the combined effects of ineffec- receive a trial is primary fair fun- tive of assistance counsel and the doctrine damental. In case er- of fundamental ror of fundamental error in a criminal case are the real reason why consider may the case should the same even be retried. though made at State, 469, v. 491 Smith P.2d agree appellant We time trial. with of this Court accepted follow- that the cross-examination of the defen- ing of definition fundamental error: (appellant) dant regarding his failure to is Error that must be fundamental such testify hearing preliminary de- goes error to the foundation or basis prived of appellant a fair and was trial of rights go the defendant’s or must to process. denial of due foundation the case or take from 251, (citations 94 Idaho at 486 P.2d at 262 right defendant a which was essen- omitted) (footnote omitted) (emphasis add- tial to his defense and which no court ed). ought prevent could or him to waive.

Each will I am necessity, case under and its Haggard such a rule, progeny proper analysis on its set stand own merits. Our of forth requires each facts in case arise reversal for the will fundamental error law. which during occurred the trial. Because 13, 94 Idaho 475 n. 491 P.2d at 739 n. 13 expert’s opinion introduction (quoting Garcia, 302, 309, State 46 N.M. guilt damaging ultimate issue of is so 459, (1942)); 128 P.2d also see State v. beyond expertise witness, and is Bingham, 116 Idaho I concur with the decision of Court. (1989); State Lankford, 113 Idaho however, specially, concur indicate (1987); 693 n. 715 n. 2 the conviction must be vacated re- Cariaga, State v. 95 Idaho solely manded new for a trial not because (1974); Haggard, State v. inadequate representa- defense counsel’s rule, P.2d 260 Under this the de- tion, but because fundamental oc- fendant’s to a per- fair trial does not allowing curred at trial in mit expert the State allow an testify essentially guilt determines innocence that the defendant guilty of the crime the defendant. charged. This is in essence what occurred in the instant case. JOHNSON, JJ., BISTLINE and concur. attorney When an allows BAKES, Justice, dissenting: Chief evidence, error into the fact that the attor- ney object fails error is of no I disagree the majority’s conclusion consequence. following language con- that the defendant met his burden show- cerning the fundamental error doctrine ing that he was denied assistance effective from v. Haggard is instructive: counsel. The doubt cor- is no that, appellant to, objected contends that he was de- rect if expert’s state- process

nied deprived due of a fair ment that “I believe it was Walters” Mr. prosecuting fire, trial because the attorney who set the would have been inadmis- ond, under I.R.E. 704. the de- the defendant must show that coun- sible counsel, post in the convic- prejudiced fendant’s defense. “The sel’s errors proceeding, tion testified that as a matter rea- defendant must show that there object expert’s strategy he did not that, probability but for coun- sonable they admitting because were errors, unprofessional the result of sel’s fire, the defendant started the and it proceeding have would been differ- been inconsistent to ent.” S.Ct. at 2068. expert’s opinion the and then to admit to 794-95, 108 Idaho at 702 P.2d at 832-33. jury the fire. the that the defendant started majority, satisfy As noted the the made Since the defense counsel a conscious test, prong second of the “the Strickland error, object, not any decision claim defendant ‘must show that there is a rea- otherwise, fundamental or was invited and that, probability sonable but for counsel’s a cannot be the basis for claim of error on errors, unprofessional pro- the result of the Caudill, 222, appeal. State v. Idaho ” ceeding would have been different.’ 456, (1985)(“We 706 P.2d will not Arguing Ante at 813 P.2d at 867. may reverse for the reason that one not require- that the defendant satisfied this successfully complain of one has errors ment, majority the states: acquiesced consented to or in. other question is little There that Dillard’s words, reversible.”). are not invited errors opinion prejudicial to Walters’ de- was v. Owsley, See also State expert fense. When an arson declares (1983); Sadler, 673 P.2d 436 State v. it was the defendant set the that who (1973). Idaho fire, there can be little doubt that a Thus, only facing we the issue are impressed will be and influenced appeal is a claim of ineffective assistance Had Dillard authoritative statement. Washing- of counsel under Strickland prevented declaring his from dam- ton, aging opinion, a there at least reason- L.Ed.2d 674 Strickland sets forth probability able that the outcome of test, two-pronged which the proceeding would have been different. opinion page prongs sets out on both court, the trial which heard the must before defendant be satisfied proceed- testimony post at the conviction may prevail an ineffective on assistance ing, concluded otherwise. The trial court As stated in counsel claim. we Carter State, (1985): expert’s opinion concluded that that defendant started the fire was harmless recently

The set out the strategy was because analyzing test an ineffective for assist- theory that he started the fire. The admit ance of counsel claim under sixth that, defense was while the defen- amendment. fire, dant had started it was done acci- judging “The benchmark for claim dentally, intentionally. The defen- of ineffectiveness must be whether trial counsel set forth two reasons dant’s counsel’s conduct so undermined tes- objecting for to the aforementioned pro- proper function of the adversarial prior affidavit filed timony cannot be relied on cess that trial post hearing application on for conviction having produced just result.” Strickland, hearing. testimony in his at the supra, 104 S.Ct. relief and First, object he that he did not stated two-pronged The Court outlined test evi- testimony he to offer because intended meet in that the defendant must order the defen- that would establish that dence prevail on an ineffective assistance fire, had done so did start but First, dant the defendant must counsel claim. accidentally. explained at the He further performance that counsel’s was de- show hearing that he wished to have the ficient, “so seri- that counsel made errors question the fire of whether functioning as focus ous was not that counsel accidentally, intentionally guaranteed by was started the sixth ‘counsel’ it have been inconsistent and that would 104 S.Ct. 2064. Sec- amendment.” investigator’s that The issue at trial real was not whether fire, started the the later the defendant started the but whether fire when intentionally it was accidental started. effectively admit defense would Dillard, expert explaining after so, accidentally. he had done albeit opinion, foundation concluded explained hearing: As counsel at the suggests “the to me it was evidence strategy was that we wished to dem- set. A deliberately case of arson.” This apparently fire was of onstrate expert’s portion ad- origin. would an accidental That it Evidence, missible under the Rules of therefore, defendant; from the come claim there is no here that this that, fire,” statement “Did he start There inadmissible. was an abundance deny a true statement. And to support expert’s evidence to deny by, our strategy be to defense deliberately the fire was set. For hand, “no, saying the one didn’t start that, example, Dillard Mr. testified based fire,” then on saying the the other hand investigation upon premises the “well, yes, he did.” felt And that we accelerant, i.e., gas, was that an obvious confusing be if would to the we etc., gun powder, had Dil- been used. Mr. get ways, the going tried facts both that, though lard they testified weren’t if we tried whereas to steer them one actually identify type able to the of acceler- direction, they that would have better ant, fact “just type the that we had the understanding chance of What that. we had charring, we a fire that was identified yes, wanted show was he start the did rip-roaring to me as a fire within min- five fire, accident, but it was an and therefore don’t you rip-roaring have a fire utes— not arson. you within minutes five unless some have kind of accelerant to induce of a type that majority opinion ignores testimony The the explained that, fire.” Dillard “This fire appellant’s counsel, of the trial and the also, examination, through was a fast and upon you trial court’s reliance it. If consid- slow, opposed smoldering hot fire to a testimony er of appellant’s the trial coun- fire, fire. A smoldering you slow sel, expert’s the opinion then that he be- window,” baked on residue on the that complete- lieved Walters started the fire is that, Mr. had Dallman indicated to him “He ly immaterial. How can that it be said the flash, up top saw a then saw the fire judge’s ruling trial clearly was erroneous window, big of a window. You don’t expert when the State’s and the defense five have that in minutes in a fire.” normal the thing? Accordingly, both said same cannot concur with the that the to this testimony, addition there was jury’s guilty trial result the verdict testimony tending to implicate defendant. probably have been different be- of Mr. Tarter and Mr. Dall- expert’s cause of the testimony that the provided ample man evidence that the de- defendant started the fire.5 fendant had been the last the one to leave opinion special the expert opinion factually sug- 5. Both Court’s con- and the renders an which curring opinion suggest per- expert gests guilty was that the that defendant is does mean testify guilt mitted to expert opinion of the defendant. that has rendered an as to defendant, expert only opin- guilt although jury may rendered two (1) intentionally that guilty ions: the fire was started that well conclude the defendant based (which apparently expert’s opinion. Although guilt may all the of this Court members agree expert opinion), expert’s was an opinion, admissible from the inferred that does (2) expert opin- that started was the one not mean that has rendered an fire, questionable guilt. expert which is the evidence un- ion as to In this case the rendered opinion opinions intentionally der Rule 704. Both and the the Court’s two started, the fire was —that admissible, concurring special opinion agrees conclude was expert permitted those two statements the was and the defendant was the one that started fire, opinion object, issue to be render the ultimate to which the defendant did not fact, i.e., guilty might although the trier However, decided who the have. Because his own party expert strategy acknowledge was. that is not what the started that he had fire, opinion accidentally, to. He testified never rendered an in not albeit "guilty." Merely objecting the defendant was because an the second was harmless. fire, morning and that house on the five minutes only

he had left three to be- fire

fore the was detected. The investigator fire defendant and his the defendant’s ac-

also established the fire.

tions caused evidence, together circumstantial fire expert’s

with the set,

deliberately added to accidentally that he started the

concession

fire, expert’s opin- makes it clear that

ion started the fire was com- that Walters did affect the

pletely immaterial and assuming Accordingly, even

jury’s verdict. expert’s the failure to prong the first violated test, prong

Strickland second satisfied, and the trial

test has not been post relief

court’s denial of conviction

petition affirmed. should be LOYA,

Ignacio

Claimant-Appellant-Cross

Respondent, COMPANY, Employer,

J.R. SIMPLOT

Defendant-Respondent-Cross

Appellant.

No. 18319. Idaho,

Boise, Term. November 1990

June Pena, Rupert, claimant-

Raymundo G. respondent. appellant-cross

Case Details

Case Name: State v. Walters

Court Name: Idaho Supreme Court

Date Published: Jul 23, 1991

Citation: 813 P.2d 857

Docket Number: 16630, 17249

Court Abbreviation: Idaho