*1 Idaho, Plaintiff-Respondent, STATE of WOOD, Defendant-Appellant.
Jehn C.
No. 20640. Appeals
Court of of Idaho.
Aug. Office, Moscow, appellant.
Siebe Law for Siebe, argued. James E. EchoHawk, Gen.,
Larry Atty. Douglas A. Werth, Gen., Boise, Deputy Atty. respon- for Werth, argued. Douglas dent. A. LANSING, Judge. appeals
Jehn C. Wood
from his conviction
18-1501(1).
child,
§
felony injury
to a
I.C.
He contends that the district court erred in
admitting testimony regarding
inci-
*2
respiratory
Because
allegedly
pushed
or
turn led to
arrest.
dent where Wood
choked
eyewitnesses
the child’s mother. Because we conclude
were no
there
against
that
should not have been admit-
injury,
Wood
State’s
subject,
judgment
ted on this
we vacate the
until the
primarily of evidence that
consisted
of conviction and
for a new
remand this case
with
she
time Tasha was left alone
Wood
health;
trial.
good
appeared to be in
had
person
the last
who
that Wood was
Two-year-old
pro-
Almandinger
Tasha
was
Tasha;
testimony chal-
with
and the
contact
nounced dead on November
1990.
physically
lenged
that
had been
here:
Wood
mother,
preceding day Tasha’s
Pamela Al-
Almandinger
one occasion.
abusive
mandinger, had left Tasha alone
Alman-
Wood,1
dinger’s live-in-boyfriend,
while she
injuring
At trial
Wood denied
the child.
trip
grocery
made a brief
to a
store. Alman-
evidence that
presented
the defense
medical
dinger
in
testified that she left her house
swelling
the extent of brain
which would
Fernwood, Idaho,
met
p.m.
at 5:25
and Wood
respiratory
not have oc-
cause
arrest could
way in
five min-
part
trip
her return
about
period
in
that
was
curred
the short
Wood
intercepted
utes later.
Pamela and
Wood
attempt-
thereby
with the
Wood
alone
child.
carrying
exited his vehicle
Tasha in
arms.
injury
theory
ed
refute the State’s
breathing.
Tasha was unconscious
and
Tasha was
must have been inflicted while
Almandinger
nearby
the child to a
rushed
alone with him.
fire-station, from which the child was trans-
that he arrived
Wood testified at
trial
ported by
hospital
to a
in
ambulance
St.
day
hunting
home from
on the
Emergency
Maries.
medical
technicians
Almanding-
p.m.
5:25
approximately
and
partially
were able to
aboard
ambulance
upon his arrival. Wood
er left for the store
breathing
administering
restore Tasha’s
after
explained
he
into another room
went
hospital.
back blows en route to the
At
call,
he
last
telephone
and when
answer
hospital,
suspected
doctors
that Tasha’s air-
away from the
walking
Tasha
saw
she
way
physicians
was obstructed. When the
door,
departure.
her mother’s
crying over
applied
airway, partially
suction
her
eaten
stated,
room,
he
Wood returned
When
grapes
Tasha’s mouth
were removed from
lying
After unsuc-
Tasha was
unconscious.
airway
im-
esophagus,
and
and her
her,
cessfully attempting to revive
proved.
eventually
Tasha was
transferred
up,
picked
placed her in his vehicle
Tasha
Washington,
diag-
hospital
Spokane,
and
began
driving toward
store where
and
damage
suffering
nosed as
severe brain
due
Al-
Almandinger
intercepted
gone.
He
asphyxiation,
and a subdural brain hema-
mandinger
as
above.
en route
described
suspected
examining physician
An
toma.
suffering
baby
from shaken
that Tasha was
at trial established
Medical evidence
syndrome,
police
were informed of
and
to a blunt instrument
Tasha’s death was due
However,
radiological
suspicion.
a later
either
a blow
trauma to the head caused
examination of Tasha revealed no evidence
something.
by being
against
Tes-
thrown
injuries
baby syndrome or other
con-
shaken
indicated, however,
timony also
child
Tasha was eventu-
sistent with
abuse.
respi-
necessary to
swelling
cause
amount of
dead,
ally pronounced
support sys-
life
and
impact trau-
from such a blunt
ratory arrest
autopsy
An
revealed
tems were removed.
minutes, and
at least fifteen
ma would take
impact
that the cause of death was
blunt
hours, to
There was
up to several
occur.
trauma to the brain.
testimony that
also uncontradicted medical
respiratory arrest caused
degree
Wood was
with second
surgical inter-
murder,
18-4001, 18-4003(g).
corrected absent
§§
could
I.C.
evi-
complaint
vention. The defense contrasted
alleged that he had killed Tasha
Almandinger’s uncon-
injury.
impact
It was the
dence with Wood’s
inflicting a blunt
was alone
testimony that Wood
impact
blunt
caused
tradicted
theory that the
State’s
brain,
five minutes
more than
swelling of
with Tasha
no
bleeding and
death, Almandinger
Subsequent
married Wood.
to Tasha’s
exists, provided
same is not
lence if such
emergency
medical
trial,
time,
partially
before
technicians had
restored Tasha’s
too
etc.” Just
remote
breathing
way
hospital
by elaborating
on the
to the
ruling
its
the court clarified
improved
breathing
further at the St.
telling
co-workers
denied
*3
attempted
hospital.
Maries
The
to
choked,
State
could
that
the State
she had been
by
that
showing
attack this defense
Alman-
prior
to co-
impeach her
her
statements
with
dinger,
by the
who
time of trial
married workers.
given
to Wood and
birth
another child
had
to
by
a
Almandinger was called
witness
as
him,
by
approxima-
slanting
fathered
her
she ac-
direct examination
State. On
of
Wood
tion
the time
was alone
Tasha
had a tem-
knowledged that Wood sometimes
appear
in order to make
innocent.
Wood
per,
ever choked
but
that Wood had
denied
At the
of
conclusion
the trial
that
her or that
had told co-workers
she
instructed on the elements
her. The State then
Wood had once choked
offense,
degree murder, and the less-
second
that she
called
Banderob who testified
Wilma
voluntary manslaugh-
er included offenses
Almandinger’s
had seen bruises or marks on
ter,
18-4006,
§
injury
I.C.
a
felony
to
Almandinger
throat
had told her
and that
child,
§
jury acquitted
I.C.
18-1501. The
by
she had been choked Wood.
manslaughter,
Wood
murder
argues
appeal
On
the defendant
that
felony
found him guilty
to a child.
permitted
State
have been
to'elicit
should not
Prior to
Wood
a
trial
had filed motion to
Almandinger
from
and Ban-
testimony
this
any
propensi-
exclude
that
he had
bad
derob because was evidence
ty to
response,
commit
acts.
violent
In
pro-
show a
acts of the defendant offered to
pretrial
seeking
filed its
State
own
motion
therefore,
was,
in-
pensity
to be violent
determination that
would
court
admit
He also
admissible
I.R.E. 404.2
con-
under
showing
“evidence
that
is a
defendant
testimony
tends that Banderob’s
was hear-
(Al-
having
violent
Pamela
individual
abused
say.3
mandinger)
Spe-
and other
Wood
women.”
cifically,
sought
State
to
Alman-
I. ALMANDINGER’S TESTIMONY
dinger regarding an
incident
Wood
matter,
As a threshold
we address
allegedly
choked her. The State knew
pre
did not
State’s assertion that Wood
Almandinger
deny
that
would
had been
she
challenge Almandinger’s
to
testimo
serve his
Wood,
by
already
choked
for she had
denied
ny
object
appeal
for
he
not
to
did
during
testimony
preliminary
her
at the
testimony
argu
this
at trial. The State’s
Nonetheless,
hearing.
sought
the State
to
attempt
ment
did
to
is not well-taken. Wood
testimony
present her
about the incident at
testimony through his motion in
exclude this
trial. The
also
asked authorization to
limine,
denied. A reiteration of
which was
Banderob,
present the
of Wilma
objection
at trial was
Almandinger’s, indicating
co-worker of
that
necessary
preserve
in order to
the issue
being
had told
Banderob
Corp., 114
appeal.
for
Davidson v. Beco
choked
Wood.
district court denied
1253,
107,
1,
motion,
1254 n. 1
ruling
Idaho
108 n.
753 P.2d
State would
(1987)
Corp.,
permitted
citing
v.
to introduce
Davidson
Beco
563-64,
781,
(Ct.
560,
prove
temper,
“tends
Idaho
733 P.2d
784-85
quick
defendant’s
Hester,
physical
temper,
App.1986);
violent
vio-
State v.
Idaho
Cf.
position
seeks
State and the dissent take the
3. To the extent
Wood also
challenged
appeal
challenge
has not
the admis-
appeal
the admission
Almandinger’s testimony
child,
sion but has rather
we conclude
that Wood did
like the
assigned
only
as error
of Bander-
admission
preserve
appeal.
that Wood
this issue for
failed
testimony.
ob’s
While Wood’s brief is not a
trial,
object
at
Wood did not
clarity
regard,
model of
believe he has
we
address
nor did Wood’s motion in limine
adequately challenged the State’s entire tactic of
eliciting Almandinger’s testimony denying the
choking
stage
to set the
order
"impeachment” testimony.
(1988) (if
conformity
prove
acted in
judge
760 P.2d
trial
that the individual
therewith.4
ruling
point
until
trial
reserves
motion
offered, objection
where evidence is
must be
considering
whether evidence
time).
pointed
made at that
As we
out
must
the court
inadmissible under I.R.E.
Corp.,
v.
at
Davidson
Beco
Idaho
is rele
whether the evidence
first determine
lawyer may
a trial
other than the
to some material issue
vant
asserting
in front of
tactical reasons
avoid
of the defendant.
character or
objection
evidentiary
Buzzard,
800, 802,
that has
v.
110 Idaho
already
pretrial
been overruled
order.
(Ct.App.1986); State
Needs,
883, 892,
*4
Accordingly, we will consider Wood’s
(1979).
of
appeal,
free review
On
we exercise
Almandinger’s
portion
that a
of
relevancy
ais
determination because
testimony should have been excluded. The
Raudebaugh, 124
question of law.
v.
following questions
are at
and answers
issue:
(1993);
758, 766,
596,
864 P.2d
604
Idaho
Housing
City/Ada County
THE
Is it
Lubcke v. Boise
PROSECUTOR]:
true
[BY
653,
450, 456,
P.2d
Authority,
860
124 Idaho
temper?
a
that the Defendant has
(1993).
permissible purpose for the
669
If a
A: Sometimes.
found,
is
the court must then exer
Q:
being
Do you recall
choked
probative
weighing
in
cise its discretion
prior to Tasha’s
Defendant
death?
prej
against any unfair
value of the evidence
me,
push-
He
had a
A:
didn’t choke
we
403, to
impact, pursuant
to I.R.E.
udicial
ing match.
should be
whether the evidence
determine
Buzzard,
Q:
pushing
Did
result
in
Idaho at
718
match
admitted.
110
your
review that determination
bruises
throat?
P.2d at 1240. We
Hedger,
v.
for an abuse of discretion. State
A: Red marks.
598, 600,
Idaho
Medrano,
114, 118,
(1989);
123 Idaho
State v.
(Ct.App.1992).
P.2d
telling your
Q:
you
Do
recall
co-work-
404, preclud-
in Rule
policy expressed
The
you?
had choked
ers that
the Defendant
other mis-
ing use of character evidence or
No,
pushed
he
I
pushed
A:
I said
me.
suggest
the defen-
conduct evidence
me,
pushed
and to calm me
him
he
consistently with those
must
acted
dant
have
pushed
up against
me
the back
down
traits,
long-standing
past
or
is a
element
acts
wall.'
jurispru-
part of
It is
our
of American law.
your
may
Q:
throat?
be
With his hands
tradition that an accused
dential
only
proof
he com-
upon
convicted based
A: Yes.
charged—
he is
the crime with which
mitted
Q:
you
did that to calm
down?
And he
uncharged
upon poor
or
character
based
Well, yeah,
argu-
A:
we were
because
against
rule
use
past.
The
sins
ing with each other.
suggest
other misconduct evidence
commit
had a
admissibility of this
turns
the defendant
type charged recognizes that
upon
provides
I.R.E.
that evi-
crimes of the
too-powerful influ-
may
a
such evidence
a
of character and evidence
dence of
trait
may
them to
jurors,
lead
ence on
wrongs
crimes or
is
admissible
other
provides
pertinent part:
4. Rule 404
in
crimes,
(b)
wrongs, or acts. Evidence
Other
(a)
generally.
Evidence
Character
crimes, wrongs, or acts is not admissi-
person’s
a trait
character is
of other
character or
a
person
purpose
proving
prove
a
character of
order
not admissible
ble
conformity
person
conformity
therewith on
person
the
particular
acted
acted in
to show that
occasion, except:
however,
may,
be admissible for
It
therewith.
(1)
motive,
Evidence of
Character
accused.
oppor-
proof
purposes,
such as
other
pertinent
character of-
of the accused’s
trait
intent,
plan, knowledge,
preparation,
tunity,
accused,
prosecution to
fered
or
identity,
accident.
mistake or
absence of
or
same;
rebut
guilt
charged,
based
a surmise
it
be admitted
determine
either
mit the crime
before,
including
that if the defendant
he must
purposes,
did it
for other
when relevant
time,
have done
or a belief that
knowledge, identity, plan, prepara-
proof of
little
matters
whether the defendant commit
tion,
motive,
ab-
and the
opportunity,
intent
404(b);
ted the
crime
deserves to
because he
sence of mistake
accident.
any
punished
transgres
event for other
Pizzuto,
119 Idaho
State v.
See,
U.S.,
e.g.,
sions.
Michelson v.
335 U.S.
Guinn,
(1991);
469, 475-76,
213, 218,
69 S.Ct.
is a man of criminal character.
is,
honor,
your
criti-
thing
The
jury away
takes the
primary
from their
con
now,
is
person
cal—it’s
once a
guilt
sideration of the
critical —
or innocence of the
they
always
They
[sic]
violent
are violent.
trial.”).5
particular crime on
The United
change,
leopard
thing
don’t
the old
of a
Court Appeals
States
of
District
for the
of
change
spots.
people
doesn’t
And the
Columbia Circuit has observed that:
prone
stay
to
to
prone
are
violence
[that]
exclusion
The
of other
evidence is
crimes
violence.
simply a “technicality”
pre-
not
to
designed
personnel
vent law enforcement
from do-
prosecutor
did also
an
make
effort
job;
ing
it
gives meaning
their
reflects and
permissi-
fit
within some of the
the evidence
precept
system
to the central
of our
of
404(b),
referenced in
but
purposes
ble
I.R.E.
justice,
presumption
criminal
the
of inno-
First,
unpersuasive.
are
the
these rationales
cence.
prosecutor
suggested that
this evidence
Daniels,
1111, 1118
United States
770 F.2d
in
would be relevant
show Wood’s “motive
(D.C.Cir.1985).
shutting
up.” Clearly,
child
a
the
neither
wrongs
prior
evidence of
or
nor a
temper
While
other crimes
bad
incident of violence
prove propensity
against
logically suggests
is not admissible to
to com-
child’s
the
mother
accuracy
juries
perception
acquitted
sixty-five percent
5.
of
this
will
of the
in
cases
convictions,
heavily
by propensity
jury
prior
influenced
evidence has
told there
the
was
were no
by
study
only thirty-eight per-
acquittals
been born out
a number of
A
of
resulted in
studies.
but
3,500 jury
jury
trials
at the Uni-
cases
not so
over
researchers
cent of the
where the
Chicago
acquitted
general
versity
juries
of
showed that
in
Id. For
discussions
other
informed.
of
percent
forty-two
yielding
of the
the
similar
ROBERT
cases where
studies
conclusions see
OKUN,
informed
the accused had no
convic-
D.
CHARACTER AND CREDIBILITY:
acquitted
only twenty-five percent
in
TO REALIGN
tions
PROPOSAL
FEDERAL RULES
given
the cases where the
was not
OF EVIDENCE 608 and
37 Vill.L.Rev.
KALVEN,
(1992);
&
L.
information. HARRY
ZEISEL,
HANS
JAMES E. BEAVERand STEVEN
JR.
JURY,
(1966). MARQUES,
THE
A PROPOSAL
THE
AMERICAN
159-61
TO MODIFY
Moreover,
prosecu-
group
in a
the
of cases where
RULE ON CRIMINAL CONVICTIONIMPEACH-
(1985).
weakest,
MENT,
Temple L.Q.
evidence was
tion’s
the defendant
604-606
match;
shoving
any
harm
an
the
victim
motive to
the child. While
woman,
uncharged
not a
explosive
a
act was an adult
temper could be
cause
a violent
act,
child;
it
in the elicited
does not constitute a motive.
and the intent indicated
uncharged
about
the
act was
Second,
argued
prosecutor
shoved,
person
not
intent
“calm down”
was relevant to the
required
rea
for
the mens
element
identity
perpetrator
as the
second-degree
murder
crime
identity,
who
“[T]his
crime:
is matter of
voluntary
the lesser
included offenses
prone
places,
is—if
is
he
violence
other
injury to child.
manslaughter
felony
violence,
uncontrollable,
sudden fits
almost
similarity
There is insufficient
between
why
particular
I think it’s
case.
described
occurrence
identity.”
identity
matter of
is one of
While
logical
rele-
provide
to Tasha
evi
purposes
for which other misconduct
vance on the issue of intent.
404(b),6
permitted
under Rule
dence
summary,
pro-
In
none of the rationales
urged by
cannot be used in the manner
posed
when the evidence was
prosecutor’s
prosecutor. The
rationale —that
proffered
permissible purpose
showed
propensity
allegedly
had a
Therefore,
State should
violence, he
must have acted
accordance
permitted
question Alman-
been
precisely
with that
this case —is
incident.
dinger about this
logic
type
the course of
condemned and the
fairness,
prohibited by
noted that the dis-
must be
analysis
trict court conducted
careful
dealing
prior bad acts evidence.
case law
Finally,
prosecutor
argued that
*6
testimony ap-
The court observed that
proffered
would show intent. Evi-
evidence
peared
type
the
be
uncharged
may be used to
dence of
acts
concluded,
404,
by
based
prohibited
Rule
but
prove the mens rea element of a crime.
Moore,
743,
on State v.
Idaho
404(b);
Matthews,
I.R.E.
124 Idaho
(1991),
evidence of other miscon-
that
(Ct.App.1993).
prove
that
the defen-
duct is admissible
However,
logical
the
relevance of such evi-
quick-tempered
person
or
dant was a
violent
proof
generally
dependent upon
is
that
dence
to commit violent acts.
and had a
similar,
uncharged
charged
the
acts were
appreciate
the district
the
or
we can
the acts involved
same
similar
While
ar-
victims,
to reconcile and follow an
uncharged
the
act involved
court’s efforts
and that
may
appear en-
not
ray
that constitutes the
of authorities
the same state
mind
concordant,
charged
tirely
not believe
the
crime.
we do
mens rea element of
IMWINKELRIED,
admission
the evidence
UN- Moore authorizes
EDWARD J.
Moore,
challenged here.
the defendant
CHARGED MISCONDUCT EVIDENCE
(1991).
A
for sexual abuse of a minor.
§
also
v. was tried
5:07 to 5:10
See
Roach,
majority
Supreme Court ruled
of our
of child-
lacking
from two other victims
(Ct.App.1985).
are
Such similarities
ad-
defendant was
un-
sexual abuse
the
Almandinger’s description
here.
hood
404(b)
under
charged act
not that Wood delivered an missible
by the
plan or scheme
pushed
a common
unprovoked
that he
her
showed
blow
sexually exploit young
female
on her throat
defendant
against the wall with his hands
living
his household.
during
argument
mutual
children
within
the course of an
capacity
commit the
example,
may
physical and mental
be
For
other crimes evidence
6.
identity
demonstrating
thereby probative
that the
charged
used
show
of identi-
crime and is
operandi in the
modus
showing
defendant’s distinctive
ty, and
of other misconduct
evidence
charged crime
that in the
other crime mirrors
guilt,
jury tampering,
as
consciousness
thereby
perpe-
as the
earmarks the accused
evidence,
flight
police to
from
destruction of
or
IMWINKELRIED, UN-
trator. EDWARD J.
arrest,
identify
may
be admissible to
avoid
§
EVIDENCE 3:10.
CHARGED MISCONDUCT
perpetrator of the
defendant as the
committed other
Evidence that
the defendant
3:03,
§§
3:04.
crime.
IMWINKELRIED
may prove
had the
also
that he
similar crimes
rubric
under the
merely by placing it
cases
evidence was relevant
stated that this
Court
common scheme
of a
evidence
corroborative
credibility and corroboration
issue of
to the
Ac-
P.2d at
plan.” Id.
Supreme
of the victim’s
Supreme
our
involving cordingly, we understand
cases
explained that because
Court
and Tolman
rulings in Moore
proof
special
Court’s
present
of children
sexual abuse
abuse
to sexual
application
in their
corroborating their testi-
limited
problems, evidence
of sexual
incidente
other similar
cases
mony should be admitted:
same
defendant with
misconduct
longer man-
Although corroboration is no
tends to corroborate
victims
or similar
cases,
datorily required in all sex crime
charged incident.
version
child victim’s
be rele-
corroborating evidence
still
vant,
in sex crime cases involv-
particularly
therefore,
conclude,
those deci-
We
ing minor victims. Corroborative
rule for evalu-
general
provide
sions do
involving youthful vic-
cases
sex crime
challenged evi-
admissibility of
ating
necessary
times
to establish-
tims is often
Here,
charge
present case.
dence
young child. Too
ing
credibility of a
abuse,
any of
nor was
not one of sexual
case rests
the determination of the
often
The evidence
a child.
the State’s witnesses
strictly
establishing that the victim’s
injure
plan or scheme
suggests no
also
testimony more credible than that of
is
Indeed,
theory that Wood
the State’s
Tasha.
in a
alleged perpetrator. As
discussed
temper is
fit of
a sudden
struck the child
article,
UCLA law review
any argument
inconsistent
[Ajdmission
of corroborative
plan
somehow
culmination of
was the
crime
reducing the
purpose
serves the dual
on Alman-
assault
by an earlier
evidenced
probability
prosecuting
witness
only logical relevance
dinger. Because
lying,
time increas-
is
while at the same
by the
suggested
evidence was
probability
defendant
ing the
in limine
on the motions
State’s
committed the crime.
change
spots”
leopard does
that “a
Offenses,
L.Rev.
Other Sex
25 UCLA
they always are
violent
person
and “once
(1977).
very pur-
violent,”
that is
and because
*7
misconduct evi-
use of other
pose for which
Moore,
746,
subsequent
which followed and
decision
TESTIMONY
II. BANDEROB’S
Moore,
explained
principles
the
stated in
ther
testimony,
Following Almandinger’s
Tolman,
828
State v.
Banderob,
former
called Wilma
the State
(1992),
again em-
Supreme
Court
testi
Almandinger. Banderob
co-worker
importance of such evidence
phasized the
Tasha’s
months before
fied that
several
vic-
testimony from sexual abuse
corroborate
Almanding
death,
marks on
Banderob saw
cases
there referred to
tims. The Court
neck,
Almandinger told Banderob
er’s
jurisdictions allowing
evi-
from a number
night
to choke her
had tried
that Wood
rele-
where it is
dence of other sex offenses
this testi
sought to exclude
Wood
before.
in sex
credibility
parties
vant to the
hearsay,
grounds that it was both
mony on
5,n.
prosecution.
Id. at 904
offense
404.
of I.R.E.
I.R.E.
and violative
cautioned
n. 5. The Tolman court
at 1309
above re-
reasons discussed
For the same
ruling allowing evidence of other
that
its
Almandinger’s
about
garding
uncharged
of sexual abuse should
incidents
pro-
incident,
testimony would be
suggest
Banderob’s
broadly:
do not
not be read too
“We
independent
by I.R.E. 404 unless
scribed
today
any
all evidence
can be shown.
for its relevance
in sex crime basis
is admissible
sexual misconduct
(7th
Webster,
asserts
independent
State
relevance ex- States v.
734 F.2d
Miller,
argues
Cir.1984);
testimony,
ists.
It
Banderob’s
States
664 F.2d
United
(5th
denied,
Amandinger’s
Cir.),
which contradicted
denial that
cert.
459 U.S.
Wood,
(1981);
she had been choked
was relevant
103 S.Ct.
would been choked Wood and persuaded by might We the State’s that it is that her therefore obvious testimo Amandinger’s testimony that ny denying alleged choking was elicited directly impeached Banderob had purely pretext justify as a placing before admissible, but held that itself been we have testimony, which would *8 it was not have been not. The State should have otherwise been inadmissible under testimony permitted Amandinger’s to elicit and 802. He relies numer choking alleged in first in- about the holding govern ous authorities that while the may may witness, predicate the impeach may ment stance. The State not its own it knowingly admissibility Banderob’s inad- not otherwise call a witness elicit ad testimony upon impeach its purely guise impeach verse as a missible value to was inadmissible the witness with otherwise inadmissible testi other evidence that itself mony been To hold thereby place before sub and should have excluded. court, having once otherwise would allow the stantive evidence that unavail otherwise See, by admitting testimony, to e.g., able. States v. erred inadmissible United Gomez- Gallardo, (9th Cir.1990); compound by admitting additional the error F.2d Unit Peterman, testimony under the v. F.2d 1479- otherwise inadmissible ed States (10th Cir.1988); guise impeachment. We believe Hogan, States v. do not United (5th Cir.1985); boot- F.2d United I.R.E. 613 countenances such departed presented Almandinger’s testimony good at the time 7. The State health in order to that Wood had been alone grocery establish for the store. appeared child child with the and that the minutes and at least fifteen it would take Since strapping of inadmissible evidence.8 injury type of hours for the up to several not relevant as was respiratory ar- to.cause upon Tasha inflicted impeachment, have permissible it should significant be- This time frame rest. pursuant 404 and excluded to I.R.E. been alone with testimony that Wood was cause Expert testi- only five minutes. the child for respiratory mony that once also indicated III. HARMFULNESS OF ERROR occurred, it could injury from such arrest challenged Having concluded that the intervention, only by surgical be corrected admitted, we not have been should Tasha’s yet established error was harm must determine whether the route to en breathing partially restored provides less. I.R.E. 103 that error at the fully restored hospital and was or exclusion of evidence will admission from her grape was removed hospital when a prejudices a sub result reversal unless by the defen- physician called esophagus. A An error in right stantial of the defendant. that, stand- from a statistical dant testified of evidence be deemed the admission been the would not have point, Tasha’s death only appears from the harmless if but type subdural hemato- result of the normal that the error did not contribute record that the amount suffered. He said ma she Brazzell, 118 Idaho the verdict. State brain, which con- swelling found Tasha’s (Ct.App.1990). In the 797 P.2d death, attributed could not be tributed to her evidentiary error re criminal context an alone, but hematoma to the subdural unless, quires that the conviction be vacated could account oxygen lack to the brain appellate say, beyond a “the court is able to swelling. There was substan- the extent of doubt, reasonable would have swelling in Tasha’s testimony that tial reached the same result absent the error.” by a lack have been caused brain could Medrano, 1370; at of as- choking or other forms oxygen from Brazzell. neighbor testified that phyxiation. A also question she saw day before the event improper cannot conclude that the tes- We fall to the go limp on one side and Tasha timony temper about Wood’s and the Collectively, evidence floor unconscious. choking Almandinger was harmless. Tasha’s as to whether created against wholly circum- evidence Wood was by chok- respiratory arrest was caused initial Apart from the evidence stantial. as- other form of ing grape, on a or some inadmissible, the which we have held to be injury, and head phyxia, rather than primarily upon State’s case rested trauma, if it caused the head whether was alone with Tasha at time swelling, must have occurred brain occurred; might Thus, evidence did arrival. impact trauma cause of death was blunt guilt. unambiguously point to Wood’s probably hit occurred when Tasha was a ease where the against This is not very hard or was thrown a solid overwhelming against defendant was object; apparently in and that Tasha was evidence, or improper even without good being health before alone with Wood. story plainly un- that where the defendant’s also controverted evidence There was *9 jurors were note also that the medical tenable. We not like the child. The Wood did by the evi- entirely persuaded State’s equivocal. Expert witnesses testimony was dence, more they acquitted of the testified for both the State and defense impeach on mat- analogy, impermissible support, by it is 8. This conclusion draws irrelevant, logically it should also impeach- that are widely-recognized ters from a limitation impeach that is inad- impermissible to may extrinsic evidence not be used ment that “legally irrelevant.” See and therefore regarding matter. missible impeach witness a collateral 8:01-8:02, IMWINKELRIED, PRACTICE, supra, §§ supra, § See 27 FEDERAL “legally restriction, evidence as irrele- author refers to State could Under that 539-41. relevant, if, although logically it has been impeach vant” about a matter that witness ("collateral") Rule of inadmissible under determined to be logically to the case irrelevant 404(b) or for other reasons. If Evidence witness to be untruthful. an effort to show the ITS DID THE IMPEACH second-degree murder and B. STATE charges of serious THE PRIMARY FOR finding guilty him OWN WITNESS manslaughter before OTHER- OF INTRODUCING record we PURPOSE felony to a child. On this TES- HEARSAY WISE INADMISSIBLE beyond a reasonable doubt cannot conclude if guilty found TIMONY? that Wood would have been the inadmissible evi- had not heard C. WAS DEFENDANT/APPELLANT alleged temper physical and dence of his TES- BY BANDEROB’S PREJUDICED ' Almandinger. This evidence abuse AL- THE TIMONY CONCERNING guilty to a verdict based have led the BAD ACT? LEGED PRIOR impermissible inference that Wood an has also headings, Wood of these Under each violence, than rather subheadings: following included guilt or innocence upon the evidence as to THE I.R.E. PROHIBITS A. RULE charged. of the crime OWN ITS FROM IMPEACHING STATE IN- TO AAS SUBTERFUGE WITNESS
IV. CONCLUSION INADMISSI- OTHERWISE TRODUCE BLE EVIDENCE. HEARSAY permitting The district court erred BANDEROB’S TESTIMO- B. WILMA from State to elicit ADMISSI- NOT OTHERWISE NY WAS temperament and Banderob about Wood’s BLE. toward Alman- acts of violence Testimony Was 1. Wilma this error dinger. We cannot conclude that Not Per- Because It Did Relevant Not beyond doubt. was harmless a reasonable Issue. Material tain to a Contested Therefore, judgment of convic- we vacate for a new trial. tion and remand this case Testimony Have Should 2. Banderob’s Margin- It Had Because
Been Excluded al, and It Was Any, Probative Value WALTERS, J., concurs. Prejudicial the Accused. Unfairly PERRY, Judge, dissenting. DID BANDEROB’S TESTIMONY C. IM- agree I respectfully I dissent. cannot FIT THE PRESENT SENSE NOT today THE by my colleagues TO the result reached EXCEPTION PRESSION simple the case has been AGAINST for the reason that PROHIBITION GENERAL nor issue neither raised decided on an HEARSAY EVIDENCE. In order to reach the appeal. briefed PAME- IMPEACHED THE STATE D. case, majority has in this desired result AAS SUBTER- LA [ALMANDINGER] issue, arguments make the had to raise the OTHERWISE INTRODUCE FUGE TO authority sup- adequate legal provide EVI- HEARSAY INADMISSIBLE majority cur- arguments. The
port of those DENCE. “we believe sorily remarks in a footnote that PREJUDICED APPELLANT WAS E. challenged the State’s adequately has [Wood] BAN- OF WILMA BY THE ADMISSION eliciting Almandinger’s testi- entire tactic WAS WHICH DEROB’S TESTIMONY denying choking in order to set the mony EVIDENCE. PROPENSITY IMPROPER ‘impeachment’ testimo- stage for Banderob’s Court, Supreme the Idaho as well as This briefing framing of issues on ny.” The Court, proposition long has followed however, simply support cannot appeal, appellant to include “the failure a conclusion. required statement of issues issue in the only argued that the has appeal, Wood On 35(a)(4) consider- eliminate the I.A.R. will errone- Banderob was of Wilma appeal.” of that issue ation issues on framed his ously admitted. Wood Prestwick, *10 appeal as follows: Dories, (1989). Canyon See also Grand 300 Com’n, 121 Idaho Tax Inc. v. Idaho State BANDEROB’S WILMA A.WOULD (1992); Shop- Valley P.2d 476 Sun 826 BEEN ADMISSI- HAVE TESTIMONY Co., Center., 119 Idaho Power Inc. v. ping EVIDENCE? BLE AS SUBSTANTIVE
251
im-
(1991);
present
explained
constitute a
sense
v. Hois-
to
Idaho
803
993
(1983);
ington,
pression.
Idaho
P.2d 17
Doherty,
Jensen v.
improperly impeached its own
The State
Craven,
(1981);
Drake
v.
Idaho
pretext
introduce otherwise
as a
to
witness
(Ct.App.1983).
Rule opportunity mate- because motive was not a contested that the state was afforded issue, Al- testimony’s present argument regarding lack Pamela rial and because the state, probative mandinger’s un- in its outweighed value was brief, similarity supplemental prejudice fair due to lack attacks consideration charged. [Almanding- been raised Pamela of this issue because has not offense goes appeal argue then on to er’s] discussion with Banderob raised, Almanding- properly from event Pamela was too remote in time even *11 party’s argument.9 egregious er’s was admissible under I.R.E. However mistake, 404(b). appellate court should never take abandon its role as a decisionmaker and difficulty majority I have with the I such is the on that of an advocate. believe opinion stems from what I believe to be a majority case here. authority argument. substitution of Had notes, per- majority might “We properly challenged argument if Alman- the State’s suaded Almandinger appeal, Pamela on that chal- dinger’s testimony directly im- that was lenge primarily would have been based been admis- peached Banderob itself does, fact, 404. Wood discuss sible, held that it was not.” but we have great argues quite I.R.E. 404 detail and Al- Because I would conclude that Pamela strenuously prohibited it should have challenged mandinger’s testimony never Nowhere in Wood’s reviewable, appeal, I and therefore is not argument brief do we find an that I.R.E. 404 accept argument would the state’s that no Thus, prohibited I questioning Alman- error was committed in this case. of Pamela judgment affirm the of conviction. would dinger surrounding prior alleged mis- majority apparently justi- conduct. The feels supplying
fied in an unraised be- legal authority support
cause the such an made,
argument, supplied had it been is entirely separate
relation to an issue. raised, properly
If the issue had been I
may agree majority’s analysis. with the Un- Wood,
fortunately, appears for what- reason,
ever has chosen not to make that appears prosecution get It entitled to into with Ms. that counsel for Wood is impression labored under the of Pamela counsel they [Almandinger], but it doesn’t seem like trial, was admissible. At prove by virtue of should be entitled to stated, arguing impeachment tes- impeachment. That is the whole concern timony improper was an method to introduce here. propensity evidence stated: Again, go it seems to toward the aspect, again propensity something