State v. Bainbridge , 108 Idaho 273 ( 1985 )

1984 OPINION NO. 65, ISSUED JUNE 21, 1984, IS HEREBY WITHDRAWN, AND THIS OPINION IS SUBSTITUTED THEREFOR.

BAKES, Justice.

Appellant was tried and convicted of first degree murder (felony murder, murder during the commission of a robbery) and robbery arid was sentenced to two concurrent fixed life sentences. He appeals both his conviction and his sentence. For the reasons set out below, appellant’s conviction must be reversed and the cause remanded for a new trial. Additionally, we address other issues which deal with appellant’s conviction and which might arise as issues upon retrial.

I

The facts of the crime committed in this case are the same as those in State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983). Appellant was Sivak’s co-defendant. The two were tried at separate trials, before different judges.

On April 6, 1981, a cashier at a local gas station was murdered, and the station was robbed. The victim was shot several times and stabbed numerous times. She was found, still barely alive, by two customers. When she was found, her sweater and bra were pulled up, exposing her breasts.

Several witnesses came forward with information concerning the crime after an appeal for such information was broadcast in the local news media. These witnesses included two, Gary Chilton and Gloria Leyden, who had stopped at the station before the murder and observed two men inside the station. These two witnesses were hypnotized by an investigator to aid their recall of the details of what they observed.

On April 8, 1981, two days after the crime, Sivak was interviewed by police. He admitted that he and appellant had been at the station, but saw nothing. Detectives then contacted appellant. He was asked to sign a waiver of rights form, but refused, and requested a meeting with his parole officer. He was then taken to the law enforcement building where he did sign a rights waiver form. He was then interviewed on tape. At first appellant denied any involvement in the crime, but later told detectives that he and Sivak had stopped by the station to get cigarettes on the way to repair appellant’s van and, while there, Sivak alone robbed and murdered the victim.

Appellant and Sivak were then arrested and a warrant issued for search of a storage area rented by Sivak. Many incriminating items were found. The following day, on April 9, appellant was again interrogated and made a second statement. Appellant later filed motions to suppress both the first and second statements, and the items seized pursuant to the warrant'. The trial court granted the motion to suppress the second statement because appellant had been denied his right to counsel, but denied the other motions.

A great deal of publicity surrounded appellant, his co-defendant, and their separate trials. Publicity was especially heavy around the time of Sivak’s trial, which took place several weeks before appellant’s and resulted in Sivak’s being found guilty of first degree murder. Appellant moved for a change of venue, but the motion was denied. The trial court did issue an order stating that in the event an Ada County jury could not be selected in three days, jurors would be selected from Nez Perce County. However, an Ada County jury was finally selected.

At trial, the prosecutor was allowed to pursue a sexual motivation theory, over the strenuous and continuing objections of defense counsel. The prosecution introduced evidence of the fact that the victim’s sweater and bra were pulled up, exposing her breasts; that appellant made statements to two others after the murder that the victim “really turned him on”; and also attempted to introduce testimony of appellant’s prior sexual misconduct through testimony of illicit relationships with a girlfriend and cohabitation with his wife before marriage. The prosecution was also allowed to introduce evidence of the good character of the victim, and her plain appearance, inferring that she would not have encouraged appellant. The prosecution cross examined appellant’s character witnesses concerning the possibility of any sexual misconduct. The prosecution was also allowed to argue this theory to the jury.

Appellant’s primary allegation of error is that the testimony of the two witnesses whose memories were hypnotically refreshed should not have been admitted. The parties have extensively briefed and argued the issue of hypnotically refreshed testimony and urge the adoption of a new rule. In our recent case of State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984), this Court did adopt such a rule to be followed by Idaho trial courts in admitting such testimony. On the face of this record, and judging admissibility of the testimony by the standards established in Iwakiri, it appears that at least a portion of the hypnotically refreshed testimony in this case may have been improperly admitted. On this basis, we find it necessary to reverse appellant’s conviction, to allow for a new trial using only that testimony which the trial court determines is admissible under the rules established in State v. Iwakiri, supra.

Appellant alleges numerous other errors occurred at trial. We consider these other errors to give the trial court guidance upon retrial of this case. First, he urges that the trial court erred in failing to suppress the first statement made by appellant to authorities on April 8, and the items seized pursuant to a search warrant based upon information obtained in the April 8th interrogation. Appellant asserts two reasons the April 8th statement should have been suppressed. First, he claims that he requested an attorney before the interview, and one was not provided; thus, the statements should be suppressed as taken in violation of his sixth amendment right to counsel. Also, appellant argues that the rights waiver form signed by appellant on April 8th was not effective to waive his constitutional rights because he was not fully cognizant of those rights due to coercive techniques used by the interrogators and appellant’s own mental condition. In other words, appellant argues that he did not voluntarily, knowingly and intelligently waive his constitutional rights.¹

However, the trial court, after taking testimony, ruled that the April 8th statement was admissible. In a written opinion, the trial court ruled that the defendant did not request an attorney on April 8th, so no violation of the right to counsel occurred. In addition, the trial court stated that:

“After examining the totality of the circumstances surrounding the statements which defendant made at that time, as required by State v. Padilla, 101 Idaho 713, [620 P.2d 286] (1980), it appears that the defendant’s statements were voluntarily made.”

He also ruled that the waiver was knowingly and intelligently made.

A factual dispute over whether appellant actually requested counsel on April 8th was resolved against appellant by the trial court after hearing all the testimony. The trial court’s decision that no right to counsel was asserted is supported by evidence in the record, including testimony of both state investigators who testified that no mention of counsel was made, and by the testimony of appellant’s girlfriend (now wife) who never mentioned that appellant requested an attorney, only that he wanted to talk with his parole officer. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (request for probation officer not per se violation of fifth amendment rights). Because the trial court’s finding on this issue is supported by substantial evidence, it will not be disturbed.

Appellant also argues that any waiver of his rights was not made voluntarily. He cites what he terms coercive tactics by the investigator and his own low normal intelligence as evidence that a possibility of coercion exists. He also asserts that any waiver was not knowingly or intelligently made, and again cites his own mental capacity in support of this allegation.

We first note that the state has a heavy burden in overcoming a presumption against the waiver of constitutional rights. State v. Mitchell, 104 Idaho 493, 660 P.2d 1336 (1983), cert. den. 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308. However, an express written statement of waiver, although not conclusive, is strong evidence of the voluntariness of the waiver. State v. Mitchell, supra; State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980). In this case, appellant was advised of his rights and signed a written statement of waiver before his interrogation on April 8th. Appellant then talked with officers, but made no incriminating statements until his parole officer arrived. After his parole officer arrived, he made a statement to officers fully indicating his version of the events, and his observations of the robbery and killing. In other words, there was a strong indication in the record that appellant was more than willing to talk as long as his parole officer was present. There was also evidence that appellant had previously been involved with the criminal justice system, and thus had previously been made aware of his rights. We thus conclude that appellant voluntarily waived his constitutional rights, as the trial court correctly ruled. See Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (reviewing court must make independent determination on the voluntariness issue). State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968).

Appellant also argues that the trial court erred in denying a motion for change of venue. He argues that extensive pretrial publicity, especially around the time of the trial of co-defendant Sivak several weeks before appellant’s trial, so tainted the proceedings that a fair and impartial jury could not be obtained. We first note that the decision to grant or deny a change of venue is within the discretion of the trial court. As we noted in State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971), “[W]here it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal.” Id. at 432, 489 P.2d 1310. See also State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968); State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

We have previously considered factors we will examine in determining whether an abuse of discretion occurred.

“This Court has held on many occasions that the decision to grant or deny a change of venue rests within the sound discretion of the trial court. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975); State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971); State v. Bitz, 93 Idaho 239, 460 P.2d 374 (1969); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968) .... Among the factors which this Court will consider in determining whether a criminal defendant actually received a fair trial are affidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant’s guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself. See, e.g., State v. Bitz, supra. Publicity by itself does not require a change of venue. Id.” State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979) (footnotes omitted).

In this case the trial court was faced with the possibility of a change of venue, and indicated its desire to empanel a fair jury by issuing an order stating:

[I]t is uncertain whether a jury to try such case can be selected from an Ada County venire, due to extensive pre-trial publicity, although the Court has heretofore decided that a fair effort should be made to obtain an impartial jury from the regular Ada County venire before further considering a change of venue; and

“... if it becomes apparent that an impartial jury cannot be selected to try the defendant from the regular Ada County venire, and in preference to completely changing the venue of the trial, the parties have assured the Court that they would desire and agree that a jury may be selected in Nez Perce County, and such selected jury moved here to Ada County to try said defendant____”

Thus, the trial court recognized the possibility that pretrial publicity might taint the jury panel. However, the selection of a jury from Nez Perce County became unnecessary when a jury was selected from Ada County without significant difficulty. In answer to preliminary questions from the court, it appears that most of the jury panel had heard about the case.² However, in individual questioning, most of the jurors indicated their recall of the facts was very vague. Of the twelve jurors and two alternates finally selected, all had some recall of the facts of the case, but their recall was very vague at best. None of these jurors were challenged for cause. In addition, defense counsel did not exercise all the peremptory challenges available to him. All of the jurors finally selected indicated that they had formed no opinion, and could set aside anything they had heard and base their verdict only on the evidence presented at trial. In addition, the nature of the pretrial publicity indicates that most of the reports consisted of factual accounts of the events surrounding the crime and the trial of appellant’s co-defendant. There is very little to indicate that the pretrial publicity included editorial opinions or was likely to inflame passion or prejudice of potential jurors. For all of these reasons, we see no error in the refusal of the trial court to grant a change of venue.

We have also considered appellant’s allegation that the prosecutor was improperly allowed to pursue a sexual motivation theory. Throughout,the course of appellant’s trial, the trial court allowed the prosecutor to ask questions to establish a sexual motivation for the murder. Basically, the prosecutor was attempting to prove that appellant participated in the crime involved because of a sexual fantasy that he had concerning the victim. There were several items of evidence introduced upon which the prosecutor based his sexual motivation theory. These items do tend to prove a sexual motive for the crime and to connect the defendant with the crime. These items were (1) that the victim was found with her sweater and bra pulled up, exposing her breasts, and (2) that appellant made statements two days following the crime to two employees of the gas station while making a donation to a fund set up for the victim’s family that the victim “really turned him on,” and (3) statements appellant made to investigators during his interrogation to the effect that he liked the victim, that he would “get to bump into her,” that it “didn’t bother her when I’d bump into her or touch her,” that he had previously on occasion “swatted her on the butt,” and “I wanted to make love to ... that lady.” These items of evidence were relevant to show that sex was a possible motive for the crime and to connect the defendant with the crime. Much of the other evidence used by the prosecutor to support the sexual motivation theory, however, had little relevance to the sexual motive and was highly inflammatory and highly prejudicial. Much of this evidence served merely to cast the appellant in a bad light.

Generally, evidence of unrelated criminal or immoral activity on the part of a defendant is inadmissible at trial. State v. Needs, supra; State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978). See also U.S. v. Burns, 529 F.2d 114 (9th Cir.1975). However, evidence of a defendant’s past activities may be admissible to prove motive, or any of a number of other similar issues outlined in our prior cases. State v. Needs, supra; State v. Wrenn, supra; State v. Crawford, 99 Idaho 87, 577 P.2d 1135 (1978). In view of the fact that the condition of the victim’s body at the time it was found indicated the possibility of a sexual attack, evidence of the defendant’s conduct which would tend to show that appellant had such a sexual motive to commit the crime would certainly be admissible on the issue of his motive to commit this particular crime. Thus, evidence that appellant made statements indicating that the victim “turned him on,” and made statements that he was sexually attracted to the victim were admissible under this exception to the general rule of inadmissibility.

However, the references to the possible sexual motive in this case seemed to venture beyond the scope of this admissible evidence. References to appellant’s personal sexual habits, introduced in an attempt to bolster the prosecutor’s theory that this crime was sexually motivated, were marginally relevant, and their prejudicial effect seemingly outweighed any possible relevance to the relationship between appellant and the victim, and permeated the entire trial. Upon retrial, the trial court should take care to avoid admission of evidence dealing solely with appellant’s personal sexual habits, and not tending to connect appellant with the commission of this particular crime.

The prosecution made the sexual motive theory a major part of its case. In his opening argument, the prosecutor indicated to the jury his theory that the crime was sexually motivated and indicated his intent to “introduce evidence involving Mr. Bainbridge linking him with some sexual matters in this case.” He also indicated that he would prove that appellant was living with a woman at the time of the crime and that appellant “had a number of other girlfriends besides” the woman he was living with. He named one of those women, Mary Garcia, and indicated that she was appellant’s paramour. In his case in chief, the prosecutor, before ever attempting to prove that a crime had been committed, emphasized the fact that appellant was living out of wedlock with his girlfriend at the time of the commission of the crime, by questioning his brother’s girlfriend. Then, again prior to any proof that a crime had been committed, the prosecutor called to the stand Mary Garcia, whom appellant had been seeing at the time he was living with his other girlfriend. Before any testimony was elicited, the defendant’s attorney objected to the prosecutor asking any questions about the illicit sexual relationship between appellant and Mary Garcia. After a discussion of this question, appellant’s attorney asked the trial court, “Is it your ruling now that you are going to allow Mary Garcia to testify to an illicit sexual relationship between my client and herself?” The court replied in the affirmative, and appellant’s attorney noted his objection. The prosecutor then called Mary Garcia and proceeded to ask questions concerning the nature of the relationship.

“Q. [By the prosecutor] What was the nature of your relationship with [appellant]?

“A. We were very good friends.

“Q. Sexually were you very good friends?

“A. We had sexual encounters.”

A few minutes later, the prosecutor delved even more deeply into these matters:

“Q. Now, I want you to describe to the Jury, in terms of Randy approaching you sexually, how would he approach you in terms of touching or that type of thing? “A. Your Honor, do I have to answer these questions?

“THE COURT: Yes, you do.

“THE WITNESS: Yes. All right, he was just normal. Just as if — well, normal like any man would approach a woman.

“Q. BY MR. HOWEN: Would he touch you, your body?

“A. Well, I don’t know how to explain it.

“Q. I know it’s perhaps not—

“A. I mean, good Lord—

“Q. Okay—

“A. —it’s just normal like any other normal man would do.

“Q. You and I have already discussed this in detail; have we not?

“A. True.

“Q. Okay.

“A. I mean, if I was washing the dishes, maybe he might come behind me and put his arm around me, you know, give me a kiss on my cheek.

“Q. And then what?

“A. Well, nothing. I’d just say ‘go on, I’ve got the dishes.’

“Q. Would he ask or request sex from you?

“A. Well, yeah, sometimes.

“Q. Did you turn him down more often than not?

“A. Sure.

“Q. Was he persistent?

“A. Persistent by demanding? No.

“Q. Yes. If you said ‘no’ would he come back in 10, 15 minutes, half hour, next day; anything along that line?

“A. Well, maybe 2, 3 hours later when I got done with the dishes or whatever I’d have to do. He’d ask again or I might turn around and ask him.

“Q. Was this something involved with— well, was the touching of your person connected with the request; or was it something unrelated as far as you recall? “A. Sometimes it would be both ways. It just depended, you know, no set pattern.”

The nature of this questioning was such that it elicited highly irrelevant, yet highly inflammatory evidence.

The trial court also allowed the prosecutor to delve into sexual matters during his cross examination of appellant’s witnesses. Of appellant’s cousin the prosecutor asked, “Did [appellant] like to try to touch you very much physically?” and “didn’t [he] try to touch you in inappropriate places?” Of a friend of appellant’s family, the prosecutor asked, in reference to a comment by the witness that appellant was a loving and considerate person, “Was he loving in the sexual sense between a man and woman?” and “never tried to touch you inappropriately?" Of appellant's aunt, the prosecutor inquired whether she was aware of appellant having girlfriends after he got married. He also asked, “Would you be particularly surprised if he did have a number of girlfriends in a sexual context?” This question was obviously intended to give the jury the impression that appellant was sexually promiscuous, whether married or not, although the only “girlfriend” that the prosecutor ever produced was Mary Garcia. The prosecutor emphasized the infidelity idea by asking appellant’s aunt, “I take it you don’t think that’s particularly different if someone’s married or living with someone to have other girlfriends in a sexual context,” to which the aunt replied, “I’d say it wouldn’t be right.” The prosecutor then said, “But that wouldn’t surprise you about Mr. Bainbridge?’’, to which the aunt replied, “Well, when he was married I don’t know that he did.”

The prosecutor, by his actions in placing appellant’s sexual behavior in a prominent position in his case, exacerbated the possible prejudicial effect of any erroneous evidence admitted. Where inflammatory evidence such as this is placed before the jury in such a light and serves no probative function, it tends to have the effect of disparaging appellant’s character, thus serving “to inflame the minds and passions of the jury to the prejudice of the defendant.” State v. Wilson, 93 Idaho 194, 457 P.2d 433 (1969). Upon retrial, the trial court can reduce the possibility of tainting the trial by strictly controlling the order of proof and, while still allowing the prosecutor to pursue his theory through evidence concerning the crime itself, and evidence tending to connect the defendant with the crime, at the same time avoiding evidence which solely illustrates the defendant’s personal sexual habits or behavior, thus assuring appellant a fair trial.

Reversed and remanded for new trial.

DONALDSON, C.J., and SHEPARD and HUNTLEY, JJ., concur.

1 . The trial court excluded the April 9th statement because it was clear that appellant had requested counsel, and counsel had not been provided. This was a correct ruling in that the United States Supreme Court has tailed in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that an invocation of the right to counsel must be scrupulously honored, and once the right is invoked, all questioning must cease until counsel is provided or the defendant initiates further communication. The state does not challenge the exclusion of the April 9th statement in the trial court’s initial ruling. However, we note that the April 9th statement was admitted into evidence, and played to the jury, because it was offered by defense counsel during his case in chief.

2 . Of the panel of 125 jurors, 113 indicated that they had read or heard about the case. Upon retrial, the attenuation between the extensive publicity and the time of trial should be much greater, so that the task of securing jurors without bias or even knowledge of the case should be easier.