Opinion
Docket No. 21741
Filed June 11, 1997 Reversed. See State v. Muraco, 132 Idaho 130, October 26, 1998.
Appeal from the District Court of the Third Judicial District, State of Idaho, Gem County. Hon. Dennis E. Goff, District Judge.
Judgment of conviction for lewd and lascivious conduct with a minor, vacated, and case remanded.
Wiebe Fouser, Caldwell, for appellant. G. LaMarr Kofoed argued.
Hon. Alan G. Lance, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent. L. LaMont Anderson argued.
In this case we have been asked to decide whether the district court erred in allowing the State to impeach the credibility of the defendant, William Muraco, with evidence of his prior felony conviction for lewdness with a minor. We conclude that the crime of lewdness with a minor is not relevant to credibility and therefore may not be presented before a jury for the purpose of impeaching a defendant. Accordingly, we vacate Muraco's conviction and remand the matter for a new trial. For guidance on remand, we also address Muraco's contention that the district court incorrectly rejected a requested jury instruction regarding confabulation by child witnesses.
FACTS AND PROCEDURAL BACKGROUND
William Muraco was charged with lewd and lascivious conduct with a minor child under the age of sixteen, a violation of Idaho Code Section 18-1508, for his alleged sexual molestation of a six- year-old girl. Prior to trial, Muraco filed a motion to suppress evidence of a conviction he had received six years earlier in Nevada for lewdness with a minor. In opposition to the motion, the State asserted that Muraco's prior conviction was admissible under I.R.E. 609(a) for the purpose of attacking his credibility. The district court denied Muraco's motion, holding that the State could introduce the evidence of Muraco's previous felony, and of the nature of the felony, to impeach Muraco if he testified on his own behalf. Muraco elected to testify at trial, and the State then presented evidence of his previous conviction for lewdness with a minor.
Muraco's requested jury instructions included an instruction regarding "confabulation," a term relating to the unreliability of testimony given by very young and impressionable children. The district court refused the requested instruction. Muraco was found guilty by the jury and was given a unified life sentence with a ten- year minimum term of imprisonment.
On appeal, Muraco contends that the district court erred in admitting evidence regarding the fact and nature of his prior felony conviction; that the district court erred in failing to give the requested jury instruction on confabulation; and that his sentence is excessive.
ANALYSIS
A. Evidence of Prior Felony
The primary question to be resolved on appeal is one of first impression: Can evidence of a witness's prior conviction for lewdness with a minor be introduced under Idaho Rule of Evidence 609 to impeach his credibility at trial?
In State v. Arledge, 119 Idaho 584, 808 P.2d 1329 (Ct. App. 1991), the defendant appealed his convictions for aggravated assault claiming, inter alia, that the district court abused its discretion when it allowed the State to impeach him with two prior felony convictions, one of which was lewd conduct with a minor. However, the Court did not reach the merits of Arledge's claim because he failed to provide an adequate record on appeal.
Under Rule 609, evidence regarding a witness's previous felony convictions may be used to impeach his or her credibility
if the court determines in a hearing outside of the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness.
Id. This rule requires that the trial court apply a two-pronged test to determine the admissibility of a past felony conviction. The court must first determine whether the fact or nature of the conviction is relevant to the witness's credibility. If so, the court must then evaluate whether the probative value of the evidence outweighs its prejudicial impact.
In reviewing the trial court's decision as to the first prong, we exercise free review because relevancy is an issue of law. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App. 1993). However, when reviewing the trial court's determination as to whether the probative value of the evidence is outweighed by the unfair prejudice, we apply an abuse of discretion standard. State v. Rodgers, 119 Idaho 1066, 1072, 812 P.2d 1277, 1283 (Ct.App. 1990), aff'd., 119 Idaho 1047, 812 P.2d 1208 (1991); State v. Winker, 112 Idaho 917, 925, 736 P.2d 1371, 1379 (Ct.App. 1987). Muraco argues that the crime of lewdness with a minor is not relevant to credibility and that the district court therefore erred when it admitted evidence of Muraco's prior conviction under I.R.E. 609.
As noted by this Court in State v. Allen, 113 Idaho 676, 678, 747 P.2d 85, 87 (Ct.App. 1987), the question of the relevancy of prior felonies for purposes of attacking a witness's credibility is a thorny one. The "varied relationships between felony convictions and witness credibility have produced much disagreement among courts and commentators about the particular crimes suitable for impeachment." State v. Pierce, 107 Idaho 96, 103, 685 P.2d 837, 844 (Ct.App. 1984). In an attempt to simplify this question, the Idaho courts have divided felonies into three categories having varying degrees of probative value on the issue of credibility. Crimes in the first category, such as perjury, are intimately connected to a person's veracity and credibility, while crimes in the second category, like robbery and burglary, are somewhat less relevant to credibility because they do not deal directly with veracity and have only a general relationship with honesty. State v. Ybarra, 102 Idaho 573, 580-81, 634 P.2d 435, 442-43 (1981); Allen, 113 Idaho at 678, 747 P.2d at 87. Offenses in the third category, which include crimes of passion and acts of violence that are the product of emotional impulse, have been said to have little or no direct bearing on honesty and veracity. Ybarra, 102 Idaho at 580-81, 634 P.2d at 442-43; Allen, 113 Idaho at 678, 747 P.2d at 87. By this appeal, we are required to determine which of these categories the crime of lewdness with a minor most correctly fits within.
Muraco asserts that lewdness with a minor is a crime of passion against another human being and that, consequently, it belongs in the third category with other crimes having little or no bearing on credibility. In support of his position, Muraco relies upon this Court's decision in State v. Allen. In Allen, we determined that a defendant's prior conviction in another state for a crime that was described as being similar to incest was not admissible under I.R.E. 609 to impeach his credibility because it was a crime of passion. We stated:
Although condemned and punished by the law, such conduct does not bear directly upon honesty or veracity. Neither does this single crime establish a pattern of disrespect for law and lawful authority. It has little or no relevance to Allen's credibility in the present case.
Allen, 113 Idaho at 678, 747 P.2d at 87.
The State asserts that Muraco's reliance on Allen is misplaced. It contends that lewdness with a minor is distinguishable from the incest crime at issue in Allen because incest generally "involves either the consensual marriage of certain family members or family members who consensually engage in adultery or fornication," while the commission, or subsequent coverup, of the crime of lewdness with a minor generally involves the use of "deceit, coercion, manipulation, force and violence." According to the State, lewdness with a minor is more like those crimes found in the first category which are directly related to honesty and veracity and may be used to impeach a defendant's credibility.
We find the State's argument unpersuasive. First, it is based upon assumptions about the incest-like crime in Allen that draw no support from that opinion. Nothing in Allen indicates that the incest offense was consensual, that the victim was old enough to give consent, or that the crime did not involve deceit or manipulation. Nor does the Allen opinion suggest that such factors bore upon the Court's decision that evidence of the conviction should have been excluded. Second, while the State may be accurate in stating that lewdness with a minor "generally" involves deceit, coercion and manipulation, it cannot be said that all such offenses involve these components. Sex offenses against children sometimes are unpremeditated, impulsive acts, more akin to violent crimes than to crimes of deceit. Therefore, the approach advocated by the State would require the trial court to carefully examine the circumstances of any prior conviction for molestation of a child to determine whether the manner in which the offense was committed reflects upon the credibility of the witness. To determine the admissibility of the conviction, the court could be drawn into an ancillary "trial" to ascertain aspects of the past offense that may not even have been addressed in that criminal proceeding, especially if the conviction was entered upon a guilty plea.
The State's further assertion that sex offenses against children generally involve force and violence does not seem to advance the State's position. As Ybarra and Allen discuss, crimes of violence do not ordinarily have a bearing on the perpetrator's honesty and veracity.
In our view, such a case-by-case examination of prior felonies offered for impeachment under Rule 609(a) would unduly delay trials while the court, outside the presence of the jury, addressed issues collateral to the charged offense, and would likely lead to inconsistent applications of the rule. Such an approach is also inconsistent with the intent behind I.R.E. 609(a) as expressed in the Report of the Idaho State Bar Evidence Committee (Dec. 1984 revision), which states:
It is the . . . definition of the crime that governs, not the details of the particular crime committed. Thus, a lesser plea may take a conviction out of the rule even though the details of the criminal act underlying the charge showed extreme dishonesty or involved the use of false statements.
Id., C 609 at 9, quoting 3 J. P. Weinstein M. Berger, Weinstein's Evidence 609 [04] at 71 (Supp. 1983).
We therefore conclude that when evidence of a prior felony conviction is offered under I.R.E. 609(a), the court should look to the definition of the offense, not the circumstances surrounding its commission, to evaluate whether it is one that is relevant to the credibility of the defendant.
Lewdness with a minor is not such an offense. While it is a criminal act that society does not tolerate, it, like incest, falls within the third of those categories identified in Ybarra and Allen, which encompasses crimes of passion and crimes of unpremeditated violence having little or no implications regarding the defendant's honesty or veracity. Consequently, we conclude that the district court committed error when it allowed the State to present evidence to the jury regarding the fact and nature of Muraco's prior felony conviction.
An error in the admission of evidence against an accused requires reversal of a criminal conviction unless the appellate court can say, beyond a reasonable doubt, that the jury would have reached the same result absent the error. State v. Medrano, 123 Idaho 114, 120, 844 P.2d 1364, 1370 (Ct.App. 1992); State v. Brazzell, 118 Idaho 431, 435, 797 P.2d 139, 143 (Ct.App. 1990). Applying that standard, we cannot conclude that the error here was harmless. The six-year-old complainant in this case was the only witness to the alleged offense. Her testimony was impeached with evidence that she had changed her story as to where and how the sexual contact occurred, sometimes saying that it took place while she was riding in the back seat of an automobile with Muraco and at other times saying that it occurred in the living room or in the bathroom of her home. No physical evidence corroborated the child's testimony. Muraco testified at trial and denied the child's allegations. On this record, we cannot say that overwhelming evidence would have led to the defendant's conviction even without the introduction of inadmissible evidence. Accordingly, Muraco is entitled to a new trial.
B. Jury Instruction
For guidance on remand, we will also address Muraco's claim of error in the jury instructions. Muraco requested an instruction to the jury regarding "confabulation" or the unreliability of testimony given by young children. The district court rejected the proposed instruction, concluding that it was not a statement of the law but, rather, amounted to argument.
The requested instruction, which was rejected by the trial court, stated:
You are instructed that the Courts have recognized that childrens' mental abilities go through recognizable stages of development.
Childhood cognition is fundamentally different from thinking and recalling by adults. Some authorities state that most of the development of accurate recall skills occurs between ages five and ten.
Younger children have memories, but may lack the ability to recall and relate them.
Leading questions, when an adult questions a child about sexual abuse, are extremely dangerous because of the nature of a child's memory. Memory can be tainted by questioning.
The risk with young children is that they may be unable to distinguish between memory of something that actually happened, from a memory of something they imagined happened. If an interview technique leads a child to imagine an event, the child's memory of the imagined event will be indistinguishable from memories of events which the child actually experienced. Once this tainting of memory has occurred, the problem is irremediable. That memory is from then on, as real to the child as any other. This is called "confabulation." It is the same problem which can result from hypnosis, and hypnotically enhanced memory.
In addition to leading questions, other circumstances can lead to memory confabulation. A person the child perceives to have high status will more easily influence the child to accept suggestions. It is therefore critical that neither the interviewer, nor anyone else present have preconceptions.
An interviewer must not give subtle cues as nodding the head, saying "un-hum", or other such behavior which encourages the child to say what the interviewer expects and want [sic] to hear. This kind of interviewing can shape and determine the responses that the interviewer is going to see.
A trial judge must charge the jurors with "all matters of law necessary for their information." I.C. Section 19-2132(a); State v. Fetterly, 126 Idaho 475, 476, 886 P.2d 780, 781 (Ct.App. 1994). Accordingly, a defendant is entitled to instructions on rules of law material to the determination of guilt or innocence. Id. However, a trial court need not give a requested instruction if it incorrectly states the law, is not supported by the facts of the case, is adequately covered by the instructions given by the court, State v. Moore, 126 Idaho 208, 211, 880 P.2d 238, 241 (1994); State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992); State v. Olsen, 103 Idaho 278, 285, 647 P.2d 734, 741 (1982), or improperly comments on the evidence. State v. Dambrell, 120 Idaho 532, 540, 817 P.2d 646, 654 (1991); State v. Johns, 112 Idaho 873, 880-81, 736 P.2d 1327, 1334-35 (1987).
The instruction sought by Muraco was drawn from the Idaho Supreme Court's opinion in State v. Wright, 116 Idaho 382, 385-86, 775 P.2d 1224, 1227-1228 (1989), aff'd, 497 U.S. 805 (1990). Muraco contends that statements made in Wright, and paraphrased in his requested instruction, were declarations of law suitable for use in a jury instruction.
In Wright, the Court addressed whether there had been trial error in the admission of a pediatrician's hearsay testimony relating statements made by a two-and-one-half-year-old girl. The Court determined that the hearsay, which was admitted at trial pursuant I.R.E. 803 (24), the residual hearsay exception, violated the Sixth Amendment's Confrontation Clause. Wright, 116 Idaho at 388-89, 775 P.2d at 1230-31. In reaching this determination, the Supreme Court examined information from several publications regarding the psychological development of children. Wright, 116 Idaho at 385-86, 775 P.2d at 1227-28. The information related by the Court indicated that the memory, and consequently the testimony, of young children may become tainted by improper questioning techniques. Id. The court then determined that the interview methods used in that case may have tainted the young child's statements and that her statements to the pediatrician consequently lacked the particularized guarantees of trustworthiness required by the United State's Constitution's Confrontation Clause as a condition precedent to the admission of hearsay. Wright, 116 Idaho at 385, 775 P.2d at 1227. It is apparent that the statements in Wright regarding confabulation in childrens' testimony, upon which Muraco relies, are not statements of law by the Supreme Court. They are, rather, a discussion of precepts of developmental psychology extracted from professional literature. It follows that the district court was correct in refusing the instruction requested by Muraco and drawn from the Wright opinion, because the instruction did not present a "matter of law necessary for the jury's information."
CONCLUSION
Muraco's prior conviction for lewdness with a minor was not relevant to his veracity or honesty and therefore should not have been admitted pursuant to I.R.E. 609(a) to impeach his credibility. A new trial is therefore necessary. In light of this disposition, we do not address Muraco's challenge to his sentence.
The judgment of conviction is vacated and the case is remanded to the district court for further proceedings.
Chief Judge WALTERS and Judge PERRY CONCUR.