Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
The opinion of the court was delivered by: Lansing, Chief Judge
Order denying motion for mistrial, affirmed. Judgment of conviction for first degree kidnapping and rape, affirmed. Judgment of conviction for assault with intent to commit rape, vacated.
Carl Pickens, Jr. appeals from his judgment of conviction for first degree kidnapping, rape, and assault with intent to commit rape. He contends that the district court erred by denying his motion for a mistrial based upon allegedly improper comments made by the prosecutor during opening statements and that the court erred in admitting at trial evidence implying prior misconduct by Pickens. Alternatively, he asserts that the constitutional prohibition against double jeopardy requires that his conviction and sentence for assault with intent to commit rape be vacated because it is a lesser included offense of rape, for which he was also convicted and sentenced. The State concedes that Pickens' double jeopardy argument is correct and stipulates to the remedy sought. We therefore address only the remaining issues.
Pickens and the victim, C.O., had been dating for a brief period prior to the alleged events giving rise to the charges. According to the State's trial evidence, on the night in question Pickens and C.O. had consensual sexual relations at his residence, but afterwards Pickens began to question C.O. about her feelings toward a former boyfriend. Pickens became angry when C.O. admitted that she still had feelings for that individual, and he began shoving and hitting C.O. and demanded to have sex with her. When she refused, he shoved a gun into her mouth and threatened to kill her. Pickens raped C.O. and thereafter refused to allow her to leave his residence. When she was finally allowed to leave, C.O. reported the rape to police. Pickens was charged with first degree kidnapping, Idaho Code §§ 18-4501, -4502, rape, I.C. § 18-6101(4), and assault with intent to commit rape, I.C. §§ 18-909, -901, and the prosecutor sought a persistent violator sentence enhancement pursuant to I.C. § 19-2514.
During her opening statement at Pickens' trial, the prosecutor referred to the anticipated testimony of Pickens' sixteen-year-old cousin, R.I., who was staying at his home on the night in question and had looked into the bedroom where the attack occurred because she heard sounds of the fight occurring there. During the opening statement, the prosecutor said:
When [R.I.] first comes and peeks through the door, the defendant, in a very agitated way, looks at her and says, "See, see, come in. See, this timeit's not my fault. See what she did to me?" And he's pulling his lip down to show how she scratched him, and showing different body parts where [C.O.] had scratched him.
You know, "This is the thing," that "she started it" or "she swung at me."
Pickens objected and moved for a mistrial, contending that the statement attributed to him, that "this time it's not my fault," constituted evidence of other misconduct that was inadmissible under Idaho Rule of Evidence 404(b).*fn1 He argued that such evidence was inadmissible both because it was character evidence and because the prosecutor had not served prior written notice of her intent to offer such evidence as required by I.R.E. 404(b). Responding to the motion for mistrial, the prosecutor did not contend that she had served a Rule 404(b) notice, but instead argued that no impropriety had occurred because:
Those are the words that the defendant spoke, and those are the words that make no sense to the victim because they had never happened before. It's part of the confusion of the attack on her. And those are the exact things that he was saying during the rage that he was exhibiting at the victim, and she was unable to leave.
That is part of the police report. It's part of the grand jury transcript. And I intend to ask the victim the things that he kept saying is that she hit me. "This time I didn't hit her." And it did not make any sense to the victim at all. There's no suggestion that he's ever hit her before, and she will say that much. And she has said before that he's never hit her before. She didn't know where it even came from.
But it is part of the facts of this case. The issue is credibility where this defendant has acted completely out of normal behavior, and it is for the jury to decide whether what she describes is correct or what the defendant described, which is she was the one who flew off the handle and hit him. I think it is important that the words that he had used and the things that he said during that time frame we can use.
Without making an express ruling on the admissibility of the evidence, the district court denied Pickens' motion for a ...