State v. Carter

BISTLINE, Justice,

dissenting.

In two areas I question the Court’s opinion: (1) the treatment of the instruction on self-defense, and (2) the analysis of the use of the “mug shot” of defendant.

I.

As part of its instructions on self-defense, the trial court gave the following instruction:

*924“You are instructed that to justify a killing on the grounds of self-defense or of defense of one’s wife or one’s family it is necessary to establish that the person doing the killing was without fault in bringing on the difficulty, that is, that he was not the aggressor and did not promote the conflict.”

Although not objected to by defendant, the attorney for the state on appeal, Mr. Brassey, in a most commendable performance of his duties1 has suggested that this instruction, viewed in isolation,2 might constitute fundamental error such that this Court could review it even though not objected to below. See State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). Nevertheless, the Court neatly sidesteps this issue with the terse statement that the defendant waived any objection by failing to make it at trial. Failure to object, however, does not preclude an examination of error which is contended to be fundamental, to which proposition I will directly return.

As to the merits of this argument, I would agree with those courts that hold that under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the burden of proving self-defense cannot be shifted to the defendant.3 See, e. g., State v. Millett, 273 A.2d 504 (Me.1971); Commonwealth v. Stokes, 583 Mass. 374, 374 N.E.2d 87 (1978); Kelso v. State, 588 P.2d 1035 (Nev.), cert. denied 442 U.S. 921, 99 S.Ct. 2846, 61 L.Ed.2d 289 (1979); State v. McLaurin, 233 N.C.App. 589, 235 S.E.2d 871 (1977); State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (1977). See generally Anno., 43 A.L.R.3d 221 (1972). Cf. State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917) (under 1887 Rev.Code § 7866 defendant must establish circumstances to extent that jury has reasonable doubt as to his guilt), overruled on other grounds State v. McMahon, 57 Idaho 240, 65 P.2d 156 (1937); Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (Court declines to decide whether due process requires the prosecution to disprove self-defense beyond a reasonable doubt).

The question then is twofold: (1) whether an instruction which impermissibly shifts the burden of proof constitutes “fundamental error” such that a failure to object below does not preclude this Court from examining that instruction, and (2) whether the instruction in the present case was erroneous.

In State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971), this Court stated:

“[T]he obligation of the state to see that defendant receive a fair trial is primary and fundamental. ... In case of fundamental error in a criminal case the Supreme Court may consider the same even though no objection had been made at time of trial. ... We agree with appellant that the cross-examination of the defendant (appellant) regarding his failure to testify at the preliminary hearing deprived appellant of a fair trial and was a denial of due process.” Id. at 251, 486 P.2d at 262.

To my mind the question of whether an instruction impermissibly shifting the burden of proof constitutes “fundamental error” was answered in the affirmative by the United States Supreme Court in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). The trial court in Hankerson had instructed the jury that to show self-defense “the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in *925self-defense.” Id. at 236-37, 97 S.Ct. at 2341-42. The North Carolina Supreme Court held that placing the burden of proving self-defense on the defendant violated the due process concepts announced in Mullaney. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975). The North Carolina court, however, refused to give Mullaney retroactive effect.

The United States Supreme Court held that the reasonable-doubt standard of proof is of substantial enough importance that Mullaney had to be applied retroactively:

“In Ivan V. v. City of New York, supra, 407 U.S. [203], at 204-205, 92 S.Ct. [1951] at 1952, [32 L.Ed.2d 659] this Court addressed the question whether our decision in In re Winship, [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368] supra — holding the reasonable-doubt standard applicable to state juvenile proceedings — was to be applied retroactively. The court there said:
“ ‘ Winship expressly held that the reasonable-doubt standard “is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law’ .... ‘Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ ” 397 U.S., at 363-364 [90 S.Ct. at 1072].
“ ‘Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect.’ 407 U.S., at 204-205, 92 S.Ct., at 1952.
Ivan V. controls this case. In Mullaney v. Wilbur, as in In re Winship, the Court held that due process requires the States in some circumstances to apply the reasonable-doubt standard of proof rather than some lesser standard under which an accused would more easily lose his liberty. In Mullaney, as in Winship, the rule was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that ‘substantially impairs the truth-finding function.’
“[W]e have never deviated from the rule stated in Ivan V. that ‘ “[w]here the major purpose of new constitutional doctrine is to overcome an aspect of a criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.” ’ 407 U.S., at 204, 92 S.Ct., at 1952 (emphasis added). The reasonable-doubt standard of proof is as ‘substantial’ a requirement under Mullaney as it was in Winship. Respondent’s attempt to distinguish Ivan V. is without merit”. 432 U.S. at 241-44, 97 S.Ct. at 2344 (footnotes omitted).

The question of who has the burden of proof is so fundamental to a fair trial that an improper allocation of that burden completely distorts the factfinding process. As stated in State v. Gideons, 52 Ohio App.2d 70, 368 N.E.2d 67 (1977), in holding that the court could consider the correctness of an instruction on self-defense regardless of whether an objection had been made below:

“To properly decide a criminal case, it is essential that the jury has a clear understanding of which party has the burden of proof. Without such an understanding, the jury cannot possibly properly perform its function. When in a criminal case the trial court erroneously places the burden of proof on the defendant, that error affects substantial rights of the accused and affects the basic fairness, integrity and public reputation of the judicial process. Such an error is plain *926error under Crim.R. 52(b) and may be reviewed by an appellate court even when the accused failed to object to the jury instruction as required by Crim.R. 30.” Id. 368 N.E.2d at 73.

Thus I conclude that this Court is required to examine the jury instruction placed in question in the present case.

In examining that instruction it should be remembered that instructions “must be considered as a whole, and error cannot be predicated upon a single instruction or part thereof which may be objectionable when not considered in connection with the instructions as a whole ....’’ State v. Tope, 86 Idaho 462, 469, 387 P.2d 888, 892 (1963). In the present case, the questioned instruction was confusing and erroneous. Reading the instructions in their entirety4 I am not sufficiently persuaded to the conclusion that the giving of this particular instruction did not constitute reversible error.

In considering this issue, I am much influenced by the separate opinion of Justice Lake in State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575, 592 (1975). In an effort to move the North Carolina Supreme Court from “reliance upon the broken reed of this Court’s power to declare Mullaney v. Wilbur, supra, nonretroactive,” to safer ground, he would have had that court there hold that:

“Since the instruction that the defendant must prove absence of malice or presence of justification ‘to the satisfaction of the jury’ does not place upon him the burden of persuading or convincing, but only the burden of creating a reasonable doubt, it serves no useful purpose and its use should be discontinued.” Id. 220 S.E.2d at 595.

The effort of Justice Lake failed both in his own court and again before the United States Supreme Court, the latter court holding, as would I, that an instruction which substantially impairs the truth-finding function is reversible error requiring a new trial free of that defect.

An earlier Idaho court in a unanimous opinion which long preceded the similar and more heralded statement in State v. Haggard, supra, was not slow to hold that mere inadvertence of counsel should not preclude a defendant (there a murder defendant) “from claiming the right of fair trial.” State v. Foyte, 43 Idaho 459, 464, 252 P.2d 673, 674 (1927).

It is to be regretted that this Court, again acting much as a woman with her favors, will nobly advance the doctrine of fundamental error, as it did in Haggard, and 44 years earlier in Foyte, but thereafter abruptly retreat from those precedents as fancy is or is not taken to each case coming before it.

Justice Shepard accurately portrays the closeness of this case, which in his opinion factually does not justify the verdict of the jury as a verdict which reasonable jurors should have reached on the evidence before them. Adding to his illuminating effort the error of the instruction and the interjection of improper evidence (hereafter discussed), offered solely to prejudice the jury, the sum total does not equal the fair trial to which all are entitled.

II.

It would be indeed difficult for me to on any hypothesis uphold the district court’s ruling which allowed the state to place before the jury the photograph of the defend*927ant. The Court’s opinion, however, declares that the photo was admissible as an aid in “explaining and applying the evidence and assisting the jury in understanding the case.” Secondly, in apparent disbelief of this doubtful premise, the Court adds that even if this photo was immaterial and prejudicial, still it became properly admissible to rebut the unfair prejudice resulting from defendant’s introduction of a photograph of the deceased — an “invited error” hypothesis.

A.

The following examination of the victim’s wife, Bobbie, by defense counsel led to the introduction of the victim’s photo:

“Q Now, you mentioned that the reason that you hated Joe Carter was because he had long hair?
“A Yes.
“Q Did Larry [the victim] have long hair?
“A Well, that wasn’t the only reason I hated him.
“Q Didn’t Larry have long hair?
“A Yes, but it wasn’t filthy and dirty all the time.
“Q Did he have a beard?
“A Yes, he had a beard.
(Defendant’s Exhibit A was marked for identification.)
“Q (By Mr. Fanning) I am going to hand you Defendant’s Exhibit A and will you state whose picture that is?
“A It is Larry’s.
“Q Is that what he looked like about the day of this incident?
“A Yes. He looked something like that, but not that rough.
“Q But he had long hair and beard and all that?
“A Yes.”

The state then objected, not to the introduction of the photograph of the victim, but only to the extraneous matter which identified it as a “mug shot”:

“MR. GROVER: I object, Your Honor, to all of the extraneous matter contained on the exhibit. There is much more on here than the photograph.
“MR. FANNING: We will limit it just to the photograph, Your Honor.
“MR. GROVER: Your Honor, if they want to cut the photograph out perhaps that is admissible.”

It is thusly seen that the state did not object to the introduction of this photograph which was, if anything, merely illustrative of the testimony given as to how the victim looked on the day he instigated his attack on the defendant, a line of testimony opened up by the state in developing the animosity of the victim’s wife to defendant because of her dislike of his long hair — all of which was extremely collateral to the serious issues being tried.

The challenged introduction of the defendant’s photograph had nothing to do with the animosity problem and came about in a wholly disjointed manner, sometime later in the trial, and certainly not in the manner of quick rejoinder usually associated with invited error.

“Q (By Mr. Grover) Now, Mr. Johnson, when Mr. Carter was brought into the Sheriff’s Office is there a booking procedure that is followed?
“A Yes.
“Q In connection with that was there a photograph taken of him?
“A Yes.
“Q Mr. Johnson, do you have that photograph?
“A It is in the folder there.”

The state’s basic argument offered in support of the admissibility of this photo was “I think the jury is entitled to know how he looked at the time of this incident.” The court overruled defendant’s objection, stating:

“[I]t seems to me that it might help to explain some of the things in the case. For instance, the first witness said that she didn’t like him [the defendant] and the reason she didn’t like him was because his hair was long and he had a long *928beard and he looked sloppy and this bears out her testimony.”

The court was misled onto an avenue of irrelevance. The cause of friction, though of interest, was not in any sense a triable issue. The introduction of this photo was error. The prosecutor’s only argument— that the jury had seen a picture of the victim with long hair and a beard, and that fair play required that they should also see a picture of the defendant as he had earlier appeared — was farfetched.

The Court upholds this picture’s admissibility as an aid in “explaining and applying the evidence and assisting the jury in understanding the case.” To support this assertion the Court cites two cases, State v. Kleier, 69 Idaho 278, 206 P.2d 513 (1949), and State v. Cunningham, 97 Idaho 650, 551 P.2d 605 (1976), neither of which here has any significance whatever. The picture in dispute in Kleiner was of the robbed safe with papers strewn about. In Cunningham, the picture of the defendant was introduced to prove an extrajudicial identification of the defendant.

Assuming there is any substance to the theory that this picture was helpful as explaining earlier evidence, the probative value — and I see none — was clearly outweighed by the potential prejudicial effect. Earlier testimony had shown the jury that defendant and the victim both wore long hair and beards at the time of the altercation. This picture of defendant was obviously offered for and could have served no purpose beyond attempting to prejudice the jury which would decide his fate.5 This is not a case where the defendant’s identification was in question; he admitted firing the shots. The only real question was whether he acted in self-defense, and his hair style at the time of the shooting did not bear a scintilla of relevance to that question.

B.

As to the issue of invited error, it must be noted at the outset that there was no issue drawn on the admissibility of the victim’s photograph. It was extremely remote, probative of nothing, and could have been excluded, and most likely would have been had not the prosecutor in effect withdrawn his motion when objectionable material was excised. The photograph of the defendant was not admissible under any view, but for certain not on the basis of “invited error,” which was not the premise used for its entry into evidence. At the risk of lengthening this opinion, but firmly of the belief that all accused persons should have fair trials, it is necessary to consider the three divergent approaches taken by courts to the question of “invited error,” or “opening the door.” While some courts hold that the admission of an inadmissible fact justifies the opponent in resorting to similar inadmissible evidence, see, e. g., State v. Mercer, 13 Ariz.App. 1, 473 P.2d 803 (1970) (defendant opened door); Larson v. Pischell, 13 Wash.App. 576, 535 P.2d 833 (1975) (plaintiffs cannot complain where they raised the subject in their case in chief); Sanville v. State, 593 P.2d 1340, 1344 (Wyo.1979) (cannot complain if “adversary is also allowed to avail himself of the opening within its scope”), other courts hold that the admission of an inadmissible fact, without objection, does not justify the opponent in also introducing inadmissible facts to rebut. See, e. g., Torres v. State, 519 P.2d 788 (Alaska 1974) (introduction of improper evidence without objection does not justify introduction of similar evidence by other party); Laursen v. Tidewater Associated Oil Co., 123 Cal.App.2d 813, 268 P.2d 104, 106 (1954) (“[t]he so-called ‘open the gates argument’ is a popular fallacy”); Savannah *929News-Press, Inc. v. Hartridge, 110 Ga.App. 203, 138 S.E.2d 173 (1964) (introduction of objectionable evidence without objection did not entitle defendant to rebut it with similar evidence). Still other courts hold that the opponent may reply with similar evidence only when it is necessary in order to remove any unfair prejudice which might have resulted from the original evidence. See, e. g., Herget National Bank v. Johnson, 21 Ill.App.8d 1024, 316 N.E.2d 191 (1974) (if one party opens up issue, other can introduce contradictory or explanatory evidence only if he would be prejudiced from the unexplained evidence); Roy v. Commonwealth, 191 Va. 722, 62 S.E.2d 902, 905 (1951) (immaterial evidence “may be rebutted if necessary to prevent an unfair inference or prejudice which might otherwise exist”). See generally McCormick on Evidence § 57 (2d ed. 1972); 1 Wigmore on Evidence § 15 (3d ed. 1940).

In the only case in Idaho which considered the issue, State v. Breyer, 40 Idaho 324, 232 P. 560 (1925), the appellant, who was accused of first degree murder, introduced evidence that his wife met the victim at the victim’s house, and that the victim had arranged the meeting after the time when appellant had ordered the victim to keep away from his wife. The state then introduced evidence that the meeting was for the purpose of taking up a mortgage which the victim held on some sheep in which she had an interest. This Court held that “[t]he evidence was not prejudicial. Appellant was estopped to object to it because it was introduced to meet immaterial evidence which he himself had introduced. The error, if any, was invited.” Id. at 338, 232 P.2d at 565. I submit that that case provides no basis for holding that the challenged evidence in the present case was inadmissible.

Under the third approach, which the Court is apparently today adopting,6 some prejudice is required before other inadmissible evidence can be introduced in rebuttal. The Court argues that the picture of the victim prejudiced the state by creating a false impression in the minds of the jurors. However, there was sufficient testimony as to their relative appearances that introduction of this picture was unnecessary to rebut any such impression. The introduction of the photo of the victim in the present case in no way prejudiced the state. Even if the victim’s photo did prejudice the state, introducing a photo of the defendant was not “rebutting” the introduction of the victim’s photo.7 Under the second approach, that other inadmissible facts cannot be introduced where the opponent did not object, the state did not object here, and thus they cannot now seek to offer other inadmissible evidence.

Finally, there remains the rule that the opponent may resort to similar inadmissible evidence, or as stated by this Court in today’s opinion, “[a] party may not object to immaterial evidence which is introduced to counteract immaterial evidence of the same nature which he himself introduced.” Under this statement, the only way to justify introduction of the defendant’s photo would be to say that the victim’s photo may have prejudiced the jury against the deceased. If so, of what consequence? Are we to presume that we have jurors in Idaho who would acquit a defendant simply because the person he shot favored wearing long hair? I stand aghast at the thought. If there be jurors of such a frame of mind, it is a grievous fault, and hopefully any so possessed will not get by jury selection. But whatever the answer here may be, can it also be that the state can attempt to obtain a conviction on the strength of the *930color or length of a man’s hair? I think not.8

The deceased’s photo was introduced only in connection with the testimony of his widow that she did not like defendant because of his long hair and beard, and the photo showed that the deceased, her husband, also had long hair and a beard. Such was probably offered to impeach her credibility, and, although of doubtful validity, was not improper in the absence of an objection. The photo of the defendant, however, had no bearing on the question of the deceased’s appearance, and was not introduced to counteract that evidence. Obviously it was introduced solely to create with the jury an unfavorable impression of the defendant. And it most likely did. As stated in Wynn v. Sundquist, 259 Or. 125, 485 P.2d 1085 (1971):

“The underlying basis for the rule of ‘invited error’ is that where one party offers inadmissible evidence, which is received, the opponent may then offer similar facts whose only claim to admission is that they negative or explain or counterbalance the prior inadmissible evidence, presumably upon the same fact, subject matter or issue.” Id. 485 P.2d at 1090.

The final question is whether this error was harmless. The jury here did not accept defendant’s defense of self-defense, and convicted him of voluntary manslaughter. The evidence here was very close, so close that it cannot be said that the introduction of this photo did not contribute to the defendant’s conviction. See, e. g., State v. LePage, 102 Idaho 387, 393-97, 630 P.2d 674, 680-84 (1981); State v. Griffiths, 101 Idaho 163, 167 n.1, 610 P.2d 522, 526 n.1 (1980); State v. Smoot, 99 Idaho 855, 861, 590 P.2d 1001, 1007 (1978). The evidence that he acted in self-defense is sufficient that, absent the introduction into evidence of this picture, the jury might have acquitted him. Evidence wholly immaterial to the issues being tried was deliberately placed before the jury, the doing of which denied Carter a fair trial. While I can understand that a trial judge caught short in the middle of a trial might succumb to the state’s argument for admission, I cannot understand why the Court goes to such extremes to create a basis upon which it declares that no error was committed, or, if so, it was invited by the defendant who, one may be certain, in all likelihood did not comprehend that which the lawyers and judge were squabbling about. I would reverse and remand for a new trial.

.Just as the duty of the prosecutor is to seek justice, not merely to convict, ABA Standards Relating to the Prosecution Function and Defense Function § 1.1(c) (1970), so should the office of the Attorney General seek to assure that there has been justice in the criminal trials appealed to this Court. All parties — the state, the defendant, and this Court — must ensure that there has been no fundamental error below, whether objected to or not.

. The state maintains that the instructions viewed as a whole were correct.

. Since there is substantial evidence of self-defense here (see dissenting opinion of Justice Shepard), I do not address whether the defendant must initially produce some evidence on his affirmative defense before the prosecution is required to prove beyond a reasonable doubt the absence of such affirmative defense.

. In particular, note is taken of instructions 9, 10 and 13:

No. 9: “To convict the defendant of voluntary manslaughter, the State must prove each of the following elements:

“3. The killing was unlawful and without justification.”

No. 10: “You are instructed that a defendant in a criminal case is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.”

No. 13: “If a killing is justified on account of self defense then the defendant must be acquitted.”

The totality of the instructions given in Hanker-son, set forth at 220 S.E.2d 575, 593, and at 432 U.S. 236-37, 97 S.Ct. 2341-12, is essentially the same as given to Carter’s jury.

. The defendant violated no law in having worn his hair long, which was his right as was his concomitant right to cut it. Had the defendant been tried before a jury of his (long-haired) peers, he likely would have left his hair as it was. Any attorney who would allow a long-haired client to go so attired before a jury in Idaho would be guilty of malpractice. Any ordinary juror who claims that he can view a long-haired defendant without at least some conscious or subconscious prejudice is either unusual in the extreme, or a hypocritical prevaricator. The same can be said of some judges as well, a statement I can make knowing of at least one whose wife would be the first to confirm that fact.

. The Court first cites State v. Breyer, 40 Idaho 324, 232 P. 560 (1925), apparently with approval. That case followed the first approach. The Court then cites People v. Wilbert, 15 Ill.App.3d 974, 305 N.E.2d 173 (1973), which followed the third approach. It would be helpful if the Court would explicitly state which approach it is following.

. Rebuttal evidence would consist of, for example, a picture of the victim with his family, testimony that although he had long hair and a *930beard, he kept it cleaner than the defendant’s, etc.

. The ludicrous lengths to which such an approach can be extended were illustrated in State v. Steidel, 98 Or. 681, 194 P. 854 (1921). Defense counsel there asked defendant his occupation, which was a gardener. The court held that this entitled the state to ask defendant whether he was “occupied at least part of the time with the Socialist ... party.” Id. 194 P. at 856. The court explained its reasoning as follows:

“His occupation, however, was injected into the case by his own counsel, evidently for the purpose of creating a favorable impression with the jury. He cannot complain, therefore, if he is cross-examined upon the same subject with a view of replacing that impression with an unfavorable one.” Id.

The trial bench and bar with amazement will see the Court’s opinion today as rising to the same heights.