# State v. Hedger

> Idaho Supreme Court · February 10, 1989 · 115 Idaho 598

URL: https://www.frixlaw.com/law-library/cases/9548331

## Case

- **Full name:** STATE of Idaho, Plaintiff-Respondent, v. Marvin Dee HEDGER, Defendant-Appellant
- **Court:** Idaho Supreme Court
- **Decided:** February 10, 1989
- **Citations:** 115 Idaho 598; 768 P.2d 1331; 1989 Ida. LEXIS 14
- **Precedential status:** Published
- **Opinion:** Dissent by Bistline
- **Judges:** Bakes, Bistline, Shepard, Huntley, Johnson
- **Cited by:** 614 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9548331

## How later opinions describe it (automated extraction)

- holding that presumption applied even though error occurred after district court gave jury instruction

## Opinion text

BISTLINE, Justice,
dissenting.
The majority opinion is long on conclusions and short on analysis. Specifically, I disagree with the majority’s handling of the clergy privilege, habit evidence, inconsistent statement and cumulative error issues. Each will be addressed in turn.
A. PRIVILEGED CONVERSATION WITH THE MINISTER
The majority holds that because other persons were in close proximity to the minister and Hedger, his statement was not privileged. Hedger stated that he “could not live without [ex-wife] Donna, that if he couldn’t have Donna neither could anyone else.” Tr., Vol. II, at 242. A reasonable juror could conclude that such a statement provides a motive. It is prejudicial and highly damaging, but inadmissible under I.R.E. 505.
Idaho Rule of Evidence 505, the religious privilege, provides in part: “Confidential communication. A communication is ‘confidential’ if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” (Emphasis added.) The majority of necessity interprets the rule too broadly. In my view a statement can be made “privately and not intended for further disclosure” when other people are around. Otherwise the whisperings of Ollie North to defense counsel Brendan Sullivan at the Iran-Contra pretrial hearings would not be protected by the attorney-client privilege.
B. HABIT TESTIMONY
The majority opinion concludes that Donna’s sister could properly testify that Donna would not have left her children alone at night because it constitutes admissible habit testimony. Maj. op. at 601-602, 768 P.2d at 1334-1335. The terse analysis fails to define habit evidence, character evidence and the important — and often confusing— interplay between the two.
Idaho Rule of Evidence 406 provides:
Habit; routine practice. — Evidence of a habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Rule 406 clearly states habit testimony is admissible, but it does not define it. Sound jurisprudence demands that we look else *605 where for a definition, therefore, and not simply permit the admission of any claimed habit evidence.
Professor McCormick, in his leading evidence treatise writes:
Character and habit are close akin. Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. ‘Habit,’ in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation. If we speak of character for care, we think of the person’s tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.
McCormick, On Evidence § 195, at 462-63 (2d ed. 1972) (footnotes omitted) (emphasis added).
Thus, according to Professor McCormick, evidence which establishes that an individual has the tendency to act prudently in “family life,” such as the way in which a mother cares for her children, is evidence of character, not habit. As the Twin Falls public defender has argued throughout, the evidence, therefore, is inadmissible under I.R.E. 404 (character evidence not admissible to prove conduct).
Furthermore, the testimony of the sister lacks a sufficient foundation to qualify as habit testimony. The trial testimony of the sister provides:
Q. If Donna has to be somewhere late at night, does she make arrangements with you to care for her children?
A. Yes, she does.
Q. Have you ever had to care for her children late at night?
A. Not late at night. I mean, not like after midnight or anything. But later in the evening, yes.
Maj. op., at 602, 768 P.2d at 1335. No testimony establishes that Donna made arrangements for the care of the children on more than one occasion. As the above quote from Professor McCormick teaches, a habit is a person’s regular practice of meeting a particular kind of situation with a specific type of conduct.
Unmentioned by the majority is Petricevich v. Salmon River Canal Co., 92 Idaho 865 , 452 P.2d 362 (1969) wherein plaintiff sued a canal company for allegedly burning a fence, which in turn allowed a bull to roam at large; plaintiff’s automobile collided with the wandering bull on U.S. Highway 93. Testimony of one witness provided that the canal company burned “every fence crossing it came to.” Id. at 869 , 452 P.2d at 366 . Plaintiff argued that such testimony was admissible evidence of habit. The Court held, however, that the record failed to establish enough specific instances to base an inference of systematic conduct:
In the present case there is no indication of how many times the respondent allegedly burned down Mr. Loughmiller’s fences. Neither is there any showing of similar circumstances so as to give a basis for an inference that the burned fences are a regular response to a given situation.
Id. at 870 , 452 P.2d at 367 .
Similarly, the record in this case fails to establish enough specific instances to base an inference of systematic conduct. We are left to speculate as to how many times the sister took care of the children or how many times the sister knew others did. See also, Denbeigh v. Oregon Washington R.R. & Navigation Co., 23 Idaho 663 , 132 P. 112 (1913) (engineer’s reputation as a careful and prudent engineer inadmissible to establish that he acted in accordance with that reputation at time of accident); Rumple v. Oregon Short Line Ry. Co., 4 *606 Idaho 13 , 35 P. 700 (1894) (proof that railroad company blockaded st 'sets of Nampa at any other time does not prove, nor tend to prove, that street was blockaded at time of accident).
Bypassing all Idaho precedent, the majority cites two Montana cases as its only authority. They, however, do not support the conclusion that the sister’s testimony established evidence of a habit.
Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
State v. Murray, 741 P.2d 759, 763 (Mont.1987) (emphasis added) (quoting State v. Silger, 210 Mont. 248 , 688 P.2d 749, 752-53 (1984)). In Murray the court listed seven prior uniform instances of conduct to establish habit. 741 P.2d at 763 . All that can be said of the instant case is that the sister’s opinion was that Donna takes care of her children. Untold is upon what specific conduct the sister bases her opinion. It walks, swims, flies, and quacks like inadmissible character evidence, but the majority concludes habit is established.
C. THE PRIOR INCONSISTENT STATEMENT
Defense counsel sought to introduce a transcript of Donna’s pretrial interview in which she stated appellant took the car keys out of the car while at the gas station. At trial she stated she did not know if the keys were in the car and she did not check to see if they were in the ignition.
Appellant’s theory of defense was that Donna took the trip to Nevada of her own volition; if Donna was kidnapped, she would have exercised an easy means of escape. Thus, the crux of the trial centered on whose testimony was believable.
The majority reasons that appellant has no cause for error because defense counsel was able to tell the jury of the inconsistent statement. Thus, so the majority concludes, “[djefense counsel was able to make full use of the inconsistent statement as he would have if the transcript had been admitted.” Maj. op. at 603, 768 P.2d at 1336. This is, of course, untrue. Defense counsel was not permitted to submit the pertinent portion of the transcript to the jury. Without question the transcript containing the prior inconsistent statement was admissible. See I.R.E. 613. The State concedes that the prior inconsistent statement was admissible, but the error (if any) was harmless. Respondent’s Brief at 35-36.
The best rule is: when in doubt, let the admissible evidence proffered by a criminal defendant be submitted to the jury to establish a prior inconsistent statement. This is especially true, as here, when the case is decided not on demonstrative evidence, but the veracity of witnesses. Otherwise, defendants get a resounding message that the mechanism by which their future is decided is nothing but a cold machine. As stated previously:
‘Assembly line’ justice is inconsistent with the Idaho criminal system. Otherwise, ‘[sjuddenly it becomes clear that for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way.’ Asgersinger v. Hamlin, 407 U.S. 25, 35 , 92 S.Ct. 2006, 2011 , 32 L.Ed.2d 530 (1972). Hobbling a willing public servant such as the public defender would be admirable if mere efficiency of disposition was the goal. However, we should avoid the false economy of the assembly line which elevates efficiency over justice.
State v. Elisondo, 114 Idaho 412, 426 , 757 P.2d 675, 689 (1988) (Bistline, J., concurring).
D. CUMULATIVE ERROR
The majority concludes that because this was an error-free trial, the “cumulative error” doctrine is inappropriate. However, the (1) improper clergy testimony, (2) the *607 inadmissible character evidence, and (3) prohibited use of the admissible prior consistent statement convinces me the doctrine is applicable. While each of these errors may not be grounds for reversal in and of themselves, combined they convince me a new trial is warranted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548331. Public record. Not legal advice.