State v. Thomasson

832 P.2d 743, 122 Idaho 172, 1992 Ida. LEXIS 94

• Court: Idaho Supreme Court
• Decided: May 13, 1992
• Docket: 18775
• Status: Published

Opinions

McDEVITT, Justice.

BACKGROUND

At approximately 5:30 a.m. on September 22, 1989, appellant telephoned “911” in Lewiston, Idaho. Appellant reported to the “911” operator that his parents, Ray E. Thomasson and Judith A. Thomasson, had been shot and appeared to be dead.

The Lewiston police arrived at appellant’s home, arrested appellant, and transported him to the Lewiston Police Department. Shortly after arriving at the department, appellant was read his Miranda rights and questioned by Officer Alan Johnson. During this interview, appellant claimed not to know who shot his parents and he speculated that a robber had committed the murders.

Subsequent to the interview with Officer Johnson, appellant was again read his rights and questioned by Officer Russell Ellis. During the Ellis interview, appellant denied involvement with or any firsthand knowledge of the shootings. However, after a break late in the interview, appellant changed his story, stating that he saw who shot his parents and describing a man with a rifle near the window of the living room. Officer Ellis expressed doubt, telling appellant that he wanted to know why appellant had committed the murders. It was then that appellant admitted to shooting his parents.

Procedure

On September 25, 1989, a criminal complaint was filed in the Second Judicial District Court of the State of Idaho against appellant. In this complaint, appellant was charged with two counts of first degree murder, in violation of I.C. §§ 18-4001, 18-4002, and 18-4003.

On September 25, 1989, the court appointed the firm of Knowlton, Miles & Merica to represent appellant. Appellant’s attorney filed an affidavit on October 5,1989, in which he stated that “premeditation and malice aforethought are the primary issues which will be tried, including the capacity of the [appellant] to premeditate” and requested the court to appoint Dr. Roger White as an expert psychiatrist.

On October 11, 1989, an amended criminal complaint was filed. In the amended criminal complaint, the State added a sentencing enhancement — possession of a firearm during the commission of a crime, in violation of I.C. § 19-2520.

On October 17, 1989, a criminal information was filed against appellant. The information contained the two counts of first degree murder, the sentencing enhancement, and a list of known witnesses.

On October 18, 1989, appellant was arraigned. At the arraignment, appellant pled “not guilty” to both counts of first degree murder. In addition, the court set dates for pretrial motions and the jury trial.

On November 2, 1989, appellant moved for a change of venue. The motion requested moving the cause from Nez Perce County, pursuant to I.C. § 19-1801 and I.C.R. 21, or, alternatively, selecting the jurors from another county, pursuant to I.C. § 19-1816. On January 15, 1990, the motion for a change of venue was granted to the extent that jurors would be empaneled from another county.

On November 3, 1989, appellant filed a motion to suppress certain evidence. Appellant requested suppression of statements he made to officers Alan Johnson and Russell Ellis on September 22, 1989, and a videotape of appellant taken at the crime scene on September 22,1989. Appellant argued that the statements were not the product of his free and voluntary actions and were, thus, violative of Idaho and United States law. He contended that the videotape violated I.C. § 19-615. On January 15, 1990, the motion to suppress was denied. However, the videotape taken of appellant at the crime scene was rejected when offered in evidence.

On January 22, 1990, the State filed a notice of its intent not to seek the death penalty. The notice was based.on the aggravating and mitigating circumstances, and the State requested the court to notify the jury of the State’s intent not to seek the death penalty.

Also on January 22, 1990, the court ordered appellant transferred to the Ada County jail for the purpose of jury selection. Jury selection in Ada County began on January 23, 1990.

On January 25, 1990, the trial began. On January 31, 1990, an amended information was filed. The amended information contained the two counts of first degree murder and the sentencing enhancement of possession of a firearm during the commission of a crime. The next day, on February 1, 1990, the jury returned its verdicts. The jury found appellant guilty of both counts of first degree murder.

Sentencing proceedings began on May 1, 1990. After each side called its witnesses, the district court sentenced appellant to a minimum term of ten (10) years for each count of first degree murder, with each ten (10) year sentence to be served consecutively-

On May 10, 1990, the district court entered a judgment of conviction against appellant. In the judgment, the court stated that appellant “is guilty of the crime of Two Counts of MURDER IN THE FIRST DEGREE, I.C. § 18-4001, 18-4002, and 18-4003, a felony____” For each count, appellant was sentenced to “a term of LIFE, consisting of a minimum period of confinement of TEN (10) years during which the [appellant] shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct (except as provided by Section 20-101D, Idaho Code) and a subsequent indeterminate term of custody of LIFE.” Furthermore, the court stated that “the sentences ... shall run consecutive” and “[t]hat the total minimum term of confinement for Counts I and II combined shall be a period of TWENTY (20) years and a total subsequent indeterminate term of custody of LIFE.”

Appellant filed his notice of appeal, pursuant to I.A.R. 11(c)(1) and (6), on June 20, 1990, appealing “from that certain Judgment of Conviction entered ... on the 10th day of May, 1990____”

The issues on appeal are:

I.Did the district court abuse its discretion in allowing Dr. Carl Koenen to testify regarding the positions of the victims’ bodies at the time they were shot?

II. Did the district court err by not instructing the jury on the lesser included offense of voluntary manslaughter, as requested by appellant?

III. Did the district court abuse its discretion in ordering that the sentences imposed be served consecutively?

ANALYSIS

I.

DID THE DISTRICT COURT ABUSE ITS DISCRETION IN ALLOWING DR. KOENEN TO TESTIFY REGARDING THE POSITIONS OF THE VICTIMS’ BODIES AT THE TIME THEY WERE SHOT?

At trial, the State called Dr. Carl Koenen for the purpose of testifying as an expert witness. During Dr. Koenen’s testimony, the State asked if he had an opinion as to the position of each of the decedents at the time they were shot. Counsel for appellant objected to these questions. At trial, and on appeal, appellant contends that these questions were designed to elicit from Dr. Koenen testimony regarding how the deaths occurred rather than an expert medical opinion. Further, appellant argues that this testimony did not require special skills or knowledge beyond that possessed by ordinary citizens such as those comprising the jury.

This Court has stated that “I.R.E. 702 provides the appropriate test for determining whether an adequate foundation had been laid to admit the testimony of the expert witness regarding scientifically derived evidence.” State v. Rodgers, 119 Idaho 1047, 1049, 812 P.2d 1208, 1210 (1991). Idaho Rule of Evidence 702 reads:

Rule 702. Testimony by experts. — If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

“An expert witness has been defined by this Court ‘as someone possessing a certain skill or knowledge which is beyond the competence of the average layman or juror.’ ” Rodgers, 119 Idaho at 1051, 812 P.2d at 1212 (citing Potter v. Mulberry, 100 Idaho 429, 599 P.2d 1000 (1979); Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978); Bean v. Diamond Alkali Co., 93 Idaho 32, 454 P.2d 69 (1969)). It is within the discretion of the district court to determine whether a person is qualified to testify as an expert witness. Rodgers, 119 Idaho at 1051, 812 P.2d at 1212; Jones v. Jones, 117 Idaho 621, 627, 790 P.2d 914, 920 (1990).

Dr. Koenen testified that he was currently a physician specializing in pathology, that he had attended college at Kalamazoo College in Michigan and medical school at Marquette School of Medicine in Milwaukee, Wisconsin, and explained the difference between forensic and clinical pathology. He further stated that he was currently a licensed medical physician in Idaho, that he was certified by the American Board of Pathology, that he had devoted a substantial part of his practice to the area of forensic pathology over the past years, that he had been called upon a number of times in the past to testify as a forensic pathologist, that performing autopsies and determining locations of wounds were duties he had performed as a forensic pathologist, that he had performed the autopsies on decedents Ray E. Thomas-son and Judith A. Thomasson, and that he had followed standard procedures in performing both of these autopsies.

Given Dr. Koenen's qualifications, experience, and the foundation laid for his testimony, this Court cannot say that the district court abused its discretion in allowing Dr. Koenen to testify as to the location of the victims’ bodies when they were shot. See Rodgers, 119 Idaho at 1051-52, 812 P.2d at 1212-13. The testimony of Dr. Koenen, including the testimony regarding the position of the decedents’ bodies at the time they were shot, is helpful, or of assistance, to the jury, as the finder of fact, in understanding the evidence at trial.

II.

DID THE DISTRICT COURT ERR BY NOT INSTRUCTING THE JURY ON THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER AS REQUESTED BY APPELLANT?

After the close of his case, appellant requested the district court to instruct the jury on the lesser offense of voluntary manslaughter, as defined by I.C. § 18-4006(1). Instead, the district court instructed the jury on first degree murder and second degree murder. Appellant argues that the district court erred because the evidence was sufficient to support an instruction on voluntary manslaughter.

When a district court is requested to give an instruction on a lesser included offense, it must look to all of the evidence presented at the trial to determine if there is a reasonable view of the evidence to support the requested instruction. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992); State v. Olsen, 103 Idaho 278, 284, 647 P.2d 734, 740 (1982). Once the district court makes this discretionary determination, it must then look to the language of the proposed instruction and determine whether it is an erroneous statement of law or adequately covered by other instructions. Fodge, 121 Idaho at 195, 824 P.2d at 126; Olsen, 103 Idaho at 285, 647 P.2d at 741. However, if the district court makes the determination that there is a reasonable view of the evidence to support an instruction on the lesser included offense, then it must instruct the jury on that lesser included offense.

In this case, appellant brings before this Court a challenge to the district court’s refusal to instruct the jury on voluntary manslaughter. However, we find ourselves unable to rule on whether the district court made the correct discretionary determination. This is because we do not have a complete record on appeal before us. Instead, we have a transcript of the sentencing proceedings, the pleadings and orders on file in the district court, a transcript of Dr. Carl Koenen’s testimony, and certain exhibits from trial. We do not have a complete transcript of the trial. In order for us to review and rule upon a district court’s denial of a proposed instruction on a lesser included offense, we have to look to all of the evidence presented at the trial to determine if there is a reasonable view of the evidence to support the requested instruction. Fodge, 121 Idaho at 195, 824 P.2d at 126; Olsen, 103 Idaho at 284, 647 P.2d at 740 (1982). In this case, we reject this issue and accept the instructions as given by the district court. In Lisher v. City and/or Village of Potlatch, 101 Idaho 343, 612 P.2d 1190 (1980), wherein the appellant failed to request a reporter’s transcript of the testimony offered at trial, we held that:

Because no such transcript was provided, the factual findings of the trial court cannot be reviewed on appeal, Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 585, 513 P.2d 627, 637 (1973); Neer v. Safeway Stores, Inc., 92 Idaho 361, 365, 442 P.2d 771, 775 (1968), and we must accept them as valid. See Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 238, 270 P.2d 830, 833 (1954) [overruled on other grounds, Downing v. Boehringer, 82 Idaho 52, 349 P.2d 306 (1960) ].

Lisher, 101 Idaho at 344, 612 P.2d at 1191.

III.

DID THE DISTRICT COURT ABUSE ITS DISCRETION IN ORDERING THAT THE SENTENCES BE SERVED CONSECUTIVELY?

At the conclusion of the sentencing proceedings, the district court sentenced appellant to two (2) consecutive fixed ten (10) year terms¹ to be followed by indeterminate terms of up to life in prison. Thus, at a minimum, appellant will spend twenty (20) years in prison. On appeal, appellant challenges this sentence. In particular, appellant challenges the reasonableness of the consecutive nature of his sentence.

“In reviewing the reasonableness of a sentence, we are exercising our authority as an appellate court to determine whether the trial court abused its discretion.” State v. Broadhead, 120 Idaho 141, 143, 814 P.2d 401, 403 (1991) citing State v. Wolfe, 99 Idaho 382, 384-85, 582 P.2d 728, 730-31 (1978), overruled on other grounds, State v. Brown, 121 Idaho 385, 388, 825 P.2d 482, 485 (1992). Furthermore, in Broadhead, this Court stated:

In State v. Dillon, 100 Idaho 723, 724, 604 P.2d 737, 738 (1979), the Court succinctly stated the standard we must follow in reviewing sentences:

Sentencing is a matter committed to the discretion of the trial judge, and the defendant has the burden of showing a clear abuse thereof on appeal. In exercising that discretion, reasonableness is a fundamental requirement.

Broadhead, 120 Idaho at 144, 814 P.2d at 404; Fodge, 121 Idaho at 195, 824 P.2d at 126. As to the reasonableness of a sentence, we must ask “whether the sentence was excessive under any reasonable view of the facts.” Fodge, 121 Idaho at 195, 824 P.2d at 126.

Our review of the record indicates that appellant was seventeen (17) years old when he murdered both of his adoptive parents. Additionally, the record reveals that appellant had previously been in trouble with the police.

Based on the record before us, we cannot say that the district court abused its discretion, and we therefore affirm the sentence of appellant.

For the above reasons, we affirm the decision of the district court in all respects.

BAKES, C.J., JOHNSON, J„ and WINMILL, J., Pro Tern., concur.

1 . The minimum term of confinement for a person convicted of first degree murder in the state of Idaho is ten (10) years. I.C. § 18-4004.