State v. Raudebaugh
864 P.2d 596
Idaho
1993
Check Treatment

*1 P.2d 596 Idaho, Plaintiff-Respondent- STATE Appellant,

Cross RAUDEBAUGH, D.

Thomas Defendant- Respondent.

Appellant-Cross

No. 19551. Idaho,

Supreme

Lewiston, May 1993 Term.

Sept. 1993.

Rehearing Dec. Denied

University College of Idaho of Law Le- gal Clinic, Moscow, appellant. Aid for Laflin, Supervising Atty.; Maureen Jona- Hansen, than legal McCrone and Richard interns, argued. EchoHawk, Gen.;
Larry Atty. Douglas Werth, Gen., Deputy Atty. Boise, A. respondent. Douglas argued. A. Werth JOHNSON, Justice.

This is a criminal case which the de- second-degree fendant was convicted of deadly weapon murder and use of a in the commission of the In affirming murder. convictions, we hold: properly 1. The trial court instructed that it could not consider a less- er included offense unless it acquit- first greater ted the defendant of each of- acquittal fense. We conclude this requirement conforms with 19- I.C. § 2132(c) and does not violate the United States Constitution.

2. The trial court did not abuse its dis- in allowing cretion a witness for the testify concerning state to spatter blood evidence. properly

3. The trial court admitted a diagram of the crime scene for illustra- purposes. tive 4. The trial court did not violate I.R.E. by allowing testify a witness to the defendant was at the victim’s resi- dence to collect a debt. 5. The trial court’s admission of testi- mony girlfriend sup- that the defendant’s plied drugs person prior to another on a occasion did not violate I.R.E. 402. improperly 6. The trial court allowed police officer to that he believed bloody clothing the defendant hid after the death of the victim. This permissible lay opinion not a under personal I.R.E. because it lacked the knowledge required by I.R.E. 602. The however, concludes, allowing a knife. Aaseby Gibbs with testified that doing laundry harmless he was error. at Gibbs’s resi- portion fight dence from and saw improperly The trial allowed doorway laundry between area and give opinion concern- police officer to kitchen, that he did not see but also one of ing the truthfulness of the wit- *3 Raudebaugh Gibbs. stab during on interrogation night the nesses homicide, that error was but spatter The introduced state blood evi- harmless. Greensides, through dence officer the in- by prosecutor during 8. Comments officer, Lindholm, and Dr. vestigating closing argument pros- did constitute This indicat- pathologist. forensic evidence ecutorial misconduct. ed that he Gibbs was stabbed before pipe. This contra- beaten with the I. Raudebaugh and dicted Winkler’s testimo- bleeding ny visually that was not Gibbs THE AND BACKGROUND PRIOR they when left the residence. There was PROCEEDINGS. Raudebaugh also at trial that and Raudebaugh girl- D. Thomas illegal and in Winkler were involved Winkler, friend, Barbara went William objection, Aaseby testi- Over transactions. to collect a debt David Gibbs’s residence Raudebaugh fied arrived at that when first home, at was not but from Gibbs. Gibbs him Raudebaugh residence told .Gibbs’s Gibbs, Aaseby, acquaintance of Kevin which that was there collect $75.00 Raudebaugh that would return told Gibbs drugs. Gill testified that Gibbs owed for Raudebaugh Winkler returned later. and drugs prior him occa- Winkler had sold on evening. later that to Gibbs’s residence sions. argument had an Raudebaugh and Gibbs in started the back bedroom where that jury that The trial court instructed the alone, Raudebaugh and were but la- Gibbs they acquit Raudebaugh of the must first living to the room where Wink- ter moved they greater of murder offense before roommate, Gill, Scott were ler and Gibbs’s includ- were to consider the lesser allowed Raudebaugh admits he took present. and voluntary manslaughter, ed offense of pipe struck away an iron from Gibbs and acquit Raudebaugh voluntary man- with it. Gibbs in- slaughter considering the lesser before left Raudebaugh manslaugh- After and Winkler involuntary cluded offense residence, emergency jury called for Gibbs's Gill court instructed the ter. The trial arrived, help. When the authorities Gibbs unanimous their failure to reach a under- police dead. found knife in decision result a mistrial. would re- body autopsy and an Raudebaugh guilty neath Gibbs’s of second- jury found deep from a weapon died stab degree deadly vealed Gibbs’s and use of a murder his neck. in the back of wound in the crime. commission arrived, police Aaseby and Gill When Raudebaugh appealed. Aaseby initially present. Gill and were police they did see told the II. death. Later leading events to Gibbs’s station, and each police Gill at the ACQUITTAL THE INSTRUC- FIRST they changed their to indicate statements I.C. DO NOT VIOLATE TIONS of the altercation part had seen least 19-2132(c). § Raudebaugh and Gibbs. between require- Raudebaugh asserts with charged Raudebaugh The state in trial court’s instructions trial, ment first-degree At Winkler and murder. Raude- jury acquit form that verdict portion each testified that saw the Gill con- greater offense before baugh of each living in fight place that took offense sidering lesser included the next room, but did stab not see (the instructions) send would resolve the identical acquittal violates issue 19-2132(c). raised disagree. this case. I.C. § attempt to characterize jury in I.C. 19-2132 addresses § Townsend’s holding unpersua- as dicta is concerning structions lesser included of Although sive. the Court remanded Town- 19-2132(c), fenses. I.C. which was added send on grounds § unassociated with the ac- instruction, amendment states: quittal first I.C. 1-205 directs § Court, remanding trial, when for a new If a lesser included offense is submitted presented to determine all appeal issues on consideration, jury the court necessary to the final determination of shall instruct it the case. As Townsend now reads, Town- consider the lesser included offense un- send will charge receive new trial on the *4 less it has first considered each of the aggravated battery. There are lesser greater offenses within which it is includ- included offenses of charge, and the ed, and has concluded in its deliberations Court was correct in resolving acquittal the guilty that the defendant is not of each first presented instruction issue in Town- greater of such offenses. send. Whether Townsend will remain in form, however, its current depends on the Raudebaugh argues following the Therefore, outcome of the rehearing. we jury given by instructions the trial court address relying the issue without on Town- violate this statute: send. Raudebaugh urges reading that a of I.C. Instruction 16C 19-2132(c) upholding acquittal first in § structions conflicts with prior this Court’s your If unanimous verdict is that Charboneau, in State v. holdings 116 Ida DALE THOMAS RAUDEBAUGH is not 129, denied, 299, ho cert. 774 P.2d 493 U.S. guilty MURDER, you must next con- 922, 110 287, 107 L.Ed.2d 267 and 493 S.Ct. sider the included offense of VOLUN- 923, 290, U.S. 110 S.Ct. 107 L.Ed.2d 270 TARY MANSLAUGHTER. (1989), grounds overruled on other by, Card, State v. 425, 121 Idaho 825 P.2d 1081 Instruction 16F Enno, (1991); and State v. 392, 119 Idaho (1991). 807 P.2d 610 A reading close your If unanimous verdict is that cases, however, these shows that neither DALE THOMAS RAUDEBAUGH is not Charboneau nor Enno addressed this is guilty of VOLUNTARY MANSLAUGH- sue. The events that led to the conviction TER, you must next consider the includ- in Charboneau preceded the enactment of ed offense of INVOLUNTARY MAN- 19-2132(c), I.C. and consequently, Char- § SLAUGHTER. boneau is not authority interpreta for the tion of the statute’s directives. See I.C. The verdict form jury submitted to the (“No part 73-101 compiled of these laws § contained similar requirements retroactive, is expressly unless so de jury reach a unanimous regarding decision clared.”); Lindquist, State v. 766, 99 Idaho greater each offense before proceeding to 768, (1979). 103 Although consider the next lesser included offense. the events that led to the conviction in Enno occurred after 19-2132(c) recently This Court I.C. acquit- addressed an be § effective, Enno does not came Townsend, tal address first instruction in State validity acquittal of an first instruction. In (Issued 3,1992) 92.261 SCR 1508 Dec. Opin- Enno, the Court found jury in ion withdrawn and superseded on Rehear- appeal struction raised on was not an ac Townsend, ing by State quittal first instruction. 119 Idaho at Townsend, (1993). 865 P.2d 972 In 807 P.2d at 619. Court held that acquittal an first instruc- complied 19-2132(c). tion with I.C. But § Raudebaugh argues that we should final, for the fact Townsend is legislative history consider I.C. Town- rehearing, 19-2132(e) because pending to aid its construction. We § statute, construction to apply rules of concerned the trial court’s give refusal however, only requested instruction, is ambigu jury when the statute giving not the Otherwise, interpret the ous. we statute in of an appellant instruction. When an chal- language. lenges given accordance with its v. Wi an instruction the trial edmeier, court, Smith, P.2d Fodge, applies. and not An 19-2132(c), As we read I.C. appellant challenging ap- § instruction on unambiguous, interpret statute we it peal may assert a constitutional basis according language. to its challenge, though even the constitution- question al not raised in the trial court. statute the trial requires court to Smith, held “that the failure jury it instruct consider object to an instruction at trial in a lesser included offense unless it “has criminal case does not constitute a waiver concluded its deliberations that the de- any objection ap- instruction on is not guilty greater fendant of each of [the peal.” 117 Idaho at 786 P.2d at 1131 within it is offenses which This included].” (emphasis added). language clearly requires an affirmative conclusion defendant is an ac contends that guilty greater of each offense before quittal requirement pro due violates considering a included lesser offense. *5 cess, it undermines because the reasonable jury only by reach this conclusion doubt standard and makes a coerced ver Otherwise, unanimity. conclusion likely. Raudebaugh dict more cites v. Beck ju- would be a conclusion of some of the 2382, Alabama, 100 447 U.S. 65 S.Ct. rors, Therefore, jury.” but not of “the (1980), L.Ed.2d the leading authority 392 as acquittal comply first instructions with support position. Beck, the Su language of the statute. preme pre Court held that a state statute cluding courts from in giving lesser

III. cluded offense instructions the defen when charged dant with a capital crime vio ACQUITTAL REQUIREMENT AN FIRST lated the Due Process Clause of the United THE DOES NOT VIOLATE UNITED Supreme States The Constitution. Court STATES CONSTITUTION. found that the statute was unconstitutional acquittal an re- asserts first jury forced the because it to choose be quirement, such as we have ruled is con- convicting capital tween the defendant of a 19-2132(c), in I.C. violates Due tained § acquitting offense and of the defendant Process Clause of the United States Consti- charge completely. Supreme The tution, undermines because it the reason- impermissible reasoned that this created an proof doubt for a convic- able standard might possibility jury that a choose to con disagree. tion. We vict a for the crime capital defendant be cause believed defendant was reject Preliminarily, we the state’s guilty of some crime did not want contention that failure to acquit wholly. the defendant Id. constitutionality of raise the I.C. 19- § 65 S.Ct. at L.Ed.2d at 2132(c) precludes in the trial court Raude baugh pursuing appeal. from the issue on Raudebaugh argues that the effect of an challenge jury appellant may An instruc acquittal as if first instruction the same given by if tion the trial court even no no lesser included offense instruction had was made at objection the instruction given. beyond extends its This Beck been Smith, 117 Idaho trial. State meaning. acquittal requirement The first P.2d 19-2132(c) an does lead to of I.C. not § probability of an unwar- reject the state’s unconstitutional We contention Beck, present in conviction as was Fodge, 824 P.2d 123 ranted requirement present does (1992), precludes appellate because review of jury the drastic choice between with jury The instruction issue in Fodge issue. capital murder that was IV. acquittal and jury in upon the Beck. forced THE TRIAL COURT DID NOT ABUSE 19-2132(b) the trial provides that I.C. A ITS DISCRETION IN ALLOWING § jury respect court shall instruct with FOR THE WITNESS STATE TO offense, requested to included if do a lesser EXPERT RE- GIVE TESTIMONY so, view of the evidence and if a reasonable GARDING BLOOD SPATTER EVI- finding support a defendant DENCE. would lesser included offense committed the but Raudebaugh asserts that the trial court greater The did not commit the offense. by allowing its discretion officer abused acquittal requirement guides jury testify Greensides and Dr. Lindholm to as considering to the order and method of as experts regarding spatter blood evidence. included offenses and does not the lesser disagree. impermissibly increase the likelihood that We limit our review to the trial court’s jury will reach unwarranted verdict. ruling allowing Lindholm to and do jury opportunity has the to convict of a propriety not address the of Greensides’s offense, acquits included if it first lesser pre- testimony, because this issue was not greater the defendant of each offense. We appeal. served record reveals do not see in this formulation coercion Raudebaugh objected to the foundation for jury that would cause a to convict of a concerning Greensides’s offense, greater if it not unanimous in spatters. blood The state then elicited ad- guilty verdict. regarding ditional information Greensides’s training interpreting spatters, blood constitutionality We do consider objec- Greensides testified without further instructions under the Idaho By objecting tion. after the state laid *6 raise, Raudebaugh Constitution. did foundation, Raudebaugh additional failed cite, argue in or this issue his initial brief preserve appeal. to issue this for 35(a)(4) requires to this Court. I.A.R. an appellant appeal to list the on in the objected issues also to Lindholm’s appeal portion qualifications interpret analyze issues on of the brief. The and spatter Raudebaugh’s opening objec- issue stated in blood evidence. After the brief tion, the state laid additional requirement foundation was: “Whether a of unani- regarding training qualifi- Lindholm’s and acquittal higher mous on offenses before cations, again. objected and allowing jury consideration of lesser includ- objection The trial court overruled and ed offenses is unconstitutional?” Raude- testimony. allowed Lindholm’s baugh made no reference in the brief to the only and cited cases Constitution Rodgers, In 119 Idaho dealing with the United States Constitu- (1991), accepted P.2d 1208 this Court testi- tion. concerning mony spatter blood evidence as expert an appropriate field of This has held that it con will not witnesses under I.R.E. 702. The trial if it sider an issue was not raised as an quali- court’s determination that a witness appeal. issue on The Court has relaxed discretionary, “expert” fies as an is and requirement where the issue was ei this Court will the record to deter- review argu ther addressed authorities cited or if there of this discre- mine abuse in ments contained the briefs. State v. tion. 812 P.2d at 1212. Id. Prestwich, 959, 961, 783 P.2d 116 Idaho however, appeal, case, In this Lindholm testified that refer to the Raudebaugh did not state con in he had taken a one-week course blood reply Raising patterns taught by professional stitution until his brief. spatter stage briefing instructor, training in at this late does that he received issue issue, training as a for full consideration of the crime scene evaluation not allow interpret- pathologist, that he had not address it. forensic and we will investigated sight and that lines did not reflect spatter patterns ed blood occasions, Aaseby standing. testified he was and where crime scenes on a number spat- given testimony on blood he had I.R.E. 402 states: “All relevant evidence in other cases. patterns ter Evidence is not is admissible ... which provides: I.R.E. 702 rule relevant is not admissible.” This relevancy clear that the of evi- by experts. makes it Testimony If Rule discretionary matter. There dence is not technical, scientific, specialized or other credibility finding or of fact is no issue the trier of fact to knowledge will assist resolved in order for the trial that must be or to determine understand the evidence relevancy. reach a decision on issue, qualified as an a fact in a witness Therefore, ques- this Court review the will skill, knowledge, experience, expert by relevancy de novo. tion of education, may testify there- training, or opinion or otherwise. in the form of an case, diagram In this was admitted exper- has held that a witness’s This Court purposes only and served as for illustrative experi- field on actual tise be based aid to illustrate Greensides’s testi- a visual area. particular in the State Gar- ence guise, only necessary it is mony. In this (1991) rett, diagram be relevant Green- J., J., Bakes, C.J., (Bistline, Boyle, con- testimony. Greensides testified at sides’s adequacy foundation for ex- curring on stood in the kitchen where trial that he had pert testimony). standing and that Aaseby told him he was living room not see the area of he could testimony about his Lindholm’s Given claimed to have seen the Aaseby which give expert con- qualifications to murder. used night of Gibbs’s Greensides spatters, the trial court did cerning blood testimony concern- diagram to aid his allowing its discretion not abuse investigation of the crime scene and ing his expert as an under Lindholm to could see standing when he where was I.R.E. 702. living room claimed part murder. night of Gibbs’s to have seen y. court that agree with the trial PROPERLY THE TRIAL COURT diagram relevant to illustrate Green- THE DIAGRAM OF ADMITTED testimony. sides’s *7 LIVING ROOM. GIBBS’S court

Raudebaugh that the trial asserts VI. a dia- into evidence

improperly admitted AD- PROPERLY living room con- THE TRIAL COURT which gram of Gibbs’s THAT Aaseby TESTIMONY depicting where MITTED sight lines tained TO COL- standing to view the RAUDEBAUGH CAME have been might disagree. A DEBT. DRUG he testified. We LECT events to which complaints re- Raudebaugh raises two through diagram was offered The testimony from Aase- of Greensides, investigat garding admission an testimony of the night him on the Raudebaugh told objected by to that Raudebaugh ing police officer. Raudebaugh was that murder sight the of Gibbs’s irrelevant because diagram the as Raudebaugh drug a debt. Aaseby’s there to collect consistent with lines were not violated I.C.R. that the state first asserts he was stand testimony concerning where disclosing Aaseby’s state- 16(b)(6) by not Raudebaugh and Gibbs ing he saw when had until the trial the defense ment to living The trial in room. fighting Gibbs’s that the Raudebaugh also asserts begun. con sight lines were found that the under its discretion abused trial court testimony and ad with Greensides’s sistent excluding evidence as this by 403 not I.R.E. pur diagram for illustrative the mitted disagree with both We cross-examination, overly prejudicial. Greensides poses. On Raudebaugh’s assertions. diagram was not to scale that the testified

765 supported by li- if it by this substan Raudebaugh's motion ruling on competent trial, that tial and evidence. State Tier the trial court stated mine before Raudebaugh 881 establishing ney, 109 Idaho this supports from record in case drug The attempting to collect a debt was finding. Moser’s testimo I.R.E. the trial court’s admissible under be Gibbs would police supports finding does a the were Raudebaugh ny 404(b) prove to motive. Aaseby’s on the At informed of statement challenge ruling appeal. on not Aaseby testified ruling night ad- of the homicide. trial, sought on the state the subject the with the Aaseby that that he did not discuss missibility from evening until prosecuting attorney he the be Raudebaugh him when arrived told proof. col- that he there to fore the offer residence Gibbs’s he “crank money from Gibbs for some lect Raudebaugh also conclude that We presented him.” state had fronted that the lateness of did demonstrate cross- proof. offer of On him discovery deprived of a fair trial. the during proof, the offer of examination the evidence to the de The state disclosed police officer Aaseby testified that he told being morning fense after told the statement about Moser the Aaseby. will not overturn on Aaseby police at the station while ruling, showing by Raude court’s absent homicide. Raude- night of Gibbs’s the discovery so baugh that the lateness Aaseby’s objected to admission of baugh Raudebaugh’s preparation or prejudiced Aaseby’s testimony arguing that statement that he was presentation of his defense properly disclosed Moser was receiving his from constitutional prevented 16(b)(6). required I.C.R. as under defense trial. ly guaranteed right fair See 16(b)(6)requires prosecution to I.C.R. Pizzuto, 742, 751, — defense statements disclose (1991), denied, U.S. P.2d cert. to offi- prospective prosecution witnesses —, 112 S.Ct. L.Ed.2d 495. investigatory process. in the cials involved tri also claims argued did prosecutor state discretion under I.R.E. al court abused its 16(b)(6),because not violate I.C.R. by allowing Aaseby about Raude- informed the state ob debt was related. evening on before baugh’s statement testimony during the offer of jected to the proof prosecutor made the offer probative value of proof arguing that prosecutor informed defense outweighed by prejudi its the evidence was following morning. Aaseby’s statement the cial nature. proof in the offer of Moser testified on Aaseby a number of times interviewed 403 allows the trial court to I.R.E. homicide, asked night of the that he relevant information where exclude debt, nature of and that him about the evidence is substan probative value of the *8 he Aaseby saying he not recall that did tially outweighed by prejudicial its nature. Raudebaugh collect was there to knew to requires I.R.E. the trial court bal 403 found drugs. for trial court money The probative prejudicial and the na ance the Aaseby’s the state did not know about presented that and to deter ture of the evidence prior its evening until statement the evidence. mine whether admit State The court Raudebaugh. 594, 603, trial Rhoades, disclosure 809 P.2d 119 Idaho did not vio- 455, (1991) concluded that the state (citing then Beco 464 Davidson 16(b)(6) disclosing by the state- late I.C.R. P.2d Corp., 114 Idaho morn- Raudebaugh following (1987)). ment to to ad The decision whether ing. a matter of discretion mit the evidence is court. Id. trial finding trial court’s that the state trial court reveals that the un- The record Aaseby’s testimony learn did not about probative prejudicial and the evening balanced til the before its disclosure Although the trial of the evidence. finding of fact which will not value be overturned court found the to be proba- relevant, evidence both In order to be evidence must prejudicial, tive and the trial court “tendency ruled have a to make the existence of prejudicial any nature of the consequence evidence fact that is of to the de- outweigh did not substantially probative its termination of probable the action more or value. The trial court noted that the evi- probable less than it would be without the probative dence was of motive and al- evidence.” I.R.E. 401.

though specific motive not a was element case, In this sought state involved, of the crime the evidence went to Raudebaugh show that killed Gibbs be a factor which the could consider in pay cause drug Gibbs would debt. making presented evidence sense out of the Winkler’s as a witness for the at trial. Reviewing ruling court’s preceded state testimony. Gill’s Winkler pursuant three-step to the abuse of discre- homicide, testified day that on the tion standard set forth v. Hedger, Gibbs called her and told twice her to come 598, 600, 1333 by and that he would have some money for (1989), we conclude the trial court did not her. The implication clear of this testimo abuse its discretion under I.R.E. ny is that drug debt was owed Gibbs admitting the evidence. context, to Winkler. In this Gill’s testimo Winkler, ny that lived with who Raude

VII. baugh, supplied Gibbs’s roommate with ille gal drugs before the homicide tends to THAT GILL’S TESTIMONY WINKLER make the fact Gibbs owed a debt for HIM A SUPPLIED DRUG IS illegal drugs probable. more This is suffi RELEVANT. cient to establish the relevance of Gills testimony. Raudebaugh that the trial asserts court admitted allowing irrelevant VIII. Winkler, Gill to girlfriend, supplied illegal with an Gill ADMISSION OF A POLICE OFFICER’S prior disagree. on a We occasion. THAT OPINION RAUDEBAUGH CONCEALED BLOODY CLOTHING prosecutor questioned Gill about VIOLATED I.R.E. BUT WAS night Gibbs’s use of “crank” on the HARMLESS ERROR. prosecutor murder. The asked Gill if Raudebaugh ever received crank from Winkler. asserts admission of Raudebaugh question objected opinion Raudebaugh to this officer Staver’s actively bloody based on The trial clothing relevance. court over- concealed was an objection. impermissible opinion ruled the Gill testified that he which violated I.R.E. from agree, had received crank Winkler. The conclude this but was prosecutor then Gill when Winkler harmless error. asked gave prior night him crank trial, At Staver officer testified Gibbs’s homicide. renewed clothing he received from Winkler the objection, and the trial relevance represented Raudebaugh Winkler Thus, objection. sustained the the issue wearing night on the of Gibbs’s homicide. before us is whether Gill’s clothing This did have bloodstains Winkler, he had received from crank with- on it. Gill each Aaseby and testified that when, any specification out as to is rele- the clothing wearing *9 vant. clothing night on the homicide was above, clothing Raudebaugh different

As we have discussed I.R.E. 402 from the wearing. testimony, mandates testified he was Staver testified exclusion of irrelevant neighborhood that he searched around relevancy and the determination of is a the Raudebaugh’s to see if he could ruling which matter residence is not a of discretion clothing, but find discarded unsuccess question for the trial court. review the was cross-examination, Raudebaugh’s ful. On relevancy of de novo. Pizzuto, the questioned regarding attorney Staver his search the fact extensive nature of and P.2d any clothing.

that Staver did not find other examination, prosecutor redirect the On IX. any con- asked Staver whether he reached THE TRIAL SHOULD NOT COURT happened to the clusions “about what ADMITTED TESTIMONY HAVE Raudebaugh objected bloody clothes.” THE CONCERNING TRUTHFUL- no the yes answer other than or and INITIAL STATE- NESS OF GILL’S objection. court sustained the Staver POLICE, MENT THE BUT THE TO “yes.” The state then asked answered ERROR WAS HARMLESS. give his conclusion. Staver to “speculation, compe- objected based on Moser, Raudebaugh asserts that officer tence, and foundation.” The trial court questioned Aaseby night and who Gill objection overruled the and Staver testified murder, gave impermissible of testimo- put he were some- that believed clothes Aaseby’s truthful- ny regarding and Gill’s police find where where the could not them. Concerning testimony regarding ness. disagree. Concerning the testi- Aaseby, we governs testimony lay I.R.E. 701 Gill, mony regarding agree, we but con- and states the form witnesses clude that the error was harmless. opinions or inferences is limited to those “(a) ra- opinions or inferences which are: Aaseby questioned by and were Gill tionally perception of the wit- based on police night a number of times on the (b) helpful clear ness and to a understand- residence, Initially murder. at the Gibbs’s ing or the de- [the witness’s] Aaseby police and each told the that Gill termination of a fact in Pursuant issue.” they anything did not know about Gibbs’s 701(a) lay opinion to I.R.E. a must be based hap- present murder and were not when it personal knowledge on the witness’s of pened. night, that Later Gill and events or facts in order admissible. to be each recanted their initial statement and knowledge personal required give a present police told the were at lay opinion personal knowledge is the same part at least Gibbs’s residence saw (“A required by of events as I.R.E. 602 the altercation and Raude- between Gibbs witness to a matter unless baugh. support evidence is introduced sufficient to trial, expert At Moser testified as an finding personal has [the witness] regarding interpretation body lan- matter.”). knowledge of the police guage during interrogation. Re- personal Staver did not meet this knowl- garding body language during the Gill’s edge requirement. personal Staver had no initial the residence Moser interview existed, knowledge clothing stated: clothing “bloody,” or that Raude- talking felt that when I was I [MOSER]: baugh actively clothing had concealed the to Mr. Gill at the scene that he was not police. personal from the Without truth, telling that his reaction to knowledge, opinion admission of Staver’s just— what he had violated I.R.E. 701. Honor, object MR. Your I do JONES: Although we have concluded any reading of the the—I move to strike trial court should have allowed Staver’s competence as to truth or non-truth opinion concerning bloody clothing, we foundation. also conclude that this was harmless error. merely THE Overruled. It’s COURT: whole, In our view of the evidence as a opinion. possibility there is not a reasonable telling I felt Mr. Gill was [MOSER]: might opinion have contributed to truth, hiding something. convictions, and we declare regarding Aaseby’s Moser also testified opinion that the admission of this belief *10 giving his initial statement. beyond demeanor while was harmless a doubt. reasonable not, testified, objection, telling later without the truth when made a Moser particular statement “relieved” when he admissible evi- seemed being changed his statement and that Aase- dence. Whether witness later the time the made a desire tell the truth. truthful at witness by voiced his to On cross-examination, jury, is for the not another wit- Raudebaugh asked Mos- statement ness, give to determine. Moser did not an why Aaseby changed if he later er knew answered, opinion general as to character for story. Moser “I believe it Gill’s his truthfulness, that, testified based on Scotty Gill told me the truth.” but was because body language his of Gill’s dur- response question to a on redirect exam- observation interviews, ination, ing police he believed Gill was feeling “I Moser answered: had telling the truth when made certain telling me the truth.” he was gave opin- Because Moser statements. objected to this answer and regarding ion the truthfulness of certain the answer from the record. struck witness, Gill, by another statements made Moser The record indicates that opinion testimony Moser’s was inadmissi- testified as to the truthfulness Gill’s ble. police and that initial statement supposedly an The fact Moser proper objection to made credibility expert qualified to evaluate the testimony. address the admissibili this We during of statements made witnesses only. We do not ad ty of this statement police interrogations does not make this propriety testimony of Moser’s dress the opinion testimony qualified admissible. A Aaseby’s tes regarding the truthfulness expert may opinion render an on an witness testimony on cross-ex timony or Moser’s scientific, only expert’s when the issue amination, objection no was made because technical, specialized knowledge or other testimony at trial. We also do not to this fact to determine the will assist the trier of redirect ex testimony Moser’s on address Hester, 114 Idaho 692- issue. State v. this testi The trial court struck amination. 31-32 object at Raudebaugh did not mony and expert given in a field is not Where an adequacy remedy. trial to the equipped lay person than a to better by Raude- note that the issue raised particular make inference or nei- [a] if the relation be- baugh appeal on addresses expert lay person nor a is al- ther an credibility testimony and the tween Moser’s then the lowed to make that inference for the state. Raude- key witnesses by hearing trier of fact is not ‘assisted’ the issue of Moser’s baugh has not raised opinion and such expert’s expert as an qualifications to is inadmissible. area, issue. not address this and we do Hester, 760 P.2d at 34 114 Idaho at 608(a) provides: I.R.E. H, Cheryl 153 Cal. (quoting Matter of of character and Rule 608. Evidence (1984) (em Cal.Rptr. 789 App.3d (a) Opinion and conduct of witness.— added)). expert’s opinion ... phasis “[A]n of character. reputation evidence point up where is admissible may attacked credibility of a witness be require the would expression opinion in the form of supported by evidence or credibility of wit expert pass upon subject reputation, but opinion or. disputed evidence. weight of nesses or the (1) limitations: these however, is point, beyond To venture for truthfulness only to character refer Hester, 114 function.” usurp jury’s untruthfulness, (2) evidence of or 695-96, (citing 34-35 760 P.2d at only af- character is admissible truthful 463, 721 P.2d Jackson, Kan. of the witness for ter the character Here, testimo opinion (1986)). Moser’s opin- attacked truthfulness has been credibility of Gill’s out ny evaluated evidence or otherwise. reputation ion or interpreta on his based court statements language. This testimo body rule, of Gill’s tion by one Pursuant to this function, usurped jury’s improperly was, ny or was witness witness that another

769 this Raudebaugh claims that statement for court to it error the district and was of conclude, however, doubt that this distorted the burden it. reasonable admit We indicating jury not proof that the could beyond by a reasonable was harmless error Raudebaugh ev doubt, acquit unless believed possi- is reasonable because there no part Raudebaugh’s testimony. If testimony ery bility portion of Moser’s this true, Raudebaugh’s would funda might to this the error be have contributed were conviction, harmless, mental, go it to would the founda and because it is because for case would from not serve as a rever- tion of the and take error should basis 762, right to Pizzuto, Idaho at a which essential 119 at 810 P.2d sal. 597, Kenner, 826 his 121 Idaho at defense. Bing (quoting from State v.

P.2d at 1309 ham, 415, 423, 116 Idaho X. Therefore, (1989)). will the is we address sue. THE CLOSING ARGU- PROSECUTOR’S

MENT DOES NOT CONSTITUTE does argument not bear MISCONDUCT. PROSECUTORIAL light language in the actual scrutiny prosecutor’s The by prosecutor. used the statements Raudebaugh asserts that two credibility a on the was comment statement closing prosecutor during argu- by the Raudebaugh’s testimony light in of evi- prosecutorial misconduct ments constitute by at produced dence the state trial. require such a nature as to a new severe prosecutor say did not had to disagree the statements trial. We acquit in to him. believe order prosecutorial misconduct. constitute merely pointed Raude- prosecutor out testimony baugh’s highlighted and the con- initial the state claims As an issue evi- flict and the between Raudebaugh can raise this issue by at produced the state trial. dence appeal object he the on because did not closing argument at trial. In prosecutor’s challenges the Raudebaugh also Pizzuto, improper Court held that prosecutor re following statements during closing statements can constitute in which died: garding the manner Gibbs error. Id. at 810 P.2d at fundamental motionless, lay As he this defendant error, 690. If there were fundamental we beat, him, beat, beat and and beat and appeal even would address issue on of life out of the victim as last ounces though objection no made at trial. was lay there motionless. will order to determine whether we consid appeal, as er this issue on we must your eyes you If could almost you close error sess whether the would be fundamen hit- sickening pipe thud of the hear the Kenner, if error. tal there were State as Gill ting body. a human And Scott P.2d 1306 you almost hear testified could following Raudebaugh challenges shrieks, Bar- hysterical screams of and prosecutor: statement bara Winkler.

Folks, these accept Raudebaugh claims statements you in order produced happened, conflict with evidence defendant’s version as to what result a stab died as the you conclude that when the de- Gibbs have to the neck was not killed as testimony wound to and fendant left that —believe his being pipe and was hit with bleeding, there was result of that David was passions okay. intended to inflame You no blood and David Although Griffiths, jurors. totally testi- would have believe (1980), the Court 610 P.2d 522 reject all evi- mony and of the State’s duty to avoid prosecutor has dence, ruled that you totally would have in- mischaracterizing using that there believe closing flammatory argument, we tactics speck of blood which he saw. *12 there, allowing being in do not consider error for rather than motive for the crime; money the fact that the was owed argument prosecutor to be funda- nothing for had Therefore, illegal drugs whatever to mental. we do not address Thus, portion motive. do with of testi- there was error. whether mony simply inadmissible under I.R.E. worse, 402.1 To make matters the admis- XI. evidence, presumably sion of this irrelevant done, purposely interjected serious and ut- WE DO NOT ADDRESS CUMULATIVE information, terly unjustifiable all to the ERROR. prejudice Raudebaugh. The correct Raudebaugh asserts that cumulative er- course would have been to allow the testi- require at trial a reversal of his convic- rors debt, amount, mony as to the even as to its tion. We do not address this issue because revealing but without the nature thereof. that the trial commit- this Court finds way, In that the State would have received errors, ted two and these errors were permissible all the benefits of evidence harmless. lay which it wanted to before the and prejudice to the defendant would have XII. But, may, as it been avoided. be that prosecution hard-put would be to convince CONCLUSION. competent practicing members of the bar fore, bringing drugs We affirm the convictions. into the as was done, impermissible here was not an inva- of, of, McDEVITT, C.J., sion and a destruction defendant’s and TROUT and right though prose- to fair even SILAK, JJ., concur. cuting represented counsel who the State BISTLINE, Justice, concurring part, they all have established that are well dissenting part. versed, capable experienced and advocates. Although prefer one readily agreed “acquittal would believe It is interjection “drugs” in of the word violate 19- first” instruction did not I.C. § collecting connection with the of an owed 2132(c) or the United States Constitution unintentional, the debt was State over agreed further that there is no occa and time, passage of has not now considerable propriety today sion to address explain. been heard to so instruction under the Idaho constitution. — (Joseph), Compare, v. Pratt Likewise, Gill’s about Winkler —, P.2d—, 838-43 — 93.15 ISCR selling illegal drugs only on credit is Gill (1993) (Bistline, J., concurring, specially it relevant to extent that establishes dissenting). concurring, and Notwithstand money. that Gill owed some Winkler agreement ing points those with Again, money the fact that the was owed majority opinion, my conclusion is that the drugs does not establish motive and is because of conviction should be reversed logically irrelevant. evidentiary at trial.

the numerous errors pur- This irrelevant evidence served no First, pose unfairly prejudice other than to regarding Raude- the evidence attorney put it: As the defense defendant. baugh coming to collect a debt was wholly the fact be question irrelevant. While I whether the State would (Raudebaugh’s girl- the na- fighting very owed Winkler to establish Gibbs hard friend) they if it was money and that ture of the debt believed some had sold and the owed furniture which been had come to the house to collect over for, simple it was a paid or whether money only tends to show his motivation danger substantially outweighed by of un- clearly 1. The second sentence of Rule 402 states: issues, or mis- prejudice, confusion of the fair “Evidence which is not relevant is not admissi- Moreover, undue leading jury, clearly or considerations presents ble.” Rule 403 time, relevant, presentation of delay, or needless waste of “Although caveat evi- worded that: evidence.” probative cumulative dence be excluded if its value is the State money.... The reason loan of 864 P.2d 609 this is fighting so hard is because HALL, Plaintiff-Appellant, Gary D. evidence, extremely prejudicial prejudicial evidence in front of want this Forsloff, and Liz FORSLOFF John jury. wife, Defendants- husband *13 beyond peradventure that defense It is Respondents. absolutely right. prosecu- is counsel No. 20024. that there was a wanted to establish tion that the defen- order to show debt Idaho, Supreme Court of illegal activities dant was associated with Boise, Term. March 1993 likely to committed the and thus more have 19, 1993. Nov. proba- charged To that extent crime. substantially of the evidence is tive value

outweighed by prejudicial effect. More- its

over, type propensity 404(a). by I.R.E.

expressly forbidden See- appropriate

ing a need that the Court take pros- all common preclude

action to too tactic, smear it follows that

ecutorial to take a firm

time is now for pro- direct that the defendant be

stand and hopefully will with a new trial which

vided prejudicial error. far less tainted with

be

Moreover, only not the above were

evidentiary majority errors at trial. The testimony,

admits that Moser’s as Gill,

truthfulness of was also 767-769, 124 Idaho at

inadmissible. additionally As is noted

P.2d at 605-607. majority opinion,

in our Officer Staver’s

testimony that concealed obviously bloody clothing is inadmis-

some under I.R.E. 701. 124 Idaho at 766-

sible P.2d at 604-605. cumula- readily concluded that the

It is deprived the

tive effect of these errors Accordingly, the a fair trial.

defendant of reversed

conviction and sentence should be remanded for a new trial.

and the cause