*1 Idaho, Plaintiff-Respondent, STATE Jr., Sanchez, SANCHEZ,
Margil alias Mike Defendant-Appellant.
No. 10405.
Supreme Court of Idaho.
Feb. 1971. April 1,
Rehearing Denied Bistline,, Beverly Bistline and Don
R. defendant-appellant. Pocatello, for Gen., Robson, Walter Atty. M. Robert Boise, Gen., Bithell, Atty. Asst. H. Blackfoot, Atty., Moss, E. Pros. Thomas plaintiff-respondent. McFADDEN, Justice. Sanchez, charged Jr.,
Margil voluntary manslaughter of his the crime of Furney, month old Shane stepson, eighteen the lesser guilty found and on trial was manslaugh- involuntary included offense conviction, he- judgment the' ter. From appeals. *2 wife, McGaffey legs. Dr. former and stated she saw no defendant and his bleeding. Lyn Furney, married in external DeAnna Jan- uary, 1967, defendant still in while the presentation in its The state of the case remained forces. Sanchez armed entirely upon relied circumstantial evidence and was for three months the states in- raising the inference overseas, returning to Black- shipped later resulting injury flicted the to the child discharged from the finally foot. He was Furney, moth- his death. Mrs. the child’s the time August, At service er, was called aas witness for the small chil- marriage had three his wife night and she testified that the before marriage and dren, previous issue of a a child home from died she had returned Furney, wedlock. a son born out of m., meeting p. that she bathed about 11:30 Shane, on following death of Sometime child, suffering who had been from the defendant January death which pox. recovering flu and also from chicken caused, ob- wife was found to pair paja- clothed her son with a She tained a divorce from Sanchez. mas, pants, dia- pair plastic and a a of blue that at about 8:05 The record discloses per testi- made out a dish towel. She the defendant January a. m. on she of the bath ob- fied that at the time brought and his wife deep body, on his served one bruise emergency Bingham Memorial room of the a hard resulting from on his bruise face Staley, a tech- Hospital in Blackfoot. Mr. earlier. slap the defendant three nologist hospital was also at the who if have noticed stated that she would coroner, county met the with other bruises there had been room, Mr. and emergency at baby was body After this time. artificial Staley attempted the child upstairs dressed, him took cleaned and she hospital, respiration. physician at A the floor next him on and made bed for in, and Hales, the child Dr. checked defend- occupied by her and the bed boy Consent pronounced the dead. through him could watch ant that she so later autopsy, and given performing an and restless night. The child was by Dr. autopsy performed later and she stay in his bed would not McGaffey, pathologist. Hazel into put him downstairs took the child bed. his own McGaffey
Dr. testified as to the results performed stated autopsy she she that when Furney testified that the child’s caused inter- death was asleep, once woke she turned to bed fell injury, pancreas, particularly nal down- and went arose when the defendant secondary hemorrhage the ab- with next again. stairs, asleep fell cavity. that the hem- dominal She stated the defendant is that thing she remembers orrhage head crushing was from the stairs, excitedly running up the pancreas, her exami- her no; oh, He told “Oh, no !” screaming, injury nation the been inflicted must have baby, and wrong with something was thirty not less than minutes and more downstairs, found immediately went she of death. than three hours to the time bruised, lying badly baby in the crib hospital, got back. She called on his brought At the child time the other children stay neighbor to cold, although hospital his extremities were took the she and the body was body where his covered the hospital. Rigor yet still had not com- warm. mortis not clear. death menced. The accurately state Furney could not elapsed after McGaffey Staley, long Dr. a time Mr. how Dr. Hales bed from the arise the defendant presence all testified of bruises heard screaming. The coro- boy’s body returned before he head face and ner, door of the somehow closed and it stated run; nightshirt diaper. opened There is started to on a hap- door and no nothing in the record to show what took the out. He saw *3 dryer clothing other blood in the at that pened which time. placed baby
mother had on the after she During the course of the trial However, the record is had bathed him. objection defendant, over the intro- fully not clear as to whether the duced into to the evidence the door brought hospital. clothed to the when certain part of the door had bottom stains on it that testified to were evidence intro- was considerable Staley being human blood. Mrs. objection concerning duced over bruises testified that had noticed blood on the children, and bruise marks on the other following the death testimony concerning and there was an in- son, police of her coro- but the officer and 7, happened September cident which on ner were not notified of this fact until 1967, badly when the deceased child was February, sometime in bruised around the head and extent that slight there was evidence of a skull This overview has been set forth to fracture to the child. Defendant stated background for consideration injury occurred when he was proper assignments of error context carrying the child the stairs and he submitted the defendant. stumbled, hitting the child the hand rail assignment is di The first of error along the staircase. There was an in- also testimony rected to the of Mr. cident testified concerning the defendant coroner, testify permitted con who was giving strong beverage alcoholic cerning the de a conversation he had with day Shane on Thanksgiving of 1967 and deter hospital following fendant at the badly the child was affected Staley mination that the child was dead. 8, 1968, January morning preced- On autopsy had that an asked death, the child’s the defendant arose performed given, permission be preparing breakfast for the chil- Staley the de before that had asked dren. Sanchez had the flu that happened and the de what had did not to work. He testified that he fendant told him the incident when about cry heard a upon looking found Shane had fallen down the stairs. lying on his landing back on a on the stairs inas defendant contends this was leading to ap- the basement had where he advised of much he had not first been parently fallen. stated that he Sanchez rights. assignment his constitutional help down to the child and in the was no is without merit as there process him, stumbled, going with of this interposed ever to the admission hitting knee the child in the abdomen. Taylor, testimony at the trial. 76 Sanchez testified having 358, (1955), and State difficulty breathing, that he took the child 771, Boyatt, P.2d 87 992 59 splashed basement and water some hold that absent (1939), which cases on him normally. and he started to breathe testimony to admission of ap
There was also not consider the issue sometime this court will 8, 1968, Moreover, January to which peal. afternoon of the conversation Shane, changed diaper assignment error was directed and in doing interrogation. so he found hands Miranda not a custodial Arizona, and feet 16 L. cold. The clothes 384 U.S. 86 S.Ct. still defend upon warm and the defendant testified that Ed.2d which 694 relies, be diapers requires made a that the defendant “bed out of the ant only be rights and I laid second him there advised of his constitutional interrogation takes However, in-custody then took him fore an out.”
place. At the conversation the time of of other crimes. In this custody involving not in and Miranda case eighteen Sanchez was death of an Arizona, boy, applicable. old supra, is not month there was evidence See White, defendant at N.C.App. State v. times disciplined S.E.2d various to the case at the decedent as well as the (1968), which similar other children. bar, Montos, 421 discipline and United F.2d There was States v. 1970). imposed by (5th slapping Cir. v. Car- See penter, occasion, children hand on occasions the use of belt. assigned Error to the admission *4 discipline also evidence this testimony of of a number witnesses who only imposed had been not with the con- discipline by prior as to of testified acts mother, sent of the children’s Shane, against the not expected discipline him to the children against boy, the other deceased but also they in gain respect order that for their in the household. It is contended children interjected step-father. This an- evidence by testimony the de that this other acts of case, other issue into the this i. e. whether crime connected corporal discipline employed was excessive. charged. The with which he was trial problem court was aware of however, general urges that whereas probative of whether value of it out- past is of bad conduct or rule acts weighed prejudicial effect on defend- normally cannot be admit criminal actions position. type ant’s In this of case involv- case, are certain ted into criminal there child, ing abuse of a are small the facts excep of exceptions this rule. One to easily unraveled, is and the faced state by the urged rule as general tions to the problem attempt- with a most difficult by a de or conduct state is that acts prove exactly to take place. what did motive, to establish fendant are admissible It is conclusion this in court that accident. or or absence mistake intent properly such a ad- situation the trial court 37, Eubanks, 32, 383 Idaho State v. 86 mitted this in order to to the evidence jury full had held previous cases This court tragedy home where the occurred. It may be acts criminal that evidence other recognized testimony might that this motive, State to establish introduced: jurors, tended to inflame minds Newman, P.2d 159 70 Idaho especially age children of tender where re of intimate admitted (1950), (evidence concerned, yet of those involved here are decedent’s lationship accused between testimony probative to this was of value a murder motive in spouse to establish bring out to- the attitude of the defendant knowledge on establish prosecution); to step-children, his wards towards Montgomery, 48 part, State defendant’s deceased child. of re (proof (1930), P. Concurrent with above testimo goods establish stolen ceipt of other ny concerning discipline in home ; es stolen) knowledge goods were counsel, objection and over the of defense mistake, v. Coch absence of State tablish M, photographs, two exhibits L rane, P.2d 489 thigh admitted in These showed evidence. money collected other (proof that boys groin on one of the other bruises over) ; paid to establish accounts but not family, depicting condition Sedam, intent, specific State v. Furney died. above checks (1940), (other reasoning covers the to these ex depleted account). drawn hibits. While the condition an bruised directly is in one sense remote from are These cases trial, here, they pictures graphically all issues at dealt point on the issue demonstrated defendant’s brand of disci- reflected commission with facts that quently are han- died and other counsel objection that the pline. In to the answer specifically dling appeal) stated that action were not connected bruises being admit- he had no to them defendant, the record that after shows ted, from thus, precluded counsel the exhibits were admitted defense hearsay objecting appeal. accepted elicited and them on Taylor, Boyatt, supra. supra; then on the to the witness stand result of a effect the bruises were the assigns admitting Defendant as error “spanking” administered defendant. F, of exhibit the door clothes contends that permitting former erred F Prior time that exhibit testify wife to certain statements evidence, was offered made the defendant to her wherein the after suggested put to her that she put some child died she downstairs to adoption, that the defendant blood on and there was called the a “little bastard” and stated continued: *5 “ that “he need to live.” didn’t even * * * [Shane] and later I faced Mike with These de statements were attributed to the this, baby in put and asked if he him through Furney’s testimony ‘no’; dryer he and I the clothes said and were relevant to show his attitude got asked him how the blood animosity or malice toward the child. This dryer and he said he didn’t clothes testimony was relevant and the trial court know; just I that it doesn’t and told him admitting did not err in ‘well, get that; and he said there like put objects cold and I him Defendant was to certain dryer up.’ him I said injuries DeAnna warm Furney as to the sus- ‘no,’ you tained ‘did turn it on’ and he said but September Shane on inside, there there blood all over September that on was testified top and on when she was blood of the door had come home the defendant it told her bottom the door and I said ‘well got up that when she in the morn- ing go get would have to around to unduly to be alarmed as Shane ‘no, that,’ and didn’t a little blood like he said bruise on his head from a fall on,’ just turn it he said ‘it on and I downstairs. She testified that when she warm, get kind of shut the door to him boy saw the morning, the next September on’; it and must have turned and I said his head was black blue around,’ ‘yes, ‘did it swollen said shape. out of The was taken ” gone must have around a times.’ Dr. Hales who testified he treated boy on the occasion and that there was a Furney identify The state exhibit had Mrs. slight fracture of the skull and a hemato- F, dryer, it the door of the clothes and was ma on the side This testimo- head. objected offered in evidence. Defendant ny objection, all in without and the ground to its that “we admission question of admissibility its cannot be proper don’t been believe foundation has raised for the first on appeal. time sufficiently.” identify laid to The this Taylor, supra; Boyatt, supra. this sustained no error shown the record it further regard. in this dryer the door in of the same clothes assigns
Defendant putting error to the admission which the defendant had admitted G, picture dryer exhibit of the clothes the deceased child. offer was newed, with the door Fur- pointing removed and a man and defendant examined Mrs. finger wall, ney prints on nearby ex- in aid of an This examina- J, picture hibit developed tion came and of the of the the officers inside his trial took the off the and a (who counsel subse- door week Previously exhibit G had been admitted later; in had used half any objection. meantime, noticed evidence that she hadn’t the interior of part of the door exhibit was a on the bottom the blood showing defendant re- basement the clothes time until some later. pointing the arm of an the door had individual objection that newed his there some marks on the wall. Exhibit K was a sufficiently identified and close-up from. of the marks on the shown wall proof was no where the blood It is real objection and exhibit difficult see G. The trial court overruled prejudice to find no admission We it was admitted evidence. objection to exhibit K. overruling defendant’s sufficiently as it had been exhibit applies I.C. 19-2819 § to connect it to the occurrences identified appeal. presented This court must day. involving the defendant and rights par- consider the substantial weight given this evidence to be disregard technical But ties and errors. jury for the to decide. course, justice done in must be substantial stand, the defendant later took every When the defendant does case. Here involv- concerning the incident substantially preju- he testified appear to have been so dryer; he stated that and the the error that his defense diced dryer, he took out ob- impotent. rendered bloodstained While externally, and bleeding was not jects typically get attention from extra any bleeding jury, here remembered that should be *6 boy’s fingers. a small cut one the on counsel, presence of the the defense Furney when bathed testified that Mrs. jury, prosecution’s the strongly attacked to bed next putting before him to type fail- identify failure the blood to any external her no she saw evidence of how and convincingly ure to demonstrate injury. objects to stained. when be Again, does after the record before and admis is assigned Error any significant external bleed- not mention K, sion into evidence of exhibit any person. ing by decedent or “bloody on the wall finger prints” of some significantly de- These factors would Nichols Officer near the clothes exhibits weight given tracted from a call from response to defendant, jury. prejudice to The before, he Mr. Furney night then, error. does not reversible constitute February Staley to the residence 14, 1968, them when showed that defendant contends The and the underside declaring a mistrial erred that At door which had blood on it. dried attorney re-cross prosecuting when the time, (exhibit dryer door removed the inquired as to examining finger F), picture of the also took the charge of invol prior plea guilty to objected to the admis prints. Defendant alleged untary manslaughter [as it that grounds sion of exhibit on The complaint amended filed herein]. remote incompetent, being too attor prosecuting record that the reflects properly identified. it further that was ney asked the The record contained no your plea of to reference “Now with blood, and be finger prints were of human guilty Involuntary Manslaughter, at to there was of the texture the wood cause acknowl- you willing to that prints. no identification of who made felony, edge you committed that This was valid that correct? error, K Was admission of exhibit While A. Yes.” prejudicial. it is conclusion it was our McQUADE, At J., time defendant’s counsel moved C. DONALDSON, SPEAR, that the answer be JJ., stricken and asserted SHEPARD and concur. immaterial, that incompetent it was and ir- ON DENIAL OF PETITION FOR relevant to this case as to how he felt REHEARING prosecuting attorney about it. The ex- plained, question the reason for to McFADDEN, Justice. explore previously what defendant had Appellant petitioned rehearing has for being pre- stated. While the defendant was setting forth therein three points recon- for viously prosecutor cross examined petition studying sideration. After asked, accompanying brief the court is of the view you “When talked to Officer Nichols appellant that misunderstood the thrust you pre- testified at the opinion and a clarification is warranted. liminary hearing you it a fact —isn’t opinion appellant’s prior viewed con- gave impression this [defend- duct towards the children and the home fall top ant’s who was generally material issues lying the stair landing] accounted for however, trial. recognized, It the problem baby’s death ? proof where several incidents occurred IA. was afraid that that was what when the appellant’s children were in sole happened; why pleaded guilty I custody yet the children wit- (the best Involuntary to Manslaughter. Of course nesses) testify. young were too Exhibits him, if I go prison killed I means L and M were relevant to the home situa- prison it; —I will but I am tion issue and sufficient just saying I didn’t beat him to also connect what death, my because I never double fist depicted exhibits appellant’s actions. or kicked children —ever. properly bloodstained door was my plea reason removed admitted in was connected to Mrs. guilty they was because when told me Furney’s discovery bloodstained that he night, died in the middle of the *7 ap- and her confrontation of that he had to have been hurt at four pellant discovery. discovery with the so, o’clock or and I knew that I had been clearly prompted his wife of the stains in bed.” appellant placing admit This statement Thus, it was the evident record or motion stains ex- knowledge appellant strike. Examination of the record disclos- isted that was crucial and whether es that the trial court in this did err bloodtype decedent. matched regard, for on cross when later in the trial bloody K, finger- picture of Exhibit examination, attempt again made to prints, erroneously because admitted go into this issue the trial court sustained not shown to be connected to to it. cannot be viewed incident. The error G, photograph finally assigns prejudicial error since exhibit Kin depicted prints shown fixing action of trial the max- which also court years. admitted earlier without sentence at ten sentence was imum statutory within limits for involun- petition are The cases cited tary manslaughter. I.C. 18-4007. § Wheeler, 70 persuasive here. State King regard. no error (1950), 220 P.2d Idaho State, P.2d 44 194, 457 Wilson, proposition is af- judgment of the district court stand for (1969), by evidence be convicted defendant cannot firmed. procedural two errors combined with is irrelevant. an issue pertaining to appellate that the evi- judges 376 doubt Ramirez, 199 P. weight to dence had sufficient cause opinion as issued supports the In the one exhibit was case hand court must read versal. appeal that on However, in view improperly defend- admitted. determine whole record to if clearly not warrant the record that does Ramirez ant has had a “fair” trial. trial. it notes new supports position when our evidentiary cured errors certain rehearing denied. petition trial. by subsequent events DONALDSON, McQUADE, J., and C. Wheeler, F.2d 1195 United States v. SPEAR, concur. JJ., SHEPARD and where a situation 1970), presented (9th Cir.