*1 Idaho, Plaintiff-Respondent, STATE STEVENS, Defendant-
Edward John
Appellant.
No. 25688. No. 25688.
Docket Idaho,
Supreme Court
Boise, April 2008 Term.
July
141 *3 violently
thаt Stevens shook Casey’s head of a edge slammed into the causing a massive head bathtub and fatal injury. first trial resulted in a mistrial jury
after could not return a verdict. jury in Stevens’s second trial him found guilty. At both the and the expert sup- defense witnesses to *4 port theories of their the case. One the Shaibani, experts, State’s Saami a vid- used computer generated eotape objects falling testimony to down stairs illustrate his that Casey injuries not have could received his fall Although from such a down stairs. the objected to defense the introduction video, district court the denied its motion. Additionally, evidence was that Casey taking Propulsid drug was the reflux death, and an antibiotic the time of his injuries Casey’s eyes that were indicative baby syndrome. of shaken conviction, After appealed his Stevens However, prior argument this Court. to oral for a Stevens moved new trial based Molly Huskey, Appellate J. State Public evidence, appeal discovered and his Defender, Boise, appellant. for Jаson Curtis suspended pending was the district court’s Pintler, Deputy argued. Public Defender that decision on motion. The district denied motion a for Wasden, Attorney Hon. Lawrence 6. Gen- Stevens filed additional briefs with this Boise, eral, respondent. for Kenneth K. Jor- Court, withdrawing arguments. his earlier gensen, Deputy Attorney argued. General BURDICK, Justice. II. ANALYSIS Appellant Edward appeals Stevens from argues first Stevens the district court first-degree his conviction for murder and it videotape erred when admitted a into evi- of his motion trial. denial for a new We purposes, tape dence illustrative for as the affirm. was, if it was not illustrative and it prejudicial proba- irrelevant and more than
I. FACTUAL AND PROCEDURAL argues tive. Stevens also district BACKGROUND in denying court erred his a new motion for month Casey Finally, Eleven old died on Whiteside trial. he the district court injury. December from a fatal head abused when it imposed its discretion life Stevens, Casey’s boyfriend, mother’s sentence for his first offense because caring Casey for him at findings beyond the time sustained made district court of fact injury. charged jury, give head Stevens was those of the because it failed to factors, degree killing Casey weight murder the first adequate mitigating for during aggravated committing course of rights because it violated Stevens’s con- battery. Although he sidering Stevens claimed he that maintained his innocence asleep examining fell and awoke to unre- find factor when his rehabilitative sponsive on the potential. hardwood floor at the bottom willWe first discuss the admission home, argued videotape, of the stairs in the the State and then the for a motion Co., Idaho Power turning to Stevens’s sen- new trial before 993, 1000 (1991). tence. court did not err admit-
A. The district Turning to the issue of first rele videotape pur- ting for illustrative vance, argues that the video is Stevens irrel poses. accurately depict any evant not because did however, Accuracy, issues case. is trial, the State notified Stevens Prior to governing relevance of standard illustra introduce an animated it intended to rather, evidence; tive testimony. illustrative evi video to illustrate Shaibani’s dence must be relevant to the witnesss objected and the district court re- defense testimony. Raudebaugh, At ruling on the motion until trial. See State served video, moved introduce the objected. The district court and Stevens particularly true when the This events ruled video was admissible for illus- that the surrounding dispute. a death are in immediately gave the purposes, trative argues that the evidence did not because jury a limiting instruction the video *5 exactly point from what show stairs simply to used illustrate Shaibani’s evidence fell, Casey objects showing falling the video testimony. top from the of the stairs was inaccurate. of four ob- The consisted different video ignores purpose This the fact that the of jects object falling down stairs. fourth testimony Shaibani’s was to the elliptical shape a with a ball at- long was theory theory. State’s and discredit Stevens’s object that this argues tached. was Stevens argument presupposes This that also the ex- the misleading argues and video went hibit was as substantive evidence. admitted beyond testimony. He illustrating Shaibani’s required testify to Shaibani could not be explain was to that the video used maintains account; accuracy to the of Stevens’s he Casey theory that could not have Shaibani’s Moreover, knowledge would have of this. no was fallen the stairs and irrelevant and down Stevens, witness, eye only possible the main- objects the four misleading as none of simu- fall; asleep during Casey’s tained he was Thus, body. according a to Ste- late human thus, analysis argue to the could be vens, admitting erred in the district court only point introduced if on the exact based video. fell, Casey according from where which to unknown, it impossi- Stevens is would make questions This court reviews for the ble State to rebut Stevens’s version using a admissibility of mixed stan evidence the events. is dard of review. Whether subject and relevant a matter of law is is Field, testimony explaining
free review.
v.
Idaho
Shaibanis
(2007).
injuries
Caseys
have
from
The district
could not
resulted
prоba
a fall was
admissible. Admissi
courts
of whether the
relevant and
determination
to a material and
outweighs
prej
tive
the evidence
its
ble evidence is “relevant
value of
disputed
concerning
crime
udicial
reviewed for an abuse of
issue
effect is
Field,
charged.”
at
Page,
v.
discretion. State
(2000).
“any
if it
This
has
at 283. Evidence is relevant
has
Court
tendency
any
fact
adopted
determining
test for
make the existence
a three
consequence
to the determination
court
its discre
that is
whether the district
abused
(1)
probable
probable or less
correctly per
tion:
of the action more
whether the
discretion;
it
was one of
than
would be without
evidence.”
ceived that the issue
(2)
401;
Raudebaugh, 124
acted within
outer
I.R.E.
see also
whether the court
a
consistently
fact is
and
at
The video because discovered evidence about dangers used to and Propulsid, drug ble as was illustrate Shaibani’s effects of Here, testimony. taking death, was Stevens’s defense was that at the time of his (2) material, Casey’s injuries falling Casey’s eyes caused his evidence that landing embalming were removed after down and on the hardwood could not the stairs jury diligence, have been discovered with due floor The issue for the and bottom. (3) testimony Shaibani’s false as to whether Stevens caused his cre- determine was Ca Therefore, credibility. dentials affected sey’s injuries his Additional- and death. whether ly, argues Stevens that the Casey’s injuries cumulative effect possible it was for to have , of these him fall, errors entitles to a new trial. claimed, come from such a as Stevens was a material issue to the case. The video may A trial court grant a new testimony, was illustrative of Shaibani’s motion, on the defendant’s in the interest of Shaibani testified he used the video to justice. § I.C.R. 34. Idaho Code 19-2406 principles understand the involved his specifies permissible grounds for a new analysis Casey’s injuries of whether could trial and authorizes a new trial when the have come from a fall down the stairs. defendant shows that there exists evi Turning next to the issue of whether the dence material to the defense that could not probative outweighed by value of the video is produced have been at the trial with reason effect, prejudicial its 19-2406(7). the vid- diligence. § able I.C. Newly misleading eo confusing jury to the discovered evidence warrants new trial only probative limited value if as it the defendant demonstrates: accurately depict did not fall. Once evidence is discovered and was un *6 again, argument this trial; assumes that the known to the issue defendant at the time of (2) jury accuracy video, material, before the was the the of the evidence is merely not cu (3) Casеy’s injuries impeaching; not whether mulative or probably could have come it will fall, Here, produce acquittal; from a an as Stevens claimed. the failure to learn correctly recognized the evidence was not due to a lack issue for the jury, part of the did not abuse its defendant. State discretion ad- Drapeau, 97 mitting Idaho the video. The denial of a motion for new The district court admitted the video for trial is reviewed for an abuse of discretion. purposes only illustrative hearing after both Hayes, State v. video, the foundation for the including that it (Ct.App.2007).
was for
only,
demonstration
and Stevens’s
objection that the video was not illustrative
A motion for a new trial based on
or accurate. This decision was within the
newly
questions
discovered evidence involves
bounds of the court’s discretion and consis- of both fact and law. An abuse of discretion
applicable
tent with
legal standards. Ste- will be found if
findings
the trial court’s
arguments
vens’s
fail
prejudicial
to show the
supported by
faсt are not
substantial evi
outweighed
effect of the video
probative
its
dence or if the trial court
correctly
does not
value, particularly
light
limiting
of the
apply
Collard,
the law. See Fullmer v.
given by
instruction
judge
the district
imme-
(Ct.App.
diately after the
2006).
admission of the video and
“Motions for a new trial based on
before the
played
video was
jury.
for the
newly discovered evidence are disfavored and
Therefore, we affirm the decision to admit
caution,
granted
should be
reflecting
with
the video for
purposes.
illustrative
importance accorded to considerations of re
pose, regularity of
making,
decision
and con
B.
deny-
The district court did
err in
not
judicial
servation of
scarce
resources.”
ing Stevens’s motion for a new trial.
Hayes,
removed, Mortuary Embalming Having but the Re- determined the district court’s find- port person performed that the who ings erroneous, showed clearly are not turn we to the embalming Casey’s eyes noted were correctly issue of whether it applied the law suggests Casey’s that brown. This evidence to the facts found.
eyes
body
after
were removed
his
was em-
make this observation
balmed because to
Ca-
newly
In order to be
discovered evi
sey’s eyes
body.
had to be
his
dence,
itself,
just
impor
the evidence
trial, arguing
then moved for a new
that the
evidence,
materiality
tance or
of that
must be
embalming
post-embalming
fluid and
remov-
prior
unknown and unavailable
to trial.
injuries
Casey’s
al caused some of the
to
Weise,
State v.
eyes.
he
the affidavits
97, 100-01
The fact that the defense
experts
pre-
of three
who examined evidence
inquire
report
did not
about the
until well
sented at trial аnd concluded
the macu-
after the trial
report
does not make this
folding
hemorrhaging
lar
and retinal
Likewise,
newly discovered.
that Stevens
caused after
death.
present
experts’ opinions
failed to
his own
district
denied Stevens’s motion.
trial does not make the evidence on which
It determined that
this evidence was not
they rely
most,
newly discovered. At
Ste
newly-discovered
It
evidence.
found that
vens
recog
has demonstrated that he did not
Stevens was aware of
issue earlier and
importance
materiality
nize the
or
showing
there
“no
embalming
Mortuary
such,
Embalming Report. As
he
report
prior
could not have been obtained
presented any newly
has not
discovered evi
diligence.”
trial with the exercise of due
Ad-
meaning
dence within
§
of I.C.
19-
ditionally, the court concluded that the ex- 2406(7) and is not entitled to a new trial
pert witness affidavits submitted with Ste-
newly
based on
discovered evidence.
opinions
vens’s motion all contained
based on
evidence which
Based on
presentеd,
review of
was available
the evidence
the dis-
prior
testimony
correctly
this
could have
trict court
applied the
It
law.
rec-
prior
been discovered
and that
ognized
wishing
that a defendant
gain
testimony
simply
interpreta-
a different
newly
new trial based on
discovered evidence
existing
tion of
evidence.
must show that the evidence
all
meets
four of
requirements
set out in
It
Idaho law.2
again,
Once
the district court did not abuse
then properly concluded that Stevens had
competent
its discretion. Substantial and
ev-
requirement
failed to show the first
evi-
idence in the
supports
record
a conclusion
—the
dence was
discovered. While the dis-
primary
Casey’s eyes
trict court
also examined the due
embalming
were removed after
Mortu-
—the
*8
factor,
analyze
we need not
that or the other
ary Embalming Report
available be-
—was
two factors
all four
pres-
as
factors must be
supports
fore trial.
It also
a conclusion that
grant
ent in order to
a defendаnt a
new trial.
presented
affidavits Stevens
did not con-
evidence,
Drapeau,
tain
See
97 Idaho at
only
new
but
551 P.2d at
interpreta-
hold, therefore,
existing
tions of
978. We
evidence. The
that
the district
record also
supports that Stevens
court did not
deny-
was aware the State
abuse its discretion when
expert
would
testimony
ing
use
witness
about
Stevens’s motion for a new trial based on
injuries Casey’s eyes
to
theory
regarding
inju-
its
the removal of and
that
Casey during
battery.
Stevens killed
eyes.
ries to
Drapeau
In
require-
this Court
noting
comported
set out the four
and Procedure after
with the
‘‘(1)
newly
ments:
approach
the evidence is
discover-
past.
(citing
we had taken
in
Id.
Davis,
ed
(1898);
and was unknown to the
defendant
the time
State v.
6 Idaho
3. Shaibani’s been affiliated with for both the sev- years en he stated at trial and the three trial, At had Shaibani testified he. years Therefore, he stated his resume. professor physics been a clinical affiliated we affirm the district court’s conclusion that Temple University for about seven discrepancy newly was not discovered years. publish- He also testified that he had evidence. articles and that those had been ed “50 or so” trial, peer reviewed. After Stevens made a Stevens also that the district falsity motion for a new trial based on the accepted erred when it Shaibani’s assertion appeal, these statements. On he asserts that papers he through also went testimony because Shaibani’s was used to peer process review to conclude that there show Stevens’s claim that fell down perjured was no evidence Shaibani had him impossible the stairs was and used to rebut appeal, self. On Stevens writes: “As testimony, expert Stevens’s witness’ being published, Shaibani’s claims of the dis “newly discovered evidence Shaibani essentially trict court accepted Shaibani’s perjury requires committed a new trial in the statement that organizations some of the justice.” interest of him to presentation engage allowed make a motion, deciding the district in peer some sort of process review testimony court concluded that Shaibani’s found that he did not lie.” being Temple University about affiliated with years for seven “was not accurate” and was At Shaibani testified that he had concluded, “untrue.” The district published Then, “50 or so” articles. when nonetheless, material, that this was not as it questioned whether his articles had been nothing qualifications had to do with his reviewed, peer they Shaibani answered that testify, and also was not discovered Later, response had. in to Stevens’s motion evidence. It noted that Stevens’s defense for a new thе State submitted an affida- copy had received a of Shaibani’s resume Shaibani, vit who testified: a year over before he testified and the error peer-review process applies The testimony readily apparent in Shaibani’s journals by also to conferences held from the resume. The district court also organizations. medical and scientific It is concluded that Stevens failed to establish understanding your affiant that all relating that Shaibani’s statements to the organizations among but two of such found peer publish- number of reviewed articles he papers by your employ peer the 56 affiant false, peer applies ed were review to both peer- review one form or another. The journals published papers pre- articles process acceptance review for the of a sented at conferences. paper presentation for at some conferences appeal, On Stevens claims that the stringent is known tо be than that more district court found that Shaibani did not lie paper journals. for inclusion of a some assertion, about his credentials. This howev principles peer review were enacted er, misconstrues the record. The district papers by your more than half of the 56 court stated that had testified false Shaibani affiant. ly inaccurately about his affiliation with *9 Temple University. concluded, The court The court district did not abuse its discre- nonetheless, by determining this was not discov tion that Stevens had failed evidence, prove ered and was not material. This Shaibani lied as to the “50 or so” peer was not an sup- conclusion abuse of discretion. reviewed articles. Its conclusion is 18, 1998, ported by On November the State disclosed Shaibani’s affidavit. That there resume, contradictory Shaibani’s which shows he a were became affidavits the record Physics Clinical Associate Professor of at not show that court does the district erred Temple in supports 1995. The record the when it detеrmined Shaibani had not Therefore, simple perjured district court’s that a conclusion himself. we affirm the glance during at denying Shaibani’s resume the trial district court’s order mo- Stevens’s would have revealed that he could not have tion for a new trial as to this issue. 148 a Ip. Stevens asks this Court revisit error Cumulative maintains, area of Idaho law. He settled that under Finally, Stevens asserts jurisdictions, from other based on cases error, he is enti cumulative doctrine of allowing the trial court to consider that he error The cumulative to a new trial. tled as a factor when maintained his innocence a conviction requires reversal of doctrine rights. sentencing his constitutional violates irregulari accumulation of there is “an
when However, long the law Idaho it has been of ties, by might harm itself be each of which may that a consider a defendant’s con less, aggregated, the errors show but when evaluat tinued assertion of innocence when a fair in contravention of of the absence Seе, ing possibility e.g., rehabilitation. of right due constitutional the defendant’s Grube, 377, 388, P.2d v. 126 Idaho 883 State Moore, 814, 823, 131 Idaho process.” State v. (1994). 1069, in this instance the 1080 While (internal (1998) 174, quotations P.2d 183 965 speaking protection district court was omitted). and citation factor, logical, society of it is a inferential step a defendant’s limit to consider whether in This declines Stevens’s Court potential ed rehabilitative will increase the apply the cumulative error doc vitation to Therefore, society. risk to we hold that the First, a motion for new trial. trine to court did not violate the Fifth district an for new trials are reviewed for motion by or abuse its discretion con Amendment 577, discretion, Hayes, Idaho at 144 abuse sidering responsibili failure to take 291, at and the cumulative error 165 P.3d fashioning ty for his actions when the sen multiple to instances of applies doctrine tence. Field, 144 errors at State v. harmless Next, Stevens maintains the dis 559, 572-73, 273, 165 P.3d 286-87 trict court abused its discretion sentenc Moore, (2007); at at 131 Idaho 965 P.2d Court, ing him term. to a fixed life will not mix these standards 183. This Court conducting when its review of a defendant’s Second, apply in order to of review. sentence, length the entire considers doctrine, the Court must cumulative error of discretion stan sentence under abuse at one harmless error. See State v. find least its dard to determine reasonableness. Lovelass, 160, 171, 133 Idaho 983 P.2d Oliver, 722, 726, v. 144 Idaho Here, 244 Stevens has not (Ct.App.1999). (2007). within the Where a sentence is alleged any trial errors are reviewed limits, statutory appellant bears bur standard, error so the doc under a harmless demonstrating den of that it is a clear abuse inapplicable. trine is Hedger, of discretion. State (1989). P.2d C. Stevens’s sentence is reasonable. sentence, examining of a the reasonableness independent the Court conducts an review the district court violated trial court the entire record available to the rights Fifth Amendment his and Fourteenth objectives sentencing, focusing by punishing maintaining him for his inno- (1) punishment: protection of criminal soci argues the district court cеnce. He also (2) ety; individual and the deterrence of the by erroneously finding abused its discretion (3) rehabilitation; public; possibility of intentionally he killed sentenc- wrongdo punishment or retribution for ing him turn to a term of fixed life. We will Cross, ing. State v. arguments. first to Stevens’s constitutional of a “Reasonableness” Stevens, sentencing the district When “implies of confinement sentence term factors, many including court considered purpose should be tailored to the for which society. “Obviously It protection of stated: imposed.” State v. Broad the sentence is society head, protection primary impor- is of *10 certainly (1991), if grounds by
tance. There is increased risk State overruled on other Brown, 385, 394, 482, placed parole on P.2d the defendant were because v. 121 Idaho 825 (1992). judge, unwillingness responsibility to take in In deference to the of his 491 of a will not substitute its view this case.” this Court
149 explanation reasonable minds reasonable is that at reasonable sentence where the time Toohill, 565, Casey the defendant did intend kill might differ. Statе v. 103 Idaho 707, I 568, (Ct.App.1982). To that he did. 650 P.2d 710 find discretion, of the defendant show an abuse sentence, light in of the
must show that the
In determining
appropriate
punish-
criteria,
any
excessive under
governing
is
crime,
type
my opinion
ment for this
of the facts.
v.
reasonable view
punishment
for the
killing
intentional
472,
Strand,
457, 460,
P.3d
provocation
without
helpless
of a
human
(2002).
being
place
must reflect the value we
finding
the court’s
Stevens
you
human life. So I will sentence
to a
intentionally
Casey
killed
was an
that he
period
fixed
of incarceration of
life
cus-
abuse of discretion because it was based on
tody of the Idaho Board of Correc-
____
evidence,
interpretation
the court’s
of the
tions
jury’s findings,
rather than on the
and that
“Idaho’s, sentencing scheme re
finding
justify a
was then used to
fixed life
quires
[judicial] findings
no
of fact under I.C.
argues the
court
sentence. He also
district
Stover,
§
19-2521.” State v.
by imposing a fixed life
abused its discretion
“[A]
is
light mitigating
pre
sentence
required
not
to recite or check off the sen
by
sented
Stevens.
tencing guidelines
§
I.C.
during
[of
19-2521]
murder,
felony
charged
was
with
a
Stevens
sentencing,
required
nor is it
give
even
Yet,
crime which lacks a mens rea element.
imposing
reasons for
the sentence.” State v.
sentencing
at
court found that
district
Thomas;
682, 688,
intentionally
Casey.
had
killed
It
Nonetheless,
(Ct.App.1999).
judicial
fact
stated:
finding
constitutionally permissible
is
under
Casey in
The murder of
this ease was an
sentencing regimes
indeterminate
when “the
It
intentional act
the defendant.
was
pertain
do not
facts
to whether the defendant
Casey
absolutely
not accidental.
did
noth-
right
legal
has a
to a lesser sentence.” Sto
ing
provoke
the attack
the defendant.
ver,
(quot
safеly society released back or that into requires nature of the offense that the indi day None of were there that and none us spend vidual his life behind bars.” rest .of did, of us what the defendant but saw Cross, 132 Idaho at at certainly likely cause to that skull most picking fracture was the defendant Here, right Stevens had no to a sentence up slamming might him all his imprisonment. §§ than life less I.C. 18- against a hard surface. Thus, it constitutionally 18-4004.
permissible for the court to find facts related objectives sentencing, although We know that —it’s obvious from the to the mandatory force that it so. Had of the blows and the escalation do blows, certainly sentencing I Bra- court remained and think it’s silent as to its —Dr. reasons, certainly reasonable, dy’s hypothesis the record alone would its imposition Casey’s of a the severe blow to the back of fixed life sentence. extreme, injury injuries head was the last he received the amount of morning. So we know —I think it’s from force needed to cause the skull fracture he force, increasing amаzing. looking force of those suffered is Even at the evidence, particularly mitigating lack of blows and the amount of force such records, blow, family required support, fatal criminal and neuro- to deliver the *11 150 disorder, applies to trial upon a fixed life sentence is not a motion for new
logical
based
newly
evidence.
discovered
“‘Idaho Code
unreasonable.
§
19-2406
sets forth
bases for the
Nonetheless,
explained
the district court
”
Christiansen,
grant of a
v.
new trial.’ State
a fixed
life sentence
reasons
believed
1175,
163 P.3d
1179
partic-
necessary
punishment for this
as
(2007)
Gomez,
83,
(quoting
v.
126
Idaho
recognized that
ular
It
crime.
(1994)).
86,
782,
878
785
P.2d
Idaho Code
potential and
no rehabilitative
showed almost
19-2406(7)
§
a trial
grant
authorizes
court to
continuing danger
society if
would be a
“[wjhen
a new trial
new evidence is discover-
It also
a desire
placed
probation.
noted
defendant,
ed material to the
and which he
reflecting the value
punishment
fashion
diligence
could not with reasonable
have dis-
оn human life. The
society place
we as a
covered
trial.”
produced
and
at the
of Stevens’s intent was not
court’s discussion
had
a crime
finding that he
committed
This Court has stated:
charged
distinct
one
and of which
from the
request
post-
for a new trial
[T]he
in a
rather,
guilty;
he had
it was a
been found
proceeding
newly
conviction
based on
dis-
grave nature
crime
discussion of the
of the
covered
is the same as
a motion
and
inflict-
the character Stevens showed
subsequent
jury
for new
to a
trial
verdict.
injuries on a
ing
helpless
such
and
extreme
State,
[Rodgers
v.
again,
and
innocent child. Once
the facts
(1997)]
P.2d
Before a new trial
this case
the dis-
circumstances
can
granted,
irrespective
be
and
of the
such,
sentencing
trict
decision. As
court’s
request,
form of the
new evidence must
district
did not abuse
we hold that the
satisfy
four-part
test set forth in State
sentencing by discussing Ste-
its discretion at
Drapeau,
v.
I. review of Standard of orders on mo- unknown to the defendant the time of upon tions for new based trial; material, merely the evidence is evidence. discovered impeaching; cumulative or evidence will I important think probably produce acquittal; that it is consider the fail- appropriate review standard of this Court ure to learn evidence was to no due
I5I
(3)reached
diligence
part
the
of the defen-
lack of
its decision
an exercise
dant.”).
of reason.
891,
at
125 Idaho
Dambrell, 532, 543, 646, 120 Idaho 817 P.2d However, ers a motion for new trial. Idaho (1991) (“Whether grant deny a or 657 § Code 19-2406 defines seven circumstances discretionary trial trial is a matter for the may which a new trial be I ordered. court, trial and we will review the court’s believe that analysis there is second level of if decision to determine it has abused its appropriate reviewing when a trial discretion.”). Porter, See, e.g., State v. 130 findings court’s and conclusions when decid- 772, 791, 127, (1997); Idaho 948 P.2d 146 ing a motion for new trial. As it relates to Cantu, 673, 674, State v. 129 Idaho 931 P.2d upon § motions based Idaho Code 19- Roberts, 1191, (1997); 1192 State v. 129 Idaho 2406(7), the record must demonstrate the 194,197, 439, (1996); 442 923 P.2d State v. recognition trial court’s that the motion in- Fields, 904, 913, 1211, 127 Idaho 908 P.2d discretion, volves the exercise of the Davis, 65, (1995); 1220 v. State Drapeau applicable criteria are to the (1995); Gomez, 973 State v. 126 granting motion, denying choices of or the 83, 86, 782, 785, (1994); Idaho 878 P.2d State and that the trial court exercised reason in Lewis, v. 848 P.2d reaching addition, its conclusion. In in the (1993). analysis, second level of I believe that this Powell, identify Court should standard of review In State v. governing underlying Drapeau questions (1994), clearly explained this Court first addressed the trial court. apply that we would the now-familiar stan- dard of review for abuse of discretion: notes, opinion correctly As the Court’s decision grant whether to a motion for new determining In whether the trial court upon newly trial based discovered employ abused its discretion we the three- questions involves mixed of law and fact. It step inquiry adopted the Court appears question, to me that the first wheth
Hedger, 115 Idaho
er “the evidence is
discovered and was
so,
doing
inquire
we
unknown to the
at
defendant
the time of
whether the trial court:
trial,”
question,
and the fourth
whether the
(1) correctly perceived the issue as
“failure to learn of the evidence was due in
involving
one
the exercise of discre-
part
no
to lack
on the
tion,
defendant,” present purely factual issues.3
(2) acted within the outer boundaries As to the trial court’s resolution of these
consistently
issues,
of its discretion and
I
ought
apply
believe that wе
our
any legal
applicable
spe-
standards
well-established standard that
“[t]he
had,
cific
findings
choices
court’s factual
will not be overturned
Lewis,
videotape
day.
In State v.
Defendant has found some new follows: photographs, review the tissue slides and opinion
but he has not shown that such
I
opinion
concur
all of the Court’s
testimony could not have been obtained
exception
part analyzing
*14
the denial
through
prior to trial
the exercise of rea-
motion for a
Stevens’
new trial based on
diligence.
sonable
discovery
of evidence related to the re-
Casey’s eyes.
moval of
I
Because
believe
The evidence that
in
Stevens submitted
this meets the test for
discovered evi-
support of his motion did not address two
likely
dence and would have
produce
been
questions:
why
obvious
did the defense
acquittal,
I believe the motion for inquir-
wait until after the second trial before
I,
granted
should have been
and
there-
removed?;
ing
Casey’s eyes
as to when
fore, respectfully dissent.
(2) why
procure
didn’t the defense
ex-
pert testimony interpreting the tissue slides
opinion
correctly
Court’s
sets forth
photographs
in advance of the second
granting
the test for
upon
a new trial based
trial?
simply
pre-
There was
no evidence
discovery
of new evidence. See State v.
subjects.
sented that addressed these
Rath-
Drapeau, 97 Idaho
While attorneys diligent dant and his were not any type by no time did I see of disclosure This, effect, locating it. completely elimi- indicating eyes the state ... analysis diligence nates the of reasonable or Casey Whiteside had been removed after diligence. view, piece due In the if Court’s being outside of the state’s chain of custo- prior evidence was in existence dy, being and after embalmed. The state’s inquiry. that ends the That not a is correct failure to disclose the fact to the defense analysis of whether the defendant acted with was a critical regarding key omission diligence due in learning pertinent of the piece physical evidence.... evidence. rejected claim,
The trial court testimony case, In at the first trial in this stating: “The Defendant pathologist the State from St. intentionally did not disclose that Hospital, Slaughter, [sic] per- Luke’s Ronald who Casey’s eyes the fact victim, were removed autopsy formed the on the autopsy after embalming. after I Slaughter steps Dr. and/or Whiteside. detailed the argument do not find this credible or con performing autopsy, he took in including vincing.” There is substantial evidence to mentioning pictures body of the and face of by finding the trial court. the victim taken the coroner while Dr. any the absence of other evidence that would Slaughter doing autopsy. Specifical- support a conclusion that the evidence relat ly, Casey’s eyes, Slaughter related to Dr. ing Casey’s eyes could not have been responded questions to defense counsel’s discovered the exercise of reasonable dili follows: gence, simply failed to meet his bur Doctor, Q. you Casey’s eyes? did remove proof den of as to the fourth element of the A. I did.
Drapeau Accordingly, test. I concur in Part II(B)(2) opinion. Q. of the purpose? Court’s For what public good, not be subservient to the but had me remove them The corоner
A.
hand,
would,
encourage a
they tell
me what to
on the other
[sic]
until
keep them
presentation
the de-
them later.
careless and loose
do with
of his defense.
fendant
you inspect'
or did
Q.
you notice
Did
eyes
hernia?
those
for retinal
Lawhorne,
F.Supp.2d
In U.S.
no,
hemorrhages,
I’m not an
A. Retinal
(E.D.Va.1998), the district court held:
pathologist who does
ophthalmology
Second,
necessary
to determine
is
them in formalin which
eyes.
just put
ISo
diligence
has been
whether there
preserved and
keeps them
fixative and
“Diligence”
means
part of
defendant.
I
told what to do
in that until was
put them
ordinary diligence,
highest degree
not the
them.
thereof;
usually
is deter-
later,
response
ques-
to a
A few minutes
compos-
by taking
mined
into account the
State,
from the
tion on redirect examination
knowledge
defendant and his
ite
*15
the
Slaughter indicated that he later sent
Dr.
counsel.
by
ophthal-
eyes
a forensic
to be examined
F.Supp.2d at 305.
Crawford].
Brooks
mologist
[Dr.
California
Ordinary
diligence cеrtainly
or reasonable
later,
hearing
at the
on the
Eight years
that defense counsel
contains some notion
trial,
a new
Dr.
motion for
defendant’s
looking
go
have some reason to
for the
must
that he couldn’t remem-
Slaughter testified
diligence. In
evidence in the exercise of
the
eyes during
the
the
whether he removed
ber
bar,
absolutely no
case at
there was
reason
Thus,
autopsy,
at some time later.
his
or
out an
for defense counsel to search
embalm-
testimony at trial
positive
unequivocal
ing report with one obscure reference to the
wrong.
apparently completely
The
was
Casey’s eyes, given
Slaughter’s
Dr.
color
Casey’s eyes were not removed
evidence that
wrong, testimony that he
specific, but
re-
Mortuary
from the
during
autopsy
the
comes
removing
eyes during
autopsy,
called
the
the
has a hand writ-
Embalming Report, which
placed
that he
them in formalin and waited
“description
subject”
in the
ten notation
direction from the coroner on what to do with
following
“eyes”
section on the line
word
Casey’s
Admittedly,
them.
the condition of
denying
In
indicating they were “brown.”
eyes
piece
a critical
of evidence
was
relied
the motion for new
the district court
upon
proof
the State as
head
showing that the
stated there was “no
em-
violently
prior
been
to
had
shaken
his death.
balming report could not have been obtained
State,
witness,
Neither
nor
its
Dr.
prior
the exercise of due dili-
to
Slaughter, gave any
indication but
decision,
gence.”
upholds
Court
eyes
during
autopsy
removed
again
upon
based
a conclusion that because
they
expert
until
to an
held
could be sent
prior
embalming report
existence
ophthalmologist. Frankly,
lay per-
even to a
to
it
have been found in the
could
son,
extraordinary
body parts
seems
diligence.
holding
exercise of due
That
dis-
they had
em-
would be examined after
been
question
regards
diligent
of whether
balmed and that no one would think to com-
any
counsel would have had
reason to look
certainly
on that.
It
does not
ment
mean
for it.
that defense counsel lacked reasonable dili-
Drapeau,
quoted
from
the Court
gence
accepted
Slaughter’s
when he
Dr.
clear
Davis,
stellation shaking.
cept for violent There’s no other Thus,
way explain it.” em-
balming eyes may have caused the he-
morrhaging critical evidence and could
very jury question well have caused theory produced acquittal.
the State’s I think
Because don’t defense counsel lacked looking for an
reasonable em-
balming report, respectfully I dissent from opinion.
the Court’s
Clifford GALLI Pam Peti
tioners-Plaintiffs-Respondents- Appellants,
Cross COUNTY, political
IDAHO subdivision Idaho, Respondent- State of Respondent,
Defendant-Cross Dagerstrom, Inc., Appellant.
N.A.
No. 33999.
Supreme Court of Idaho.
Boise, June 2008 Term.
July