State v. Burdett

• Decision Date: 08 March 2000
• Docket Number: No. 25330.,25330.
• Citation: 1 P.3d 299,134 Idaho 271
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jason BURDETT, Defendant-Appellant.
• Court: Idaho Court of Appeals

1 P.3d 299

134 Idaho 271

STATE of Idaho, Plaintiff-Respondent, v. Jason BURDETT, Defendant-Appellant.

No. 25330.

Court of Appeals of Idaho.

March 8, 2000.

Review Denied June 9, 2000.

Ronaldo A. Coulter, Appellate Public Defender, Boise, for appellant.

Hon. Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, for respondent. Myrna A.I. Stahman argued.

PERRY, Chief Judge.

Jason Burdett appeals from a judgment of conviction and fixed life sentence imposed pursuant to his plea of guilty to second degree murder. I.C. § 18-4003(g). Burdett also appeals from the denial of his I.C.R. 35 motion. For the reasons set forth below, we affirm.

I. BACKGROUND

In the early morning hours of September 10, 1996, Burdett called 911 because Brooks Comfort, the twenty-month-old son of his girlfriend, was not breathing. An Elmore County ambulance was dispatched. Upon arriving at the scene, an emergency medical technician (EMT) entered the residence and observed that Brooks was not breathing, his lips were blue, he had no pulse, and no CPR was being performed. Mouth-to-mouth resuscitation was started. The infant was transported to the awaiting ambulance where CPR was continued. In the ambulance, the EMT noticed a "clear to gray substance" in the infant's mouth. Upon arriving at the hospital, an emergency room physician assumed care of Brooks. Resuscitative efforts failed and Brooks was pronounced dead approximately forty-five minutes after arriving at the hospital.

Eventually, Burdett was charged with first degree murder for the infant's death. Pursuant to a plea agreement, Burdett pled guilty to second degree murder. The district court ordered that a presentence investigation report (PSI) be prepared. The PSI contained a statement from the EMT that the substance she removed from the infant's mouth was semen.¹ Burdett moved to strike the EMT's statement from the PSI and for preparation of a new report. The district court conditionally denied the motion, ruling that the information would not be stricken provided the EMT testified at the sentencing hearing. The district court also indicated that it would give such testimony the weight it deemed appropriate.

At the sentencing hearing, the EMT gave testimony relating to her opinion on this issue, subject to cross-examination. After considering the EMT's testimony, the PSI, and the evidence presented, the district court sentenced Burdett to a fixed life term. Burdett filed an I.C.R. 35 motion seeking reduction of his sentence, which the district court denied. Burdett appeals.

II. ANALYSIS

A. Sentence Review

1. EMT's testimony

Burdett contends that the district court abused its discretion when it considered the EMT's testimony in formulating Burdett's sentence. Burdett also argues that the EMT's statement contained in the PSI should have been stricken, asserting that it was speculative and that there was no reasonable basis for its consideration.

The district court has broad discretion in determining what evidence is to be admitted at a sentencing hearing. State v. Viehweg, 127 Idaho 87, 92, 896 P.2d 995, 1000 (Ct.App.1995). It is well settled that hearsay information believed to be reliable may be set forth in a presentence report, so long as the defendant is afforded an opportunity to present favorable evidence and to explain or rebut the adverse information. State v. Rodriguez, 132 Idaho 261, 263, 971 P.2d 327, 329 (Ct.App.1998). However, hearsay information must be disregarded if there is no reasonable basis to deem it reliable, as where the information is simply conjecture. Id. A defendant is entitled to challenge the reliability of the hearsay information contained in a presentence report and to bring to the court's attention matters contained in the report which the defendant believes to be inaccurate. State v. Johnson, 101 Idaho 581, 583, 618 P.2d 759, 761 (1980).

Prior to the sentencing hearing, Burdett moved to have the EMT's statement stricken from the PSI. Burdett argued that there was no reasonable basis to deem the information contained in the statement reliable. The district court denied that motion, ruling that as long as the EMT "testifies at the sentencing hearing, then I will not strike the information in the presentence report. I will base it on whatever her testimony is and give it the weight that I deem I need to give it."

Initially we note that the decision to admit lay opinion testimony is discretionary with the trial court. State v. Enyeart, 123 Idaho 452, 454, 849 P.2d 125, 127 (Ct.App. 1993). At sentencing, the EMT's testimony mirrored her statement to the presentence investigator. Additionally, the EMT testified as to the basis of her opinion, and Burdett exercised his opportunity to cross-examine her at length. During cross-examination, Burdett challenged the EMT's credibility as well as the reliability of the information she presented.

During appellate oral argument, counsel for Burdett indicated that the EMT waited until approximately two years after the incident to tell anyone that the substance in the infant's mouth was, in her opinion, semen. Burdett contends that the district court gave improper weight to the EMT's testimony. However, the EMT testified at the sentencing hearing that she had given a statement in the emergency room that the substance was semen. The EMT also testified that she told the hospital employees to save the substance suctioned from the infant's mouth, as well as the sheet from the ambulance on which she wiped the substance after removing it from the infant's mouth. The EMT also stated that she informed the former prosecuting attorney about her opinion regarding the substance when she was interviewed on the day following the murder. The district court found that the EMT was a credible witness.

The EMT also testified regarding the presence of a pubic hair discovered in the infant's diaper upon arrival at the hospital. A report, compiled by Pamela Marcum, a criminalist employed by the Idaho Bureau of Forensic Services, was admitted into evidence by Burdett. Burdett contends that, because the source of the pubic hair was never established, any inference by the EMT was inadmissible. However, Marcum's report stated that the unknown pubic hair was "similar to Jason Burdett's pubic hair." Thus, the district court properly considered this testimony.

The criminalist's report also stated that no semen was found upon analysis of the "sex kit" performed on Brooks. Burdett called Thomas Barry, Mountain Home Police Chief, to testify. Barry stated that he routinely relied on the reports prepared by the Idaho Bureau of Forensic Services. Chief Barry further testified that, based the report and his investigation, he did not believe that semen was in the infant's mouth.

On appeal, we presume that a sentencing court is able to ascertain the relevancy and reliability of the broad range of information and material which is presented to it during the sentencing process, to disregard the irrelevant and unreliable evidence, and to properly weigh the remaining evidence which may be in conflict. State v. Campbell, 123 Idaho 922, 926, 854 P.2d 265, 269 (Ct.App. 1993). The district court weighed the conflicting evidence and found the EMT's testimony reliable. We hold that the district court's consideration of the EMT's allegations submitted through the PSI and her testimony was proper.

Finally, Burdett appears to assert that the EMT's statements were "extremely prejudicial" and "had minimal probative value" and, thus, should not have been considered by the district court. As stated above, the district court weighed the evidence presented and found the EMT's testimony was sufficiently reliable to consider. Therefore, the district court appropriately considered this evidence prior to imposing sentence.

2. Abuse of discretion

Burdett also argues that the district court abused its discretion when it imposed a fixed-life sentence upon his guilty plea to second degree murder. An appellate review of a sentence is based on an abuse of discretion standard. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary "to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender and the protection of the public interest. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).

As punishment for second degree murder, the accused may be sentenced to a life term in the custody of the Board of Correction. At a minimum, however, the district court must impose an indeterminate term of at least ten years. I.C. § 18-4004; State v. Whiteley, 132 Idaho 678, 679, 978 P.2d 238, 239 (Ct.App.1999). The decision as to whether the sentence will be some indeterminate term with the possibility of parole after ten years, or will be some longer period of incarceration without the possibility of parole, extending to life, is a matter within the trial court's discretion. Whiteley, 132 Idaho at 679-80, 978 P.2d at 239-40. The Idaho Supreme Court has stated that "a fixed life sentence is appropriate if necessary to protect society, to deter the individual and the public, if...