215 P.3d 414 (Idaho 2009), 32128, State v. Severson

Docket Nº:32128.
Citation:215 P.3d 414, 147 Idaho 694
Opinion Judge:J. JONES, Justice.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Larry M. SEVERSON, Defendant-Appellant.
Attorney:Molly Huskey, State Appellate Public Defender, Boise, for appellant. Diane Walker and Eric Fredericksen argued. Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Jessica Lorello argued.
Judge Panel:Justice BURDICK and Justice Pro Tem TROUT concur. Justice W. JONES dissenting: Justice Pro Tem KIDWELL concurs.
Case Date:May 29, 2009
Court:Supreme Court of Idaho

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215 P.3d 414 (Idaho 2009)

147 Idaho 694

STATE of Idaho, Plaintiff-Respondent,


Larry M. SEVERSON, Defendant-Appellant.

No. 32128.

Supreme Court of Idaho

May 29, 2009

Rehearing Denied Aug. 24, 2009.

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[147 Idaho 700] Molly Huskey, State Appellate Public Defender, Boise, for appellant. Diane Walker and Eric Fredericksen argued.

Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Jessica Lorello argued.

J. JONES, Justice.

Larry Severson appeals his judgment of conviction for the first-degree murder and poisoning of his wife. We affirm.


Larry and Mary Severson met in Colorado in 1995.1 After dating for a little over one year, the couple married and moved to Mountain Home, Idaho. By 2001, Severson and Mary began experiencing marital problems. Then, in August 2001, the couple separated after Mary learned that Severson was having an affair with a younger woman. Upon learning of the affair, Mary left Severson and returned to Colorado to stay with her mother.

Initially, Mary and Severson planned on getting an uncontested divorce. Less than four months after the couple separated, however, Mary changed her mind. Instead of going forward with the divorce, Mary decided to return to Idaho and work on her marriage. In the meantime, Severson continued to see his younger girlfriend, Jennifer Watkins. Severson told Watkins that he and Mary were still getting divorced and even asked Watkins to marry him. Watkins initially accepted Severson's proposal but ended up breaking off the relationship before Mary returned to Idaho.

Mary arrived back in Idaho in December 2001. Once she returned, she and Severson went to the local GNC store so she could purchase some Hydroxycut pills. Mary had started taking Hydroxycut while she was in Colorado in order to help her lose weight. During that time, the pills did not cause her to suffer any adverse side effects. Shortly after Mary began taking the pills she purchased with Severson, however, she started experiencing stomach pain and vomiting blood. This prompted Mary to inspect the pills and, upon doing so, she noticed that they were discolored and warm to the touch. Mary immediately quit taking the pills and scheduled an appointment with her doctor. At the doctor's office, Mary was diagnosed with an ulcer and given a prescription for Prevacid. During a follow-up examination, she also received a prescription for the sleep aid Ambien.

On February 14, 2002, Severson called Mary's doctor and requested a refill of Mary's Ambien prescription. The doctor authorized the refill and Severson picked up the prescription later that same night. The next morning, at approximately 3:00 a.m., Severson purportedly discovered Mary lying on the couch not breathing. Upon finding his wife, Severson called his son and daughter-in-law, Mike and Nora, who immediately rushed to Severson's house. Once there, Nora called 911 and Mike began performing CPR on Mary. Before long, the paramedics arrived and transported Mary to the hospital. Efforts to resuscitate Mary continued in the ambulance and at the hospital, but were ultimately unsuccessful. Mary was pronounced dead at the hospital at approximately 4:15 a.m. that same morning. An autopsy revealed that Mary had ingested significant amounts of the sleep aids Ambien and Unisom, however, her cause of death was listed as " undetermined."

Less than one day passed before the police began investigating Severson's role in Mary's death. Searches of Severson's home and

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[147 Idaho 701] workplace revealed several pieces of evidence including a cardboard tray with broken pieces of Hydroxycut capsules, a pharmacy receipt for Ambien, Ambien pills under a couch cushion where Mary was discovered, a plastic baggie containing Unisom pills that was hidden inside a hat with the word " dad" printed on it, Unisom tablets in Mary's bathroom and car, and an empty Ambien prescription bottle. Additionally, two bottles of Hydroxycut and an envelope containing some contaminated pills were recovered from Severson's attorney, Jay Clark. 2

Severson was eventually indicted on one count of first-degree murder and one count of poisoning food and/or medicine. Initially, the indictment alleged that Severson killed Mary by overdosing her with sleeping pills. It was later amended to include possible murder by suffocation. Although Severson objected to the amendment, the trial court permitted it after concluding that it did not charge Severson with a new offense and would not otherwise result in prejudice.

After several changes in attorneys, the Elmore County Public Defender's Office was appointed to represent Severson at trial. Ed Frachiseur was designated as lead counsel and Ellison Matthews was later appointed as co-counsel. Mr. Frachiseur was appointed despite Severson's objection that he had a conflict of interest. In a pro se motion to reinstate his former counsel, Severson argued that the appointment of Mr. Frachiseur violated his right to be represented by conflict-free counsel. According to Severson, Mr. Frachiseur was operating under a conflict of interest because another public defender, Terry Ratliff, had represented Mary's mother in a civil suit that was directly related to the criminal case.3 Despite Severson's objections, the trial court concluded that Mr. Ratliff's conflict did not preclude Mr. Frachiseur from representing Severson.

Severson's case proceeded to trial in October 2004. At the conclusion of the seventeen-day trial, the trial court delivered its instructions to the jury. Although Severson requested that the trial court instruct the jury that, in order to find him guilty of murder, it must unanimously agree on the means by which he killed his wife, the court concluded that such an instruction was unnecessary. After two days of deliberation, the jury returned a general verdict finding Severson guilty of both counts alleged in the indictment. The verdict did not specify whether Severson murdered his wife by overdosing her, suffocating her, or both. Severson then filed two motions for judgment of acquittal and a motion for a new trial arguing, among other things, that there was insufficient evidence for the jury to find him guilty of murder. The trial court denied Severson's motions and sentenced him to life without the possibility of parole for murdering his wife and to five years for poisoning food and/or medicine. Severson now appeals the judgment of conviction, alleging that the trial court erred in it rulings on the conflict of interest, the amendment to the indictment, the unanimity instruction, and the sufficiency of the evidence. He also argues that various acts of prosecutorial misconduct deprived him of his right to a fair trial.


On appeal, we are concerned with six issues: (1) whether Severson was denied his right to be represented by conflict-free counsel; (2) whether the district court erred by allowing the State to amend the indictment without first returning it to the grand jury; (3) whether the district court erred in not instructing the jury that it must unanimously agree on the means by which Severson killed his wife in order to find him guilty of murder; (4) whether there was sufficient evidence for the jury to conclude beyond a reasonable doubt that Severson murdered his wife; (5) whether various acts of alleged prosecutorial misconduct deprived Severson of his right to a fair trial; and (6) whether

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[147 Idaho 702] the accumulation of errors that occurred during Severson's trial rendered the trial unfair.


Severson argues the district court deprived him of his right to be represented by conflict-free counsel by refusing to impute Mr. Ratliff's conflict of interest to the entire Elmore County Public Defender's Office. According to Severson, the district court's decision should be reversed because the court: (1) failed to conduct an adequate inquiry into the potential conflict; and (2) erred in concluding that the Public Defender's Office did not have a conflict of interest. The State argues that the district court adequately considered the potential conflict, provided Severson an opportunity to be heard on the issue, and correctly determined that Severson's lawyer did not have a conflict of interest. Alternatively, the State argues that even if the trial court did not make a proper inquiry into the conflict, Severson's challenge should fail because he has not established that the conflict adversely affected his lawyer's performance or otherwise resulted in prejudice. 4


A trial court may appoint substitute counsel for an indigent defendant upon a showing of good cause. State v. Nath, 137 Idaho 712, 714-15, 52 P.3d 857, 859-60 (2002). Whether substitute counsel should be provided is a decision that lies within the sound discretion of the trial court and will be reviewed on appeal for an abuse of discretion. Id. at 715, 52 P.3d at 860. The trial court's decision will only be regarded as an abuse of discretion if it violated the defendant's right to counsel. Id.


Although Severson acknowledges the district court conducted an inquiry into whether his public defender was operating under a conflict of interest, he argues that the inquiry was inadequate. Severson bases his argument on what he regards as the court's failure to thoroughly consider Mr. Ratliff's representation of Mary's mother, his employment at the Public Defender's Office, and the extent he and Mr. Frachiseur collaborated on their cases. Severson argues that such...

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