354 P.3d 462 (Idaho 2015), 39249, State v. Ehrlick

Docket Nº:39249
Citation:354 P.3d 462
Opinion Judge:HORTON, Justice.
Party Name:STATE OF IDAHO, Plaintiff-Respondent, v. DANIEL EDWARD EHRLICK, JR., Defendant-Appellant
Attorney:Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Elizabeth Allred argued. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Judge Panel:HORTON, Justice. Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR. Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.
Case Date:July 21, 2015
Court:Supreme Court of Idaho
 
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354 P.3d 462 (Idaho 2015)

STATE OF IDAHO, Plaintiff-Respondent,

v.

DANIEL EDWARD EHRLICK, JR., Defendant-Appellant

No. 39249

Supreme Court of Idaho

July 21, 2015

         2015 Opinion No. 71

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          Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.

          The judgment of conviction for first-degree murder and failure to report a death to law enforcement is affirmed.

         Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Elizabeth Allred argued.

         Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

         HORTON, Justice. Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.

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         SUBSTITUTE OPINION, THE COURT'S PRIOR OPINION DATED APRIL 27, 2015 IS HEREBY WITHDRAWN.

         HORTON, Justice.

         Daniel Ehrlick appeals from his conviction for the first-degree murder of a child and the

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failure to report the death to law enforcement. On appeal, Ehrlick alleges that the trial court committed multiple errors in the admission of evidence and that the prosecution violated his Fourteenth Amendment right to a fair trial by committing multiple acts of prosecutorial misconduct. We affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On July 24, 2009, at 10:11 p.m., the Ada County Sheriff's dispatch received an emergency call from Ehrlick reporting that R.M., the eight-year-old son of his live-in girlfriend, Melissa Jenkins, was missing. Ehrlick told dispatchers that R.M. was last seen at 7:00 p.m. on July 24, he had been searching for R.M. for several hours, and everyone was telling him that R.M. was at a birthday party. In the ensuing days, an extensive search was launched to find R.M. The searchers included members of several law enforcement agencies and dozens of citizen volunteers. R.M.'s body was found on August 3, 2009, floating face down in the New York Canal. A large rock was stuffed into a closed cargo pocket of his pants. No evidence was offered as to how, or precisely when, R.M.'s body was placed in the canal. R.M.'s corpse exhibited extensive injuries, including multiple compression injuries to the abdomen and a blow to the head. Both the compression injuries and the head injury were potentially fatal wounds on their own, but would not have resulted in instantaneous death. The State's forensic pathologist, Dr. Glen Groben, testified that R.M.'s death was caused by blunt force trauma to the head and torso due to an assault.

         During the summer months of 2009, R.M. was residing with Jenkins and Ehrlick at the Oak Park Village Apartment Complex. The complex consists of several large apartment buildings, a central office/club house, and multiple community areas, including a swimming pool, park, and playground. The complex is located about a quarter-mile from the New York Canal.

         As time passed, investigators began to suspect Ehrlick and Jenkins were involved in R.M.'s disappearance. Investigators searched the couple's apartment on July 30 and 31, finding a piece of paper taped to a wall which concealed a hole in the drywall. Considering this possible evidence, investigators cut a section of sheetrock containing the hole out of the wall. Investigators eventually had the section of sheetrock scanned in order to create a three dimensional plastic model that was introduced at trial. Investigators suspected that the hole was created when Ehrlick slammed R.M.'s head into the wall.1

         On August 18, 2009, an Ada County grand jury returned an indictment charging Ehrlick with first-degree murder and failure to report a death to law enforcement. The matter proceeded to trial. On June 30, 2011, the jury unanimously found Ehrlick guilty of both charges. The district court sentenced Ehrlick to two fixed consecutive life sentences. Ehrlick timely appealed.

         A. The Birthday Party.

         At trial, and in the parties' appellate arguments, there was extensive discussion regarding the occurrence or non-occurrence of a birthday party somewhere within the apartment complex on July 24. Accordingly, a somewhat detailed factual background may assist in understanding the parties' arguments as they relate to the occurrence or non-occurrence of a birthday party on July 24.

         The first mention of the birthday party came in Ehrlick's call to 911 on the evening of July 24. Ehrlick told the dispatcher, " I've been out looking for a couple of hours around our apartment complex .... Everybody keeps directing me to the--a birthday party. That's where everybody's saying that he's at but I can't find this birthday party or nothing." When officers subsequently contacted Ehrlick, he told Officer Guy McKean that R.M. had come into the apartment from playing outside three times between 7:00 p.m. and 7:30 p.m. to ask if he could go to a birthday party, and each time Ehrlick told R.M. that he could not. Around 10:00 p.m. on July 24, a security guard for the complex heard Ehrlick by the community pool asking

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residents if they knew of a birthday party, and if so, where it might be.

         At trial, there was no evidence that a birthday party took place within the apartment complex on July 24. The State's theory throughout the trial was that Ehrlick and Jenkins fabricated the story of a birthday party in order to distract law enforcement and deflect attention from themselves.2 In support of this theory, the State introduced evidence that no birthday party occurred and that a birthday party at that late hour did not make sense. Ehrlick maintains that the actual existence of a party is irrelevant because he never said that there was in fact a party, just that R.M. had asked to go to a party.

         B. Ehrlick's physical abuse of R.M.

         Much of the State's evidence in this case involved the nature and extent of Ehrlick's physical and emotional abuse of R.M. Ehrlick's methods of child discipline--and his related terminology--may charitably be characterized as unconventional. The first was " dead bugging," where Ehrlick would force R.M. to lay on his back on the floor and raise his arms and legs, keeping them perpendicular to the floor. The second was " the wall," where Ehrlick would force R.M. to press his face and knees up against a wall while crouching. Third, Ehrlick forced R.M. to maintain " the chair," where R.M. would place his back against a wall with bent knees and hold the position as long as possible. Ehrlick also struck R.M. with a board. R.M. often sustained bruising as a result of Ehrlick's discipline. To hide this bruising from health and welfare workers during their visits to the home, Ehrlick and Jenkins told elaborate lies and hid R.M. in their closet.

         C. The State's timeline.

         Throughout the trial, the State's theory was that R.M. was not seen by any witness on July 24 because he was either dead or dying and was unable to go outside. For this reason, the State went to great lengths to discredit all witness accounts that presented claims of seeing or speaking with R.M. on July 24.

         II. STANDARD OF REVIEW

This Court reviews questions regarding the admissibility of evidence using a mixed standard of review. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). First, whether the evidence is relevant is a matter of law that is subject to free review. State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007). Second, we review the district court's determination of whether the probative value of the evidence outweighs its prejudicial effect for an abuse of discretion. Stevens, 146 Idaho at 143, 191 P.3d at 221. We determine whether the district court abused its discretion by examining: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently within the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason. Id. However, an abuse of discretion may be deemed harmless if a substantial right is not affected. State v. Thompson, 132 Idaho 628, 636, 977 P.2d 890, 898 (1999). " In the case of an incorrect ruling regarding evidence, this Court will grant relief on appeal only if the error affects a substantial right of one of the parties." Obendorf v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834, 839 (2008); I.R.E. 103(a). " Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." I.C.R. 52.

State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010).

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         III. ISSUES ON APPEAL

1. Did the district court err by admitting testimony from an investigator that witnesses who saw R.M. on July 24 were not credible?

2. Did the district court err by admitting a model of R.M.'s head? 3. Did the district court err by admitting certain I.R.E. 404(b) evidence? 4. Did the district court err by holding that statements made by Samantha Burnett were not hearsay? 5. Did the district court err by excluding statements to law enforcement officers on the basis that the statements were hearsay? 6. Did the prosecution commit misconduct?

         IV. ANALYSIS

         A. The district court abused its discretion in admitting testimony from Agent Martin that no witnesses who claimed to have seen R.M. on July 24 were credible; however, the error was harmless.

         The State called Mary Martin, an FBI agent assigned to investigate cases involving crimes against children....

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