864 P.2d 596 (Idaho 1993), 19551, State v. Raudebaugh

Docket Nº:19551.
Citation:864 P.2d 596, 124 Idaho 758
Opinion Judge:JOHNSON, Justice. BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Thomas D. RAUDEBAUGH, Defendant-Appellant-Cross Respondent.
Attorney:University of Idaho College of Law Legal Aid Clinic, Moscow, for appellant. Maureen Laflin, Supervising Atty.; Jonathan McCrone and Richard Hansen, legal interns, argued. Larry EchoHawk, Atty. Gen.; Douglas A. Werth, Deputy Atty. Gen., Boise, for respondent. Douglas A. Werth argued.
Judge Panel:McDEVITT, C.J., and TROUT and SILAK, JJ., concur.
Case Date:September 08, 1993
Court:Supreme Court of Idaho
 
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Page 596

864 P.2d 596 (Idaho 1993)

124 Idaho 758

STATE of Idaho, Plaintiff-Respondent-Cross Appellant,

v.

Thomas D. RAUDEBAUGH, Defendant-Appellant-Cross Respondent.

No. 19551.

Supreme Court of Idaho, Lewiston.

September 8, 1993

Rehearing Denied Dec. 29, 1993.

Page 597

[124 Idaho 759] University of Idaho College of Law Legal Aid Clinic, Moscow, for appellant. Maureen Laflin, Supervising Atty.; Jonathan McCrone and Richard Hansen, legal interns, argued.

Larry EchoHawk, Atty. Gen.; Douglas A. Werth, Deputy Atty. Gen., Boise, for respondent. Douglas A. Werth argued.

JOHNSON, Justice.

This is a criminal case in which the defendant was convicted of second-degree murder and use of a deadly weapon in the commission of the murder. In affirming the convictions, we hold:

  1. The trial court properly instructed the jury that it could not consider a lesser included offense unless it first acquitted the defendant of each greater offense. We conclude this acquittal first requirement conforms with I.C. § 19-2132(c) and does not violate the United States Constitution.

  2. The trial court did not abuse its discretion in allowing a witness for the state to testify concerning blood spatter evidence.

  3. The trial court properly admitted a diagram of the crime scene for illustrative purposes.

  4. The trial court did not violate I.R.E. 403 by allowing a witness to testify that the defendant was at the victim's residence to collect a drug debt.

  5. The trial court's admission of testimony that the defendant's girlfriend supplied drugs to another person on a prior occasion did not violate I.R.E. 402.

  6. The trial court improperly allowed a police officer to testify that he believed the defendant hid bloody clothing after the death of the victim. This testimony was not a permissible lay opinion under I.R.E. 702, because it lacked the personal knowledge required by I.R.E. 602. The

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    [124 Idaho 760] Court concludes, however, that allowing this testimony was harmless error.

  7. The trial court improperly allowed a police officer to give an opinion concerning the truthfulness of one of the witnesses during interrogation on the night of the homicide, but that the error was harmless.

  8. Comments by the prosecutor during closing argument did not constitute prosecutorial misconduct.

    I.

    THE BACKGROUND AND PRIOR PROCEEDINGS.

    Thomas D. Raudebaugh and his girlfriend, Barbara Winkler, went to William David Gibbs's residence to collect a debt from Gibbs. Gibbs was not at home, but Kevin Aaseby, an acquaintance of Gibbs, told Raudebaugh that Gibbs would return later. Winkler and Raudebaugh returned to Gibbs's residence later that evening. Gibbs and Raudebaugh had an argument that started in the back bedroom where Gibbs and Raudebaugh were alone, but later moved to the living room where Winkler and Gibbs's roommate, Scott Gill, were present. Raudebaugh admits that he took an iron pipe away from Gibbs and struck Gibbs with it.

    After Raudebaugh and Winkler left Gibbs's residence, Gill called for emergency help. When the authorities arrived, Gibbs was dead. The police found a knife underneath Gibbs's body and an autopsy revealed that Gibbs's died from a deep stab wound in the back of his neck.

    When the police arrived, Gill and Aaseby were present. Gill and Aaseby initially told the police that they did not see any of the events leading to Gibbs's death. Later at the police station, Gill and Aaseby each changed their statements to indicate they had seen at least part of the altercation between Raudebaugh and Gibbs.

    The state charged Raudebaugh with first-degree murder. At trial, Winkler and Gill each testified that they saw the portion of the fight that took place in the living room, but did not see Raudebaugh stab Gibbs with a knife. Aaseby testified that he was doing his laundry at Gibbs's residence and saw a portion of the fight from the doorway between the laundry area and the kitchen, but that he also did not see Raudebaugh stab Gibbs.

    The state introduced blood spatter evidence through officer Greensides, the investigating officer, and Dr. Lindholm, a forensic pathologist. This evidence indicated that Gibbs was stabbed before he was beaten with the pipe. This evidence contradicted Raudebaugh and Winkler's testimony that Gibbs was not visually bleeding when they left the residence. There was also testimony at trial that Raudebaugh and Winkler were involved in illegal drug transactions. Over objection, Aaseby testified that when Raudebaugh first arrived at Gibbs's residence Raudebaugh told him that he was there to collect $75.00 which Gibbs owed for drugs. Gill testified that Winkler had sold him drugs on prior occasions.

    The trial court instructed the jury that they must first acquit Raudebaugh of the greater offense of murder before they were allowed to consider the lesser included offense of voluntary manslaughter, and acquit Raudebaugh of voluntary manslaughter before considering the lesser included offense of involuntary manslaughter. The trial court instructed the jury that their failure to reach a unanimous decision would result in a mistrial. The jury found Raudebaugh guilty of second-degree murder and use of a deadly weapon in the commission of the crime.

    Raudebaugh appealed.

    II.

    THE ACQUITTAL FIRST INSTRUCTIONS DO NOT VIOLATE I.C. § 19-2132(c).

    Raudebaugh asserts that the requirement in the trial court's instructions and verdict form that the jury acquit Raudebaugh of each greater offense before considering the next lesser included offense [124 Idaho 761]

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    (the acquittal first instructions) violates I.C. § 19-2132(c). We disagree.

    I.C. § 19-2132 addresses jury instructions concerning lesser included offenses. I.C. § 19-2132(c), which was added by amendment in 1988, states:

    If a lesser included offense is submitted to the jury for consideration, the court shall instruct the jury that it may not consider the lesser included offense unless it has first considered each of the greater offenses within which it is included, and has concluded in its deliberations that the defendant is not guilty of each of such greater offenses.

    Raudebaugh argues that the following jury instructions given by the trial court violate this statute:

    Instruction 16C

    If your unanimous verdict is that THOMAS DALE RAUDEBAUGH is not guilty of MURDER, you must next consider the included offense of VOLUNTARY MANSLAUGHTER.

    Instruction 16F

    If your unanimous verdict is that THOMAS DALE RAUDEBAUGH is not guilty of VOLUNTARY MANSLAUGHTER, you must next consider the included offense of INVOLUNTARY MANSLAUGHTER.

    The verdict form submitted to the jury contained similar requirements that the jury reach a unanimous decision regarding each greater offense before proceeding to consider the next lesser included offense.

    This Court recently addressed an acquittal first instruction in State v. Townsend, 92.261 SCR 1508 (Issued Dec. 3, 1992) Opinion withdrawn and superseded on Rehearing by State v. Townsend, 124 Idaho 881, 865 P.2d 972 (1993). In Townsend, the Court held that an acquittal first instruction complied with I.C. § 19-2132(c). But for the fact that Townsend is not final, because of the pending rehearing, Townsend would resolve the identical issue raised by Raudebaugh in this case.

    Raudebaugh's attempt to characterize Townsend's holding as dicta is unpersuasive. Although the Court remanded Townsend on grounds unassociated with the acquittal first instruction, I.C. § 1-205 directs the Court, when remanding for a new trial, to determine all issues presented on appeal and necessary to the final determination of the case. As Townsend now reads, Townsend will receive a new trial on the charge of aggravated battery. There are lesser included offenses of this charge, and the Court was correct in resolving the acquittal first instruction issue presented in Townsend. Whether Townsend will remain in its current form, however, depends on the outcome of the rehearing. Therefore, we address the issue without relying on Townsend.

    Raudebaugh urges that a reading of I.C. § 19-2132(c) upholding acquittal first instructions conflicts with this Court's prior holdings in State v. Charboneau, 116 Idaho 129, 774 P.2d 299, cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 and 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989), overruled on other grounds by, State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991); and State v. Enno, 119 Idaho 392, 807 P.2d 610 (1991). A close reading of these cases, however, shows that neither Charboneau nor Enno addressed this issue. The events that led to the conviction in Charboneau preceded the enactment of I.C. § 19-2132(c), and consequently, Charboneau is not authority for the interpretation of the statute's directives. See I.C. § 73-101 ("No part of these compiled laws is retroactive, unless expressly so declared."); State v. Lindquist, 99 Idaho 766, 768, 589 P.2d 101, 103 (1979). Although the events that led to the conviction in Enno occurred after I.C. § 19-2132(c) became effective, Enno does not address the validity of an acquittal first instruction. In Enno, the Court found that the jury instruction raised on appeal was not an acquittal first instruction. 119 Idaho at 401, 807 P.2d at 619.

    Raudebaugh argues that we should consider the legislative history of I.C. § 19-2132(c) to aid in its construction. We

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    [124 Idaho 762] apply the rules of construction to a statute, however, only when the statute is ambiguous. Otherwise, we interpret the statute in accordance with its language. State v. Wiedmeier, 121 Idaho 189, 824 P.2d 120 (1992). As we read I.C. § 19-2132(c), the statute is unambiguous, and we interpret it according to its language.

    The statute requires the trial court to instruct the jury that it may not consider...

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