State v. Porter

Decision Date27 August 1997
Docket NumberNos. 18894,22095,s. 18894
Citation130 Idaho 772,948 P.2d 127
PartiesSTATE of Idaho, Plaintiff-Respondent, v. George Junior PORTER, Defendant-Appellant. Coeur d'Alene, October 1996 Term
CourtIdaho Supreme Court

Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General (argued), Boise, for respondent.

Substitute Opinion

The Court's Prior Opinion Dated February 4, 1997 is Hereby Withdrawn.

ON REHEARING

TROUT, Chief Justice.

This is a first-degree murder case in which the defendant was accused of violently beating a woman who previously had been the defendant's girlfriend. This case is before us on the direct appeal, the denial of the post-conviction petition, and this Court's statutory obligation to review the imposition of the death penalty pursuant to I.C. § 19-2827. We affirm the defendant's conviction and sentence.

I. BACKGROUND AND PRIOR PROCEEDINGS

George Junior Porter (Porter) was convicted of the first degree murder of his former girlfriend, Teresa Jones (Jones). It was undisputed that Porter had been Jones' boyfriend until several weeks before her death and that another man, Dale Cooper (Cooper), had been Jones' boyfriend prior to the time that Jones began dating Porter. It also was agreed that both men, on previous occasions, had severely beaten Jones.

Since the latter part of October 1988, Porter and Jones had been living together at Jones' residence. On the morning of December 7, 1988, Jones' neighbor, Bonnie Funnemark (Funnemark), contacted the Kamiah Marshal's Office and reported that Porter had been beating Jones in Jones' and Funnemark's yards and that, in the course of the incident, Porter had broken Funnemark's storm window. The deputy marshal who was dispatched to the scene located Porter and Jones outside of a nearby church, approximately one hundred fifty yards from Jones' residence. The deputy marshal took Porter to the station and arrested him for misdemeanor battery. Porter, however, was released later that day.

On December 12, 1988, Jones contacted the Kamiah Marshal's Office to request that a marshal evict Porter from Jones' home. Pursuant to Jones' request, a deputy marshal took Porter to his brother's residence in Idaho County in the early morning of December 13. There was some dispute in the testimony at trial, but it appears that, at the time Porter was evicted from the victim's house, Porter left behind all of his belongings, including a guitar case.

According to testimony presented at trial, patrons and employees of a bar in Kamiah had seen Jones alive on December 21, 1988. Also on December 21, 1988, Laura Cooper observed a man matching Porter's description, wearing a white stocking cap and brown jacket, enter Jones' residence through a front window. Laura Cooper's sister lived across the street from Jones, and Laura Cooper had been babysitting her sister's children on December 21, 1988.

On the evening of December 26, 1988, Funnemark contacted the Kamiah Marshal's Office to report that she had not seen Jones for approximately one week and had not seen smoke from Jones' chimney for three or four days. Two deputy marshals entered Jones' residence and found her body on the bed, naked and covered with a sleeping bag. One of the deputy marshals testified that the victim had been beaten severely in the face and head, that her lower body also had been beaten, and that there was a mark and/or hole on her forehead. Officers from the Kamiah Marshal's Office and the Lewis County Sheriff's Office investigated Jones' residence and found blood on the bedroom floor, on the bedroom walls, on the bathroom floor, and in the bathroom basin. Additionally, they found several clumps of human hair The pathologist who performed the autopsy testified that Jones died of multiple blunt trauma to the head. He also testified that his examination of the victim's skull revealed that the mark on her forehead was not a bullet wound but that he could not identify the cause of the mark. Additionally, he noted that there were between three and six areas on the victim's scalp, each approximately the size of a fifty-cent piece, where the hair appeared to have been pulled out in large clumps. The pathologist could not determine how long Jones had been dead. However, he estimated that as many as twenty-four hours had passed between infliction of the injuries that eventually caused the victim's death and her actual death. Law enforcement officials authorized cremation of her body several days after it was discovered.

that was the same length and coloring as the victim's hair on the bedroom floor.

Porter was arrested in June 1989, and the court appointed counsel to represent him. At the arraignment, Porter pled not guilty, and Porter's counsel requested that the court pull jurors from another district. Porter's counsel, however, never filed a motion for a change of venue. Also at the arraignment, Porter's counsel requested and was granted authorization to retain an investigator, consult a forensic pathologist, and take depositions of two out-of-state witnesses. The investigator obtained by Porter interviewed Cooper and was successful in getting Cooper to admit that he, rather than Porter, had murdered the victim. The State, nonetheless, continued to pursue the case against Porter.

Approximately three and one-half months before trial, the State moved for permission to join an assistant attorney general, as special counsel. Porter's counsel did not oppose the motion, and the district court granted the State's motion.

Approximately eleven days before trial, the State disclosed that it intended to call several of Porter's former girlfriends to testify that Porter had seriously beaten them, including pulling out clumps of their hair during the beatings. As an offer of proof, the State presented testimony of two law enforcement officers and an investigator for the Idaho Attorney General regarding whether, in their experience investigating domestic violence cases, they found the acts of hair pulling and pulling out of hair to be unusual. All three testified that they had never had occasion to investigate a battery by a man against a woman where the man deliberately pulled out the woman's hair. After hearing this testimony, the district court informed Porter's counsel that he should be prepared to meet the evidence regarding Porter's prior misconduct, although the court indicated that it was not prepared to exclude or include the evidence. At this point, Porter's counsel requested the assistance of a second attorney to aid him in investigating these prior bad acts. The district court denied the request but permitted Porter to hire another investigator.

A two-week jury trial was held during January 1990. Over objection by Porter's counsel, the State introduced evidence that Porter had battered prior girlfriends and that, in the course of those beatings, Porter had pulled handfuls of hair out of the women's heads. The district court concluded that the evidence regarding the hair pulling incidents was admissible because it demonstrated a signature. Also at trial, the State called Porter's investigator during the State's case in chief and impeached the investigator for his interviewing techniques. The jury ultimately found Porter guilty.

At sentencing, the district court found three statutory aggravating factors, additional nonstatutory aggravating circumstances, and several mitigating circumstances. After weighing the mitigating circumstances against each of the aggravating factors, the district court concluded that the death penalty was the "only way to accomplish justice" and that any lesser sentence would depreciate the seriousness of the offense. Thus, the district court imposed the death penalty.

After sentencing, Porter requested substitute counsel. Porter's original counsel withdrew, and the district court appointed another attorney who argued Porter's motion for new trial. After hearing oral arguments on the motion, the district court denied the motion Porter filed his post-conviction relief petition, alleging that it was error for the judge not to consider certain mitigating evidence that Porter was presenting with his petition and that Porter should be allowed a new trial based upon the district court's refusal to instruct on lesser included offenses. Porter also alleged ineffective assistance of counsel at trial. The district court denied the post-conviction relief petition on all grounds.

for new trial. At the same hearing, Porter requested additional counsel to assist in preparing his post-conviction relief petition and appeal. The district court granted the request. Approximately three months later, however, Porter and his most recently appointed counsel requested that the district court dismiss the other attorney.

II. TRIAL ISSUES
A. Cremation of the Victim's Body

The defendant contends that it was constitutional error and a destruction of relevant evidence for the State to allow the victim's body to be cremated several days after an autopsy had been performed but before the defense had been given an opportunity independently to examine the body. When determining whether a defendant's due process rights have been violated by the loss or destruction of allegedly exculpatory evidence, this Court considers three factors: (1) whether the evidence was material to the question of guilt or the degree of punishment; (2) whether the defendant was prejudiced by the loss or destruction of the evidence; and (3) whether the government was acting in good faith when it destroyed or lost the evidence. California v. Trombetta, 467 U.S. 479, 487, 104 S.Ct. 2528, 2533, 81 L.Ed.2d 413 (1984). In conducting this analysis, this Court engages in a case-by-case assessment of the fault of the government and the significance of the loss or destruction to the critical elements of the...

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