State v. Babb

• Decision Date: 08 July 1994
• Docket Number: No. 20207,20207
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Roger Dale BABB, Defendant-Appellant. Moscow, April 1994 Term
• Court: Idaho Supreme Court

Page 905

877 P.2d 905

125 Idaho 934

STATE of Idaho, Plaintiff-Respondent, v. Roger Dale BABB, Defendant-Appellant.

No. 20207.

Supreme Court of Idaho,

Moscow, April 1994 Term.

July 8, 1994.

[125 Idaho 935] Allen V. Bowles, Moscow, for appellant.

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

JOHNSON, Justice.

This is a criminal case in which the defendant was convicted of first-degree murder and sentenced to life imprisonment with a fixed term of twenty years. The following are the issues presented and our disposition of them:

1. Whether the trial court incorrectly denied the defendant access to inspect the alleged crime scene.

We conclude the trial court correctly denied the inspection because the defendant did not bring before the court the person who had possession and control of the crime scene.

2. Whether the trial court abused its discretion in allowing lay witnesses to testify they had not observed anything about the victim that led them to believe that he was contemplating suicide.

We conclude that the defendant did not preserve this issue for appeal.

3. Whether the trial court abused its discretion in not reopening the defendant's pretrial suppression request during trial.

We conclude the trial court ruled correctly.

4. Whether the trial court should have instructed the jury that the state had the burden of proving that the victim did not commit suicide.

We conclude that the instructions correctly placed the burden on the state to prove the murder beyond a reasonable doubt.

5. Whether the prosecuting attorney was guilty of misconduct calculated to inflame the minds of jurors and to arouse prejudice and passion against the defendant.

We conclude the defendant has not shown this to be true.

6. Whether the trial court made a disparaging remark about defense counsel that affected the jury in a manner prejudicial to the rights of the defendant.

We conclude the trial court did not do so.

7. Whether there is substantial evidence to support the jury's verdict that the defendant killed the victim with malice aforethought and with premeditation.

We conclude there is substantial evidence to support the verdict.

8. Whether a life sentence, with a fixed term of twenty years, is unreasonable.

We conclude that the sentence is not unreasonable.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

On March 8, 1991, Roger Dale Babb and his common law wife, Kathy Spencer, spent the evening drinking at two bars in Potlatch, Idaho, where they met Ron Boone. Boone bought Babb and Spencer a drink and in Babb's presence told Spencer she had a beautiful body. The bartender later testified that when Boone said this, Babb looked like his eyes started to snap. A witness later testified that Spencer told the witness that Boone made sexual advances toward her and wanted to go to bed with her.

Late in the evening, Boone invited Spencer and Babb to his residence where he furnished them with more alcohol. Babb fell asleep and spent the night in Boone's residence. Spencer called Babb's half brother from Boone's residence at about 4:45 a.m., sounding scared and crying.

Later in the morning, following a call from Babb, sheriff's officers arrived at Boone's residence and found Boone in his bed, with a 0.22 caliber pistol beside him and a fatal gunshot wound through his right temple. The state charged both Babb and Spencer with first-degree murder. Spencer's case is not part of this appeal.

Following the state's investigation into Boone's death, the state surrendered possession and control of Boone's residence to Boone's father. Later, Babb requested the trial court to allow defense counsel and investigators to inspect Boone's residence, alleging that Boone's father had denied permission for an inspection. The state admitted the importance to the defense of inspecting the residence, but argued that the state was not in custody or control of the premises and Prior to trial, Babb also requested the trial court to preclude the state from attempting to elicit testimony from lay witnesses regarding whether Boone "would have committed suicide" or whether Boone "was in such a mood on March 8, 1991 or March 9, 1991 as to have committed suicide." The trial court granted this request, but ruled that if the state laid an adequate foundation pursuant to I.R.E. 701, the trial court would "permit the State and each of the Defendants in these cases to inquire of lay witnesses as to whether or not there was anything they observed in the conduct of Mr. Boone which led them to believe that he was contemplating suicide."

[125 Idaho 937] that the state could not force Boone's father to admit Babb's investigators to the residence. The trial court denied Babb's request.

In its case-in-chief at trial, the defense presented testimony of witnesses who said Boone had talked of suicide and had acted peculiarly prior to his death. The defense did not specifically ask witnesses about suicide, Boone's predisposition toward suicide, or whether Boone had acted in a manner which made the witnesses believe Boone was contemplating suicide.

The state presented rebuttal evidence through numerous witnesses who testified that there was nothing they observed about Boone that led them to believe he was contemplating suicide. Babb did not object to these questions.

Prior to trial, Babb made a discovery request for "[a]ny relevant written or recorded statements made by [Babb], or copies thereof, within the possession, custody or control of the State ... the existence of which is known or is available to the Prosecuting Attorney or his agents by the exercise of due diligence."

Babb also requested that the trial court suppress the statement made by him to a law enforcement officer who administered a polygraph examination to Babb. Babb contended that the officer questioned Babb at a time when he knew Babb was represented by counsel in violation of his sixth amendment rights.

The trial court denied Babb's request to suppress Babb's statements during the polygraph examination interview. The trial court stated that Babb had not shown that his statements were involuntary because he did not understand his rights or the consequences of his waiver of rights.

During the trial, the state called the officer to testify to the statements Babb made during the polygraph examination interview. Toward the end of the officer's direct examination, Babb informed defense counsel that he believed the interview with the officer had been recorded. On cross-examination, the officer admitted that the interview with Babb had been tape recorded. The prosecution had not produced the tape recording prior to trial pursuant to Babb's discovery request. During a recess, the prosecutor informed the trial court that he had only learned that morning of the existence of the tape recording.

The following morning, defense counsel requested that the trial court allow Babb to reopen the request to suppress the statements Babb made in the interview with the officer, based on the state's failure to reveal the tape recording. The defense argued that the tape recording revealed that Babb's statements during the interview were not made knowingly, voluntarily, and intelligently.

The trial court found that the prosecuting attorney had not exercised due diligence in determining whether there was a tape recording of the polygraph examination interview with Babb, and that the state had failed to comply properly with Babb's discovery request. The trial court then considered whether this was sufficient to reopen Babb's request to suppress the statements. The trial court ruled that the request could be reopened if Babb discovered additional facts after the trial court denied the suppression before trial, and with reasonable diligence, Babb could not have discovered these facts earlier. In denying Babb's motion to reopen, the trial court decided that because Babb had been present at the interview, exercising due diligence, the defense would have known about the tape recording before trial.

At the conclusion of the trial, Babb proposed a jury instruction, which stated: "The defense has presented evidence that Ron Boone may have committed suicide. The defense has no burden to prove suicide. The state has the burden to prove beyond a reasonable doubt that Ron Boone did not commit suicide." The trial court refused to give the instruction, concluding that the instruction misstated the law because the state's burden was to prove beyond a reasonable doubt that Babb shot Boone, not to prove beyond a reasonable doubt that Boone did not commit suicide. Instead, the trial court informed defense counsel that he should argue in the defense's closing argument reasonable doubt based on the possible suicide.

The jury found Babb guilty of first-degree murder. The state sought the death penalty, but the trial court sentenced Babb to life imprisonment, with a minimum fixed term of twenty years.

Babb appealed.

II.

THE TRIAL COURT CORRECTLY DENIED BABB'S MOTION TO INSPECT BOONE'S RESIDENCE.

Babb asserts that the trial court improperly denied access to inspect Boone's residence. We disagree.

Babb's motion requested an order allowing defense counsel and his agents to inspect Boone's residence, and to be accompanied by a deputy sheriff, "to assure that said inspection is not interfered with or subject to any supervision by any party who may now have a possessory interest in said premises or anyone residing in said residence as a caretaker." The motion stated that it was based on these facts: (1) the inspection was essential to the preparation of the defense; (2) defense counsel had previously contacted Boone's father, who had denied permission for inspection of Boone's residence; and (3) defense counsel believed that if a deputy sheriff was not ordered to accompany defense counsel and the defense investigator to the residence, "said inspection will be denied and/or frustrated by...