State v. Campbell

• Decision Date: 02 June 1988
• Docket Number: No. 16313,16313
• Citation: 114 Idaho 367,757 P.2d 230
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jerry Wayne CAMPBELL, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 230

757 P.2d 230

114 Idaho 367

STATE of Idaho, Plaintiff-Respondent, v. Jerry Wayne CAMPBELL, Defendant-Appellant.

No. 16313.

Court of Appeals of Idaho.

June 2, 1988.

John K. Gatchel, Payette, for defendant-appellant.

Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

On this appeal, the defendant, Jerry Campbell, challenges his judgment of conviction for murder in the second degree, for kidnapping in the first degree and for aggravated battery. He raises issues concerning corroboration of accomplices' testimony, selective prosecution, inclusion of the aggravated battery charge as a lesser offense in the kidnapping or murder counts, and whether the state failed to provide advance notice of a sentence-enhancement allegation. For reasons given below, we affirm.

Viewing the evidence in the light most favorable to the prosecution, State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982), the following facts appear. In late October, 1984, during the early morning hours, the victim, Mac Atwood, went to the house of a friend, Jerry Campbell. Campbell shared this home with several other people, including his girlfriend, Sherrie Robertson, and Kelly Vern Hemenway. While Hemenway was asleep on the first floor, he was awakened when he heard someone enter the darkened house. Hemenway sought out and alerted Campbell and Robertson who were asleep on the second floor. Campbell and Hemenway returned downstairs and confronted the intruder. Hemenway kicked out and struck the intruder.

Moments later the lights were turned on and Atwood was identified. Atwood was taken upstairs by Campbell and Hemenway. Apparently, as a result of earlier contacts between Campbell, Hemenway, Robertson and Atwood--involving supposed thefts by Atwood--Campbell and Hemenway began to severely beat Atwood. Later, Atwood's hands were bound behind his back with wire, and a sack was placed over his head. The sack was tied around Atwood's neck to prevent blood from falling to the floor. Atwood was then forced from the house by Campbell, Hemenway and Robertson. Atwood was placed in a car and driven by Campbell, Hemenway and Robertson for twenty to thirty minutes to a secluded location along the Payette River. Atwood, still alive at this point, was taken from the car. According to the testimony of Hemenway and Robertson, Campbell beat Atwood with a hammer, delivering multiple blows to Atwood's skull. After that beating, Hemenway approached Atwood and attempted to cut the sack from around Atwood's head. In doing so, Hemenway cut Atwood's throat, although the wounds were later declared to be nonfatal by the pathologist who conducted Atwood's autopsy. Campbell then took Atwood's body--with the hands still bound--and placed it face down in the Payette River.

After the body was recovered approximately a month later, Campbell was arrested. He was tried before a jury and was found guilty of murder in the second degree, of kidnapping in the first degree and of aggravated battery. The court imposed a fixed-life sentence for the murder, a fixed-life sentence for the kidnapping, and a fifteen-year fixed sentence on the aggravated battery count. All sentences were ordered to be served concurrently.

On appeal, Campbell contends that: (1) the testimony of the accomplices, Robertson and Hemenway, was not corroborated, as required by Idaho law; (2) without corroboration of the accomplices' testimony, the evidence presented at trial was insufficient to sustain the jury verdict on all counts; (3) the district court erred in failing to rule on Campbell's motion for a new trial; (4) selective prosecution of Campbell occurred when the state granted immunity to Robertson and also declined to charge Hemenway with murder in the first degree; (5) Campbell should not have been found guilty of aggravated battery, because that crime is a lesser included offense either of the second-degree murder or of the first-degree kidnapping; (6) it was error for the prosecution to seek an enhanced sentence for Campbell as a persistent violator without first providing notice to the defense as required under I.C. § 19-2520. We shall address each of these issues in turn.

I

Campbell first asserts that the evidence presented at his trial was insufficient to sustain the jury verdict because the testimony of the accomplices--Robertson and Hemenway--was not corroborated. The requirement of corroboration of testimony from an accomplice is found in I.C. § 19-2117:

A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.

The purpose of the corroboration requirement is to offset the danger that an accomplice may wholly fabricate testimony inculpating an innocent person in order to win more lenient treatment for the alleged accomplice. State v. Pierce, 107 Idaho 96, 101, 685 P.2d 837, 842 (Ct.App.1984). The corroborating evidence offered "need only connect the defendant with the crime." State v. Aragon, 107 Idaho 358, 364, 690 P.2d 293, 299 (1984); State v. Bassett, 86 Idaho 277, 385 P.2d 246 (1963). The corroborating evidence must be independent of the accomplice's testimony, but it need not be sufficient in and of itself to convict the defendant. State v. Aragon, supra; State v. Gillum, 39 Idaho 457, 228 P. 334 (1924). The corroborating evidence may be slight, need only go to one material fact and may be entirely circumstantial. State v. Evans, 102 Idaho 461, 631 P.2d 1220 (1981); State v. Brown, 53 Idaho 576, 26 P.2d 131 (1933). Statements made by a defendant may supply the corroboration of an accomplice that is necessary for conviction. State v. Garcia, 102 Idaho 378, 630 P.2d 665 (1981); State v. Larsen, 81 Idaho 90, 337 P.2d 1, cert. denied, 361 U.S. 882, 80 S.Ct. 154, 4 L.Ed.2d 119 (1959); State v. Brown, supra. With these principles in mind, we shall now examine the evidence presented at Campbell's trial.

In respect to the aggravated battery charge, testimony was offered by Hemenway and Robertson that Campbell had repeatedly kicked Atwood in the body. The autopsy examination of Atwood's body revealed he had two fractured ribs, and contusions, bruises and abrasions on the skin surface overlaying those ribs. Dr. Maier, the pathologist who conducted the autopsy, opined that, because of a lack of bleeding associated with the fracture, the injuries had occurred a short time prior to Atwood's death and were consistent with the testimony of the accomplices. Without any question, the autopsy corroborated the accomplices' testimony describing the infliction of severe injuries on Atwood. However, under I.C. § 19-2117, evidence that is merely corroborative of the "commission of the offense, or the circumstances thereof" is not enough. Instead, the evidence necessary to serve as corroboration of the accomplice's testimony must tend "to connect the defendant with the commission of the offense." We believe that evidence surfaces in conjunction with certain evidence relative to the kidnapping charge.

In respect to the kidnapping, although there is the challenged testimony of Hemenway and Robertson about restraining and abducting Atwood and transporting him to the river, that testimony was corroborated by the eventual discovery of Atwood's body in the Payette River with Atwood's hands bound behind his back. This alone satisfied all of the elements of kidnapping in the first degree save one, the identity of Campbell as a participant. While Hemenway and Robertson testified that Campbell was a participant, corroboration of that assertion was still required. I.C. § 19-2117.

For this corroboration we turn to words spoken by Campbell himself. In a conversation with Mrs. Mac Atwood, prior to the discovery of her husband's body by the police, Campbell told Mrs. Atwood that some people called "the Parker Brothers ... had got to him and that we would find him in the Payette River." (Emphasis added.) In another conversation, Campbell spoke with a friend, Glen Bennett, prior to the discovery of Atwood's body. Campbell intimated to Bennett that Atwood had been "taken to the river." This particular knowledge of the probable location of the body prior to its discovery together with the condition of the body as described by Dr. Maier's autopsy and the fact that Atwood's hands were tied behind his back could lead a jury to believe that Campbell was a participant in both the aggravated battery and the kidnapping. The jury was free to conclude that Campbell's disclosures corroborated the testimony of Hemenway and Robertson as to these two charges.

In respect to the second-degree murder conviction, the state was required to prove the following elements beyond a reasonable doubt: (1) The defendant, Jerry Campbell, (2) on or about October, 1984, (3) in Payette County, Idaho, (4) with malice aforethought (5) unlawfully and intentionally (6) killed Mac Ray Atwood, a human being. Elements 2, 3, 4, 5 and 6 were shown by the testimony of Hemenway and Robertson and corroborated by the discovery and examination of the body of Atwood.

While the testimony of the accomplices indicated Campbell was the murderer and acted with malice aforethought, it is Campbell himself who again provided the necessary corroboration. In addition to the statements Campbell made to Mrs. Atwood and Mr. Bennett, Campbell made statements to several other people that showed his participation in the alleged murder.

A Detective Holloway testified that Campbell said to him: "I killed my brother." ¹ Holloway further testified that on another occasion Campbell told him "we shouldn't be charging him with first-degree murder, because he hadn't planned on killing Mr....