State v. Clark
| Decision Date | 10 April 1989 |
| Docket Number | No. 16999,16999 |
| Citation | 115 Idaho 1056,772 P.2d 263 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Thomas R. CLARK, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Roland D. Watson, Post Falls, for defendant-appellant.
Jim Jones, Atty. Gen., by Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Thomas R. Clark appeals a judgment of conviction for aggravated battery. Although Clark has specified seven issues on appeal, we believe they can be stated, in consolidated form, as (1) whether the prosecutor's information adequately informed Clark of the charge against him; (2) whether Clark's pretrial motion to discharge his appointed counsel was wrongly denied; (3) whether a photograph of the victim was improperly admitted into evidence; (4) whether the jury instructions were misleading; and (5) whether the jury's verdict was based on the evidence or was a product of passion or prejudice. For reasons explained below, we affirm the judgment of conviction.
The facts of the case are sad and simple. A thirty-five-year-old woman, Jeanette Welch, was found dead in a car parked at a campground near Coeur d'Alene. Although the cause of her death was determined to be carbon monoxide inhalation, the police noticed that her body exhibited many bruises, particularly on the head and neck. Several persons at the campground told the police, and eventually testified at trial, that they had heard or seen an altercation between the decedent and her companion, Thomas R. Clark. A charge of aggravated battery was filed against Clark, and a jury found him guilty. He received a six-year fixed sentence, which has not been challenged here. Each of the issues in this appeal relates to the adjudication of guilt.
Clark first attacks the sufficiency of the charge contained in the prosecutor's information. Accusing Clark of aggravated battery under I.C. §§ 18-903(b) and 18-907(a), the information alleged that he "did actually, intentionally and unlawfully strike the person of Jeanette Welch against her will[,] causing great bodily harm by hitting her about the head and face and choking her around the neck...." (Emphasis added.) Clark contends that this language did not adequately describe the injuries suffered by the victim, and therefore failed to apprise him of the factual basis for the state's allegation that the battery was "aggravated."
Whether an information conforms to the requirements of law is a question subject to free review on appeal. An information is legally sufficient if it contains "a plain, concise and definite written statement of the essential facts constituting the offense charged." I.C.R. 7(b). See also State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct.App.1982); I.C. §§ 19-1409, 19-1411, and 19-1418. In this case, the offense is defined by the conjunction of two statutes. Idaho Code § 18-903(b) provides that "battery" is the "[a]ctual, intentional and unlawful touching or striking of another person against the will of the other." Idaho Code § 18-907(a) provides that the battery is "aggravated" if it "[c]auses great bodily harm...."
The crux of the issue, then, is whether the statutory phrase "great bodily harm," as used in the information, was an adequate statement of the essential facts constituting the "aggravated" component of the battery. With respect to a similar issue, the Idaho Supreme Court has said the following:
The appellant was not prejudiced because the information on which he was tried failed to describe the exact nature of the injuries inflicted, and stated only that the injuries sustained were grievous in the terms of the statute. The statutory phrase, "grievous bodily injury," according to its natural import, fully, directly, and explicitly, without any uncertainty or ambiguity, sets down a statement of an act necessary to constitute the commission of an aggravated battery such as to enable a person of common understanding to know what is intended, i.e., that the injuries inflicted are in nature more serious than that which would result from a simple battery.
State v. McKeehan, 91 Idaho 808, 815, 430 P.2d 886, 893 (1967) (emphasis original). When the McKeehan case was decided, the aggravated battery statute, codified at I.C. § 18-912, referred to "grievous bodily harm." During a subsequent recodification, the word "grievous" was replaced by "great." In our view, this change would not affect the underlying rationale of the McKeehan decision. Based on that decision, and on the context in which the phrase "great bodily harm" was used in this case, we hold that the information was sufficient.
Clark has been represented throughout this case by court-appointed counsel. During pretrial proceedings, Clark changed attorneys once and attempted to do so twice. (He is now represented by yet another attorney on appeal.) The first change was made as an accommodation to Clark, who told the court that the attorney did not seem to be "really on my side." Clark later asked for another change. He said he was dissatisfied, inter alia, because the second attorney failed to provide him a copy of the preliminary hearing transcript, failed to respond to some communications, and, in general, would not "do what I ask or want him to do." The attorney himself asked to be relieved because of strained relations and a fear that Clark would damage his own case by disrupting the attorney's presentation of the defense. The court declined to make another change in appointed counsel. The case proceeded to trial.
There is no contention that Clark was inadequately represented during the trial. Rather, the issue is simply whether he was entitled to demand a third appointed lawyer because he had lost faith in the second one. We hold that he was not. Absent extraordinary circumstances, the right to counsel does not include the right to appointed counsel of the defendant's choice. State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971), overruled on other grounds, State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). In Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983), the United States Supreme Court said, "We reject the claim that the Sixth Amendment guarantees a 'meaningful relationship' between an accused and his counsel." More recently, the Supreme Court added:
[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.
Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988).
Absent a constitutional entitlement, the issue is one of discretion. A trial judge may appoint new counsel, on request, for "good cause." State v. Clayton, 100 Idaho 896, 606 P.2d 1000 (1980). Here, the judge found no "good cause" to make a second change of attorneys. Rather, he noted that some degree of conflict appeared likely to exist between Clark and any appointed attorney. Accordingly, the judge left the second attorney on the case. Upon the record before us, we find no abuse of discretion.
During the trial, several photographs--including one depicting the victim's bruised face and neck--were admitted into evidence. Clark objected to that particular photograph; indeed, he filed a pretrial motion to exclude it. He contended then, as he does now, that the photograph was inflammatory.
Where evidence is relevant to a material issue, it is admissible; however, the court has discretion to exclude it upon determining that its probative value is outweighed by its potentially unfair prejudicial impact. I.R.E. 403. On appeal, the trial court's determination will not be disturbed unless it represents an abuse of discretion. State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), cert. denied, 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982). Here, the existence of physical bruises was clearly relevant to the material issue of whether "great bodily harm" had been inflicted, as alleged in the prosecutor's information. We have viewed the photograph. It is sobering but not gruesome. W...
To continue reading
Request your trial
-
State v. Hawkins
... ... at 853, 828 P.2d at 882 (citations omitted) ... A lower court's ruling on a Rule 403 objection to evidence will not be disturbed on appeal unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct.App.1989). The photos at issue here showed the crime scene and were probative of the cause of death. Because they showed ligature marks on the victim's neck resulting from strangulation, they were also probative of the defendant's intent to kill ... ...
-
State v. Cook
...step we apply an abuse of discretion standard. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct.App. 1989). Thus, our first inquiry encompasses whether evidence that Cook had supplied two minors methamphetamine, more th......
-
State v. Barnes
...unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App.1989). Idaho Rule of Evidence 701 If the witness is not testifying as an expert, the testimony of the witness in the......
-
Meister v. State
...it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App. 1989). "Appeals to racial, ethnic, or religious prejudice during the course of a trial violate a defendant's Fifth Amendme......