State v. Dowalo, 19392

• Decision Date: 06 October 1992
• Docket Number: No. 19392,19392
• Citation: 838 P.2d 890,122 Idaho 761
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Douglas DOWALO, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 890

838 P.2d 890

122 Idaho 761

STATE of Idaho, Plaintiff-Respondent, v. Douglas DOWALO, Defendant-Appellant.

No. 19392.

Court of Appeals of Idaho.

Oct. 6, 1992.

Stevan H. Thompson for Weinpel, Woolf & Combo, Idaho Falls, for defendant-appellant.

Larry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

Douglas Dowalo pled guilty to first degree burglary, first degree kidnapping, and aggravated battery. I.C. §§ 18-1401, -1402, -1404; I.C. §§ 18-4501, -4502; I.C. §§ 18-903(a), -907(b). In exchange for those pleas, the state agreed to dismiss four counts of rape and further agreed not to seek the death penalty in conjunction with the plea to first degree kidnapping.

Dowalo appeals contending that the district court erred by allowing improper information to be included in his presentence investigation report (PSI). He contends that the court abused its sentencing discretion generally, and specifically by failing to state for the record mitigating and aggravating factors considered in its sentencing determination.

Dowalo and the victim were married for approximately a year and one-half, before their divorce on November 16, 1988. During the weeks prior to April 17, 1990, the date the events giving rise to the charges took place, Dowalo was unemployed and lived primarily at his father's house although he stayed several days at the victim's home.

On the evening of April 16, the victim returned home from work at approximately 10:00 p.m. The victim telephoned Dowalo's father and discussed Dowalo going in to see her employer to be compensated for assisting the victim in her work. At the time Dowalo was not home. Dowalo returned to his father's house that evening at which time his father informed him of the telephone call from the victim. Dowalo's father also testified at the sentencing hearing that Dowalo was intoxicated when he returned, and that they had an argument in which he informed his son that he wanted him out of the house and that he was not to return home intoxicated in the future. At approximately 12:30 a.m., April 17, the victim received a telephone call from Dowalo who inquired what the victim had told his father. The victim went back to bed and fell asleep.

Sometime in the early morning of April 17, the victim was awakened by a crash of glass breaking and heard footsteps across her floor. She attempted to telephone the police, however, her attempts to telephone for help were fruitless as Dowalo had cut her telephone line. Dowalo walked into her bedroom holding a knife and turned the light on. He eventually undressed himself and tore the victim's nightshirt partially off and under threats with the knife, forced her to have sexual intercourse with him. Dowalo forced the victim to have sex with him a total of four times. On several occasions, Dowalo further inquired as to what the victim may have told his father and told the victim that he wanted to kill himself. He often threatened her with the knife and told her not to "try anything."

At approximately 8:00 a.m., the victim's landlord discovered the cut telephone line and the broken front window and inquired within. After the victim responded with a scream, the police were summoned. When they entered the home, they found Dowalo holding a knife to the victim's throat. She was sitting on a chair, while he remained crouched behind her. The police conversed in the house with Dowalo for approximately two and one-half hours before they ultimately subdued him. Dowalo repeatedly told the police to kill him or else he would harm the victim.

Dowalo first contends that the PSI contained several errors. He asserts that the victim's statement was improperly included in the PSI contrary to I.C.R. 32(b)(1) because the statement was not a direct quote from the victim, but rather a narrative by the PSI investigator. The rule does not require that victim statements be verbatim; it provides that a full PSI "shall contain ... the victim's version, where relevant to the sentencing decision." I.C.R. 32(b)(1).

The district court granted two of Dowalo's motions leading up to sentencing. The first motion allowed Dowalo to have his psychiatric expert prepare a report concerning Dowalo's mental condition. The second motion allowed the defense to present a separate independent presentence investigation report. We have previously stated:

Provided that a defendant is afforded a full opportunity to present favorable evidence and to explain and rebut adverse evidence, and a reasonable opportunity to examine all of the materials contained in the PSI, the defendant and the court can be assured of the reliability and the fairness of the conclusions presented therein.

State v. Chapman, 120 Idaho 466, 471, 816 P.2d 1023, 1028 (Ct.App.1991) (citing Cunningham v. State, 117 Idaho 428, 431, 788 P.2d 243, 246 (Ct.App.1990)). The independent presentence report presented by the defense was prepared approximately three weeks after the court ordered the PSI. The sentencing hearing was continued to assist the defense in its preparation of this independent investigation. The record also reflects that witnesses testified at the hearing, and that Dowalo was allowed to cross-examine the state's witnesses. Dowalo was "afforded a full opportunity to present favorable evidence and to explain and rebut adverse evidence." Moreover, the presentence report presented by the defense contained a narrative of Dowalo's version which presumably he wanted the court to consider, although he argues that the court erred by considering the narrative of the victim's statement in the PSI. We conclude that the court did not err in refusing to strike the part-narrative, part-verbatim statement of the victim from the PSI.

Dowalo also contends that the statement contained in the PSI from the victim's counselor, to the effect that the victim was suffering from post-traumatic stress disorder and depression and will continue to need counseling for six to nine months, was improper. Dowalo's reasons for this contention are that the statement is beyond the investigator's expertise, and the PSI does not contain any substantiating report from the counselor. Upon objection, the district court ruled that the information was hearsay, but that under the rule, the court may consider the information where the investigator believes that it is reliable. The court stated that the fact that the investigator included the statement in the PSI implied a belief of reliability. This ruling was not erroneous. See I.C.R. 32(e)(1); State v. Paz, 118 Idaho 542, 553-54, 798 P.2d 1, 12-13 (1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991).

Finally, Dowalo contends that including the impressions of the investigator in the PSI was improper. Dowalo specifically challenges the investigator's statements that he was "manipulative" and "not honest on several issues" and that he "does not accept responsibility" and the investigator questioned "the sincerity of the remorse he expresses." The district court ruled that these comments were essentially an "analysis of the defendant's condition" which is required to be included. I.C.R. 32(b)(10). The court also ruled that the statements complained of addressed the investigator's opinion as to broad mental and psychological factors which I.C.R. 32(b)(10) specifically addresses. The denial of Dowalo's motion to exclude these statements from the PSI was proper.

The second claim of error is that the district court abused its sentencing discretion. Dowalo contends that the court failed to specifically state the aggravating and mitigating factors which it considered in its sentencing determination. Dowalo cites...