State v. Elison, 25451.

• Decision Date: 19 March 2001
• Docket Number: No. 25451.,25451.
• Citation: 21 P.3d 483,135 Idaho 546
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Michael Benjamin ELISON, Defendant-Appellant.
• Court: Idaho Supreme Court

21 P.3d 483

135 Idaho 546

STATE of Idaho, Plaintiff-Respondent, v. Michael Benjamin ELISON, Defendant-Appellant.

No. 25451.

Supreme Court of Idaho, Boise, December 2000 Term.

March 19, 2001.

Ronaldo A. Coulter, State App. Public Defender, Boise, for appellant. Richard J. Hansen argued.

Hon. Alan G. Lance, Attorney General, Boise, for respondent. T. Paul Krueger, II argued.

KIDWELL, Justice.

Michael Benjamin Elison appeals from the judgment of conviction entered pursuant to a jury verdict for the crime of involuntary manslaughter, pursuant to I.C. § 18-4006(2).

I. FACTS AND PROCEDURAL HISTORY

In September of 1997, Michael Benjamin Elison was living in Filer, Idaho with his girlfriend, Jennifer Silver, and her two infant children. Silver's oldest child, Zachary, was twenty-two months old at the time; Cory, her other son, was eleven months old.

On September 13, 1997, Elison was watching the children while Silver was at work. At approximately 11:30 p.m., Elison called Silver at work and informed her that Zachary had fallen down the stairs and had been taken to the emergency room. Zachary suffered from a subdural hemorrhage in his brain. Zachary was transferred to St. Luke's Hospital and remained there for approximately five days before he was released. Zachary suffered from nausea and dehydration after his release and consequently was brought back to the emergency room at Saint Benedict's Hospital both on September 21 and September 24, 1997.

On September 28, 1997, Elison was again watching the children while Silver worked. At approximately 9:00 p.m., Silver again received a call at work from Elison. Elison told Silver that Zachary had fallen off the couch, suffered from a seizure and stopped breathing. Zachary was initially brought to Saint Benedict's emergency room, but was transferred by Life Flight to St. Luke's Hospital in Boise. Zachary did not recover from his injuries and died on September 29, 1997.

A criminal complaint filed on December 17, 1997, charged Michael Elison with the crime of involuntary manslaughter stemming from the death of Zachary Nolan. An arrest warrant was issued on that same day. On December 18, 1997, Detective James Baker of the Jerome City Police Department flew to Osceola, Florida, to execute the arrest warrant. Elison was arrested on that day and was questioned by Detective Baker and Detective Dan Weis of the Osceola County Sheriff's Department. During the course of the taped interview, Elison admitted that he shook Zachary on September 13 and on September 28; he also admitted that he was frustrated because of money problems and because he was having a difficult time finding and keeping a job. Elison also admitted that he had been untruthful about the sequence of events that occurred on September 13 and 28.

An information was filed on February 27, 1998, charging Elison with involuntary manslaughter "by inflicting physical abuse by shaking Zachary Nolan, from which he died." On March 11, 1998, the state filed an amended information. The amended information provided notice of intent to seek an enhanced penalty based on the infliction of great bodily injury.

Defense counsel moved to suppress the taped confession, arguing that the arrest warrant should not have been issued as the written affidavit was insufficient to establish probable cause for the arrest. The district court judge denied the motion, finding the affidavit to be sufficient and the statements to have been knowingly and voluntarily made.

A trial commenced on November 30, 1998. At the trial, testimony was heard from various physicians, including: Dr. Fairman, the emergency room physician who attended Zachary; Dr. Pressman, a pediatric opthamologist; and Dr. Bettis, a pediatric neurologist. Dr. Fairman testified that when he examined Zachary, there were no signs of external trauma and that the severe state of cardiac arrest Zachary suffered would not normally be caused by a seizure. Both Dr. Pressman and Dr. Bettis testified that the symptoms surrounding Zachary's death were consistent with shaken baby syndrome.

Dr. Frank Roberts, a pathologist, performed an autopsy on Zachary. Dr. Roberts reported that based on the findings made as a result of the autopsy, Zachary's death appeared to be a classic case of shaken baby syndrome.

The defense presented testimony from Dr. Cantu, who testified that although some features of the case were consistent with shaken baby syndrome, he did not accept that as the most probable diagnosis. The defense also attempted to establish that Jennifer Silver, the mother of Zachary, may have abused Zachary and could possibly have been the person responsible for his death.

During the trial, the defense argued that a Holder instruction should be given to the jury. In spite of the defendant's position that only circumstantial evidence existed of the defendant's guilt, the court did not give a Holder instruction. At the conclusion of the trial, the jury returned a verdict, finding the defendant guilty of involuntary manslaughter. The court subsequently addressed the instruction regarding the sentencing enhancement. The defense objected to this instruction, arguing that a sentencing enhancement for inflicting serious bodily injury was inappropriate because the defendant had been convicted of involuntary manslaughter, a crime that includes death (and therefore serious bodily injury) as an element. The court declined to make a ruling on this issue, opting instead to turn the matter over to the jury with written instructions and a bifurcated verdict form. The jury found that the sentencing enhancement was applicable to Elison.

A sentencing hearing was held on February 1, 1999. The defense reasserted its objection to the application of the sentencing enhancement. The district court rejected the defendant's argument, pointing to the fact that "great bodily injury" was not found in the charging language of the state, nor was it found in the jury instructions on involuntary manslaughter provided to the jury. The judge sentenced Elison to ten years on the underlying crime of involuntary manslaughter, plus five years on the I.C. § 19-2520B enhancement, resulting in a unified sentence of fifteen years. The sentence was comprised of a minimum fixed period of confinement of six years, followed by an indeterminate period of custody of nine years, not to exceed 15 years. Elison filed a timely notice of appeal.

II. ANALYSIS

A. THE DISTRICT COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BASED ON A SUFFICIENT SHOWING OF PROBABLE CAUSE.

Standard of Review

When reviewing a trial court's disposition of a motion to suppress evidence, this Court "defer[s] to factual findings of the trial court unless they are clearly erroneous, but [ ] give[s] free review to the trial court's determination as to whether, based on those facts, constitutional standards have been met." State v. Coma, 133 Idaho 29, 31, 981 P.2d 754, 756 (1999); State v. Medley, 127 Idaho 182, 185, 898 P.2d 1093, 1096 (1995).

When probable cause to issue a search warrant is questioned on appeal, this Court's function is to ensure that the judge had a substantial basis for concluding probable cause existed. State v. Revenaugh, 133 Idaho 774, 779, 992 P.2d 769, 774 (1999); State v. Lang, 105 Idaho 683, 684, 672 P.2d 561, 562 (1983). Great deference is given to the judge's determination. State v. Josephson, 123 Idaho 790, 792, 852 P.2d 1387, 1389 (1993).

Analysis

According to Idaho Criminal Rule 4(a), "after a complaint is laid before a magistrate, the magistrate may issue a warrant for the arrest of the defendant only after making a determination that there is probable cause to believe that an offense has been committed and that the defendant committed it." I.C.R. 4(a). Other courts, while not binding on this Court, have held that the same probable cause standards apply to the issuance of both arrest warrants and search warrants. State v. Porter, 88 Wash.2d 512, 563 P.2d 829, 831 (1977)(noting there is "no reason to apply a different test in the issuance of a search warrant than an arrest warrant"); see United States v. Dawkins, 17 F.3d 399, 404 (D.C.Cir.1994)(citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and United States v. Lincoln, 992 F.2d 356, 358 (D.C.Cir.1993)).

A magistrate's determination of whether probable cause exists to support the issuance of a search warrant is determined from the facts set forth in the affidavits and from recorded testimony in support of the application for the warrant. Josephson, 123 Idaho at 792, 852 P.2d at 1389. Hearsay information may be included in an affidavit in support of probable cause providing that there is a substantial basis for crediting the hearsay. I.C.R. 4(e); State v. Carlson, 134 Idaho 471, 476, 4 P.3d 1122, 1127 (Ct.App. 2000); State v. Wengren, 126 Idaho 662, 666, 889 P.2d 96, 100 (Ct.App.1995)(citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). In Idaho, the previous rule was that multiple hearsay was permissible to establish probable cause as long as the Aguilar two-prong test was satisfied at each link. State v. Alger, 100 Idaho 675, 678, 603 P.2d 1009, 1012 (1979). Following the adoption of Gates, the two prongs are but factors to be considered with the whole affidavit in determining whether the magistrate had a substantial basis for finding probable cause. Wengren, 126 Idaho at 667,889 P.2d at 101; State v. Crabb, 107 Idaho 298, 303, 688 P.2d 1203, 1208 (Ct.App.1984).

"Police officers are presumed to be reliable sources of information." State v. Gomez, 101 Idaho 802, 807, 623 P.2d 110, 115 (1980) (citing Ventresca, 380 U.S. at 111, 85 S.Ct. at 747, 13 L.Ed.2d 684 (1965) and Alger, 100 Idaho at 679, 603 P.2d at 1013). Further, "the affidavit of a law enforcement agent which does not specifically identify each source may, nonetheless, be sufficient to support...