State v. Gardiner
| Decision Date | 09 June 1995 |
| Docket Number | No. 20889,20889 |
| Citation | 898 P.2d 615,127 Idaho 156 |
| Parties | STATE of Idaho, Plaintiff-Respondent Cross-Appellant, v. Daniel E. GARDINER, Defendant-Appellant Cross-Respondent. |
| Court | Idaho Court of Appeals |
Knowlton, Miles, Merica & Brudie, P.A., Lewiston, for appellant. Charles A. Kovis argued.
Alan G. Lance, Atty. Gen., Douglas A. Werth, Deputy Atty. Gen., Boise, for respondent. Douglas A. Werth argued.
Moffatt, Thomas, Barrett, Rock & Fields, Boise, for amicus curiae, Blue Cross of Idaho Health Services, Inc. and Medical Services Bureau of Idaho, Inc.
Daniel Gardiner appeals from a judgment of conviction for felony injury to a child, I.C. § 18-1501(1), and from his sentence of not less than eight nor more than ten years. The state cross-appeals from an order denying restitution to the victim's insurer, Blue Cross. We uphold Gardiner's conviction and sentence and affirm the district court's order denying restitution to Blue Cross.
The transcript of the jury trial provides the following background in this case. On November 6, 1992, eleven-month-old T.E. awoke at the home of his father, Tony Edmison. Edmison resided with his girlfriend, Marcaie Gord, and Gord's two children, who were approximately one and two years old, respectively. Edmison had picked up T.E. the previous day from the home of T.E.'s mother, Christine Gardiner, and her husband of one-and-a-half weeks, appellant Daniel Gardiner. Edmison testified that on the morning of November 6, after providing breakfast for the three children and bathing them, he and Gord took the children to the home of Edmison's parents. Edmison, his parents, his grandparents, and his uncle, all of whom were present at some point during the day, testified that T.E. acted the same as usual throughout the day, crawling on the floor, walking while holding onto furniture Gord testified that she returned home with the children shortly after 2:00 p.m. and put the children down for a nap. At approximately 2:30 p.m., she telephoned Christine at work, informing her that she could pick up T.E. Christine and Gardiner arrived at approximately 2:40 p.m., and Christine came inside to get T.E. while Gardiner waited in the car. Gord informed Christine that T.E. had not yet taken a nap and was becoming "fussy" about one of his ears. Gord further testified she told Christine that shortly before Christine's arrival, T.E. had taken his first unassisted steps.
[127 Idaho 159] and playing with the other children and the extended family. At approximately 1:45 p.m., Edmison left his parents' home with his uncle. Gord and the three children left at approximately 2:00 p.m.
Christine testified that when she entered Gord's home, T.E. was on the floor with his bottle and that when he saw Christine, he threw his bottle and crawled toward her. Christine further testified that T.E. cried on the way home, and that upon returning home, she put him in his bedroom crib for a nap. T.E. continued to cry while Gardiner was in T.E.'s room searching for something in the closet. Between 3:00 and 3:30 p.m., Christine left the house to pick up Gardiner's daughter, Vanessa, who resided with them. When Christine returned shortly after 4:00 p.m., Gardiner came running out of the apartment and told her to get inside the house because T.E. had thrown up and he could not get T.E. to stop. When Christine entered the house, she noticed the odor of vomit and saw T.E. lying on the living room floor. She went to T.E., who was "very unresponsive," and picked him up. She tried to get T.E. to open his eyes but he would not. He did not appear to be breathing. Christine then told Gardiner that they should call 911, but Gardiner suggested that they drive him to the hospital. Christine administered CPR on T.E. to no avail. Gardiner then called an ambulance.
Dr. Brian Hocum works in the emergency unit of St. Joseph Regional Medical Center in Lewiston, Idaho, and testified that T.E. arrived with "severe respiratory distress." He further testified that Gardiner informed him that the child was having seizures and that he shook T.E. in order to try to revive him. Dr. John Harris, who has been T.E.'s physician since T.E.'s birth, testified that he saw T.E. the day prior to the injury and that T.E. appeared fairly active, alert and happy. Dr. Harris stated that there was nothing about T.E. that caused him any concern other than the fact that there was some fluid behind T.E.'s ears for which he prescribed amoxicillin. Dr. Harris further testified that he next saw T.E. when he was called to the emergency room of St. Joseph's on November 6, 1992. He stated that a CAT scan revealed that T.E. had a comminuted fracture on the left side of his skull, which was usually caused by a tremendous degree of force applied to the skull, and that T.E. also had subdural hematoma and retinal hemorrhages. Dr. Harris stated that these injuries were common in abused children and opined that they were caused by T.E. being shaken and impacting a hard object. Harris testified that, based on the severity of T.E.'s injuries, he arranged for T.E. to be flown to Sacred Heart Medical Center in Spokane, Washington, for a neurosurgical evaluation. Dr. Peter Graves of Sacred Heart also testified that T.E. had a comminuted skull fracture, retinal hemorrhage, cerebral edema and subdural hematoma, which were caused by a severe blow to the head.
Dr. Harris further testified that based on his observations of T.E. at the time of and after the injury, he believed that most likely, T.E. will always have marked degrees of brain damage and will not be able to obtain the developmental level of a one year-old child. He also stated that there is a good likelihood that T.E. will go blind in one or both eyes.
A jury trial was held, and at the close of the state's case, Gardiner moved for acquittal, which the district court denied. Gardiner was found guilty of felony injury to a child, I.C. § 18-1501(1). During the sentencing hearing, the state argued that Gardiner should be ordered to pay restitution to Blue Cross in the sum of $88,120.50 for medical services Blue Cross provided to T.E. as a result of the injury. See I.C. § 19-5304(2). The district court held a restitution hearing Gardiner was sentenced to a period of confinement of not less than eight nor more than ten years. He subsequently filed a motion for reduction of sentence pursuant to I.C.R. 35, which the district court denied. Gardiner appeals from the judgment of conviction and sentence and the state cross-appeals from the district court's order denying restitution to Blue Cross. We affirm in all respects.
[127 Idaho 160] and in a written order denied the state's request for restitution to Blue Cross.
At trial and over Gardiner's objection, the state called as a witness the full-time chaplain at St. Joseph's, James Aronen. Aronen described his duties at the hospital as helping families in difficult situations with "spiritual problems" and acting as a "liaison between medical staff and the families or in some cases the patients." Aronen testified that he met Daniel and Christine Gardiner when they arrived at the hospital on November 6, 1992. The Gardiners went with Aronen into a room adjacent to the emergency room to discuss what had taken place.
Aronen further testified that Gardiner informed him that on the day of the injury, he left T.E. alone in the residence and went to check on the laundry. When he returned, Gardiner saw that T.E. was on the floor and had vomited and appeared limp. Gardiner told Aronen that he then "picked up the child and shook him" and that "maybe [he] shook him too hard." Gardiner also told Aronen that when Christine had returned to their home, he informed her that she "better get [her] butt in there" because something was wrong with the child. Gardiner argues that his statements to Aronen were privileged communications which the district court should have excluded.
Idaho Rule of Evidence 505(b) provides that: "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in the clergyman's professional character as spiritual advisor." A communication made to a clergyman is confidential "if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication." I.R.E. 505(a)(2); see also State v. Hedger, 115 Idaho 598, 601, 768 P.2d 1331, 1334 (1989).
In the instant case, the district judge found that the communications were not made in private and that the privilege therefore did not apply. The facts of this case support the district court's finding. First, Aronen acted as a conduit between the hospital and patients or their families. Therefore, his role was not simply one of a "spiritual advisor," I.R.E. 505(b), nor were Gardiner's communications "made privately and not intended for further disclosure," I.R.E. 505(a)(2).
Moreover, the circumstances surrounding the discussion between Aronen and the Gardiners compel the conclusion that the communication was not made in private. For example, Aronen testified at trial that the door to the room where the parties spoke was open and that hospital staff "were going back and forth" just outside the room. Additionally, during the state's offer of proof, Aronen testified that he could hear what was being said outside of the room; that no effort was made to prevent others from hearing his conversation with Gardiner; and that Aronen was not asked to close the door or to keep the matters confidential. Aronen also testified that he often told families that he shared information with the medical staff; however, he did not remember whether he so informed the Gardiners.
Christine testified that Aronen did not represent that the...
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