State v. Hatton

• Citation: 522 P.2d 64,95 Idaho 856
• Decision Date: 09 April 1974
• Docket Number: No. 10874,10874
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Paul G. HATTON, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 64

522 P.2d 64

95 Idaho 856

STATE of Idaho, Plaintiff-Respondent, v. Paul G. HATTON, Defendant-Appellant.

No. 10874.

Supreme Court of Idaho.

April 9, 1974.

Rehearing Denied May 29, 1974.

Derr, Derr, Walters & cantrill, David Lee Posey, David W. Cantrill, Boise, for defendant-appellant.

W. Anthony Park, Atty. Gen., William F. Lee, Deputy Atty. Gen., Wayne G. Crookston, Asst. Atty. Gen., James E. Risch, Pros. Atty., for Ada County, Boise, for plaintiff-respondent.

DONALDSON, Justice.

This is an appeal by defendant-appellant Paul G. Hatton from a judgment of conviction of first degree murder, and from the order of the district court denying his motion for a new trial. Appellant's principal assignments of error relate to the admission of certain evidence at trial.

In the early morning hours of June 12, 1970, the Seven-Eleven store at the corner of Broadway and Rossi streets in Boise, Idaho, was robbed, and the clerk on duty at that time, Mark Charles Hatten (not related to the defendant) was shot in the back of the head. Hatten died following surgery, never having regained consciousness. The following distinctive features characterized the crime. The victim of the robbery-murder, Mark Charles Hatten, was found shortly after the crime had been committed, lying face down on the floor of a room off the main part of the store, with his hands at his sides. He had been shot in the back of the head at close range with a .22 caliber bullet. Hatten's wallet, which he always carried with him, was not on his body, and was never found, raising the inference that the perpetrator of the robbery had stolen it. The two cash registers in the store had been 'cleaned out,' the robber having taken most of the small change as well as the paper currency.

The crime is pinpointed as occurring between approximately 3:10 a. m. and 3:35 a. m., on the morning of June 12. These time limits were established by the testimony of Julius Carstensen, who stopped at the store on his way home from work, spoke with the victim, and left the store at 3:10 a. m., and the testimony of two other customers who entered the store around 3:35 a. m., realized that there had been a robbery, and called the police. There were no eye-witnesses to the crime, but Carstensen positively identified the appellant as having driven up to the store in a 'dark-' or 'dingy-' colored, older-model Volkswagen with glass-covered headlights and alumium paint, and entering the store as Carstensen was leaving, at 3:10 a. m. When asked what he meant by a 'dark color,' Carstensen replied, 'A blue or blue gray. It was a dark color. It is not real bright like yellow or red.' On cross-examination, Carstensen reiterated the fact that the car was blue or blue-gray, and estimated the model year of the Volkswagen as being around 1963 or 1964. Carstensen also testified that the front of the store was well-lighted.

A police officer testified that during an interview sanctioned by Hatton's attorney, Hatton denied having been in the Seven-Eleven store the night of the murder, and first denied and then admitted knowing the victim, Mark Charles Hatten.

On the afternoon of June 12, appellant Hatton was arrested on a warrant charging him with the possession of stolen property not involved in the present case. On June 13, 1970, Hatton was charged with first degree murder arising from the Seven-Eleven robbery and shooting. Hatton pleaded not guilty to the charge. After trial, the jury returned a verdict of guilty of murder in the first degree. Judgment of conviction was entered on that verdict. The defendant was sentenced to imprisonment for a period not to exceed life.

On this appeal, appellant challenges the competency and relevance of certain testimony at trial concerning the actions of defendant's wife, Karen Hatton, in the early morning hours of June 13, 1970, beginning approximately ten hours after she visited and spoke with her husband in jail. One of the state's witnesses, Craig Rooke, testified that Mrs. Hatton, whom he had not known previously, approached him at an 'after hours' dance around 2:30 or 3 a. m. and attempted to persuade him to state that he had seen the Hattons at a movie on the night of June 11. No objection was made to Rooke's testimony about Karen Hatton's attempt to procure an alibi for the night of the 11th. Rooke also testified that at 4:30 a. m. on the morning of June 13, Mrs. Hatton appeared at Rooke's home, bringing with her a .22 caliber High Standard Pistol and some ammunition wrapped in a ski parka. She asked Rooke to hide the articles, telling him that they were stolen property. Rooke immediately notified the police and turned the weapon, ammunition and parka over to the police officers who had had Karen Hatton under surveillance and had followed her to Rooke's house. Rooke's testimony was corroborated by his houseguest, the police officers who had been surveilling Karen Hatton, and by Mrs. Hatton herself, who explained her actions by saying that she believed the gun to be stolen property.

In our view, the testimony regarding Karen Hatton's actions was both relevant and competent as proof that the appellant had access to a weapon of the type used in the commission of the crime.

"(W)here an accused is identified as having been at or near the scene of a crime about the time of its commission evidence showing that he owned, possessed, or had access to any articles with which the crime was or might have been committed is competent." State v. Iddings, 5 Wash.App. 99, 485 P.2d 631, 633 (1971), quoting Liakas v. State, 161 Neb. 130, 72 N.W.2d 677 (1955), cert. denied, 351 U.S. 924, 76 S.Ct. 780, 100 L.Ed. 1454 (1956).

See also Jones v. United States, 262 F.2d 44 (4th Cir. 1958), cert. denied, 359 U.S. 972, 79 S.Ct. 887, 3 L.Ed.2d 839 (1959); State v. Hancock, 245 Or. 240. 421 P.2d 687 (1966); Wilson v. State, 215 Ga. 782, 113 S.E.2d 447 (1960); State v. Montgomery, 175 Kan. 176, 261 P.2d 1009 (1953).

Appellant Hatton has cited cases involving the attribution of the acts of one co-conspirator to another in support of his contention that testimony regarding Karen Hatton's actions should not have been admitted. These cases are not relevant here because there was never any contention that Karen Hatton was the defendant's co-conspirator. Authority from conspiracy cases is misleading rather than helpful. We understand appellant's basic contention to be that the disputed evidence was inadmissible as tending to prove Hatton's guilt by showing an attempt by a close associate to conceal evidence. Assuming that the disputed testimony was inadmissible for this purpose, the proper procedure would have been for appellant to have requested an instruction limiting the jury's use of the testimony. Where evidence is admissible for one purpose and inadmissible for another, the district court's failure to give a limiting instruction is not in itself reversible error where such an instruction is not requested. State v. Gee, 93 Idaho 636, 640, 470 P.2d 296 (1970); Wahlgreen v. State, 486 P.2d 753 (Okl.Cr.1971); Johnson v. People, 174 Colo. 413, 484 P.2d 110 (1971); Parish v. State, 477 P.2d 1005 (Alaska 1970); 23A C.J.S. Criminal Law § 1325(5), pp. 843-844 (1961). See also I.C. § 19-2132 as interpreted in State v. Beason, 95 Idaho 267, 275, 506 P.2d 1340, 1348 (1973); State v. Wozniak, 94 Idaho 312, 317, 486 P.2d 1025 (1971). Cf. I.C.R. 30 (effective January 1, 1972). In the instant case, the defense did not request an instruction limiting the use of the testimony regarding Karen Hatton's actions to proving that Hatton had access to the gun. We note additionally that although defendant objected to the introduction of testimony regarding Karen Hatton's actions prior to testimony on that subject by police officer McNichols, three other witnesses were subsequently permitted to testify without objection regarding her attempt to conceal the gun. Further, as part of the defendant's case, Karen Hatton was called as a witness and substantially confirmed the description of her actions in taking the gun from the house belonging to herself and the defendant and attempting to convince Craig Rooke to conceal it. Previous Idaho cases have held that error, if any, in admitting certain testimony may be

'waived and rendered harmless by (defendant's) failure to object when evidence covering the same subject matter was subsequently introduced and by (defendant's) latter (sic) corroboration, again without objection to such testimony.' State v. Pruett, 91 Idaho 537, 541, 428 P.2d 43, 47 (1967), and cases cited therein.

Under the circumstance, we find no reversible error in the admission of the disputed testimony.

Over appellant's objection, the district court admitted the .22 caliber pistol into evidence. An expert witness from the Federal Bureau of Investigation testified that the pistol was capable of firing bullets of the type used in the murder. However, the expert testified that it was impossible to determine whether or not the bullet fragments removed from the victim's head had been fired from that particular pistol, because the bullet fragments were too distorted to reveal characteristic marks. Another F.B.I. expert testified that there were two small patches of human blood on the pistol. However, there was not enough of a sample to permit laboratory tests to determine the particular type of blood.

Appellant contends that the gun should not have been admitted in the absence of substantial evidence linking it to both the defendant and the crime. This contention is not persuasive.

'There is no requirement that weapons * * * offered in evidence be positively identified as those used in the perpetration of a crime. The admission of such evidence is within the sound discretion of the trial court and any objection to the lack of positive identification goes to the weight of the evidence rather than to the admissibility of the article.' State v. Thomas, 94 Idaho 430, 433, 489 P.2d...