State v. Hoover, 27683.

• Decision Date: 10 February 2003
• Docket Number: No. 27683.,27683.
• Citation: 64 P.3d 340,138 Idaho 414
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Clinton Marshall HOOVER, Defendant-Appellant.
• Court: Idaho Court of Appeals

64 P.3d 340

138 Idaho 414

STATE of Idaho, Plaintiff-Respondent, v. Clinton Marshall HOOVER, Defendant-Appellant.

No. 27683.

Court of Appeals of Idaho.

February 10, 2003.

Molly J. Huskey, State Appellate Public Defender; Charles Isaac Wadams, Deputy Appellate Public Defender, Boise, for appellant. Charles Isaac Wadams argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

GUTIERREZ, Judge.

This is an appeal from a judgment of conviction entered after a jury found Clinton Marshall Hoover guilty of felony domestic battery, I.C. § 18-918(3). In this case, the victim testified that she could not remember the circumstances surrounding her injuries. Hoover argues that the district court abused its discretion in admitting testimony as to statements the victim made about her injuries to a security guard and others and erred in refusing to give jury instructions on his self-defense and defense of others theories. Hoover also argues that the district court erred in admitting testimony at his sentencing hearing as to other instances of his alleged domestic violence against other women. We affirm.

I. FACTUAL AND PROCEDURAL SUMMARY

The following facts are adduced from the evidence presented at trial. Hoover and his fiancé, Mikel James, had been drinking vodka and began arguing in their apartment at about 9:00 p.m. on December 12, 2000. Their argument escalated. James wanted to leave the apartment, and she and Hoover wrestled for the car keys. Hoover prevented James from leaving by gripping her wrist and taking the car keys away from her. Somehow, James fell to the floor and hit the back of her head, losing consciousness for an unknown period of time.

At some point between 12:15 and 12:20 a.m. on December 13, James collapsed in a snow bank outside the apartment. At 12:30 a.m., a security guard, Joshua Smith, found her lying in a fetal position in a pool of blood in the snow—hysterical, shaking and crying, with her face actively bleeding. When Smith asked James what had happened, she told him that Hoover had beaten her.

At 12:38 a.m., Smith flagged down Deputy Heather Goldner and Detective Jeffery Thurman of the Kootenai County Sheriff's Department, who called for back up and an ambulance. Arriving by ambulance seconds later, Burt Maines, an emergency medical technician (EMT), began treating James' injuries within about two minutes of his arrival. James was still crying and, when questioned about the cause of her injuries, told Maines that Hoover had thrown her to the ground, kicked and stomped her, and grabbed her around the neck. Concerned that James' chest injury and difficulty in breathing might indicate broken ribs and a punctured lung, Maines wanted to transport her to the hospital, but James refused.

While being treated in the ambulance, James told Detective Thurman that she and Hoover had been drinking and had begun fighting, and that Hoover had injured her. James completed and signed a handwritten victim witness statement. Later on December 13, James went to the Kootenai County Medical Center for treatment for multiple contusions of the chest wall, left shoulder and hip secondary to a trauma, and contusions to her face, head, neck and wrist. James told the treating physician, Dr. Richard Thurston, that Hoover had caused her injuries. As a result of this incident, Hoover was arrested and charged with domestic violence.

At the preliminary hearing, James testified that she wanted the charge against Hoover to be dropped. She swore that she remembered nothing about the events surrounding her injuries, including her purported oral statements and the preparation of her written statement. Based upon Smith's testimony as to James' statements under an excited utterance hearsay exception, I.R.E. 803(2), the magistrate bound Hoover over for trial.

Prior to trial, Hoover moved to exclude all James' statements made at the scene. After hearing argument, the district court excluded as hearsay James' oral statements to the sheriff's officers, the EMT, and others, and excluded James' December 13 written statement because those statements did not constitute excited utterances under Idaho Rule of Evidence 803(2). The court, however, ruled to admit James' statements to Smith as excited utterances.

At trial, James testified that on the day she sustained the injuries, she and Hoover had argued about their poor financial circumstances and about her lunch with a male friend. James stated that she and Hoover had consumed a significant amount of vodka. She testified that she did not recall when the argument became physical, but that somehow the back of her head hit the living room floor and that she lost consciousness for some unknown duration. She testified that the next thing she remembered was being directed into the ambulance. James testified that police officers later handed her a statement form, but that she did not know then why she was writing such a statement. James also testified that she did not remember how she was injured, telling anyone about those injuries, or completing a document describing how those injuries had occurred.

Over Hoover's hearsay objections, the court permitted Dr. Thurston to testify as to James' statements to him regarding an unidentified person's infliction of her injuries, that is, limited testimony to show how James' injuries had occurred, but not as to who had caused them. Guard Smith then testified that he saw James lying on the snow bank and approached her, asking what had happened. Over Hoover's hearsay objection, Smith testified that James stated that her boyfriend had beaten her. Smith also testified as to James' visible injuries.

Both sheriff's officers, James' mother and EMT Maines testified as to James' injuries, over Hoover's objections of cumulativeness. The district court also allowed the admission of photographs of James and her throat, ankle, hip, and upper thigh area and permitted James' mother to testify as to her observations of James' injuries as compared with those photographs. The court struck as speculative the mother's testimony that James' neck and ankle injuries resembled fingerprints, but the court permitted her testimony as to her observance of a boot print with tread marks in the photograph of James' hip injury. James' mother also testified that James had no injuries on December 11 or 12.

The court overruled Hoover's hearsay objection regarding EMT Maines' testimony as to James' statements to him and permitted that testimony under a Rule 803(4) exception for statement to medical personnel. The court, however, limited Maines' testimony to James' statements as to how her injuries had occurred, and did not permit Maines to testify as to who James said had caused those injuries. Similarly, Hoover raised a hearsay objection to Detective Thurman's testimony regarding his inquiry of James and her responses as to what had happened. The court admitted the detective's testimony solely for purposes of impeaching James' prior testimony, and gave the jury a limiting instruction thereon.

The trial concluded with the presentation of the state's evidence. Hoover did not object to the jury instructions proposed by the court, but sought additional instructions on self-defense and defense of others theories. The court denied the requested instructions for lack of evidentiary support. The jury subsequently found Hoover guilty of domestic battery, I.C. § 18-918(3).

At the sentencing hearing, Hoover unsuccessfully objected on hearsay grounds to a victim advocate's testimony as to her previous contact with two of Hoover's former live-in girl friends, including her testimony as to the statements of one of these women. The court also admitted, over Hoover's objections, 1997-1999 police reports showing Hoover's arrests on three charges of domestic battery and one charge of aggravated assault with a firearm upon these two women.

The district court sentenced Hoover to a unified term of three and one-half years with one and one-half years determinate, to run concurrently with his sentences imposed on three other convictions. Hoover timely appeals from his judgment of conviction and sentence.

II. ANALYSIS

Hoover argues that the district court abused its discretion in admitting hearsay, impeachment, privileged, cumulative, and opinion evidence at trial and by admitting hearsay evidence of prior bad acts at his sentencing hearing without affording him sufficient opportunity to explain or rebut such evidence. Hoover also argues that the court erred in refusing to give jury instructions on his self-defense and defense of others theories.

A. Evidentiary Rulings at Trial

We review the evidentiary rulings challenged by Hoover under an abuse of discretion standard. When a trial court's discretionary decision is reviewed on appeal, we conduct a multitiered inquiry to determine whether the trial court: (1) rightly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion and consistent with any legal standards applicable to specific choices; and (3) reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

At trial, the court has broad discretion in determining the admissibility of testimonial evidence. A decision to admit or deny such trial evidence will not be disturbed on appeal absent a clear showing of abuse of that discretion. State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990).

1. Excited utterance exception

Hoover argues that the district court abused its discretion by permitting security guard Smith to testify as to James' statements to him under the Rule 803(2) excited utterance exception to the general evidentiary bar against hearsay. The trial court exercises its discretion to permit testimony of such excited utterances, giving consideration to the totality of the circumstances and...