State v. Leavitt

• Decision Date: 30 May 1989
• Docket Number: Nos. 16305,16987,s. 16305
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Richard A. LEAVITT, Defendant-Appellant. Richard A. LEAVITT, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 599

775 P.2d 599

116 Idaho 285

STATE of Idaho, Plaintiff-Respondent, v. Richard A. LEAVITT, Defendant-Appellant.

Richard A. LEAVITT, Petitioner-Appellant, v. STATE of Idaho, Respondent.

Nos. 16305, 16987.

Supreme Court of Idaho.

May 30, 1989.

David N. Parmenter, Blackfoot, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen. (argued) for respondent.

SHEPARD, Justice.

This is an appeal from a conviction of first degree murder and a subsequent death sentence. We affirm the conviction of first degree murder, but reverse and remand for further consideration the imposition of the death penalty.

Sometime about July 18, 1984, the victim was brutally attacked in her bed. She suffered up to fifteen separate slash and stab wounds, some of which proved fatal. Her body had been further brutalized by the slashing removal of her sexual organs. The body of the victim was not discovered until three or four days following the killing. It is clear that the killing took place on the victim's waterbed which was punctured and torn by the attacker's knife. The combination of the body decomposition, together with the mixture of body fluids and the waterbed liquid, made impossible any determination of rape as a motive for the killing.

The defendant and the victim were both residents of the city of Blackfoot and knew each other. The victim had reported a prowling incident on the night of July 16, 1984, in which she advised the police that the prowler, thought to be the defendant, had tried to enter her home. During the incident the intruder had cut a window screen on the victim's home.

During the interim between the murder and its discovery, the defendant had contacted friends of the victim and also the police, expressing curiosity as to the victim's whereabouts. He claimed that co-workers and the employer of the victim had called him after she failed to appear at work. No such callers were ever located. After the murder and before the body was discovered, the Blackfoot police received two telephone calls stating facts thought to be capable of being only known to the murderer. The caller gave the name "Mike Jenkins" but no person by the name has ever been located. The prosecution asserts that logically the defendant was the only person who could have made the calls because of his detailed knowledge. On July 21 the defendant obtained permission from the victim's parents to enter the home which had been locked and apparently unattended. With the help of the Blackfoot police, entry was made into the house and the body discovered.

The evidence pointing to the defendant as the murderer was largely circumstantial in nature. The defendant sustained a serious incise wound to his left index finger, and on the night of July 18, 1984, he was treated for that wound at the emergency room of the Bingham Memorial Hospital. Blood samples were gathered from the scene of the crime, and serology tests showed that two distinct blood types were present. The victim's blood was type A and tests of the blood samples from the crime scene reveal that type O blood had been deposited contemporaneously with that of the victim's type A blood. The blood of sixteen suspects was tested and it was the serologist's opinion that the defendant was the only likely source of the type O blood. The defendant initially denied that his blood could be in the victim's bedroom, but later changed his story to admit he had been in the victim's bedroom and suffered a nosebleed, but contended the incident had happened one week prior to the murder. No explanation could be offered as to how his blood became mixed with that of the victim. The defendant asserted that he had cut his finger while in his own home attempting to upright a toppled fan. Laboratory tests of the Leavitt fan concluded that it lacked any blood residue or any indication it had been recently cleaned, and furthermore tests conducted with the fan were unable to duplicate the type of wound on Leavitt's finger. That "fan explanation" was abandoned by the defendant for the first time at trial wherein he admitted that he and his wife had perjured themselves and stated that the injury in fact had been sustained while he was attempting to prevent his wife from attempting suicide.

While confined in jail, the defendant wrote a letter to his wife containing specific instructions involving her future testimony. That letter was discovered and confiscated during a routine inspection of the jail. At trial the court ruled that the letter had been properly seized and it was used for impeachment purposes during the testimony of the defendant's wife, and further used to impeach defendant's testimony as inconsistent statements.

At trial two witnesses testified to events offered to show the defendant's alleged morbid sexual curiosity, and his frequent possession and use of knives. The defendant's former wife testified that Leavitt had been observed excising and then playing with the female sexual organs of a deer. It was noted that the killer of the victim here had similarly mutilated the body by removing sexual organs from it during the fatal attack. The former mistress of the defendant testified that the defendant displayed a hunting knife prior to their engaging in sexual intercourse, which testimony suggested that the defendant used knives to increase his satisfaction during sexual intercourse.

Since the instant case involves a conviction of first degree murder and the imposition of the death penalty, we have carefully reviewed the record for any indication of prejudicial error occurring at trial, regardless of whether or not error has been specifically asserted by the defendant.

It is first asserted that the defendant was denied his right to a fair trial because of the extensive pretrial publicity given to the murder. We agree that Blackfoot is a relatively small community in which there would be wide knowledge of such a brutal murder, and that the crime in fact was widely reported. The defendant broadly asserts that a change in venue must be granted whenever there is widespread publicity regarding a crime. We disagree. The applicable rule has been outlined by this Court in State v. Needs, 99 Idaho 883, 890, 591 P.2d 130 (1979):

Among the factors which this Court will consider in determining whether the criminal defendant actually received a fair trial are affidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant's guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, and the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself. (citation omitted). Publicity by itself does not require a change of venue.

99 Idaho at 890, 591 P.2d 130.

We have examined the trial court record and conclude therefrom that the pretrial publicity had little if any effect on the potential jurors, and find no indication that potential jurors would prejudge the case. We further note that the record indicates that the defendant failed to object to the jury panel actually seated at trial.

The defendant asserts that his right to a fair trial may have been compromised by the presence of one member of the jury. Late in the trial defendant's counsel moved to reopen jury voir dire to examine an individual juror with regard to alleged statements by the juror prior to trial. The motion was denied. Defendant does not assert there was any evidence that the juror had formed an opinion as to defendant's guilt or innocence. During voir dire that juror had been examined and specifically stated, "anything that I have heard can be put off." Defendant's assertions are vague and uncertain, and we conclude that the trial court did not abuse its discretion in denying defendant's motion for additional voir dire following the seating of the juror. State v. Sanger, 108 Idaho 910, 702 P.2d 1370 (Ct.App.1985). This Court in State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979), stated, "[i]t was not incumbent upon the trial judge to find jurors who were totally ignorant of the facts and issues involved in this case." We find no indication in the record of any prejudice.

The defendant next asserts that alleged exculpatory evidence was not disclosed to the defendant. That "exculpatory" evidence related to a Blackfoot police dispatcher who had received the "Mike Jenkins" telephone calls. Following voice comparison tests the telephone dispatcher was unable to clearly identify Leavitt as the Mike Jenkins caller. The defendant argues that his rights to a fair trial and due process were prejudiced because the prosecution failed to disclose the inability of the police dispatcher to identify the voice of the caller. Defense counsel moved to reopen defendant's case-in-chief to require the dispatcher to testify as to her alleged opinion of the voice comparisons. The trial court denied defendant's motion on the grounds that the alleged testimony would be a subject for expert testimony. Prior to trial the police dispatcher had made a voice comparison of the "Mike Jenkins" calls, and the defendant's voice as observed during his confinement. The dispatcher had prior to trial given the opinion that she thought the defendant and Mike Jenkins were one and the same person, but that she could not be sure. Therefore, the prosecution did not solicit her opinion at the time of trial. We cannot conclude that the testimony, if required, could be other than inculpatory of the defendant, and the prosecution did not fail to disclose exculpatory evidence. We do not necessarily agree with the trial court if its ruling was based on a perception that only expert witnesses are competent to identify the voices of telephone callers. See State v. Fenley, 103 Idaho...