State v. McKeehan

• Citation: 430 P.2d 886,91 Idaho 808
• Decision Date: 18 July 1967
• Docket Number: No. 9767,9767
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Clarence Edward McKEEHAN, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 886

430 P.2d 886

91 Idaho 808

STATE of Idaho, Plaintiff-Respondent, v. Clarence Edward McKEEHAN, Defendant-Appellant.

No. 9767.

Supreme Court of Idaho.

July 18, 1967.

Rehearing Denied Sept. 7, 1967.

Rapaich & Knutson, Lewiston, for defendant-appellant.

Allen G. Shepard, Atty. Gen. and John S. Simko, Asst. Atty. Gen., Boise, for plaintiff-respondent.

SPEAR, Justice.

Appellant Clarence Edward McKeehan has taken this appeal following conviction in the district court for Nez Perce County of the offense of aggravated battery. McKeehan was sentenced to a maximum indeterminate term of two years in the Idaho State Penitentiary.

The offense of which he was convicted is defined in I. C. § 18-912, as follows:

'An assault or battery committed under any of the following circumstances is aggravated: when without justifiable or excusable cause a person unlawfully commits an asault (assault) upon the person of another, eithr with or without a weapon, and thereby wounds or inflicts grievous bodily injury upon such person; when committed with a premediated design and by the use of means calculated to inflict great bodily injury.

'Every person guilty of an aggravated assault or battery as above defined shall be punishable by a fine of not less than $100.00 or by imprisonment in the county jail for not less than three months nor more than one year, or by imprisonment in the state penitentiary for a period not exceeding three years, or by fine not exceeding $1,000.00.'

The circumstances surrounding the perpetration of the alleged aggravated battery are as follows:

On June 7, 1965, appellant and his wife, Betty Jean, resided at 327 First Avenue, Lewiston, Idaho. Mrs. McKeehan had filed a complaint for divorce, but the parties had reconciled. On June 7th, while appellant was in Orofino, Idaho, searching for work, the complaining witness, Edward E. Paffile, and the appellant's wife spent the day together drinking. Sometime late that evening or in the early morning hours of the next day Paffile, who was inebriated to the point of being sick, returned to the McKeehan apartment with Mrs. McKeehan and lay down across the bed in the McKeehan's bedroom.

What then occurred resulting in the arrest and subsequent conviction of appellant can best be gleaned from the testimony, somewhat conflicting, adduced at the trial from the principal parties and witnesses.

Paffile testified that after he lay down he heard a knock at the door and that Mrs. McKeehan said, 'It's Sonny,' (appellant's nickname) and that he, Paffile, began to crawl out the bedroom window; that he jumped to the ground and started running, believing himself to have successfully eluded a confrontation with the appellant. Thereafter, he was unable to recall anything that happened-his last recollection was that of running from beneath the bedroom window.

Appellant testified that upon returning home he knocked on the front door of his home, and, hearing voices inside and not being able to get into his home, he ran around to the bedroom window; that a figure jumped out on top of him and that he and this figure tumbled down a flight of concrete cellar stairs that were located under window. There, at the bottom of the stairs, the parties started fighting. This continued up to the top of the stairs and halfway or three-quarters around the house. Appellant described it as a 'real knock-down-drag-out fight,' both men exchanging blows in the darkness outside the house. Once at the top of the concrete stairs, and again later, on the lawn in back of the house, appellant fell or was knocked down and hit his head. After having fallen down the second time he could remember nothing else until the police arrived. Not until then was he able to recognize the man with whom he had struggled, and who he believed had attacked him, as the complaining witness, Edward Paffile, a former neighbor and social acquaintance.

Betty McKeehan testified that when she heard her husband return home, she turned off the house lights and ushered Paffile to the bedroom window. Paffile told her that he was not afraid of her husband, and she finally had to push Paffile out the bedroom window. She did not witness the confrontation. She testified she remained in the house some ten or fifteen minutes, and that during this time she did not look out the window or in any manner observe anything. When she did go outside, it was only moments before the police arrived.

State's witness, Bonnie Paffile (Edward Paffile was her ex-husband), who lived next door to the McKeehans, had been awakened by the disturbance and had called the police to the scene. She testified that she saw appellant from her bedroom window kicking and beating a motionless figure (whom she did not recognize as her former husband until the police arrived), who was lying face up on the ground outside, and heard appellant cussing and saying, "I'm going to kill you. You were out with my wife,' like that, and 'I'm going to kill you for it." She estimated appellant kicked or struck the complaining witness anywhere from 10 or 15 times to 20 or 35 times before she called the police. The complaining witness was helpless, and she believed him unconscious. After having phoned the police she returned to the bedroom window and observed the appellant leave the complaining witness and turn toward his wife, Betty McKeehan, who was also outside in the backyard. Her vision was obscured, but she heard appellant angrily shouting at his wife, and believed Betty had been knocked down by the appellant, for she testified she heard Betty say, "Please don't kick me in the head * * *." Mrs. McKeehan got up and ran into her apartment. Appellant chased her but she got in and locked the door before he could get in. Appellant said, 'Let me in or I'll kill you,' but when he couldn't get in appellant went back outside to where the complaining witness was lying and continued his assault. At this time she thought 'the guy was dead.' She testified 'the guy couldn't move and he (appellant) continued kicking him some more and that is when he picked him up by the shoulders and kicking him back down.' She further testified that appellant now would alternately pound the complaining witness with his fists and feet, then pick up the complaining witness by the shoulders and knock him back down with drop kicks. She estimated appellant must have struck some thirty to fifty blows in the course of this second battery.

Officer Norman Ayers of the Lewiston Police Department, who subsequently arrived at the scene, testified he saw the appellant swing a 'hay maker' at a figure hanging like a 'rag doll.' He testified that he shined his flashlight on this figure who was then on the ground and discovered it was Paffile, who was semi-conscious and whose face was badly battered. McKeehan, on the other hand, was not bleeding, did not have any apparent bruises or abrasions, talked intelligibly, and did not appear dazed.

Appellant denied that he chased Paffile, but insists an unknown figure, later recognized as Paffile, jumped out on top of him from the bedroom window of his own home, knocking him to the ground. While admitting exchanging blows with this unknown assailant, appellant stated he was unable to recall kicking and beating the complaining witness as he lay helpless on the ground, and believed he did not, in fact, do so. Moreover, appellant was unable to recall chasing or arguing with his wife and then returning to administer a further beating to the complaining witness, and stated he would not have so acted.

Mrs. McKeehan, additionally, denied that appellant had struck her or chased her as was reported by Bonnie Paffile. However, Sergeant Fannon of the Lewiston Police Department, also called to the scene that night, testified in rebuttal for the State, he observed that Mrs. McKeehan's hair was disarranged, that along the outside of her left leg there were dirt marks and scraping marks and that her clothes were generally disarrayed.

Dr. Galen Rogers, a physician and surgeon, who treated Paffile at the hospital the evening of the fight, testified he found Paffile semi-conscious, and described his condition as critical because of the rather severe head injuries. He testified that Paffile had considerable bruising with marked swelling about the face, a cut over the left eyebrow, a cut extending from the left side of his mouth and a hemorrhage in the anterior chamber of the right eye. Later examination in fact revealed no injury to the bony structure of the head, no damage to the frontal sinuses which are very susceptible to being fractured or hurt, and the teeth were not injured. Under cross-examination, Dr. Rogers testified that any time there are lacerations of the head and swelling in that area there is a possibility that serious injury exists, and that the patient must always be watched carefully.

Paffile was hospitalized for over a week, primarily to keep a check on his injured eye, described both by Dr. Rogers and Dr. Eugene Baldeck, an eye specialist called in to treat Paffile, as a very serious injury. Dr. Baldeck explained that the danger with a contusion such as suffered by Paffile was one not only of the initial hemorrhage, but the possibility of additional bleeding, which if it does occur results in a condition dangerous not only to vision but to the eye itself. Absolute bed rest was prescribed. Additionally, double eye patches were placed over each eye for a week to prevent any movement of the injured eye by the patient. Dr. Baldeck testified an injury such as Paffile sustained to his eye would have have been caused by a blunt injury to the eye, such as could result from a fist or the toe of a shoe.

Upon this evidence the jury returned a verdict of guilty to the crime of aggravated battery, IC. § 18-912, and the trial court sentenced appellant to a maximum indeterminate term of two years in the penitentiary.

Appellant has asserted eleven assignments of error in support...