State v. Olsen

• Decision Date: 23 June 1982
• Docket Number: No. 13551,13551
• Citation: 103 Idaho 278,647 P.2d 734
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ronald T. OLSEN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 734

647 P.2d 734

103 Idaho 278

STATE of Idaho, Plaintiff-Respondent, v. Ronald T. OLSEN, Defendant-Appellant.

No. 13551.

Supreme Court of Idaho.

June 23, 1982.

Dean J. Miller of Gigray, Miller, Downen & Weston, Caldwell, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Lance D. Churchill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Chief Justice.

Defendant appeals from his conviction on two counts of assault with a deadly weapon and from his determinate fifteen year sentence. The events prior to the incident which gives rise to this prosecution are virtually undisputed. The defendant, Ronald T. Olsen, who apparently had been drinking heavily during the afternoon and evening hours of May 1, 1979, received a citation for driving while under the influence of alcohol. After receiving the citation, the defendant went inside the house he shared with his mother and, according to his mother's testimony, consumed two Valium capsules and went to bed. He arose a few hours later, at approximately 4:00 a.m. on May 2, 1979, dressed, and for some reason picked up his shotgun. Defendant's mother became alarmed at his behavior and left the house to summon the police. Defendant apparently retrieved his .22 caliber rifle from under his mother's bed after she left. Two police officers accompanied the defendant's mother to the rear door of the house where they were able to observe the defendant sitting on a couch with a .22 rifle in his lap. As the officers and the defendant's mother entered the house, the defendant raised the rifle and began firing in their direction. Defendant fired some sixteen rounds before he was hit in the hand by the officers' returned fire, ending the volley. He was then disarmed and transported to the Caldwell Memorial Hospital for medical attention.

After a preliminary hearing, an information was filed in the district court charging defendant with two felony counts of assault with intent to commit murder, I.C. § 18-4015, and with committing a felony while in possession of a firearm, I.C. § 19-2520. Following a two day trial at which the primary issue was defendant's state of mind during the shooting, the jury found the defendant guilty on two counts of the lesser included offense of assault with a deadly weapon, I.C. § 18-906. The jury also found, by way of supplemental verdict, that the defendant used a firearm in the perpetration of each offense. On November 16, 1979, the defendant was sentenced to two determinate five year terms, each consecutive to the other. Pursuant to I.C. § 19-2520, the court imposed an additional five year sentence to be served consecutively, for a total determinate sentence of fifteen years.

Defendant appeals from both convictions, arguing that the trial court erred in admitting the testimony of a witness on rebuttal. Defendant also challenges the trial court's jury instruction regarding lesser included offenses and alleges error in the court's refusal to give certain instructions requested by the defendant. Finally, the defendant appeals the length of the sentence imposed. We will address the issues in that order.

I

The primary issue on appeal concerns the admissibility of the testimony given by the state's rebuttal witness. The defendant attacks the trial court's admission of testimony given by Mr. Bruce Reeder on two grounds: first, that the trial court abused its discretion in admitting, in rebuttal, testimony that would have been admissible in the case in chief; and, second, that the prosecution's failure to disclose the identity of the rebuttal witness deprived the defendant of a fair trial.

Rebuttal evidence is evidence which explains, repels, counteracts or disproves evidence which has been introduced by or on behalf of the adverse party. State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964); State v. Mundell, 66 Idaho 339, 158 P.2d 799 (1945); State v. Martinez, 43 Idaho 180, 250 P. 239 (1926). In his case, the defendant presented evidence that he was highly intoxicated at the time he fired the shots in the direction of the police officers and testified that he did not intend to shoot at the police officers. Upon completion of the defendant's case, the state called Mr. Reeder to the stand. Mr. Reeder's name was neither endorsed upon the information nor included in the state's response to the defendant's order for discovery and inspection. The defendant objected to the admission of his testimony, and the state made an offer of proof outside the presence of the jury. After hearing the offer of proof, the trial court permitted Mr. Reeder to testify, but limited his testimony to areas it considered rebuttal in nature, i.e., the defendant's statements relative to intent and the defendant's level of intoxication, and admitted the testimony over the defendant's objections.

Mr. Reeder then testified: that he was an emergency medical technician in the city of Parma, Idaho; that he had responded on the ambulance call to the defendant's residence on the morning of the shooting; and that en route to the hospital, the defendant made statements "to the effect that (he) had the officer in his sights, but the officer moved." Mr. Reeder further testified that while defendant's speech was somewhat slurred, in his opinion the defendant was only moderately intoxicated at the time. Thus, Mr. Reeder's testimony was limited to that which tended to repel, counteract or disprove evidence presented by the defendant.

The defendant asserts that since the evidence presented by Mr. Reeder would have been admissible in the state's main case, the trial court abused its discretion by admitting it during the state's rebuttal. However, the fact that evidence may be admissible in the case in chief does not make it any less rebuttal. The rule that the admission, in rebuttal, of evidence which would have been properly admissible in the case in chief rests within the sound discretion of the trial judge is widely recognized. See, e.g., Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343 (1895); United States v. Marsh, 451 F.2d 219 (9th Cir. 1971); Rodella v. United States, 286 F.2d 306 (9th Cir. 1960); Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970); State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978); Wise v. State, 92 Nev. 181, 547 P.2d 314 (1978); State v. Fischer, 232 Or. 558, 376 P.2d 418 (1962); State v. Amory, 1 Or.App. 496, 464 P.2d 714 (1970). But see People v. Thompson, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883 (1980); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957).

Similarly, this Court affords the trial court broad discretion in its decisions regarding the admission of evidence in rebuttal. State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964); State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933). Even where evidence admitted in rebuttal is not strictly rebuttal in nature, its admission or exclusion rests in the sound discretion of the trial court, provided that the party against whom such evidence is admitted has the opportunity to meet the evidence. State v. Hewitt, 73 Idaho 452, 254 P.2d 677 (1953); State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933); State v. Mushrow, 32 Idaho 562, 185 P. 1075 (1919).

Thus, the question on review is whether the trial court abused its discretion by denying the defendant a fair opportunity to meet the testimony of Mr. Reeder. The defendant alleges that he was deprived of any opportunity in which to prepare a cross examination and that his expert witness had already been excused. At trial, however, he did not seek a continuance to enable him to better meet such evidence, nor did he specifically claim that he would be prejudiced by the admission of the testimony. Finally, the defendant waived any surrebuttal which he may have conducted in an effort to refute the testimony of Mr. Reeder. Our review of the record discloses that defendant had a fair opportunity to impeach or contradict Mr. Reeder's testimony.

II

The defendant appellant also complains that the state's failure to disclose Mr. Reeder's identity prior to his testifying denied defendant a fair trial. The state learned of the presence of Mr. Reeder on the evening after the first day of the two day trial. The prosecution did not complete its case in chief until approximately 1:30 p.m. on the second day of trial, and it did not offer Mr. Reeder's testimony in its case in chief, but only in rebuttal.

The state has a constitutional duty to disclose to a criminal defendant exculpatory evidence material to the preparation of his case. United States Const. amend. XIV; Idaho Const. art. 1, § 13; State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979); State v McCoy, 100 Idaho 753, 605 P.2d 517 (1980); State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978): see United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). A defendant's constitutional right to discovery, however, extends only to evidence which is exculpatory or favorable to the defendant and which would be material to his guilt or punishment. State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980); see Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1970).

In arguing that he was constitutionally denied a fair trial, the defendant fails to distinguish between exculpatory and inculpatory evidence. Defendant does not claim that Reeder's testimony was exculpatory; indeed, the record indicates that Mr. Reeder's testimony was, in its entirety, inculpatory and consistent with the state's main case. Since the defendant's constitutional right to disclosure does not extend to any and all information which may assist him in preparing for trial, but only to evidence which is exculpatory in nature, defendant cannot here complain that he was denied his constitutional right to discover Mr. Reeder's identity. See State v. Horn, supra.

Defendant additionally argues that the state has a statutory duty to disclose witnesses who are known to the prosecution prior to...