State v. Radabaugh
| Decision Date | 25 June 1970 |
| Docket Number | No. 10574,10574 |
| Citation | 471 P.2d 582,93 Idaho 727 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. William Perry RADABAUGH, Defendant-Appellant. |
| Court | Idaho Supreme Court |
B. A. McDevitt and Warren S. Derbidge, Pocatello, for appellant.
Robert M. Robson, Atty. Gen., and James R. Hargis, Asst. Atty. Gen., Boise, for appellee.
William Perry Radabaugh (defendant-appellant) was charged by an Information with two counts of First Degree Murder in the fatal shooting of Lena Johns and Mary Villanova. The incident occurred on May 29, 1968, at the Lewis Hotel, Montpelier, Idaho.
Radabaugh lived at the hotel, operated by Mrs. Lena Johns, assisted by her sister, Mrs. Mary Villanva. He did chores and otherwise aided the two women in the operation of their hotel.
On the night of the shooting (May 29, 1968), Radabaugh visited with both Lena Johns and Mary Villanova at the Lewis Hotel in the presence of a Mr. and Mrs. Trussel. Radabaugh, the defendant-appellant, testified that after the Trussels left he conversed with Lena Johns and consumed two bottles of beer. The next thing Radabaugh recalled was 'seeing Mary lying on the floor in a pool of blood.' Radabaugh was standing there in the middle of the floor and there he observed a gun. He then left the hotel and went to Watkin's Bar whereupon he asked a Mr. Esterholdt to call an ambulance 'because of Mary being there in that pool of blood.' Radabaugh took the stand and testified, 'I did not to my knowledge kill Mary Villanova.' His testimony furthermore reveals that he stated he did not 'to his knowledge' kill Lena Johns. However while at Watkin's Bar, Radabaugh stated in the presence of Marie Seabold and Ralph Jones that he shot the two women. 1
During Radabaugh's trial, testimony probative of the sttitude of the two victims toward the defendant was admitted over defendant-appellant's objection.
Subsequent to trial, the jury returned a verdict of guilty of Murder in the Second Degree of Lena Johns and Mary Villanova. Radabaugh received a sentence of thirty years for each crime, each term to run consecutively, in the Idaho State Penitentiary.
William Perry Radabaugh has appealed to this Court from the Judgment of Conviction and from the district court's Order denying his motion for a new trial.
Appellant first contends that the trial court erred by failing to separate the two counts charged in the Information and refusing to grant his motion for separate trials since the charging of more than one crime in an Information is improper where prejudice can result from the trial of both of the alleged offenses before the same jury.
California has enacted a statute 2 similar to our own 3 which permits a single accusatory pleading (indictment, information) to charge two or more different offenses if the two are conntcted together or are similar. The California courts adhere to the rule that only in cases where the trial court has abused its discretion will the decision denying severance be disturbed on appeal.
People v. Eudy, 12 Cal.2d 41 at 46, 82 P.2d 359 at 361 (1938).
When considering if the consolidation of charges is proper the courts have recognized such factors as whether the crimes charged arose out of a single set of circumstances 4 and whether there is a common element of substantial importance involved in the commission of the offenses. 5 Applying these criteria to the case at bar (two victims of a fatal shooting found in the same apartment at the same time), it is apparent that both of the aforementioned tests are satisfied. Furthermore the Idaho statute permits the charging of two or more offenses in the same indictment if they are based on two or more (separate) acts or transactions which are connected together. The killings were clearly 'connected together' as evidenced by the unities of time, place, and modus operandi. This conclusion is confirmed especially in light of Radabaugh's incriminating admissions which substantiate the fact that Radabaugh's acts were integral components of a common scheme or plan. 6 In the case at bar appellant has failed to point out wherein the joint trial of the two charges worked to his prejudice. His unsupported statement is not sufficient. People v. Northcott, 209 Cal. 639, 289 P. 634, 70 A.L.R. 806 (1930).
Appellant contends that the trial court erred by refusing to grant his motion for additional peremptory challenges. Radabaugh maintains that he was entitled to twenty peremptory challenges rather than ten as provided for by I.C. § 19-2016 7 since two offenses were charged in the indictment pursuant to which Radabaugh was prosecuted. California has enacted a statute similar to I.C. § 19-2016 8 and it has been held in that jurisdiction that a defendant who is tried on a single indictment charging two capital offenses of the same degree is not entitled to twice the number of peremptory challenges prescribed by statute. People v. Potigian, 69 Cal.App. 257, 231 P. 593 (1924); People v. Whitmore, 251 Cal.App.2d 359, 59 Cal.Rptr. 411 (1967). Furthermore the record does not reveal that appellant exercised his ten peremptory challenges and, if such be the case, there was obviously no error committed by the trial court's refusal to grant his motion.
Appellant next contends that the trial court erred by allowing into evidence testimony tending to show the attitudes harbored by the victims regarding the defendant. The testimony tended to show that the victims were afraid of the defendant and furthermore that they had asked him to leave their hotel 9 and that they were planning to close the hotel. Appellant contends that the statements complained of are hearsay and thus inadmissible since they were extra-judicial (made outside of court), not subject to cross-examination, and offered as proof of the facts contained therein. Appellant furthermore believes that the testimony should have been exclubed since it was completely irrelevant to the issues presented by the case and only served to create prejudice in the minds of the jury.
The statements objected to by appellant fall into two distinct categories. The first ('I'm scared to death of him, not so bad when he's drinking beer, but when he's drinking whiskey he's crazier then a tick.'), was a declaration offered to show the state of mind or feelings of the declarant, i. e., the deceased victim.
Richardson on Evidence, § 270, pp. 260, 261, 9th ed. (1964).
Evidence tending to show the mental state of the victim and ill-feeling or hostility between decedent and defendant is admissible. Bustamonte v. People, 157 Colo. 146, 401 P.2d 597 (1965). Furthermore the district court expressly limited the purposes for which the testimony was to be considered. 10 Bustamonte v. People, supra.
Sapp v. State, 87 Tex.Cr.R. 606 at 615, 223 S.W. 459 at 468 (1920).
Thus since the first statement was probative of the attitudes and feelings (fear) of the victim towards Radabaugh, it was properly admitted. The second statement, ('he might as well get his stuff and go back to skid raw where he came from, because she was closing the hotel and moving to Texas with her son') was offered to show motive on the part of Radabaugh and is properly admissible since Radabaugh admitted that he had been notified that the hotel was to be closed and that the two ladies were moving back to Texas. When it is proved that 'D' (murder victim) made a statement to 'X' (the defendant-appellant, Radabaugh), with the purpose of showing circumstantially, the probable state of mind of 'X' (the defendant-appellant, Radabaugh), such as notice, knowledge or motive or to show information which 'X' had as bearing on the subsequent conduct of 'X' (defendant-appellant, Radabaugh), the evidence is not subject to attack as hearsay. McCormick, Evidence, § 228, p. 464 (1954).
'Explanatory circumstances and declarations connected with the commission of a homicide, which have a tendency to shed light on the motives of the parties, are admissible in evidence, including antecedent declarations made by the deceased and the defendant, where they form some link in the chain of circumstances, explanatory of their motives * * *.' Lowrey v. State, 87 Okl.Cr. 313 at 339, 197 P.2d 637 at 651 (1948); Starks v. State, 67 Okl.Cr. 156, 93 P.2d 50 (1939).
The testimony was pertinent to show the state of mind and attitude...
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