State v. Whipple

• Decision Date: 19 June 2000
• Docket Number: No. 24741.,24741.
• Citation: 134 Idaho 498,5 P.3d 478
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John WHIPPLE, Defendant-Appellant.
• Court: Idaho Court of Appeals

5 P.3d 478

134 Idaho 498

STATE of Idaho, Plaintiff-Respondent, v. John WHIPPLE, Defendant-Appellant.

No. 24741.

Court of Appeals of Idaho.

June 19, 2000.

Val Siegel, Kingston, for appellant.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

SCHWARTZMAN, Judge.

John Whipple appeals from his judgment of conviction for second degree murder and unified sentence of life imprisonment, with fifty years fixed. Whipple argues that the trial court erred in denying his motion to suppress his statement to the police; permitting rebuttal testimony about prior violent acts; not giving an involuntary manslaughter jury instruction; not ordering a further psychological evaluation for use at sentencing; and in imposing a life sentence with fifty years fixed. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 18, 1996, Whipple bludgeoned his wife, Deborah Kay Whipple, to death. Whipple's children found their mother in the trunk of the family car and notified the police. About an hour later Whipple walked into the Shoshone County Sheriff's Office alone and asked to speak to Lieutenant Spike Angle. Angle had been investigating the death of Deborah Kay and was called back to the office to talk with Whipple. Although Whipple's appearance at the Sheriff's office was voluntary and he was not in custody, as a precaution Whipple was mirandized.¹ Whipple then agreed to an interview with Angle, which Angle audiotaped. After describing his history of marital problems, Whipple became extremely emotional. During questioning about the death of his wife, Whipple repeatedly said, "No more." After being encouraged to continue, Whipple admitted to killing Deborah Kay with an auto-body hammer. The interview lasted no more than an hour and an half. Whipple was charged with the first degree murder of his wife.

Whipple filed a motion to suppress his alleged confession. Following a hearing and a review of the audiotape of the interview with Angle, the district court ruled that Whipple's "no more" statements were not equivalent to an invocation of the right to remain silent and denied Whipple's motion to suppress.

Whipple filed a motion for appointment of a psychological expert to evaluate his mental condition and his capacity to form specific criminal intent, which the district court granted. Whipple gave notice of intent to claim a mens rea defense and intent to call psychologists Dr. Michael Urban, Ph.D. and Dr. Walter Knake, Ph.D. as expert witnesses for the defense. The state had mental exams conducted on Whipple by psychologist Dr. Daniel Hayes and psychiatrist Dr. William Miller.

At trial, the pathologist testified that Deborah Kay was killed by blunt impact injury, typical of a hammer blow. The pathologist identified at least four separate blows to the skull and that the cause of death was tears and bruising to the brain caused by the blunt impact injury. A criminalist testified that the blood on Whipple's hammer was type A, the same as Deborah Kay's blood type. Three of Whipple's children testified to the events the morning of Deborah Kay's murder. The state offered their testimony to prove Whipple's response to stress, and all three testified about Whipple's past anger, threats and abuse of family members.

In defense, Whipple testified about his violent childhood, military training and bad experiences in Vietnam, family stresses and the breaking up of his relationship with Deborah Kay. Whipple said that after his return from his tour of duty in Vietnam, he would become angry with Deborah Kay, have Vietnam flashbacks and go into a tunnel-like rage in which he would not know what he was doing. Whipple testified that on the morning he killed Deborah Kay, he was following her down the steps to the garage with the intent of walking with her downtown to get the mail when she turned around and told him, "Pack your bags and get out!" Whipple testified that he felt she was sneering at him, that he was filled with jealous thoughts about her having a boyfriend and that he went into a blind rage as he reached for Deborah Kay's shoulders. The next thing he could recall was seeing Deborah Kay's bloodied body lying on the garage floor. After she died, he placed her in the trunk of the car, cleaned up some of the blood, and left after briefly seeing his children.

Dr. Knake, Whipple's treating psychologist during a hospitalization following a suicide attempt in the 1980's, testified that Whipple suffered from post-traumatic stress disorder (PTSD), dissociative disorder of the amnesic type, and intermittent explosive disorder. Dr. Knake further testified that Whipple's blind rage and violence were triggered by Deborah Kay sneering at him and telling him to "pack your bags and get out." On cross-examination, Dr. Knake admitted that PTSD and intermittent explosive disorder are not excuses for Whipple's conduct, that Whipple had intermittent memories of hitting Deborah Kay with the hammer, and that Whipple was not out of touch with reality.

Dr. Urban agreed with Dr. Knake's diagnosis. Dr. Urban testified that his testing indicated Whipple was extremely angry most of the time and that there was no evidence of malingering. Dr. Urban indicated that persons in the throes of PTSD are unable to premeditate.

On rebuttal, Dr. Hayes testified that Whipple had intermittent explosive disorder and mixed personality disorders-ingrained patterns of behavior, but he did not have PTSD. On cross-examination, Dr. Hayes testified that persons with intermittent explosive disorder are generally capable of premeditation.

Also in rebuttal, the state called Joseph Peak, a member of the local school board, to testify that Whipple had threatened to kill him and a bus load of school children several years earlier; and Michelle Whipple, Whipple's oldest daughter, to testify about his abuse of her, other family members, her possessions and pets. The testimony was intended to illustrate Whipple's ability to premeditate and inflict violence upon others. Whipple objected that their testimony was irrelevant and prohibited under I.R.E. 404(b) and 403. The district court ruled that the testimony of Peak and Michelle Whipple was relevant to Whipple's ability to premeditate. Thereafter, Peak testified to an incident in which Whipple had threatened to shoot at a school bus and its occupants. Michelle Whipple testified that, as a child in the 1980's, Whipple had intentionally killed her pets, thrown food in her face, taunted her, threatened to kill her, beat her severely, destroyed her possessions, smashed the family car with a sledge hammer and threw her infant sister against a wall.

Finally, Dr. Miller, a psychiatrist, testified that he diagnosed Whipple as only having personality disorders, not PTSD or intermittent explosive disorder. Dr. Miller testified that Whipple's reaction to his wife telling him to pack up and leave was consistent with domestic violence learned from his upbringing.

The jury found Whipple guilty of the lesser included offense of murder in the second degree. Prior to sentencing, counsel for Whipple filed a motion for appointment of Dr. Urban, pursuant to I.C. § 19-2522, for a psychological examination prior to sentencing. The district court denied the motion, ruling that such a report was unnecessary in light of Dr. Urban's, Dr. Knake's and Dr. Miller's testimony at trial. At sentencing, the district court imposed a life sentence, with fifty years fixed. Whipple's motion for reduction of sentence was denied following a hearing. Whipple appeals.

II. WHETHER WHIPPLE'S "NO MORE" STATEMENT REQUIRED A TERMINATION OF HIS INTERVIEW OR A CLARIFICATION OF WHETHER HE WISHED TO INVOKE HIS RIGHT TO REMAIN SILENT

A. Standard of Review

The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact that were supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996).

B. Discussion

Whipple argues that his repeated cries of "No more" in the face of Angle's questioning was an unambiguous invocation of his Fifth Amendment right to terminate custodial interrogation, which Angle violated by continuing the questioning. Alternatively, he argues that his statements of "no more" must be deemed an equivocal invocation of the right to remain silent, and that continued questioning had to be limited to determining whether he in fact wanted to invoke his right to remain silent.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that a suspect can assert his right to silence or right to counsel at any time, even after an initial waiver of those rights. 384 U.S. at 444-45, 86 S.Ct. at 1612-13, 16 L.Ed.2d at 706-07. Upon unambiguous invocation of the right to counsel or to remain silent, all questioning must cease. A number of federal and state courts extended this rule to equivocal invocations of the right to counsel or the right to remain silent. See, e.g., Martin v. Wainwright, 770 F.2d 918, 924 (11th Cir.1985) and State v. Moulds, 105 Idaho 880, 889, 673 P.2d 1074, 1083 (Ct.App. 1983) (holding that under the Fifth Amendment an equivocal invocation of the right to counsel—"Maybe I need an attorney"— requires that questioning cease for specific inquiry into whether the defendant in fact wants an attorney present). The Supreme Court's decision in Davis v. United States, 512 U.S. 452, 460-61, 114 S.Ct. 2350, 2355-56, 129 L.Ed.2d 362, 372-73 (1994), however, clearly rejected such lower federal and state court interpretations of the Fifth Amendment, eliminating the duty of police officers to clarify a suspect's intent upon an equivocal invocation of counsel. The Davis Court explained that an objective...