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State v. Thorngren

October 1, 2010

STATE OF IDAHO, RESPONDENT,
v.
DONNA KAY THORNGREN, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. The Honorable Joel D. Horton, District Judge.

The opinion of the court was delivered by: J. Jones, Justice.

2010 Opinion No. 100

The judgment of conviction for first degree murder is affirmed.

Donna Kay Thorngren appeals her conviction for first degree murder. We affirm.

I. Factual and Procedural History

Donna Thorngren‟s husband, Curtis, was murdered on January 12, 2003. A grand jury indicted Donna for Curtis‟ murder and indicted her son, Austin, as an accessory to murder. Donna and Austin were to be tried in a joint proceeding. However, Donna filed a pretrial motion to sever her trial from Austin‟s, claiming a joint trial would violate her Confrontation Clause rights. Specifically, the State sought to introduce a statement Austin made to his friend, Adam Ketterling, tending to incriminate his mother in the murder. If admitted, the statement would arguably violate Donna‟s Confrontation Clause rights should Austin invoke his Fifth Amendment right not to testify. The statement occurred after a conversation between Donna and Austin in a shed outside Donna‟s mother‟s home on the day Curtis was murdered, but before his body was discovered. Ketterling entered the shed shortly after Donna left*fn1 and found Austin visibly shaken. When Ketterling asked Austin what was wrong, he said "I think my mom did it." This statement is referred to as the "shed statement." Upon further questioning of Ketterling at the grand jury hearing, Ketterling testified he believed this statement meant "she [Donna] killed his dad [Curtis] that morning."

Donna‟s motion to sever was heard on April 19, 2007, and at the conclusion of the hearing the district court ruled that it would sever Austin‟s and Donna‟s trials. In the context of deciding the Confrontation Clause issue, the court stated the shed statement "would not be admissible as against Donna" as an excited utterance because it was in response to a question.

The shed statement also played a part in a motion Donna filed on March 30, 2007, to dismiss the first degree murder charge against her, based upon alleged irregularities in the grand jury proceedings. Donna contended that the indictment for the first degree murder charge was based upon inadmissible evidence (the shed statement) and, in the absence of such evidence, there was insufficient evidence presented before the grand jury to support a probable cause determination. One week before trial, the district court issued its written opinion denying the motion to dismiss and holding the shed statement would be admissible as an excited utterance. Donna filed a motion for continuance arguing the changed ruling impaired her trial strategy, specifically citing only the lack of preparation for Ketterling‟s impeachment as a basis for granting the motion. The district court denied the motion stating that such "generalized statements as to the difficulties that the defense might face" were insufficient grounds for granting the motion. The matter proceeded to trial and Donna was convicted of first degree murder.

Donna appealed her conviction arguing the district court: (I) abused its discretion by admitting the shed statement as an excited utterance; (II) violated Donna‟s right to due process by changing its ruling on the shed statement one week before trial; and (III) abused its discretion in refusing to grant a continuance in light of its changed ruling. The Court of Appeals heard the appeal and affirmed Donna‟s conviction. Donna sought, and we granted, review.

II. Appeal

I. Whether the district court abused its discretion in finding that the shed statement was admissible as an excited utterance under Idaho Rule of Evidence 803(2).

II. Whether the district court‟s ruling on the admissibility of the shed statement denied Donna due process.

III. Whether the district court abused its discretion in refusing to grant a continuance.

III.

A. Standard of Review

When we review a case previously decided by the Court of Appeals, "this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." In re Doe, 144 Idaho 819, 821, 172 P.3d 1094, 1096 (2007). The district court‟s decision to admit evidence is reviewed for an abuse of discretion. State v. Field, 144 Idaho 559, 564, 165 P.3d 273, 278 (2007).

B. Admissibility of the Shed Statement

Donna contends the district court erred in admitting the shed statement as an excited utterance because the district court pointed out several factors cutting against its admission and then admitted it anyway. She argues that admission of the statement as an excited utterance was not harmless error because it is likely the jury would have reached a different result in the absence of the statement. The State asserts the statement is an excited utterance or, in the alternative, its admission was permissible for a non-hearsay purpose to demonstrate Donna‟s knowledge of Curtis‟ death before his body was discovered. We conclude that the district court properly admitted the shed statement as an excited utterance because news of Curtis‟ death was sufficiently startling to render inoperative Austin‟s reflective thought process and, although in response to a general ...


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