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State of Idaho v. Ora Ray Carson

November 2, 2011

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
ORA RAY CARSON,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Third Judicial District of the State of Idaho, in and for Canyon County. The Hon. Gregory M. Culet, District Judge.

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

2011 Opinion No. 105

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

Defendant was convicted of the murder of his three-month-old son and was sentenced to a fixed life sentence based upon the jury's finding that he exhibited utter disregard for human life. On appeal, he challenges the trial court's ruling barring alleged impeachment evidence of the child's mother, statements made by the prosecuting attorney during closing argument, and the jury instruction defining "utter disregard." We affirm the judgment of the district court.

I.

Factual Background

Veatrice Henson (Mother) and Ora Ray Carson (Defendant) had a son together (Baby) when they were engaged to be married. On September 15, 2004, at about 4:45 p.m., Mother left for work, leaving three-month-old Baby with Defendant. Mother checked into work at about 5:13 p.m.

At about 6:20 p.m., Defendant arrived at a hospital emergency room with Baby, claiming to have dropped him while giving him a bath. He stated that Baby hit his head on the side of the bathtub, and he immediately put Baby in the car and drove him to the hospital.

When the emergency room physician saw Baby, she knew he was verging on death. He was not crying, he was limp and did not respond to stimulus, he was bluish in color, and he had a large swelling area on the side of his head. Upon examination she observed that his pupils were fixed and dilated, he had no heartbeat, and he was not breathing or even making an effort to breathe. Baby was placed on a heart monitor at 6:21, which indicated there was still some electrical activity of the heart. The emergency room personnel immediately started cardiopulmonary resuscitation and intubated him, but to no avail. He was declared dead at 6:42 p.m. The emergency room physician testified that the massive brain injury that Baby sustained would have occurred within thirty minutes before he arrived at the hospital. On crossexamination, the physician stated that Baby was probably dead on impact.

An autopsy revealed that Baby suffered multiple blows to his head. He had a severe, Y- shaped, skull fracture on the right side of his head that was about six inches in its greatest dimension. He had a smaller skull fracture on the left side of his head, and bruises to his face. The injuries to his skull and brain were caused by very severe, blunt force trauma. In addition, he had a broken rib on his left chest. Because a baby's ribs are primarily flexible cartilage, they do not break easily. His injuries were not consistent with a fall.

The State charged Defendant with murder in the first degree and gave notice that it intended to seek the death penalty. The case was tried to a jury, and it returned a verdict finding Defendant guilty of first degree murder. There is no contention on appeal that the evidence is insufficient to support that verdict.

Because the State had given notice of the intent to seek the death penalty, the district court then conducted a special sentencing proceeding pursuant to Idaho Code section 19- 2515(5). At the conclusion of the evidentiary portion of that hearing, the jury was first required to determine whether the State had proved a statutory aggravating circumstance beyond a reasonable doubt. I.C. § 19-2515(8)(a)(i). The court instructed the jury as to three aggravating circumstances. It was unable to reach a unanimous decision as to two of them,*fn1 but it unanimously found that "the State [has] proven beyond a reasonable doubt that by the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life." The jury was then required to find "whether all mitigating circumstances, when weighed against the aggravating circumstance, are sufficiently compelling that the death penalty would be unjust." I.C. § 19-2515(8)(a)(ii). The jury found that imposition of the death penalty would be unjust. With that finding, Defendant was required to be sentenced to a term of imprisonment for life without the possibility of parole, I.C. § 19-2515(7)(b), and the court imposed that sentence. Defendant then timely appealed.

II.

Did the District Court Err in Excluding Extrinsic Evidence that Mother Had Been Unfaithful to Defendant?

Defendant was arrested on September 17, 2004, and he remained in jail throughout the proceedings below. Mother testified during the trial that she initially believed Defendant's version of what occurred. She stated that she terminated her relationship with Defendant in October 2005 because she "got sick of him starting to treat me like the rest of the men in my life did, calling me a whore and a slut, telling me that I was cheating on him." During her cross- examination, Defendant's counsel asked her if she was "cheating on" Defendant. She answered: "At the time, no, I was not. I did not start seeing somebody until after." Defendant's counsel then asked, "So in October of 2005, you had been totally faithful to [Defendant]?," to which Mother answered, "Yes."

Defendant testified in his behalf. He stated that he did not kill Baby, but Mother did. He said he protected her by not telling others that it was Mother who caused their son's death because she said it was an accident and he loved her. In May or June 2005, he became convinced that it was no accident and then began telling his attorneys what really happened.

Defendant's trial counsel informed the district court that he wanted to offer testimony from two men who would state that they had sexual relationships with Mother prior to October 2005. Counsel stated that the evidence was admissible under Idaho Rule of Evidence 404(b) to show Mother's motive or intent for keeping the Defendant thinking that she loved only him and to impeach her under Rule 608(b). The district court ruled that the evidence was extrinsic evidence that is inadmissible under Rule 608(b), that it was irrelevant, and that under Rule 403 any relevance was "far outweighed by the prejudicial impact." Defendant's counsel later brought up the issue again, stating that there were three men who would testify that they had intimate relationships with Mother prior to October 2005. He argued that the evidence was admissible for impeachment, but it was primarily admissible under Rule 404(b) to show

Mother's motive. He explained it as follows:

[Mother's] position is, here is a man that just killed her son, and yet she continues to have a close relationship with him, continues to love him, write these loving letters, talk lovingly on the phone. Her motive is to continue to cover up.

The fact that she was having a relationship with at least three other men indicates that, to her, the relationship was dead. But to [Defendant] she presented the relationship as continuing. She had a big stake in this that he continue to fall on the sword. That's her motive. The truth is a huge issue here.

The district court adhered to its prior decision.

Rule 608 of the Idaho Rules of Evidence provides that "[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation," but "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility, of the witness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence." Idaho R. Evid. 608(a) & (b). Testimony from the men that they had sexual relationships with Mother is not admissible under Rule 608 to impeach her trial testimony that she had been faithful to Defendant. It was extrinsic evidence of specific instances of Mother's conduct for the purpose of attacking her credibility.

Defendant argues that the rule does not bar extrinsic evidence of specific instances of the conduct of a witness to show the witness's motive to lie. Rule 404(b) of the Idaho Rules of Evidence states, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive . . . ." Idaho R. Evid. 404(b).

However, evidence admissible under Rule 404(b) "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Idaho R. Evid. 403(b). In this case, the district court held that evidence of Mother's intimate relationships with others should be excluded because it was irrelevant and any relevancy was substantially outweighed by the danger of unfair prejudice. "The trial court's I.R.E. 403 determination will not be disturbed on appeal unless it is shown to be an abuse of discretion." State v. Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010).

In support of the admissibility of the evidence, Defendant's trial counsel argued that Mother "continue[d] to have a close relationship with [Defendant], continue[d] to love him, write these loving letters, talk lovingly on the phone." Her alleged motive for doing so was to keep him thinking that she loved him in the hope that he would not tell anyone that she was responsible for their baby's death. The argument is that from evidence showing that Mother was having sexual relationships with other men, the jury could infer that her motive for writing letters to Defendant saying she loved him was to keep him from telling anyone that she was responsible for Baby's death.

Assuming that Mother's motive was to falsely give Defendant the impression that she still loved him in the hope he would remain quiet, that impression undoubtedly evaporated when she terminated their relationship in October 2005, prior to the commencement of the trial in March 2006. In January 2006, Mother was brought to Idaho from California to talk with prosecutors regarding this case. At that time, she learned that Defendant was blaming her for their baby's death. She was also presented with evidence showing that his death was not accidental. She then, for the first time, talked with prosecutors. Thus, by January 2006 Defendant was no longer protecting Mother, but was asserting that it was she who killed Baby. If, prior to her terminating their relationship, Mother had falsely claimed to love him in the hope he would remain silent about what happened, that alleged ruse was no longer effective prior to the commencement of the trial.

"This Court freely reviews the question of relevancy as an issue of law." Id. Evidence seeking to show that for a while prior to trial Mother was telling Defendant she loved him when she was also having relationships with other men was simply not relevant. As the district court stated, "Whether or not she is sincere or not when she writes him the letters isn't the issue before this jury."

Defendant also contends that exclusion of the evidence violated his right to confront the witnesses against him. He argues, "The district court denied [Defendant] the ability to confront [Mother] with evidence showing that her expressions of love and claims of faithfulness were false, and were made because she wanted him to continue to take the blame for [their baby's] death." Defendant initially claimed that he had accidentally dropped the baby while bathing him, but he has not pointed to any evidence that he did anything that would constitute continuing to take the blame for the baby's death, unless he means that failing to blame Mother was continuing to take the blame. Nevertheless, he has not provided any authority holding that the exclusion of irrelevant evidence violates a defendant's right to confront the witnesses against him. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (recognizing that during cross-examination a trial court can prevent interrogation that is only marginally relevant).

III.

Did the Prosecutor's Statement Regarding the Reasonable Doubt Instruction

Deny Defendant Due Process of Law by Lowering the Standard of Proof for a Conviction?

The district court instructed the jury:

Reasonable doubt is defined as follows: It is not mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

Defendant does not challenge the instruction given by the trial court. He admits that "the language of the instruction itself likely comports with the requirements of due process." He contends that unobjected-to comments by the prosecuting attorney during her closing argument, if followed by the jury, would have ...


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