Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. The Hon. Darla S. Williamson, District Judge.
The opinion of the court was delivered by: Eismann, Justice.
The judgment of the district court is affirmed.
This is an appeal out of Ada County from a judgment of conviction for the felonies of domestic violence and attempted strangulation. The defendant challenges the trial court's decision to admit expert testimony regarding domestic violence and testimony of an excited utterance; the deputy prosecutor's actions in soliciting testimony of the defendant's post-custody silence when accused of the crimes; and the verdict finding defendant was a persistent violator. We affirm the judgment of the district court.
On a cold October night at about 3:00 a.m., two patrol officers working the night shift were taking a short break at a police substation. They had parked their patrol car near the back door and left it running to keep the interior warm and to prevent the computer mounted inside from shutting down. While inside the substation, one of the officers heard a knocking sound, which he at first thought was being made by the ventilation system. When he heard the knocking again, he and the other officer investigated its source, which was the back door. Upon opening the door, they saw a 40-year-old woman curled up in a fetal position on the ground. She was dressed only in a tee-shirt and jeans and was not wearing shoes. She was very upset and crying and appeared to be injured and in pain. They asked, "Are you okay?," and she responded: "I need help. My boyfriend beat me up." The officers helped her into their patrol car where it was warm and called for paramedics.
While awaiting the paramedics, one of the officers questioned the woman about what had happened. She was still crying and upset. She said that her boyfriend had punched, kicked, and choked her; that his name was Darin Parton (Defendant); and that he was in a single-wide trailer across the street. Once the woman was placed in an ambulance to be transported to the hospital, the officers walked across the street to locate the trailer she had described. After doing so, they went to the hospital to gather more information from the woman.
At the hospital, they asked the woman in greater detail what had happened, and then they returned to the trailer with two other officers. After trying unsuccessfully to make contact with someone inside, they entered the trailer and located Defendant asleep in the back bedroom. They called to him to stand up and show his hands, but he did not respond. They then entered the bedroom and "placed him in custody," handcuffing him. Ultimately, they arrested him for domestic battery and attempted strangulation, both felonies.
At the preliminary hearing in magistrate court, the woman denied that Defendant had harmed her in any way. She testified that she had fallen asleep on the couch while watching television and was awakened when she felt something fall on her. When that occurred, she was scared and began screaming because she suffers from a panic disorder. She said that her two dogs (dachshunds) were then "all over me, and I fell off the couch and hit my head [on the coffee table]." According to her, Defendant had fallen on her, and when she was on the floor her two dogs were jumping and biting both she and Defendant. She said the dogs were all over her face and she was confused "because it was so chaotic." She then left the trailer because she was confused, hurt, and scared, and went to the police substation. She explained that she lied to the police about what had happened "[b]ecause I didn't want them to think I was crazy, and I didn't want to go to a place like Intermountain [Hospital] or a psychiatric unit to tell them that I was just freaked out." Based upon evidence other than the woman's testimony, Defendant was bound over to answer in the district court.
The State filed an information in the district court charging Defendant with the felonies of attempted strangulation and domestic violence. The State also filed a part two to the information alleging that he had previously been convicted of two felonies and that he should be considered a persistent violator if he were convicted of a felony in this case. Defendant entered a plea of not guilty in the district court, and the case was tried to a jury on May 3 and 4, 2010. The jury returned a verdict finding him guilty of both felonies. After receiving evidence of the two alleged prior felonies, it also returned a verdict finding that he was a persistent violator.
On the charge of attempted strangulation, the district court sentenced him to twenty-five years in the custody of the Idaho Board of Correction, with five years fixed and the remainder indeterminate. On the charge of domestic violence, the court sentenced him to ten years with five years fixed, with that sentence to run concurrently with the other sentence. Defendant then timely appealed.
Did the District Court Abuse Its Discretion by Allowing Expert Testimony
Regarding Defendant's Recorded Statements During Telephone Calls to the Woman?
The State called the woman as a witness during the trial. She stated that after Defendant came home from work, they had a few beers and then went to a local bar where they had additional drinks. After a while, Defendant became loud and obnoxious, and so she left and walked back to the trailer. Her son and his girlfriend later came to the trailer, and while they were still there, Defendant came in. According to the woman, he was obviously drunk because he was stumbling and his speech was slurred, and he stayed about five minutes and left. Her son and his girlfriend left about 11:00 p.m., and she then fell asleep on the couch while watching television. She was awakened at about 2:20 a.m. to the sound of Defendant coming into the trailer. Upon entering, he tried to hug her, but she pushed him away, telling him to go to bed. He then became aggressive. She testified in detail to Defendant pushing her down and then grabbing her hair with his left hand and using his right hand to punch her repeatedly in the face with a closed fist. As she was struggling to escape, he pulled her upright by her hair; grabbed her around the throat and lifted her so that her feet were off the floor; and then slammed her to the floor. She landed on her back, and he straddled her, sitting on her stomach. He then began choking her to the point that she could not breathe. Fearing that he would kill her, she went limp pretending to be dead. When he let go and got off of her, she rolled over and tried to catch her breath. He then began kicking her and stomping on her and then got on top of her, grabbed her hair with both hands, and began pounding her head on the floor. At that point, she lost consciousness. She awoke with him pulling her head up between his knees by her hair and then dropping his weight in her face so her head hit the floor. She testified she could not remember much of what else happened, but she eventually escaped and ran to the police station.
The emergency room physician testified that when he saw the woman at the hospital, she was very upset and disoriented. He testified that she had been through "quite a bit of trauma," that she had "extensive bruising," and that she had probably lost consciousness. He stated that the triage nurse wrote in the medical records that the woman had been "kicked, hit, and choked by her boyfriend" and that she was "[c]omplaining of neck pain, head pain, headache and left wrist pain." The physician said she had "bruises about her entire face" and that they "were too many to describe." She also had red marks on her neck, bruises on her arm, and a small laceration on her head that was bleeding. After completing his examination, he diagnosed her with "[c]losed head injury; contusion, multiple sites; abrasions, multiple; and sprain, cervical."
Because the woman had testified at the preliminary hearing that Defendant had not harmed her, the State called two experts regarding domestic violence. The second expert was a detective who had listened to recordings of three telephone conversations between the woman and Defendant while he was in jail. The telephone calls were made on the day of Defendant's arrest. After the detective testified to his extensive training and experience regarding domestic violence, the recordings were admitted into evidence and played for the jury.
The deputy prosecutor then asked the detective what evidentiary value, if any, they had, based upon his training and experience as a domestic violence detective. The detective answered:
Actually, I found it to have significant evidentiary value. To begin with, he makes obvious attempts to influence her in how she's going to proceed and how she's going to speak with people who conduct follow-up investigations in the prosecutor's office.
In addition, he expresses his disappointment that she did not make up a story about getting in a fight with a chick in the bar.
In addition, he never denies that he did this. I think that's strong, compelling evidence in a case like this.
And then beyond that, as she goes down the list of the things that he did to her, he acknowledges all those things. He says, "I know, I know, I know."
Defense counsel then objected on the ground that he did not recall Defendant saying "I know" in the recordings. The district court responded that the jury heard the audio and could decide what was said. The deputy prosecutor asked the detective to continue, and he stated: "Well, as he responds to her saying what he had done to her, you know, there's no denials."
Defense counsel again objected, stating that the jury did not need the detective to tell them what the calls said. During the ensuing colloquy among court and counsel, defense counsel stated that "the jury is entirely capable of drawing their conclusions from having listened to them," apparently objecting on the ground that the detective's specialized knowledge would not assist the jury to understand the evidence or to determine a fact at issue. The court asked if the deputy prosecutor was offering the testimony as an expert opinion, and the deputy prosecutor responded that while the detective had expertise in the area of domestic violence, the deputy prosecutor was limiting the testimony to what evidentiary value the calls have to a detective. The court then asked if it was "as a detective with the Boise City Police Department, having experience and expertise in the area of domestic violence," and the deputy prosecutor answered, "Yes." Defense counsel again objected on the ground that expert testimony was not necessary. The deputy prosecutor then stated that she was not offering the detective as an expert witness but as a fact witness. She stated:
And I'm not offering him right now as an expert under [Idaho Rule of Evidence] 702. He is a fact witness with regard to these calls because he heard them with his own ears. He wrote a police report about them that's been provided to defense counsel. So it's not an expert in terms of 702, but he does have some additional expertise in the area that would ultimately--
The court then asked whether the detective would be offering conclusions as to whether someone should be prosecuted based upon what was stated during the telephone calls, and the deputy prosecutor answered, "Just what, if any, evidentiary value they had." Finally, the court stated: "I'm not sure this is much different than a DUI evaluation. It seems to be in the realm of an investigative officer's duty as to what evidence that they would look at in putting together a case." The court then allowed the detective to testify. He recounted several statements by Defendant during the telephone calls that the detective characterized as "manipulative efforts" and stated they were "something that, as a domestic violence detective I'm always looking for, because that is ingrained in this type of crime."
On appeal, Defendant contends that the detective's testimony was not relevant. In order to preserve the issue for appeal, "[a]n objection to the admission of evidence must state the specific ground for the objection, if it is not apparent from the context." State v. Cannady, 137 Idaho 67, 72, 44 P.3d 1122, 1127 (2002). The only objection made by defense counsel was that the detective's testimony would not assist the jury to understand the evidence or to determine a fact in issue.
Rule 702 of the Idaho Rules of Evidence states, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." "Expert testimony is only admissible when the expert's specialized knowledge will assist the trier of fact to understand the evidence and determine a fact in issue." State v. Walters, 120 Idaho 46, 55, 813 P.3d 857, 866 (1990). "The determination of whether expert testimony will assist the trier of fact 'lies within the broad discretion of the trial court.' " Kuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240, 252, 245 P.3d 992, 1004 (2010).
Defendant does not argue that the district court abused its discretion in permitting the detective to testify. He argues that it was error to permit the detective to testify because the deputy prosecutor expressly stated that she was not offering the detective as an expert. It is apparent from the deputy prosecutor's statements that she did not understand the difference between an expert witness and a fact witness. The detective had no direct knowledge of any facts in this case. The deputy prosecutor apparently believed that a witness who utilizes his or her expertise to draw conclusions from facts somehow then becomes simply a fact witness. As Defendant states in his opening brief on appeal, "[A]lthough the State claimed that it was not offering [the detective] as an expert, it is clear from the State's argument and the presentation of [the detective's] background that the State was relying on his specialized knowledge of domestic violence." (Footnote omitted.)
The issue is not whether the deputy prosecutor understood the rules of evidence. It is whether the district court abused its discretion in permitting the detective to testify as an expert. The district court seemed to understand that the detective was being offered as an expert, based upon the court's statement, "I'm not sure this is much different than a DUI evaluation." The deputy prosecutor's lack of knowledge does not show that the district court abused its discretion. Defendant also argues that the inflammatory nature of the detective's ultimate testimony shows that it was error to admit it. As stated above, the only objection was whether the detective could offer expert testimony--whether it would assist the trier of fact. There were no objections to the opinions he ...