2013 Unpublished Opinion No. 737
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.
Judgment of conviction for second degree murder and unified life sentence, with fifteen years fixed, affirmed; order denying Idaho Criminal Rule 35 motion for reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
WALTERS, Judge Pro Tem
Nicholas David Johnson appeals from his judgment of conviction for murder in the second degree following a jury trial and from the district court's order denying his Idaho Criminal Rule 35 motion. On appeal, Johnson asserts that the district court erred when it admitted several autopsy photographs in evidence without conducting the balancing test required under Idaho Rule of Evidence 403. He also contends that the district court abused its discretion when it imposed a unified life sentence, with fifteen years fixed, and when the court denied his Rule 35 motion in light of new information provided in support of the motion. For the reasons explained below, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
Johnson was charged with murder in the second degree for the stabbing death of Jarmey McCane at the home of Bill and Stacy Kron on June 25, 2011. The stabbing occurred at the end of a party where alcohol had been consumed by the persons present. At trial, testimony of the witnesses to the event showed that McCane, along with his sister and brother-in-law, Stacy and Raymond Lopez, arrived while the party was in progress at the Krons's house. When McCane arrived, Bill Kron introduced him to Johnson as a "good dude, " to which Johnson responded, "Nah." Stacy Kron testified that she could feel tension immediately when McCane was introduced to Johnson. Off and on through the evening, Johnson continued to say things to McCane, and McCane would just try to "blow it off" by saying, "Whatever, dude." At one point, Kron moved between Johnson and McCane and held Johnson back from a confrontation with McCane. Johnson continued to engage in this behavior and display animosity toward McCane despite being asked by Kron to stop and "show some respect" to Kron's guests. Around 1:30 a.m., Kron decided he was "done with the situation, " so he went to his room, "grabbed a bat, " and "told everybody the party . . . was over." Stacy Kron took the bat from him, put it in the garage, and everyone went outside. They were standing in the street in front of the house, except for Johnson who had stayed on the front porch. Kron apologized to the Lopezes and to McCane and McCane apologized to Kron for disrespecting Kron and his home.
While Kron was in the street apologizing to his friends, Johnson went back inside the Krons's house and picked up a large kitchen knife with an eight-inch long blade, which he concealed in his pocket. Johnson returned to the porch and yelled something in a "cocky" tone to which McCane responded, "What?" and started walking toward Johnson. As soon as McCane reached Johnson, Johnson stabbed McCane in the upper chest. McCane grabbed his neck and said, "I think I just got stabbed." He collapsed in the Krons's front yard and died. After the stabbing, Johnson fled to his truck. McCane's brother-in-law, Raymond Lopez, pursued Johnson on foot and punched out the driver's side window of Johnson's vehicle, but Johnson sped away. Johnson fled to his girlfriend's house, changed his bloody shirt, and approximately twenty minutes later, called 911 to report the stabbing. Unbeknownst to him, Raymond Lopez had already called 911. When Johnson called 911, he reported he just stabbed someone, claiming "two people came at [him] and tried to jump [him]" so he "grabbed a knife and stuck one." When asked for his name, Johnson identified himself as "George Hernandez, " and when asked where he was, Johnson hung up. The dispatcher then called back, but Johnson did not answer his phone and the dispatcher got Johnson's voicemail, which said, "Hey this is Nick." The dispatcher called back a second time and Johnson answered. When the dispatcher asked, "Is this George?" Johnson calmly said, "Yes, " and he repeated his story that he "stuck" a guy when two men tried to jump him. Johnson also denied knowing the victim, said he was not sure whether the homeowner knew the victim, and said he did not plan to go to jail. When the dispatcher asked whether Johnson was planning to harm himself, he said "hold on" and hung up.
Law enforcement eventually located Johnson in his truck and initiated a traffic stop. The officers observed that Johnson's driver's side window was shattered, there was blood spatter in his truck, and the bloody knife was on the front seat mostly covered by a piece of paper. Johnson was taken into custody at which time it was noted he had no visible injuries and he declined an offer to be examined by paramedics. When interviewed, Johnson again claimed he had been attacked by two guys and said he had the knife because he felt threatened.
The State charged Johnson with second degree murder. Prior to trial, the State filed a motion in limine seeking the admission of photographs taken concerning the crime scene, the victim, and the autopsy. Johnson objected to several of the photographs on the basis that the probative value of the photographs was outweighed by prejudicial effect. The district court explained that its decision on the admissibility of the items was a discretionary call and ruled that one of the photos was admissible but that the court would reserve ruling on the admissibility of the others to see "how the facts of the case are going to tie in." During trial, the court held a hearing outside the presence of the jury at which the forensic pathologist who performed the autopsy testified regarding the relevance of five photographs identified as Exhibits 36, 37, 38, 39, and 40. Johnson objected to these exhibits, arguing the photographs had significant prejudicial effect and had no probative value, in light of the fact that the defense was willing to stipulate to whatever facts the State wanted to put in the record about McCane's autopsy. The court sustained Johnson's objection to Exhibit 36, but allowed the admission of Exhibits 37, 38, 39, and 40.
The jury found Johnson guilty of second degree murder. The district court imposed a unified life sentence, with fifteen years fixed. Johnson filed a Rule 35 motion, which the district court denied. Johnson filed a timely notice of appeal from the judgment of conviction and the order denying his Rule 35 motion.
II. ISSUES ON APPEAL
Johnson poses the following ...