2015 Opinion No. 43
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
The judgment of conviction for first-degree murder and failure to report a death to law enforcement is
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Elizabeth Allred argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Daniel Ehrlick appeals from his conviction for the first-degree murder of a child and the failure to report the death to law enforcement. On appeal, Ehrlick alleges that the trial court committed multiple errors in the admission of evidence and that the prosecution violated his Fourteenth Amendment right to a fair trial by committing multiple acts of prosecutorial misconduct. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2009, at 10:11 p.m., the Ada County Sheriff's dispatch received an emergency call from Ehrlick reporting that R.M., the eight-year-old son of his live-in girlfriend, Melissa Jenkins, was missing. Ehrlick told dispatchers that R.M. was last seen at 7:00 p.m. on July 24, he had been searching for R.M. for several hours, and everyone was telling him that R.M. was at a birthday party. In the ensuing days, an extensive search was launched to find R.M. The searchers included members of several law enforcement agencies and dozens of citizen volunteers. R.M.'s body was found on August 3, 2009, floating face down in the New York Canal. A large rock was stuffed into a closed cargo pocket of his pants. No evidence was offered as to how, or precisely when, R.M.'s body was placed in the canal. R.M.'s corpse exhibited extensive injuries, including multiple compression injuries to the abdomen and a blow to the head. Both the compression injuries and the head injury were potentially fatal wounds on their own, but would not have resulted in instantaneous death. The State's forensic pathologist, Dr. Glen Groben, testified that R.M.'s death was caused by blunt force trauma to the head and torso due to an assault.
During the summer months of 2009, R.M. was residing with Jenkins and Ehrlick at the Oak Park Village Apartment Complex. The complex consists of several large apartment buildings, a central office/club house, and multiple community areas, including a swimming pool, park, and playground. The complex is located about a quarter-mile from the New York Canal.
As time passed, investigators began to suspect Ehrlick and Jenkins were involved in R.M.'s disappearance. Investigators searched the couple's apartment on July 30 and 31, finding a piece of paper taped to a wall which concealed a hole in the drywall. Considering this possible evidence, investigators cut a section of sheetrock containing the hole out of the wall. Investigators eventually had the section of sheetrock scanned in order to create a three dimensional plastic model that was introduced at trial. Investigators suspected that the hole was created when Ehrlick slammed R.M.'s head into the wall.
On August 18, 2009, an Ada County grand jury returned an indictment charging Ehrlick with first-degree murder and failure to report a death to law enforcement. The matter proceeded to trial. On June 30, 2011, the jury unanimously found Ehrlick guilty of both charges. The district court sentenced Ehrlick to two fixed consecutive life sentences. Ehrlick timely appealed.
A. The Birthday Party.
At trial, and in the parties' appellate arguments, there was extensive discussion regarding the occurrence or non-occurrence of a birthday party somewhere within the apartment complex on July 24. Accordingly, a somewhat detailed factual background may assist in understanding the parties' arguments as they relate to the occurrence or non-occurrence of a birthday party on July 24.
The first mention of the birthday party came in Ehrlick's call to 911 on the evening of July 24. Ehrlick told the dispatcher, "I've been out looking for a couple of hours around our apartment complex …. Everybody keeps directing me to the–a birthday party. That's where everybody's saying that he's at but I can't find this birthday party or nothing." When officers subsequently contacted Ehrlick, he told Officer Guy McKean that R.M. had come into the apartment from playing outside three times between 7:00 p.m. and 7:30 p.m. to ask if he could go to a birthday party, and each time Ehrlick told R.M. that he could not. Around 10:00 p.m. on July 24, a security guard for the complex heard Ehrlick by the community pool asking residents if they knew of a birthday party, and if so, where it might be.
At trial, there was no evidence that a birthday party took place within the apartment complex on July 24. The State's theory throughout the trial was that Ehrlick and Jenkins fabricated the story of a birthday party in order to distract law enforcement and deflect attention from themselves. In support of this theory, the State introduced evidence that no birthday party occurred and that a birthday party at that late hour did not make sense. Ehrlick maintains that the actual existence of a party is irrelevant because he never said that there was in fact a party, just that R.M. had asked to go to a party.
B. Ehrlick's physical abuse of R.M.
Much of the State's evidence in this case involved the nature and extent of Ehrlick's physical and emotional abuse of R.M. Ehrlick's methods of child discipline-and his related terminology-may charitably be characterized as unconventional. The first was "dead bugging, " where Ehrlick would force R.M. to lay on his back on the floor and raise his arms and legs, keeping them perpendicular to the floor. The second was "the wall, " where Ehrlick would force R.M. to press his face and knees up against a wall while crouching. Third, Ehrlick forced R.M. to maintain "the chair, " where R.M. would place his back against a wall with bent knees and hold the position as long as possible. Ehrlick also struck R.M. with a board. R.M. often sustained bruising as a result of Ehrlick's discipline. To hide this bruising from health and welfare workers during their visits to the home, Ehrlick and Jenkins told elaborate lies and hid R.M. in their closet.
C. The State's timeline.
Throughout the trial, the State's theory was that R.M. was not seen by any witness on July 24 because he was either dead or dying and was unable to go outside. For this reason, the State went to great lengths to discredit all witness accounts that presented claims of seeing or speaking with R.M. on July 24.
II. STANDARD OF REVIEW
This Court reviews questions regarding the admissibility of evidence using a mixed standard of review. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). First, whether the evidence is relevant is a matter of law that is subject to free review. State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007). Second, we review the district court's determination of whether the probative value of the evidence outweighs its prejudicial effect for an abuse of discretion. Stevens, 146 Idaho at 143, 191 P.3d at 221. We determine whether the district court abused its discretion by examining: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently within the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason. Id. However, an abuse of discretion may be deemed harmless if a substantial right is not affected. State v. Thompson, 132 Idaho 628, 636, 977 P.2d 890, 898 (1999). "In the case of an incorrect ruling regarding evidence, this Court will grant relief on appeal only if the error affects a substantial right of one of the parties." Obendorf v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834, 839 (2008); I.R.E. 103(a). "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." I.C.R. 52.
State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010).
III. ISSUES ON APPEAL
1. Did the district court err by admitting testimony from an investigator that witnesses who saw R.M. on July 24 were not credible?
2. Did the district court err by admitting a model of R.M.'s head?
3. Did the district court err by admitting certain I.R.E. 404(b) evidence?
4. Did the district court err by holding that statements made by Samantha Burnett were not hearsay?
5. Did the district court err by excluding statements to law enforcement officers on the basis that the statements were hearsay?
6. Did the prosecution commit misconduct?
A. The district court abused its discretion in admitting testimony from Agent Martin that no witnesses who claimed to have seen R.M. on July 24 were credible; however, the error was harmless.
The State called Mary Martin, an FBI agent assigned to investigate cases involving crimes against children. Martin became involved in the search for R.M. on July 27. Initially, Agent Martin was assigned to follow up on any leads that came in. She was later asked to create a timeline focused on establishing the last time R.M. was seen. Martin testified that every lead that came in on R.M.'s case was investigated by the Boise Police Department or the FBI. Over a defense objection, Martin testified that, based on all of the leads and all of the reports she reviewed, it was not possible for R.M. to have been at all of the places where witnesses reported having seen him.
Martin interviewed K.D.,  a seven-year-old resident of the complex, who claimed she had seen R.M. on July 24. Martin testified that K.D. had been interviewed on two prior occasions and that in each instance there were inconsistencies in her reports. The prosecution then asked Martin, "[B]ased on your investigation–were you able to determine whether or not that was a credible lead or a credible last sighting?" Defense counsel objected, arguing that credibility was for the jury to decide. The district court asked the prosecutor if Martin's opinion was based upon her "expertise." The prosecutor responded that it was based upon Martin's expertise and investigation. The district court overruled the objection and Martin testified that she determined that K.D.'s report of seeing R.M. on July 24 was not a credible lead or last sighting.
Martin also examined reports from two other children who resided in the apartment complex, O.J. and I.T. O.J. and I.T. both claimed to have seen R.M. on July 24. Martin did not interview O.J. or I.T., but found inconsistences in their statements to law enforcement and determined that neither provided a credible last sighting of R.M. Defense counsel again objected to Martin testifying that O.J. and I.T.'s statements were not credible, arguing that it invaded the province of the jury. The district court again overruled the objection. Ultimately, Martin testified that the law enforcement investigation did not produce any credible sightings of R.M. on July 24.
The defense called O.J. as a witness at trial. O.J. testified that in the summer of 2009 he was thirteen years old and had lived at the apartment complex for approximately one year. He testified that he had known R.M. for about two weeks before he went missing and that he saw R.M. on a swing set in the apartment complex's park on July 24 sometime after noon and again by the complex's pool area later in the day. On cross-examination, O.J. was impeached with multiple prior inconsistent statements.
Defense counsel also called two witnesses who were not directly identified in Martin's testimony. Both testified that they saw R.M. at the pool on the evening of July 24. The first, Jennifer Hastings, testified that she was sitting on the edge of the community pool on July 24 while her son swam. Hastings stated that she and her son left the pool sometime between 8:00 and 9:30 p.m. Hastings testified that, late in the evening of July 24, an officer showed her a photo of R.M. and that she was fairly certain she had briefly seen the boy playing by the pool earlier that evening. She said that R.M. was wearing shorts and a t-shirt. On cross-examination, the prosecutors confronted Hastings with a form she filled out shortly after July 24 that asked her to "[d]escribe in your own words everything that occurred on the day of the disappearance, from the time you got up until the time you went to sleep. Include everywhere you went; everything you did; and everyone you interacted with … no detail is too small. Everything is important." Hastings wrote:
I got up about 9:30ish. Had my children get ready for the day. They went outside to play and walk the dog about 10:30. I went and checked on them about 11 o'clock a.m. At that time, I saw a white, older van mid-80s, driving around the complex. I saw it enter and leave two or three times. Driving slowly. I thought nothing of it. I left at about 1:30 to be at work by 2 o'clock. I arrived home about 9 o'clock. We saw it leaving as we were entering. I later heard his father calling him at 10:15 p.m.
The defense also called Melanie Robinson as witness. She testified that she knew R.M. by name and that she was "positive" that she saw him "in the pool, near the pool area" playing in the hot tub. She testified that R.M. was wearing blue Spiderman swimming shorts. Robinson also testified that she spoke with Agent Martin a few days after R.M.'s disappearance and told Martin that she had seen R.M. on the evening of July 24. On cross-examination, the prosecution showed Robinson a photo of the back of R.M.'s head that was taken after his body was recovered. Robinson testified that the hair depicted in the photo was much longer than the hair of the boy she had seen by the pool on the evening of July 24. In closing argument, the State theorized that Robinson had confused R.M. with another boy.
Ehrlick contends that the district court erred by allowing Martin to express her opinion, based on her expertise and investigation, that witnesses who told law enforcement that they saw R.M. on July 24 were not credible. Relying on State v. Almaraz, 154 Idaho 584, 301 P.3d 242 (2013), Ehrlick argues that the district court abused its discretion because this testimony invaded the province of the jury. Ehrlick further contends that the error was not harmless.
The State responds that Ehrlick's claim that the district court erred in allowing Martin's testimony fails because Martin's testimony did not assess the credibility of any witness; rather, it merely explained a stage of the investigation. The State further argues that Martin's testimony was not admitted to vouch for any witness's credibility, but to establish the thoroughness of the investigation. The State also notes that because K.D. and I.T. did not testify at trial, Martin's testimony could not have encroached on the jury's function to evaluate their credibility.
1. The district court abused its discretion by admitting Martin's testimony regarding the credibility of witnesses.
"Under I.R.E. 702, an expert witness may provide an opinion '[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.' " Almaraz, 154 Idaho at 599, 301 P.3d at 257 (quoting I.R.E. 702). This Court has "routinely held that 'an expert's opinion, in a proper case, is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. To venture beyond that point, however, is to usurp the jury's function.' " Id. at 599–600, 301 P.3d at 257–58 (quoting State v. Perry, 139 Idaho 520, 525, 81 P.3d 1230, 1235 (2003)); see also State v. Hester, 114 Idaho 688, 696, 760 P.2d 27, 35 (1988).
Although the defense called three witnesses who claimed to have seen R.M. on July 24, Martin only expressly identified one, O.J., as having made a report that was not credible. However, Martin's testimony that there were no credible reports from witnesses claiming to have seen R.M. on July 24 also called into question the credibility of each defense witness who testified to seeing him on that date. As to O.J., Martin testified:
[Counsel for the State]: [D]id you look at leads that were brought in by other juveniles there, one by the name of [O.J]. and another by the name of [I.T.]?
[Martin]: Yes, I did.
[Counsel for the State]: And were those people who had reported, potentially, seeing [R.M.] on the 24th?
[Counsel for the State]: And did you find inconsistencies–or did you ever speak with [O.J.]?
[Martin]: No, I did not.
[Counsel for the State]: Did you ever speak with [I.T.]?
[Martin]: No, I did not.
[Counsel for the State]: Did you look at reports of interviews that they gave?
[Martin]: Yes, I did.
[Counsel for the State]: Did each of those individuals give multiple interviews?
[Counsel for the State]: And did you determine whether or not either of the sightings reported–or, I'm sorry, stepping back. In reading the reviews, or the reports, did you see any inconsistent statements given by those two individuals? ….
[Counsel for the State]: And did you determine whether or not either of them provided a credible last sighting of [R.M]?
[Martin]: They did not.
Martin's testimony expressly calls the credibility of O.J.'s testimony into question by asserting that, in her expert opinion, his sighting was not credible. The State, as its final question for Martin, asked: "Bottom line, after all of your efforts that you made, were you able to find what you believed to be a credible last sighting of [R.M.] there in the apartment complex on July 24, 2009?" After the district court overruled a defense objection, Martin responded, "No, I was not."
This testimony, offered by the prosecution, and permitted by the district court despite repeated objections, directly related to the credibility of witnesses and encroached on the jury function to assess witness credibility. The district court's decision to admit Martin's testimony on this subject was inconsistent with our long-standing precedent, as articulated in Almaraz, Perry, and Hester. As the district court's decision was inconsistent with the governing legal standard, the district court abused its discretion by admitting Martin's testimony regarding the credibility of testifying witnesses. We now consider whether the district court's error was harmless.
2. The district court's error in admitting Martin's testimony was harmless.
The State argues that Martin's testimony regarding other witnesses' credibility could not have prejudiced Ehrlick because the jurors had ample opportunity to review their many inconsistent statements and to decide for themselves whether the witnesses were credible. Additionally, the State argues that, even without Martin's testimony, the jury would have concluded that there were no credible reports from people claiming to have seen R.M. on July 24.
Ehrlick responds that the district court's error in admitting Martin's testimony was not harmless because the State's case was entirely circumstantial and relied heavily on discrediting eyewitnesses who claimed to have seen R.M. on July 24. Ehrlick argues that, because the State's theory of the case was that R.M. was never outside on July 24 because he was either suffering from his injuries or already dead, any evidence that R.M. had been seen on July 24 was devastating to the State's case.
"In the case of an incorrect ruling regarding evidence, this Court will grant relief on appeal only if the error affects a substantial right of one of the parties." State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010) (quoting Obendorf v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834, 839 (2008)). "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." I.C.R. 52.
Whether an error affected substantial rights in a particular case depends upon a host of factors, including the importance of the witness' testimony to the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case.
Shackelford, 150 Idaho at 366, 247 P.3d at 593 (citing State v. Hooper, 145 Idaho 139, 146, 176 P.3d 911, 918 (2007)). If a substantial right is not affected, an abuse of discretion may be deemed harmless. Id. at 363, 247 P.3d at 590. To establish harmless error, the State must prove "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
We conclude beyond a reasonable doubt that the district court's error in admitting Martin's testimony did not contribute to the jury's verdict. The three witnesses called by the defense were thoroughly impeached. O.J.'s trial testimony was contradicted by numerous prior inconsistent statements. Hastings' testimony that she saw R.M. by the pool on the evening of July 24 was contradicted by her written statement to law enforcement that she left home for work at 1:30 p.m. and had not returned until 9:00 p.m. Robinson's claim to have seen R.M. by the pool on July 24 was likewise contradicted when she admitted under cross-examination that R.M. had longer hair than the boy she saw at the pool.
Additionally, the State had powerful circumstantial evidence that Ehrlick knew of R.M.'s death before the evening of July 24. As a form of discipline, Ehrlick would require R.M. to eat oatmeal and raisins. The remains of R.M.'s final meal, oatmeal and raisins, were found in R.M.'s stomach during the autopsy. Vomitus containing oatmeal and raisins was located by the concealed hole in the wall. Based upon the state of digestion of his stomach contents, R.M. ate less than five hours before his death. Ehrlick stated that R.M. had eaten the oatmeal for lunch, meaning that R.M. was dead before the time that Ehrlick claimed to have last seen him alive.
B. The district court did not err in admitting the model of R.M.'s head.
The State called Wesley Neville, an FBI forensic artist as a witness. Neville testified that he created a clay model of the "approximate size and shape" of R.M.'s head. In order to create the model, Neville received three measurements of R.M.'s head taken by Robert Karinen, a forensic supervisor in the Ada County Coroner's Office: (1) the length of the face (16.8 centimeters); (2) the breadth of the face (14.5 centimeters); and, (3) the circumference of the head (53 centimeters). Neville used photographs of R.M. to "semi-accurately" place and size R.M.'s facial features on the model. After completing the clay model, Neville scanned it and, using a 3-D printer, created a plastic model of R.M's head. Karinen took measurements of the model in order to compare it to the actual size of R.M.'s head. Although the length of the face was the same, the face of the model was .7 centimeters narrower than R.M.'s face and the circumference of the head was 3.5 centimeters less than R.M.'s head. In short, the model was smaller than R.M.'s head.
At a hearing conducted to determine the admissibility of the model, the State argued that despite the "very, very minor" discrepancies in size, it was "a very fair representation of the size and shape of R.M.'s head." The State argued that the exhibit was relevant to show where R.M. sustained injuries, the relative size and significance of R.M.'s head injuries, and to determine whether R.M.'s head created the hole found in the apartment wall. Ehrlick argued that the inaccuracies rendered the model irrelevant and unhelpful to the jury in determining the relative size of R.M.'s wounds. Ehrlick further argued that the jury should not be allowed to speculate as to whether R.M.'s head caused the hole simply by matching up two exhibits to see if they fit together. The district court admitted the model, concluding that it was sufficiently accurate to assist the trier of fact.
On appeal, Ehrlick argues that the district court erred in admitting the model because it was not relevant. Ehrlick asserts that the difference in size between the exhibit and R.M.'s head is sufficiently large as to render the model irrelevant to establish: (1) the size of R.M.'s head; (2) the relative size of R.M.'s head wounds; and (3) whether the hole in the apartment wall was the same size as R.M.'s head.
This court reviews questions of the admissibility of evidence using a mixed standard of review. Whether the evidence is relevant is a matter of law and is subject to free review. The district [court's] determination of whether the probative value of the evidence outweighs its prejudicial effect is reviewed for an abuse of discretion. This Court has adopted a three part test for determining whether the district court abused its discretion: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason.
State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008) (internal citations omitted). "'Relevant Evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." I.R.E. 401.
1. Ehrlick has not demonstrated the model was irrelevant to establish the location of R.M.'s head wound.
The model was used as a demonstrative aid to show the location of R.M.'s wounds. We conclude that its minor inaccuracies did not make it irrelevant for the purpose of showing the jury where R.M. sustained a head wound.
2. Ehrlick has not demonstrated that the model was irrelevant to establish the relative size of R.M.'s head wound.
Although the model was not precisely the same size as R.M.'s head, it was not portrayed to the jury as an exact replica. Rather, Neville informed the jury that the model was the "approximate size and shape" of R.M.'s head. In addition, the jury received testimony from Karinen that the model differed from R.M.'s head as to its circumference and the breadth of the face. Given the minor discrepancies, we are unable to conclude that the model was irrelevant to establish the relative size of R.M.'s head wounds.
3. Ehrlick has not demonstrated that the model was irrelevant to the cause of the hole in the apartment wall.
The prosecution offered models of R.M.'s head and the sheetrock containing the concealed hole for the purpose of establishing that Ehrlick slammed R.M.'s head into the wall, inflicting a fatal injury. The prosecution argued that it did not need an expert to testify to the mechanism of injury, but that the jury could evaluate the evidence and reach its own conclusion. Prior to admission, the prosecution represented to the district court, "Judge, I will tell the court that when you look at these items and, in particular, you match them up … it's a perfect fit." Additionally, the prosecution, in closing told the jury, "you have the head; you have the wall. You can make your own determinations as to whether the head fits into the hole, and you can do that back in deliberations."
The models were relevant to establish the State's theory of the case that the similarity of the size of R.M.'s head and the hole in the wall gave rise to an inference that the hole in the wall was caused by R.M.'s head coming in violent contact with the wall. Given the small differences in measurements and the jury's awareness of those discrepancies, we are unable to conclude that the district court abused its discretion by admitting the model.
C. The district court did not abuse its discretion in admitting I.R.E. 404(b) evidence.
Ehrlick argues that the district court abused its discretion in admitting certain I.R.E. 404(b) evidence. First, Ehrlick argues that the district court abused its discretion in admitting testimony from three of Ehrlick's previous girlfriends because the evidence was not relevant to any issue and constituted impermissible propensity evidence. Next, Ehrlick argues that the district court abused its discretion in admitting evidence that Ehrlick attempted to contact Jenkins to influence her cooperation with law enforcement and/or her testimony. Finally, Ehrlick argues that the district court abused its discretion in allowing the State to offer evidence of his trip to the emergency room on the morning of July 31 following an attempted suicide or feigned attempt at suicide.
Following the presentation of evidence, the district court instructed the jury as to the limited purpose for which this evidence was admitted:
Evidence has been introduced for the purpose of showing that the defendant committed crimes, wrongs or acts other than that for which the defendant is on trial.
Such evidence, if believed, is not to be considered by you to prove the defendant's character or that the defendant has a disposition to commit crimes.
Such evidence may be considered by you only for the limited purpose of proving the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, ...