Opinion No. 99
from the District Court of the First Judicial District of the
State of Idaho, Kootenai County. Hon. John T. Mitchell,
district court's judgment is vacated in part and affirmed
in part. This case is remanded to the district court for
future proceedings consistent with this Opinion.
Lawrence G. Wasden, Idaho Attorney General, Boise, attorney
for respondent. Theodore S. Tollefson argued.
D. Fredericksen, State Appellate Public Defender, Boise,
attorney for appellant. Jenevieve C. Swinford argued.
SUBSTITUTE OPINION, THE COURT'S PRIOR OPINION
DATED JULY 11, 2017 IS HEREBY WITHDRAWN.
Nature of the Case
case arising out of Kootenai County, Darol Keith Anderson
("Anderson") appeals his convictions for felony
domestic battery and misdemeanor domestic battery. Anderson
asserts that the district court erred when it admitted the
preliminary hearing testimony of his alleged victim, Erica
Messerly ("Messerly"), after finding that she was
unavailable to testify at his trial due to mental illness.
Anderson also asserts that the district court abused its
discretion when it allowed Officer Spencer Mortensen
("Officer Mortensen") to testify that the injuries
that he had observed on Messerly's person were consistent
with her allegations against Anderson. He argues that Officer
Mortensen's testimony constituted impermissible vouching
for Messerly's truthfulness.
Factual and Procedural Background
evening of September 7, 2014, Officer Mortensen was
dispatched to investigate reports of a physical domestic
dispute. On arriving at the scene, Officer Mortensen
encountered Messerly, whom he described as appearing to be
nervous. Officer Mortensen noted that Messerly had bruises
and cuts on her neck and face. Messerly proceeded to describe
the following events.
after midnight on the morning on September 6, 2014, Messerly
and Anderson, her husband of three months, were lying in bed.
Messerly was angry because she had found explicit photographs
of another woman on Anderson's cell phone. Messerly
kicked Anderson in the back, causing him to partially fall
out of bed. Anderson jumped back onto the bed, straddled
Messerly, and squeezed her trachea until she was unable to
breathe. Anderson choked Messerly for approximately five
minutes, but she did not lose consciousness. While Anderson
was choking her, Messerly attempted to scratch his face with
her fingernails. After Anderson stopped choking Messerly, he
walked downstairs. Messerly followed him downstairs and
grabbed his cell phone out of his hands. She proceeded to
drop his cell phone into a toilet. Anderson punched her in
the face with his right fist. Messerly fled her home, and
Anderson locked the doors behind her. On discovering that the
doors were locked, Messerly sought help from a neighbor to
gain reentry. When she returned with the neighbor, the door
was unlocked. She entered her home with the neighbor and
found Anderson hiding in the laundry room holding a metal
pipe. Anderson proceeded to threaten the neighbor with the
pipe and accuse him of sleeping with Messerly. When Messerly
and the neighbor attempted to leave, Anderson grabbed her by
the hair and pulled her back inside. Inside the home,
Anderson punched Messerly one time in the face, briefly
knocking her unconscious. She fell to the floor. While
Messerly was on the floor, Anderson punched her in the back
of the head and neck. After regaining consciousness, Messerly
stood up, walked to a couch, and sat down. She begged
Anderson to return to bed, but he refused. Anderson grabbed a
steak knife and held it to her throat. Messerly grabbed
Anderson by the abdomen and he dropped the knife. Anderson
then bit Messerly on the neck and shoulder. Anderson left the
room and returned with the metal pipe. He swung the pipe at
Messerly's head, but stopped the swing before it hit her.
He then jabbed the pipe into Messerly's left side.
Messerly attempted to flee to the garage, and Anderson
punched her in the back of the head twice. Messerly finally
escaped from the residence and walked back to the
neighbor's residence. The neighbor drove Messerly to the
home of Melissa Watts ("Watts").
corroboration of her statements to Officer Mortensen,
Messerly showed him a mark on the right side of her nose
where she was allegedly punched, a small cut on her throat
allegedly caused by the knife, bite marks on her neck and
shoulder, and a deep purple bruise on her right side where
she was allegedly jabbed with the pipe. Messerly took Officer
Mortensen into her residence, but was unable to locate the
knife or the pipe.
Mortensen next spoke with Watts. Watts told Officer Mortensen
that on September 6, 2014, at 2:30 P.M., she and Messerly had
returned to Messerly's residence in order to take some of
Messerly's clothing. While they were there, Anderson
kicked Messerly in the stomach twice. Messerly and Watts told
him to leave the residence, which he did. Officer Mortensen
spoke to Messerly about this second incident. Messerly
confirmed that she had been kicked.
Mortensen next spoke with Lawrence Preston
("Preston"), the neighbor who had called the police
on September 7, 2014. Preston stated that immediately prior
to calling the police, he had observed Messerly taking
Anderson's cell phone in their driveway and attempting to
keep it away from him. Anderson then grabbed Messerly by the
hair and pulled her into the house. At trial, Preston would
testify that he had seen Anderson punch Messerly in the face
during this altercation.
Officer Mortensen was speaking with witnesses, Officer A.
Winstead ("Officer Winstead"), who had been called
in to assist Officer Mortensen, made contact with Anderson
over the phone. Anderson stated that Messerly and Watts were
lying and that he had never touched Messerly. Anderson
refused to meet with Officer Winstead to give a statement in
October 1, 2014, Officer N. Lowry ("Officer
Lowry"), a third officer assigned to the case, was able
to contact Anderson by phone. Anderson again denied harming
Messerly, claiming that Messerly had kicked him during the
altercation on the morning of September 6, 2016, and had hit
him when she had returned later that day.
January 29, 2015, the State filed an Amended Criminal
Complaint, charging Anderson with Felony Domestic Battery
(regarding the allegations of battery on September 6, 2014),
Aggravated Assault (regarding the allegations involving the
knife), Attempted Strangulation, and Misdemeanor Domestic
Battery (regarding the allegations of battery on September 7,
February 3, 2015, the magistrate court conducted a
preliminary hearing in the case. Messerly testified at the
hearing to the events that she had described to Officer
Mortensen. Messerly testified that on September 6, 2014,
Anderson had punched and choked her, that he had briefly
knocked her unconscious, that he had swung a long metal pipe
at her head and then jabbed it into her side, that he had
held a knife to her throat, and that he had bitten her neck.
At times during her testimony, Messerly stated that
Anderson's presence in the courtroom was distressing to
her. She needed to take multiple breaks in order to complete
her testimony. Following her direct testimony, Anderson cross
close of the preliminary hearing, the State amended its
complaint to add an additional count of aggravated assault
(with the metal pipe). The magistrate court found that
probable cause existed with respect to each of the five
counts. The district court set trial for July 20, 2015.
19, 2015, Messerly checked into the Kootenai Behavioral
Health Center (the "KBH"). She was diagnosed with a
Post-Traumatic Stress Disorder and Substance Use Disorder.
16, 2015, the State filed a motion in limine seeking to
declare Messerly unavailable to testify at trial and seeking
to admit a transcript of her testimony at the preliminary
hearing. In support of that motion, the State submitted the
affidavit of Dr. Eric J. Heidenreich, M.D. ("Dr.
Heidenreich"), dated July 16, 2015, which provided, in
part, as follows:
Comes Now, Eric J. Heidenreich, M.D., and hereby deposes and
. . . .
2. That Erica Messerly is currently, and has been, a patient
at KBH since 6/19/2015;
3. That I have examined Ms. Messerly and have had multiple
opportunities to observe her and interact with her over the
past few days;
. . . .
6. Ms. Messerly presents as tearful and emotionally labile;
7. It has been my observation, and that of my staff, that any
significant emotional distress typically is followed by Erica
decompensating, which in turn, increases her risk for relapse
in the context of her addiction to controlled substances;
. . . .
9.Ms. Messerly's prognosis is poor to begin with and I
would anticipate having to testify would result in further
deterioration of her current, already fragile condition;
10.Testifying would put Ms. Messerly at substantial risk for
relapse on controlled substances and pose a significant risk
to her mental health;
11.I emphatically recommend that Ms. Messerly not testify at
this time or any in the near future.
20, 2015, the district court held a hearing at which it
addressed the motion in limine. Lisa Bunker
("Bunker"), the clinical manager of the chemical
dependency unit at KBH, testified. Bunker corroborated Dr.
Heidenreich's diagnoses of Substance Use Disorder and
Post-Traumatic Stress Disorder. She stated that in her