State v. Olsen

BAKES, Chief Justice.

Defendant appeals from his conviction on two counts of assault with a deadly weapon and from his determinate fifteen year sentence.

The events prior to the incident which gives rise to this prosecution are virtually undisputed. The defendant, Ronald T. Olsen, who apparently had been drinking heavily during the afternoon and evening hours of May 1,1979, received a citation for driving while under the influence of alcohol. After receiving the citation, the defendant went inside the house he shared with his mother and, according to his mother’s testimony, consumed two Valium capsules and went to bed. He arose a few hours later, at approximately 4:00 a.m. on May 2, 1979, dressed, and for some reason picked up his shotgun. Defendant’s mother became alarmed at his behavior and left the house to summon the police. Defendant apparently retrieved his .22 caliber rifle from under his mother’s bed after she left. Two police officers accompanied the defendant’s mother to the rear door of the house where they were able to observe the defendant sitting on a couch with a .22 rifle in his lap. As the officers and the defendant’s mother entered the house, the defendant raised the rifle and began firing in their direction. Defendant fired some sixteen rounds before he was hit in the hand by the officers’ returned fire, ending the volley. He was then disarmed and transported to the Caldwell Memorial Hospital for medical attention.

After a preliminary hearing, an information was filed in the district court charging defendant with two felony counts of assault with intent to commit murder, I.C. § 18-4015, and with committing a felony while in possession of a firearm, I.C. § 19-2520. Following a two day trial at which the primary issue was defendant’s state of mind during the shooting, the jury found the defendant guilty on two counts of the lesser included offense of assault with a deadly weapon, I.C. § 18-906. The jury also found, by way of supplemental verdict, that the defendant used a firearm in the perpetration of each offense. On November 16, 1979, the defendant was sentenced to two determinate five year terms, each consecutive to the other. Pursuant to I.C. § 19-2520, the court imposed an additional five year sentence to be served consecutively, for a total determinate sentence of fifteen years.

Defendant appeals from both convictions, arguing that the trial court erred in admitting the testimony of a witness on rebuttal. Defendant also challenges the trial court’s jury instruction regarding lesser included offenses and alleges error in the court’s refusal to give certain instructions requested by the defendant. Finally, the defendant appeals the length of the sentence imposed. We will address the issues in that order.

I

The primary issue on appeal concerns the admissibility of the testimony given by the state’s rebuttal witness. The defendant attacks the trial court’s admission of testimony given by Mr. Bruce Reeder on two grounds: first, that the trial court abused its discretion in admitting, in rebuttal, testimony that would have been admissible in the case in chief; and, second, that the prosecution’s failure to disclose the identity of the rebuttal witness deprived the defendant of a fair trial.

Rebuttal evidence is evidence which explains, repels, counteracts or disproves evidence which has been introduced by or on behalf of the adverse party. State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964); State v. Mundell, 66 Idaho 339, 158 P.2d 799 (1945); State v. Martinez, 43 Idaho 180, 250 P. 239 (1926). In his case, the defendant presented evidence that he was highly intoxicated at the time he fired the shots in the direction of the police officers and testified that he did not intend to shoot at the police officers. Upon completion of the defendant’s case, the state called Mr. Reeder to the stand. Mr. Reeder’s name was neither endorsed upon the information nor included in the state’s response to the defendant’s order for discovery and inspection. The defendant objected to the admission of his testimony, and the state made an offer of proof outside the presence of the jury. After hearing the offer of proof, the trial court permitted Mr. Reeder to testify, but limited his testimony to areas it considered rebuttal in nature, i.e., the defendant’s statements relative to intent and the defendant’s level of intoxication, and admitted the testimony over the defendant’s objections.

Mr. Reeder then testified: that he was an emergency medical technician in the city of Parma, Idaho; that he had responded on the ambulance call to the defendant’s residence on the morning of the shooting; and that en route to the hospital, the defendant made statements “to the effect that [he] had the officer in his sights, but the officer moved.” Mr. Reeder further testified that while defendant’s speech was somewhat slurred, in his opinion the defendant was only moderately intoxicated at the time. Thus, Mr. Reeder’s testimony was limited to that which tended to repel, counteract or disprove evidence presented by the defendant.

The defendant asserts that since the evidence presented by Mr. Reeder would have been admissible in the state’s main case, the trial court abused its discretion by admitting it during the state’s rebuttal. However, the fact that evidence may be admissible in the case in chief does not make it any less rebuttal. The rule that the admission, in rebuttal, of evidence which would have been properly admissible in the case in chief rests within the sound discretion of the trial judge is widely recognized. See, e.g., Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343 (1895); United States v. Marsh, 451 F.2d 219 (9th Cir. 1971); Rodella v. United States, 286 F.2d 306 (9th Cir. 1960); Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970); State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978); Wise v. State, 92 Nev. 181, 547 P.2d 314 (1978); State v. Fischer, 232 Or. 558, 376 P.2d 418 (1962); State v. Amory, 1 Or.App. 496, 464 P.2d 714 (1970). But see People v. Thompson, 27 Cal.3d 303, 165 Cal. Rptr. 289, 611 P.2d 883 (1980); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957).

Similarly, this Court affords the trial court broad discretion in its decisions regarding the admission of evidence in rebuttal. State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964); State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933). Even where evidence admitted in rebuttal is not strictly rebuttal in nature, its admission or exclusion rests in the sound discretion of the trial court, provided that the party against whom such evidence is admitted has the opportunity to meet the evidence. State v. Hewitt, 73 Idaho 452, 254 P.2d 677 (1953); State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933); State v. Mushrow, 32 Idaho 562, 185 P. 1075 (1919).

Thus, the question on review is whether the trial court abused its discretion by denying the defendant a fair opportunity to meet the testimony of Mr. Reeder. The defendant alleges that he was deprived of any opportunity in which to prepare a cross examination and that his expert witness had already been excused. At trial, however, he did not seek a continuance to enable him to better meet such evidence, nor did he specifically claim that he would be prejudiced by the admission of the testimony. Finally, the defendant waived any surrebuttal which he may have conducted in an effort to refute the testimony of Mr. Reeder. Our review of the record discloses that defendant had a fair opportunity to impeach or contradict Mr. Reeder’s testimony-

II

The defendant appellant also complains that the state’s failure to disclose Mr. Reed-er’s identity prior to his testifying denied defendant a fair trial. The state learned of the presence of Mr. Reeder on the evening after the first day of the two day trial. The prosecution did not complete its case in chief until approximately 1:30 p.m. on the second day of trial, and it did not offer Mr. Reeder’s testimony in its case in chief, but only in rebuttal.

The state has a constitutional duty to disclose to a criminal defendant exculpatory evidence material to the preparation of his case. United States Const, amend. XIV; Idaho Const, art. 1, § 13; State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979); State v. McCoy, 100 Idaho 753, 605 P.2d 517 (1980); State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978): see United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). A defendant’s constitutional right to discovery, however, extends only to evidence which is exculpatory or favorable to the defendant and which would be material to his guilt or punishment. State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980); see Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1970).

In arguing that he was constitutionally denied a fair trial, the defendant fails to distinguish between exculpatory and inculpatory evidence. Defendant does not claim that Reeder’s testimony was exculpatory; indeed, the record indicates that Mr. Reeder’s testimony was, in its entirety, inculpatory and consistent with the state’s main case. Since the defendant’s constitutional right to disclosure does not extend to any and all information which may assist him in preparing for trial, but only to evidence which is exculpatory in nature, defendant cannot here complain that he was denied his constitutional right to discover Mr. Reeder’s identity. See State v. Horn, supra.

Defendant additionally argues that the state has a statutory duty to disclose witnesses who are known to the prosecution prior to the close of the state’s case in chief and whose testimony is admissible during the state’s case in chief, regardless of whether they are introduced in the state’s main case or in rebuttal. I.C. § 19-1302 requires the prosecuting attorney to endorse on the information the names of all witnesses known to him at the time of filing the information. The purpose of the endorsement requirement in I.C. § 19-1302 is essentially the same as the purpose of I.C.R. 16(a)(vi), i.e., discovery by the defendant of the names of all persons having knowledge of relevant facts who may be called by the state as witnesses. See State v. Smoot, 99 Idaho 855, 859, 590 P.2d 1001, 1005 (1978); State v. Nelson, 97 Idaho 718, 552 P.2d 226 (1976). However, I.C. § 19-1302 specifically excludes rebuttal witnesses from the endorsement requirement with the following proviso: “Provided, however, that the witnesses called by the state in rebuttal need not be endorsed upon the information.”

As discussed above, Mr. Reeder’s testimony rebutted evidence offered by the defendant. The state was under no statutory duty to disclose his identity, and the failure to do so did not prejudice defendant’s right to a fair trial.

Defendant appellant also relies on Rule of Criminal Practice & Procedure (I.C.R.) 16(d), in effect at the time of the trial of this action, as imposing a duty of continuing discovery upon the state.¹ See Schwartzmiller v. Winters, 99 Idaho 18, 576 P.2d 1052 (1978). Defendant alleges that the state’s failure to disclose Mr. Reeder prior to his taking the stand violated this duty.

A delayed disclosure by the prosecution is not per se reversible error. State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978); United States v. Kaplan, 554 F.2d 577 (3d Cir. 1977); United States v. Diaz Rodriguez, 478 F.2d 1005 (9th Cir. 1973), cert. dismissed 412 U.S. 464, 93 S.Ct. 3024, 37 L.Ed.2d 1013 (1973). Where the question is one of late disclosure rather than failure to disclose, the inquiry on appeal is whether the lateness of the disclosure so prejudiced the defendant’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial. State v. Smoot, 99 Idaho 855, 858, 590 P.2d 1001, 1004 (1978); United States v. Miller, 529 F.2d 1125, 1128 (9th Cir. 1976).

In the instant action, the state did not discover Mr. Reeder until the evening after the first day of trial. He was introduced as a rebuttal witness on the second day of trial. The state limited his testimony to rebuttal because he had not been disclosed. Furthermore, the state made an offer of proof outside the presence of the jury. Thus, the appellant was informed of the substance of Mr. Reeder’s testimony before he testified. The defendant did not object to the admission of the testimony on the basis that he would be prejudiced thereby, nor did the defendant seek a continuance so he could prepare to meet the testimony. If the defendant was surprised or prejudiced by the late disclosure, he should have moved for a continuance. See State v. Smoot, supra. Cf. State v. Crook, 98 Idaho 383, 565 P.2d 576 (1977) (if prejudiced by late endorsement of a witness’s name upon the information, defendant should have requested continuance); State v. Nelson, 97 Idaho 718, 552 P.2d 226 (1976) (where defendant did not allege prejudice by state’s failure to endorse witness or seek a continuance, trial court erred in prohibiting the witness from testifying). The defendant has made no showing of prejudice by the late disclosure, and the trial court committed no reversible error in admitting Mr. Reeder’s testimony.

Ill

The defendant appellant also alleges that the trial court erred in giving its jury instruction number 14 on lesser included offenses.

Trial courts have a duty to instruct the jury on lesser included offenses when they are supported by any reasonable view of the evidence. I.C. § 19-2132(b); State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979). The trial court instructed the jury that the crime of assault with intent to commit murder necessarily includes the following lesser offenses: attempted manslaughter; assault with a deadly weapon; assault; exhibition or use of a deadly weapon; discharging firearms at another; and, aiming firearms at another. The defendant argues that the number of offenses and elements of each set out in instruction number 14 was so great that the instruction could have confused or misled the jury. We disagree. The six lesser included offenses were set out separately in the instruction, and the elements of each offense were clearly stated. The crimes listed as lesser included offenses were not so numerous as to confuse or mislead the jury.

The defendant claims that giving instruction number 14 was erroneous in another regard. Essentially, defendant argues that there is no rational basis for distinguishing between the various offenses included in instruction number 14, and that by giving the instruction the trial court offended the defendant’s rights of equal protection.

This Court has previously recognized that the legislature has a wide discretion both in classifying the subject matter to be protected by criminal law and in establishing punishments for the violation of such laws. State v. Webb, 96 Idaho 325, 528 P.2d 669 (1974); State v. Ash, 94 Idaho 542, 493 P.2d 701 (1971). The authority of the legislature to define crimes and fix punishment therefor is not denied unless the classifications are unnatural, arbitrary or unreasonable. Malloroy v. State, 91 Idaho 914, 435 P.2d 254 (1967). Classifications are not arbitrary or unreasonable where they are made with reference to the heinousness or gravity of the crime. See Malloroy v. State, supra; Ex parte Knapp, 73 Idaho 505, 254 P.2d 411 (1953); In re Mallon, 16 Idaho 737, 102 P. 374 (1909).

The lesser offenses included in instruction number 14 are clearly distinguishable on the basis of the heinousness or gravity of each offense. Thus, the classifications are not unreasonable and the jury had a rational basis for distinguishing between the various offenses. We hold that the defendant’s right to equal protection of the laws was not violated by the trial court’s instruction number 14.

Appellant also assigns error in the trial court’s refusal to submit defendant’s requested instructions numbers 21, 22 and 23 to the jury. Defendant argues that these instructions dealt with one of his theories of defense, that the defendant was not fully conscious of his actions.

A defendant in a criminal action is entitled to have his theory of the case submitted to the jury under proper instructions. State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973); State v. Richardson, 95 Idaho 446, 511 P.2d 263 (1973). Defendant alleges that he was deprived of this right by the trial court’s denial of the requested instructions. However, we have carefully examined the requested instructions and find that they were either erroneous statements of the law, adequately covered by the actual instructions given by the trial court, or not supported by the facts of the case. See State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Beason, supra; State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968). There was no error in the trial court’s refusal of appellant’s requested instructions.

IV

As a final assignment of error, defendant appellant alleges that the sentence imposed by the trial court is excessive. The defendant was convicted of two counts of assault with a deadly weapon, I.C. § 18-906, and sentenced to the maximum determinate term of five years incarceration on each count, the sentences to run consecutively.

Pursuant to I.C. § 19-2520, the trial court imposed an additional five year sentence, to run consecutively to the other terms, for defendant’s use of a firearm during the commission of the crime. At the time of the trial and sentencing in this action, I.C. § 19-2520 provided, in pertinent part:

“Any person convicted of a violation of [Idaho Code section] 18-906 (assault with a deadly weapon) ..., who carried, displayed, used, threatened, or attempted to use a firearm while committing the crime, shall, in addition to the sentence imposed for the commission of the crime, be imprisoned in the state prison for not less than three (3) nor more than fifteen (15) years. Such additional sentence shall run consecutively to any other sentence imposed ....”²

Although the defendant could have received a maximum sentence of twenty-five years, defendant alleges that the trial court abused its discretion by sentencing him to a total determinate sentence of fifteen years.

Where the sentence is within the statutory limits, an appellant has the burden of showing clear abuse of discretion on the part of the sentencing court. State v. Stroup, 101 Idaho 54, 607 P.2d 1328 (1980); State v. Wilson, 100 Idaho 725, 604 P.2d 739 (1979); State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976).

Therefore, a review of the record is appropriate to determine whether abuse of discretion occurred below. See State v. Dillon, 100 Idaho 723, 604 P.2d 737 (1979); State v. Kingsley, 99 Idaho 868, 590 P.2d 1014 (1979).

Even though the defendant’s criminal record was clean during the years immediately preceding the crimes charged in this action, the record indicates that the defendant had a history of confrontation with the law. He had been convicted twice on felony charges and nine times on misdemeanor charges between the years 1954 and 1973. Defendant had previously served two prison terms and had been incarcerated in county jails on four occasions. The defendant suffered an alcohol problem which he was unable to control. Finally, the trial court was impressed with the violent nature of the crime, defendant’s firing some sixteen rounds at the two complaining police officers and his mother.

The two counts of assault with a deadly weapon each carried a maximum five year sentence, which the trial court imposed. The trial court imposed an additional five years under I.C. § 19-2520. We find no abuse of discretion in sentencing.

We find nothing in this record upon which reversible error may be predicated and affirm both the convictions and the sentence.

McFADDEN, DONALDSON and SHEPARD, JJ., concur.

1 . I.C.R. 16(d) provides in part:

“CONTINUING DUTY TO DISCLOSE. If subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional evidence or the evidence of additional witness or witnesses, or decides to use additional evidence, witness or witnesses, such evidence is or may be subject to discovery and inspection, under such prior order he shall promptly notify the other party or his attorney and the court of the existence of the additional evidence or the names of such additional witness or witnesses .... ”

2 . In 1980, the legislature deleted the crime of assault with a deadly weapon, I.C. § 18-906, from the listed offenses which would receive an enhanced penalty for committing a crime with a firearm. 1980 Idaho Sess. Laws, ch. 296, § 1.