STATE of Idaho, Plaintiff-Respondent, v. Thelma GRIFFITHS, Defendant-Appellant, 101 Idaho 163

SHEPARD, Justice. This is an appeal from a conviction of involuntary manslaughter after a jury trial. The charge, verdict and conviction arose out of defendant-appellant Thelma Griffiths’ admitted shooting of her husband with a .22 caliber handgun. In April, 1976, Joe Griffiths arrived home late at night and an argument with appellant ensued. When Joe Griffiths went into a bedroom to change his clothes, the appellant followed and the argument continued during which Joe pushed the appellant.

According to the appellant’s testimony, she opened an armoire intending to obtain her purse, but instead grabbed the gun which she had placed in the armoire a short period of time before. She testified that her husband Joe lunged toward her with the same expression on his face that she had noted on a previous occasion when he had choked her to near insensibility. The appellant fired the gun five times. Four bullets hit her husband. Two of the shots would have been fatal if no others had been fired. According to her testimony, her husband staggered against her and the two fell into an adjacent bathroom.

Appellant admitted the firing of the shots, but contended that she shot her husband because she feared for her life and thus argued a self-defense theory. Appellant was charged with the crime of second degree murder and a jury trial was held on that charge. The jury was appropriately instructed on included offenses to the charge of second degree murder and an appropriate verdict form was submitted. Appellant was found not guilty of the charge of murder, but was found guilty of the included charge of involuntary manslaughter. Upon conviction she was sentence to a term of three years in prison.

Appellant appeals both the conviction and the length of the sentence. Appellant first assigns error to the trial court’s refusal to admit certain psychiatric evidence relating to defendant’s state of fear at the time of the shooting. The trial court’s rejection of the tendered testimony did not constitute error. The admissibility of expert testimony is discretionary with the trial court. State v. Crook, 98 Idaho 383, 565 P.2d 576 (1977); State v. Johnson, 96 Idaho 727, 536 P.2d 295 (1975), and absent an abuse of discretion, a decision will not be disturbed on appeal. Stoddard v.

Nelson, 99 Idaho 293, 581 P.2d 339 (1978). We find no abuse of discretion. Here, the witness was permitted to testify on the effects of fear on an individual, but not as to whether, in his opinion, the appellant was in a state of fear at the time of the shooting. The necessity for expert testimony is confined to matters requiring special skill and knowledge not within the scope of understanding of ordinary untrained persons who make up a jury. E. g., State v. Owens, 112 Ariz. 223, 540 P.2d 695 (1975).

Here, the witness was asked to testify neither about the mental competency of the appellant nor in the common parlance as to whether she was legally sane or insane. Rather, it is clear from the record that counsel sought to elicit the psychiatrist’s opinion that the appellant was motivated by fear at the time she shot her husband. Further, the record is clear from the explanation of the witness that his testimony would have been based on statements of the appellant and the witness’ judgment of the truthfulness of the appellant’s statements.

Fear is a common human emotion within the understanding of a jury and hence expert psychiatric explanation is not necessary. A jury is as capable as a psychiatrist in determining the ultimate fact in this case — whether appellant acted under fear when she shot her husband. Regardless of the training of a psychiatrist, his expertise does not qualify him to determine whether the defendant killed under fear any more than it qualifies him to testify as to whether the defendant “intended” to kill. The trial court did not err in excluding the testimony.

Appellant next assigns error to the instruction of the court relating to self-defense. Appellant asserts that the instruction here, which states that homicide is justified and not unlawful when committed by a person in lawful defense of herself, is erroneous and nearly identical to an instruction rejected by this Court in State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909). It is true that the language rejected by McGreevey is included as a part of the self-defense instruction in the case at bar.

That does not automatically invalidate any instruction utilizing those words, particularly when it is noted that the instruction rejected in McGreevey failed to discuss the appearance of danger. The instruction here adequately informs the jury of the validity of a self-defense theory when one is confronted with apparent but not actual danger. Instructions must be interpreted in their context and not read as isolated sentences. State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970); State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952).

Appellant also asserts that the instruction is ambiguous and not as clear or precise as it might be. While the instruction is perhaps not a model, it is not ambiguous, misleading or erroneous. Appellant also asserts error in failing to include five of her requested instructions to the jury. We have examined the requested instructions and find that they were erroneous statements of the law, misleading or adequately covered by the actual instructions given by the court. Appellant next assigns error to the court’s instruction relating to involuntary manslaughter.

The instruction given is substantially identical with appellant’s requested instruction, with the elimination, however, of certain language not applicable to the instant case. Further, we note that defense counsel was interrogated regarding any objection to the instruction defining involuntary manslaughter and defense counsel indicated the lack of any objection to the instruction. Failure to object at the trial level precludes objection at the appellate level. See State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975); State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971).

We turn now to the more substantial portion of this appeal. Appellant asserts that the closing argument of the prosecuting attorney constituted misconduct so prejudicial as to amount to reversible error. Our review of the record discloses misconduct by the prosecuting attorney in his closing argument. The respondent State argues that at most such argument amounted to overzealousness while the appellant asserts that it constitute deliberate misconduct, which severely prejudiced the appellant defendant in the eyes of the jury.

The literal language of the prosecuting attorney need not be set forth herein, it is enough to say that his closing argument referred to facts which were not in evidence and urged conclusions on the part of the jury which would have been relevant to a charge of first degree murder. He portrayed the defendant as having deliberately planned and carried out the murder of her husband in a cold and calculated manner, continuing to fire shots into the body of her husband while he was in a helpless position and pleading for mercy.

While such statements might constitute prosecutorial license, if based on some peripheral view of the facts in a first degree murder case, the statements were improper in the case at bar were unsustained by the record. While our system of criminal justice is adversary in nature and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to be fair and has a duty to avoid misrepresentation of the facts and unnecessarily inflammatory tactics. See State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973); State v. Spencer, 74 Idaho 173, 258 P.2d 1147 (1953); G.

Bell, Handbook of Evidence for the Idaho Lawyer 3 (2d ed. 1972). Even if we assume, however, that the misconduct of the prosecutor in the case at bar is egregious, unprofessional and reprehensible, it alone is not sufficient to warrant reversal. See State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978); State v. Spencer, 74 Idaho 173, 258 P.2d 1147 (1953). Likewise, it is not sufficient that the conduct be contrary to the defendant s interests to require reversal. In the most fundamental sense, almost all portions of the case of the prosecutor must necessarily be contrary to the defendant’s interests.

Otherwise, the hearing would be bound up in irrelevancy. Rather, we hold that the misconduct must be shown to have materially contributed to the verdict of the jury. See State v. Smoot, supra; State v. Spencer, supra. In Smoot, as here, it was alleged that the prosecuting attorney had departed from his proper role and attempted to inflame the jury by his closing argument. This Court, however, found that the weight of the evidence was so great that the prosecutorial comments could not have contributed to the guilty verdict and, therefore, the conviction was affirmed.

So in the case at bar, we hold in view of the verdict of guilty of involuntary manslaughter, the closing argument of the prosecutor could not have contributed to that verdict. The prosecutorial argument related to the murder charge. The assertions by the prosecutor that the appellant coldly and deliberately shot her husband clearly were disbelieved and disregarded by the jury. If a verdict of guilty of murder had been returned, our decision, of course, might be otherwise.

We hold that the burden of proving beyond a reasonable doubt [assuming that burden is upon the respondent State] that the error did not contribute to the guilty verdict has been sustained. Appellant contends finally that the sentence of three years imprisonment was an abuse of discretion by the trial court. The maximum punishment for involuntary manslaughter is imprisonment for a term of ten years and hence the sentence here was well within the statutory limits, well within the discretion of the trial court, and not to be reversed on appeal absent an abuse of discretion. State v.

Cotton, 100 Idaho 573, 602 P.2d 71 (1979); State v. Powers, 100 Idaho 290, 596 P.2d 802 (1979); State v. Seifert, 100 Idaho 321, 597 P.2d 44 (1979). Although it is argued that the trial judge may have been influenced by certain statements made by police officers, which were contained in the presentence report, allegedly without foundation and prejudicial to the appellant and assuming that those portions of the presentence report were erroneous and improper, we will not presume that the sentence imposed herein resulted from reliance by the trial judge upon the alleged improper statements.

We again take this opportunity to note that presentence reports are compiled by non-law trained persons from a variety of sources and contain material necessarily failing to meet standards of evidentiary quality. Nevertheless, we presume that law-trained experienced trial judges will exercise discretion in their utilization of the material contained in such presentence reports. We find no indication of any abuse of discretion and will not indulge in the presumption sought by appellant here. The conviction and the sentence are affirmed. DONALDSON, C. J., and BAKES and McFADDEN, JJ., concur. .

In Smoot, it was suggested that the standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), was to be applied in determining whether prosecutorial misconduct constituted reversible error. In Chapman it was held that before a federal constitutional error could be held harmless, the respondent State had the burden of proving beyond a reasonable doubt that the error did not contribute to the guilty plea. Although not necessary to our decision today, more recent cases have limited the “beyond a reasonable doubt” burden of Chapman to constitutional errors. See United States v.

Rodriguez, 573 F.2d 330 (5th Cir. 1978); United States v. Indian Boy X, 565 F.2d 585 (9th Cir. 1977), cert. denied, 435 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978); United States v. Valle-Valdez, 554 F.2d 911 (8th Cir. 1977); Padgett v. State, 590 P.2d 432 (Alaska 1979); People v. Bolton, 23 Cal.3d 208, 152 Cal.Rptr. 141, 589 P.2d 396 (Cal.1979); State v. Stilling, 285 Or. 293, 590 P.2d 1223 (1979); Campbell v. State, 589 P.2d 358 (Wyo.1979).

As there can be no reasonable doubt that the prosecutorial error did not contribute to the verdict in the present case, we need not decide whether the “beyond a reasonable doubt” standard must be applied in all cases of prosecutorial misconduct.