STATE of Idaho, Plaintiff-Respondent, v. Kathi L. WINN, Defendant-Appellant, 121 Idaho 850

BOYLE, Justice. This is an appeal by defendant Kathi Winn of her conviction of first degree murder for the poisoning death of her nine-year-old son Zerick Winn. The child died from ingesting a lethal dose of Desipramine, an anti-depressant, administered to him in a cup of hot chocolate. Winn appeals her conviction, asserting error on several grounds and requests that this Court reverse her conviction. At trial, Winn alleged she had been told by a “demon” that her son Zerick must die, and, according to the record, Winn admitted that she administered the poisoned drink to the child.

Following the filing of the information charging Winn with murder in the first degree, and prior to trial, defense counsel moved for a change of venue based on extensive news coverage and pre-trial publicity. The district court denied Winn’s motion and a jury trial was held in Bingham County. The jury returned a verdict of guilty to murder in the first degree and the district court imposed a sentence of life imprisonment with a minimum of sixteen years confinement. Taken in the order presented in appellant’s brief, the following issues are before us for review. 1.

Whether it was reversible error to admit Exhibit G consisting of four photographs taken of the victim laying unclothed on an autopsy table. 2. Whether the statutory repeal of I.C. §§ 18-208 and 18-209 and adoption of I.C. § 18-207(

a) which provides “mental condition shall not be a defense to any charge of criminal conduct” violates the Due Process Clause of the Fourteenth Amendment and the prohibition of cruel and unusual punishment of the Eighth Amendment. 3. Whether the trial court erred in not allowing testimony from Winn’s mother regarding her knowledge of Winn’s physical and mental ailments. 4. Whether the trial court erred in not allowing testimony of defense witnesses regarding Winn’s possession experiences and personality change as relates to criminal intent. 5.

Whether the trial court abused its discretion in not granting Winn’s motion for change of venue out of Bingham County. I. Over Winn’s objection, the trial court admitted various photographs of the victim. On appeal Winn asserts that the trial court abused its discretion in admitting Exhibit G consisting of four photographs taken while the victim’s body was laying on an autopsy table. Winn asserts that these four photographs were presented for the sole purpose of inflaming the passion of the jury and when considered with the other photographs admitted into evidence were cumulative.

The four photographs comprising Exhibit G show the child’s body unclothed, laying supine on an autopsy table. In two of the photographs there is blood running out of his right nostril, down his cheek and onto the table. None of the photographs contained in Exhibit G show any sign of physical trauma or any changes from the prior photographs taken at the residence where the child’s body was found in his bedroom. Defense counsel objected to the admission of all photographs at trial, but on appeal challenges only the admission of the second set, or Exhibit G, photographs.

Winn argues that the Exhibit G photographs were not admissible under I.R.E. 403 because the prejudicial effect of the photographs outweighs any probative value and that they were merely cumulative of the photographs taken at the residence when the child’s body was found on his bed. It is well established that where allegedly inflammatory evidence is relevant and material as to an issue of fact, the trial court must determine whether the probative value is substantially outweighed by the danger of unfair prejudice. I.R.E. 403; State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v.

Emory, 119 Idaho 661, 809 P.2d 522 (1991); State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), cert. denied, 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985); State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985); State v. Wilson, 93 Idaho 194, 457 P.2d 433 (1969); State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973); State v.

Martinez, 92 Idaho 183, 439 P.2d 691, cert. denied, 393 U.S. 945, 89 S.Ct. 317, 21 L.Ed.2d 283 (1968). 'The determination of whether to admit evidence challenged on the ground that it is more prejudicial than probative is clearly within the trial court’s discretion. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985); State v. Wilson, 93 Idaho 194, 457 P.2d 433 (1969).

The trial court has discretion to admit into evidence photographs of the victim in a homicide case as an aid to the jury in arriving at a fair understanding of the evidence, as proof of the corpus delicti, the extent of injury, the condition of the body, and for their bearing on the question of the degree and atrociousness of the crime. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Beam, 109 Idaho 616, 620, 710 P.2d 526, 530 (1985); State v. Martinez, 92 Idaho 183, 439 P.2d 691, cert. denied, 393 U.S. 945, 89 S.Ct. 317, 21 L.Ed.2d 283 (1968).

The fact that the photographs depict the actual body of the victim and the wounds inflicted on the victim and may tend to excite the emotions of the jury is not a basis for excluding them. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985). Whether to admit allegedly inflammatory evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), cert. denied, 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); State v. Abel, 104 Idaho 865, 664 P.2d 772 (1983). In State v.

Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), we upheld the admission of photographs which depicted bruises and abrasions on the victim’s body. Although the photographs were not used by the pathologist to assist him in describing his observations, we held that the trial court did not abuse its discretion in admitting the photographs. See also State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973). In State v.

Beam, 109 Idaho 616, 710 P.2d 526 (1985), this Court held: The trial court has the discretion to admit into evidence photographs of the victim in a homicide case as an aid to the jury in arriving at a fair understanding of the evidence, as proof of the corpus delicti, the extent of the injury, the condition of the body, and for their bearing on the question of the degree and atrociousness of the crime. The fact that the photographs depict the actual body of the victim and the wounds inflicted on her and may tend to excite the emotions of the jury is not a basis for excluding them. State v.

Caudill, 109 Idaho 222, 706 P.2d 456 (1985); State v. Bean, 109 Idaho 231, 706 P.2d 1342 (1985). Id., 109 Idaho at 620-21, 710 P.2d at 530-31. We have reviewed the four Exhibit G photographs in question and hold that it was not error nor an abuse of discretion for the trial court to admit the photographs. Accordingly, we hold that admission of Exhibit G was not reversible error. II.

In 1982, the Idaho legislature abolished the insanity defense in criminal cases by repealing I.C. § 18-209 and enacting I.C. § 18-207(a), which provides that “mental condition shall not be a defense to any charge of criminal conduct.” Winn asserts these legislative changes violate the Due Process Clause of the Fourteenth Amendment and the prohibition of cruel and unusual punishment of the Eighth Amendment. Accordingly, Winn sought a pretrial ruling from the district court on defendant’s motion that such repeal was unconstitutional.

It is well established that the absence of an insanity defense in capital cases does not violate any constitutional protections. State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991); State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (1991); State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990). As we held in Searcy, due process as expressed in the Constitutions of the United States and of Idaho does not constitutionally mandate an insanity defense and that I.C. § 18-207 does not deprive Searcy of his due process rights under the state or federal Constitution.” (citations omitted). 118 Idaho at 637, 798 P.2d at 919.

Furthermore, Winn’s challenge does not present a justiciable controversy. At defense counsel’s request in the instant case, the trial court appointed a psychologist to conduct a mental evaluation of Winn. Following completion of the mental evaluation by the psychologist, counsel for Winn advised the court that he did not intend to call the psychologist as a witness and requested that the report be sealed and protected from discovery. The district court granted Winn’s request and the report was sealed.

Thereafter, without offering any evidence of the results of the psychologist’s report or without making any representations that mental condition was an issue, Winn moved for a declaration that the repeal of I.C. §§ 18-208 and 18-209 and the adoption of I.C. § 18-207(

a) was unconstitutional. Similar to the proceedings in State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (1991), Winn sought a pre-trial ruling from the trial court as to the constitutionality of the legislation, but did not present any evidence or make any representation sufficient to create a justiciable controversy on the issue of the insanity defense. As this Court held in State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (1991), we herein affirm the trial court’s determination that the record does not create a judiciable controversy sufficient to support a ruling on the issue of the repeal of the insanity defense.

III. Winn next asserts that the trial court erred in sustaining the State’s objection to questions presented to her mother, Pat Dunavin, as to whether or not she was aware of any physical or mental ailments suffered by Winn “which affects her ability to function at times.” The State objected to this question on the grounds of relevance, materiality and that proper foundation had not been laid to establish that the witness was qualified to give such an opinion. The trial court sustained the State’s objection and defense counsel withdrew the question.

Thereafter defense counsel for Winn asked a series of questions which elicited essentially the same information that he had sought by the disallowed question. Mrs. Dunavin testified that Winn had suffered from alcohol and psychiatric problems which had impaired her ability to care for her family. It is well established that a trial court has considerable discretion to exclude evidence for reasons of foundation, relevance, or that the question was confusing and could have been interpreted in many different ways. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); Flowerdew v.

Warner, 90 Idaho 164, 409 P.2d 110 (1965). It is likewise well established that the trial court also has considerable discretion to exclude evidence for those reasons. Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990). Inasmuch as counsel for Winn was able to elicit testimony that Winn suffered from problems which impaired her ability, there was no prejudice in the trial court not allowing Mrs. Dunavin to answer the question at issue. Accordingly, we hold the trial court did not err in excluding Mrs.

Dunavin’s answer to whether or not Winn suffered from any physical or mental ailments which affected her ability to function at times. IV. Winn asserts that the trial court erred in excluding the testimony of a pastor who had previously attended counseling sessions and observed her demeanor. The pastor, Daniel Talley, had attended counseling sessions at the request of Mrs. Winn’s minister and testified that during counseling sessions Winn’s facial expressions, demeanor, personality and voice changed.

Pastor Talley testified that the voice he heard at one particular session was much deeper, gruffer and rougher sounding than Winn’s normal voice. Pastor Talley testified that the counseling session lasted approximately one hour and Winn’s agitated condition lasted about twenty minutes. Following the agitated condition, Winn slumped into a semiconscious state and upon waking sat in her chair and cried. Several weeks later Mrs. Winn’s pastor again telephoned Pastor Talley and asked him to witness another similar counseling session.

Again, Pastor Talley observed a similar experience and testified at trial that they were “encountering a different personality in that room.” The State did not cross-examine Pastor Talley but moved to strike his entire testimony on relevancy, foundational and hearsay grounds. The trial court granted the motion and instructed the jury to disregard Pastor Talley’s testimony. The trial court concluded that the evidence was not relevant because “it goes to a demonic possession defense.

It would be something like a mental disease or defect, which we don’t have anymore, or an insanity defense which we don’t have anymore.” To the extent that Pastor Talley described personal observations of the defendant his testimony was properly admitted at trial. However, it was his testimony suggesting “demonic possession” which was excluded by the trial court. The witness was allowed to testify and describe personal observations, however, any conclusions as to the cause of Winn’s condition was excluded. In this there is no error.

Idaho Rules of Evidence 401 defines relevant evidence as any 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. Rule 402 states the general rule that all relevant evidence is admissible. The admissibility of expert opinion testimony and the admission of scientific evidence are governed by the Idaho Rules of Evidence and the decisions of this Court. In IHC Hosp. v.

Board of Commrs., 108 Idaho 136, 697 P.2d 1150 (1985), we held that a witness must be properly qualified as an expert prior to being allowed to give expert testimony. Whether a witness is sufficiently qualified as an expert is a matter largely within the sound discretion of the trial court. State v. Crea, 119 Idaho 352, 806 P.2d 445 (1991); Sidwell v. William Prym, Inc., 112 Idaho 76, 730 P.2d 996 (1986). The admissibility of expert opinion testimony is discretionary with the trial court and will not be abused absent a showing of an abuse of discretion. State v.

Crea, 119 Idaho 352, 806 P.2d 445 (1991); Sidwell v. William Prym, Inc., 112 Idaho 76, 730 P.2d 996 (1986). It is also well established that acceptance of the reliability of a scientific theory is a prerequisite to the admission of evidence based upon the theory. State v. Horsley, 117 Idaho 920, 792 P.2d 945 (1990). A careful review of the record reveals that Pastor Talley was not qualified as an expert on mental status or condition and was not testifying as an expert by knowledge, skill, training or education.

Although he asserted he was qualified by “practical experience,” Pastor Talley was not qualified to testify or give opinions about mental state or condition beyond his expertise or competence. Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990). Consequently, it was not error for the trial court to exclude from evidence those portions of Pastor Talley's testimony dealing with “demonic possession” or a scientific theory for which adequate foundation had not been laid or expertise established. V.

Winn also asserts that the trial court erred in refusing to grant a change of trial venue because of news media coverage and pretrial publicity. A careful review of the record indicates, and Winn concedes, that the district court experienced no difficulty in selecting a jury and Winn did not challenge any juror for cause.

It is well established that error cannot be predicated on the mere existence of pretrial publicity concerning a criminal case, and that the validity of a court’s decision to try a case in a particular venue is tested by whether, in the totality of existing circumstances, juror exposure to pretrial publicity resulted in a trial that was not fundamentally fair. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In Idaho, a motion for a change of venue is addressed to the sound discretion of the trial court. State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (1989); State v.

Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975); State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968).

We have identified several factors to be considered in the process of evaluating the exercise of discretion by a trial court when it decides to grant or deny a motion for a change of venue. [Affidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant’s guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself.

Publicity by itself does not require a change of venue. State v. Needs, 99 Idaho at 890, 591 P.2d at 137 (citations omitted). The defendant did not challenge for cause any juror seated which, we have held, indicates “satisfaction with the jury as finally constituted.” State v. Bitz, 93 Idaho 239, 243, 460 P.2d 374, 378 (1969); see also State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979). The record clearly demonstrates that none of the jurors seated had formed an opinion of the defendant’s guilt or innocence based on pretrial publicity.

Accordingly, Winn “has failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process of which [she] complains permits an inference of actual prejudice.” Murphy v. Florida, 421 U.S. at 803; 95 S.Ct. at 2038; 44 L.Ed.2d at 496-97. In order to demonstrate a violation of the constitutional protections relevant to change of venue issues, Winn must direct our attention and inquiry to some specific indication in the voir dire examination that members of the jury panel could not judge her fairly. State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968).

The record demonstrates that Winn presents only conclusory arguments that the jury was not impartial merely because the case received extensive local news media coverage and publicity in advance of trial. Winn has not directed our attention to any part of the record that demonstrates that the case was tried in an atmosphere so inflamed by publicity that indicia of juror impartiality developed in the voir dire examination should be disregarded. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

Accordingly, we hold that the trial court did not err in denying Winn’s motion for change of venue. VI. In conclusion, we hold that the trial court did not abuse its discretion in admitting the Exhibit G photographs into evidence. Further, Winn’s assertion of error on the evidentiary issues is without merit and the trial court did not err in excluding certain portions of Mrs. Dunavin’s and Pastor Talley’s testimony. Finally, we hold that the trial court did not err in denying Winn’s motion for change of venue. Judgment of conviction affirmed. BAKES, C.J., and JOHNSON and McDEVITT, JJ. concur. . Rule 403.

Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.—Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . The following is the question posed to Winn’s mother by defense counsel. "Q. Miss Dunavin, but—and it is—you described her as a good daughter and a good mother.

Are you aware of any physical ailments suffered by Kathi, physical or mental, suffered by Kathi which affects her ability to function at times?’’