*1 process motion. Because the denied the defendant occurred psychia- when the second no given opportunity had contest appointed. been trist was order, court’s the trial Court conviction affirmed. judgment the defendant was held that entitled to WALTERS, C.J., BURNETT, J., con- new trial. cur. the Supreme recog- In Court Crawford appearance that the nized defendant and chains had
at trial in shackles an ad- upon impact presumption of inno-
verse
cence, might have affected the out- Accordingly, failure come of the trial. Idaho, STATE of a chance give defendant to contest Plaintiff-Respondent, ex parte motion prosecutor’s was held procedural a denial of to constitute due Rory BROOKS, Defendant-Appellant. process. No. 13297. appoint In case the decision Court of Appeals of Idaho. was likewise psychiatrist second made after here parte application. ex But the simi- Dec. case, ends. In this larity with Crawford Petition for Review Denied Crawford, VanKeuren could have unlike 27, 1983. Jan. from the court’s sought district order relief vacate Kilgore’s appoint- Dr. by moving actually submitting to the before
ment addition, In he
second examination. prohibit did—move to Dr. Kil-
could—and Crawford, testifying trial. at
gore from steps were not available. procedural
these appeared the jury before
Once Crawford chains, deprivation due
shackles occurred.
process had
Moreover, appointment of a second any way did in itself in
psychiatrist right
endanger VanKeuren’s obtain appointment When second trial.
fair made, neither court nor the prose- attorney could have known
cuting what the the examination would be. The
outcome could report have been favorable to
second nothing There is defendant. that Dr. Kilgore indicate
record unqualified. VanKeuren had
prejudiced to cross-examine complete opportunity noted, earlier it was clear- at As trial.
him discretion of the trial court to within the
ly psychiatrist. than one
appoint more justified given the appointment
second first psychiatrist’s report.
ambiguity
Considering all circumstances of this
case, deprivation no of due we hold
la Street in Boise’s North End. depend- monthly Security his Social ed on check to living expenses. Flory his was well- meet well-liked, paying his monthly known and routinely, entertaining neighbor- bills story youth telling, and car- hood cats. This ing practice for homeless latter nickname, him “Cat Man of Bella earned 4,1976, June one of the neigh- On Street.” him lying found boys peacefully on borhood house, appar- bed in his small dead of causes. At ently natural least that was the determination, initial county coroner’s be- *4 body appeared to be resting cause in a signs with no natural state of foul play indicated. later, teenager
Two months Darren to police McLenna confessed Boise that he Lynn, of Lynn, John Scott & Hackney, C. teenage boys three other had visited and Boise, appellant. for 3, Flory on June had smothered the old man Leroy, Atty. H. by Lynn David Gen. E. death, had stolen and his Social Security Gen., Thomas, Boise, respondent. Sol. for money, amounted to approximately McLenna and (Mitch) Demetrio Es- $50.00. WALTERS, Judge. Chief quivel were both juvenile committed in appeals Rory Brooks the conviction and custody of court to the Idaho Health to an sentence indeterminate twenty- Department, Welfare and under the Youth in for murder degree term second Act. year Rehabilitation Petitions under the Act He raises Flory. (1) Enrico six against Wolf, of issues. also filed Steven age venue of fifteen, Brooks, his trial Rory seventeen, He contends age and changed because alleging have been of extensive their involvement in the death of publicity. (2) He pre-trial magistrate claims error in Flory. judge A subsequently testimony con- concerning the admission that Wolf and Brooks ruled were suitable (3) spiracy to commit murder. He ar- and waived jurisdiction for trial as adults the trial court erred gues denying appeal the Act. An of this ruling under acquittal his motion for for delayed nearly years. failure of the trial two The prove state to corroboration the testimo- Court eventually Idaho affirmed State, (4) Wolf v. See ny accomplice. ruling. 476, of an He cites error Idaho of the court to the failure instruct the jury, appeal, P.2d 1011 After that law, concerning pled as a matter of guilty degree status of Wolf to second Steven as an (5) one of the witnesses accomplice. sentenced to an indetermi- murder prejudicial He contends and misleading term not to exceed thirty years. nate remarks were made the prosecuting at- 1979, a February, Rory found opening torney statement jury, guilty in the second de- regarding the testimony expected giv- to be killing gree Flory. for the of Enrico (but recanted) en later by one of the state’s a judgment court entered trial conviction (6) He witnesses. asserts that the trial sentenced Brooks to an indeterminate its court abused discretion imposing an twenty not to exceed years. term indeterminate sentence of twenty years. We affirm the conviction and sentence. OF I. CHANGE VENUE Flory, old, seventy-six years Enrico lived issue we The first address is whether the small, alone in a one-bedroom house on Bel- in denying erred trial court Brooks’s motion of venue based on change pre-trial determining whether a criminal de- The case publicity. was extensively publi- actually fendant received a fair trial are newspaper cized in a Idaho indicating prejudice States- affidavits or an ab- —the reports news on man —and various tele- prejudice sence community vision radio networks in County. Ada tried, where the defendant testimony photocopies on Brooks relies of numerous jurors at voir dire as whether articles from the publish- Statesman opinion they had formed the de- 1977, to May, December, 1978, ed from or innocence based guilt upon fendant’s copies script read over of news local televi- pretrial publicity, adverse whether stations, and on sion of How- challenged for cause any defendant Schragg, selected, ard expert, communications jurors finally the nature and support that the position publicity local pretrial publicity, content him a denied fair effectively trial. elapsed from of time amount time of pretrial publicity trial itself. right to a trial by an “impar Publicity by itself omitted.] [Citation by the guaranteed tial Sixth Amend jury,” require change does venue. Constitution, States ment of the United proceed analyze will Brooks’s We ven- made applicable individual states light issue above ue criteria. We through the Fourteenth Amendment. Par the record indicates note that radio Gladden, 385 U.S. ker v. 87 S.Ct. television broadcasts resembled the (1966); 17 L.Ed.2d State v. *5 newspaper in frequen- articles content and 267, Beason, (1973). Idaho 506 P.2d 95 1340 of purpose analysis, for the this cy; there- essence, right jury to guaran In the trial fore, the nature we of discuss the criminally accused a tees to the fair trial newspaper articles. impartial, indifferent panel jurors. a of Ir Dowd, 366 U.S. vin v. S.Ct. Man The of the Cat attracted murder 1639, 1642, Idaho, L.Ed.2d 751 In and the local great public interest news criminally who is when one accused believes gave story coverage, the extensive media impartial trial a fair cannot be and had June, May, July and In 1977. heaviest venue, may, he county statute page a headline in the May, front procedure, criminal rule of seek a and case, the facts of the discussed Statesman 19-1801; change I.C. of venue. § I.C.R. juvenile records of Brooks and co-de- motion, if the court is satisfied that a Upon Wolf, and the fendant Steven waiver trial cannot impartial be had in the fair and The article status. stated juvenile boys’ case pending, pro county where included kidnapping, records juvenile rape, be transferred shall to another ceeding robbery, including a conviction a and for county. Id. during period rape-kidnapping interim Flory’s death and the filing between Needs, 883, 890, 99 Idaho In charges against Brooks and murder Wolf. our (1979), set 130, 137 Court magistrate discussed the article then The determining change-of- for forth guidelines juvenile status that waived based order The said: appeal. Court venue on issues and on juvenile psychological records on the on held occasions many has Court [t]his indicating the two boys were evaluations grant to a deny that the decision suitable for rehabilitation within within the sound rests change of venue system. juvenile court. trial discretion [Citations Further, June, appeared where it that appears flurry of articles In a omitted.] Statesman, actually mostly escape received a fair due to Wolf’s the defendant difficulty County was Jail. For the five there no the Ada trial and that from free, selecting a trial the news media focused experienced jury, Wolf was days a grant change escape, sightings, of ven- of Wolf refusal rumors judge’s on the manhunt, Among capture. eventual Wolf’s ground reversal. and his ue a is not Court consider name published will was often picture factors in the fied. many headlines times. He reviewed the contents captioned was of the news submitted with the articles record on objective The characterized it as coverage tone, were not of sensational nor appeal based, with factually no sensationalism opinions editorial aimed at However, were there expressed he also evident. public against Brooks. impassioning people hearing the news opinion expert However, details the murder reading the news articles broadcasts within many stories, times the news related opinion likely form that Brooks appearing name as one of the ac- Brooks’s Further, Schragg testified guilty. cused. jurors assurance that no existed there safeguard could intelligence average 1977, through July, September, From surfacing opinion of this later against articles on newspaper the case were subconscious, though they even from their appears There to have been no sporadic. ability judge solely professed an or overplay. September, In sensationalism trial, at submitted unim- the evidence requested change Brooks of venue. He that, knowledge. by any prior pervasive paired due to argued publicity of case, impossible it him to re- denied the court motion for trial The impartial trial in fair and Ada Coun- ceive venue, prejudice, without change finding denied. motion was ty. The publicity occurred over the bulk November, 1978, present three from the months before well-removed tri- period go trial, that the coverage co-defendant proceedings, consisted al guilty degree second pled and not of Wolf accounts editorials of factual Flory. plea made the public of Enrico States- impassioning against at aimed page. The front article outlined the Brooks, man’s there pervasive existed no events narrated by entire course Wolf prejudices. of subconscious stand when he the witness entered his from the motion subject allowed to be court Wolf guilty plea. admitted that he and selection, course renewal three others involved. The article findings the initial appear incorrect. say went on to two youths, then began February Brooks’s trial On *6 Esquivel, and had McLenna been previously process selecting of the voir dire with of the “convicted” murder juvenile in court Each two alternates. jurors and twelve Rory and that Brooks awaited trial for ques- individually was juror prospective adult as an in murder district court. These jury panel members of the tioned, all other were reiterated matters in an article ap- from the courtroom. removed having been December on pearing after Wolf was questioned be- prospects Thirty-three was again implicated Brooks sentenced. by complete. was Nine jury selection fore the one of the four boys involved, as the article by for cause the were dismissed prospects stated again that he it was awaited 19-2029; I.C. §§ trial court. See 19-2017— trial. nine, seven these 24(a). Of I.C.R. 1979, a few February, days In before his coverage media of the dismissed because trial, renewed motion for Brooks change had convinced them murder Cat Man on the publicity based of venue surrounding the four teenage boys one was A County. in Ada hearing on the prospect Each felt Brooks had responsible. was held. The trial court motion heard oral them; they innocence or felt prove testimony from editors and directors of the aside put their belief in his they could regarding media news local content and to decide the issue solely on order in guilt publications on of their extent introduced at trial. po- Ten evidence newspaper Exhibits articles case. were dismissed jurors peremptory tential radio and television scripts for news broad- record does not challenges. disclose as evidence. were admitted casts or the defense prosecution ex- whether Schragg, a psychologist specializ- challenge when po- Howard a peremptory ercised motivation, dismissed; learning ing in also testi- so was record juror tential only rounds, six does show that full of the After the trial questioned jur- court rounds, of possible challenges ten available gave counsel also a chance to ors exam- side were exercised. See each I.C. jurors, ine the case was allowed to 19-2016; 19-2015, 24(b). I.C.R. §§ change The motion for proceed. venue during completion not renewed or after jurors twelve One of the selected testified process. the voir dire she voir dire that believed Brooks on what guilty based she had read and regard to whether record the case in the heard about media. She was Brooks did not have fair and impar shows challenged cause nor dismissed neither trial, note although juror tial we one peremptory challenge. Another of the opinion guilt, an of Brooks’s expressed she selected jurors twelve was of the opinion ability to objectively testified to make murdered, Flory had been though he solely upon decision her final never he had stated heard of Brooks. He in court. Her selection as juror admitted for cause, challenged but the trial court unchallenged. Schragg’s Howard tes went challenge. jurors Both of those denied that concerning timony possible prejudicial judge they could the case solely stated on opinions of guilt of latent could effect have trial, admitted at unimpaired the evidence granting used as a basis for been the mo opinions. prior by their change venue, light tion selected, jurors of the twelve Only two publicity recognition of the Cat alternates, two knew nothing and the about jurors. incident by Man murder most of the those knowledge the murder. Of However, support of the trial court’s case, all remembered the Cat Man had motion, was the state determination murdered, and been most associated Steve juror assuring of each their ability ment crime. with the Wolf Brooks’s name was objectively guilt determine the issue of or recognized the one woman men- on the presented facts in the tri innocence above, though six jurors tioned associ- must judge rely A be able to al. such with the “juveniles” ated murder. light pervasive influ assurances dire lasted for three days. voir press free on our daily ence lives. morning day last of the jury On the the Idaho Supreme Words of Court from selection, Idaho Statesman carried a persuasively justify this long ago conclusion article about the Brooks trial. page front today. even opened, judge the trial court When the jurors were otherwise If the rule jurors they whether questioned be selected from a class who have to do morning paper read the heard had informed or are so little not read case. Three of the twelve news about transpiring in their com- events current acknowledged seeing the article in jurors *7 they nothing know munity that its The jury was removed the Statesman. juries would being This result affairs. while these three were courtroom from the up persons of a class of below aver- made individually questioned about the extent of intelligence, the law age in which does had read. each the article require. not jurors had read the of these All three McLennan, 286, 294-295, 40 Idaho v. State headlines, Beyond the one had headlines. 718, (1925). 720 P. 231 few sentences of the the first only read publicity two article, professed reading pre-trial other The evidence and the article, of the which shows beginning appeal numerous the submitted jury year period right up selection. None of the two the over the reported times — reading beyond impli the discus- Brooks was day of trial —where three testified selection, recog- once they reports in the murder. contain sion cated was about. All three objective the article only dispassionate nized what factual reading any of dealing the article occurring. They denied of events then accounts facts case. or editorial no comments contain
899
give
rise to
opinions
feelings
Hearsay
evidence has been
defined
Brooks,
outrage against
or
thus
passion
Court as follows:
Idaho
right
to a fair trial.
compromising
See
court,
is testimony
[hjearsay
Powers,
833, 837,
96 Idaho
v.
537 P.2d
State
evidence, of a statement made
written
1369,
(1975).
Needs,
1373
See also
v.
State
court,
being
statement
offered
out of
883, 891,
130,
(1979);
591 P.2d
138
99 Idaho
of the truth of the mat-
as an assertion
Bitz,
239, 243,
93 Idaho
v.
460 P.2d
State
therein,
resting
thus
asserted
ters
374,
(1969). Neither
the state nor
378
credibility of the out-
upon the
its value
all of the allotted peremp-
Brooks exercised
asserter.
of-court
challenges.
necessary
It was
to ques-
tory
Obendorf,
304, 309,
99 Idaho
581
v.
Isaacson
potential
jurors
only thirty-three
be-
tion
350,
(1978).
also Frank v. City
355
See
P.2d
jurors
two alternates
fore the twelve
Caldwell,
498, 499,
643,
Idaho
584 P.2d
99
not appear
It does
from the
selected.
Ortega,
v.
(1978) and State
95 Idaho
644
difficulty
experi-
that unusual
was
record
241,
466,
(1973).
P.2d
468
506
selecting
jury.
Applying
enced in
Needs,
supra,
set forth
we
criteria
hold
definition,
foregoing
Under
not
denied a fair
and im-
Michael
testimony by
Wolf of the “con
that the trial
court did not
partial trial
The definition
was admissible.
versation”
in denying Brooks’s
its discretion
mo-
abuse
proffered
evidence de
requires
tion.
probative
upon
its
pend
value —
—for
credibility of the out-of-court asserter be
EVIDENCE
II. HEARSAY
as
qualifies
hearsay.
fore it
Here the testi
Brooks next contends
trial court
simple
fact that
mony concerned
certain
allowing two witnesses for the
erred
boys.
discussed
subjects were
out-of-court
testify to
statements
state to
depend,
not
for its
probative
did
presence by alleged
in Brooks’s
co-
made
value,
upon
credibility
boys
the —the
objection,
Over Brooks’s
Mi-
conspirators.
asserters. The testimony was
out-of-court
Wolf, younger
brother of the
chael
co-de-
simply
to show
that Brooks was
admissible
pled guilty,
who had
and Darren
fendant
subject
robbing
present
Flory
when
each testified
Brooks was
McLenna
discussed.
during conversations regarding the
present
Flory’s money. Brooks
plan to steal
asserts
a statement
being
When
testimony concerning these
that the
conver-
proof
as
facts contained in
offered
hearsay
inadmissible
evidence.
sations was
merely
proof
but
the statement
that the
made, i.e.,
statement
certain words
Testimony of Michael Wolf.
A.
hearsay
spoken,
appli
rule has no
Ortega,
239, 241,
v.
95 Idaho
cation. State
first
the testimony
discuss
We will
(1973);
468
see also Quayle
v.
Wolf.
testified that he was
Michael
Mackert,
A. Social It showed that “conversa was admissible. Q. there discussion when his Was place and who had taken disclosed tions” arrived? check during those conversations. It present Um, the first of the it was around value, A. depend, probative its did not
month. credibility parties upon the Q. What was the rest of the In so Okay. far as it was not of conversation. committing truth
conversation for the of the content of the fered time? conversation, at that crime it was hearsay.
901
However, McLenna s testimony
spiracy,
concern-
and that the subsequent connect-
of a
ing
“plan”
the discussion
to rob and
trial with
ing of
one on
the conspiracy
Flory must have
been relevant for
is sufficient.
and crime
of the assertions
the truth
because the state
So,
329, 231
71 Idaho at
v.
P.2d at 737.
State
alleged
existed,
that
implicitly
plan
such a
did not
The court in So
address the quan-
charged Brooks
degree
when it
with first
proof, sufficient to
establish a
tum
con-
Consequently,
murder.
this testimony,
if
proof
in order to admit
spiracy
declara-
other,
hearsay.
is
We are
none
therefore
co-conspirators,
of the
beyond
and acts
tions
to examine the
required
co-conspirator ex-
that
“some”
observation
evidence
rule,
hearsay
ception
to determine
presented.
Id. An earlier
be
Idaho
respect
whether
however,
case,
held that where
civil
several
admissible.
charged
with conspiracy
defendants
adopted the co-conspirator
Idaho has
ex
plaintiffs,
plaintiffs
defraud the
Bell,
G.
Handbook of
ception. See
Evidence
prove
several or
“entitled
individual
Lawyer,
(2d
Idaho
172-173
ed.
any
one
acts or statements
of the con-
So,
1972).
324, 330, 231
v.
71
In State
Idaho
or done in
made
spirators
furtherance of
734,
(1951), it was
737
held:
P.2d
object
conspiracy”
of this
when evi-
conspiracy has
a
been estab-
[w]here
prima
to make a
dence sufficient
facie case
crime,
a
each
lished to commit
declaration
introduced. Shields
Ruddy,
had been
v.
3
conspirators,
during
148, 155,
405,
(1891).
28 P.
407
Idaho
pendency
enterprise,
of the criminal
original
pursuance
plan
and with
perceive no
why
We
reason
object,
to the common
reference
is compe-
rule,
“prima
adopted
facie case”
in Shields
against
tent evidence
each of them.
case, should
for a civil
not apply to a crimi
Thomas,
v.
430,
also State
94
See
489
little exception,
nal case. With
the courts
(1971).
1310
jurisdictions which
of other
have considered
question
quantum of proof
neces
of Conspiracy.
2. Existence
by independent
established
sary to be
evi
necessary
It is not
that a formal
dence,
render admissible the extrajudicial
be
charge
conspiracy
against
made
alleged
of an
co-conspirator in a
statements
co-conspirators, before the conspirator ex
case, have held or recognized
criminal
ception to the admission of hearsay evi
independent
must
establish a
Lyles,
v.
593
United States
applies.
dence
of conspiracy.
Annot.,
prima facie
See
(2d Cir.1979),
den.,
182
cert.
F.2d
440 U.S.
1148, 1161-1167 (1972).
46 A.L.R.3d
972,
1537,
99
59
(1979);
S.Ct.
L.Ed.2d 789
v. Zamarripa,
978,
United States
544 F.2d
facie” is
“prima
term,
Because
nebulous
Cir.1976),
(8th
den.,
cert.
1111,
429 U.S.
97
definition, it
defying exact
can be defined
1149, 51
(1977);
L.Ed.2d 566
S.Ct.
United only
terms of “sufficient
evidence to
Richardson,
v.
(8th
States
Looking
record before
of the
whole,
testimony of
independent
a
Finally, we have the
of Mitch
testimony
McLenna, to determine whether there was
called
witness by
a
Brooks.
Esquivel,
as
from
the trial
evidence
sufficient
he
Flory’s
denied that
entered
Esquivel
could infer
reasonably
the existence
court
participated
and
murder.
house
following
we see the
evi
conspiracy,
of a
However, he
that he
present
testified
Wolf,
Michael
brother of co-defend
dence.
robbery
Flory
the
and
of
when
Wolf,
testified that he was
ant Steve
the
boys
that
followed
to
planned;
he
McLenna,
Brooks,
and overheard
present
house;
he
that
observed them enter
Flory’s
and Mitch Esquivel planning
Wolf
to
Steve
house; and
later exit
that he re-
and
Flory’s house and
to
take the Social
go
money.
of
a “share”
ceived
money, about a
Security
week before the
compelled
of a
are
neighborhood
owner
We
to consider
incident.
Flory
determining
that
had cashed his
Esquivel’s
testified
wheth
store
just
check in the
Security
prior
store
of conspiracy
case
existed
Social
facie
prima
er a
June
day
after
to his death. On
admission of McLen
a condition
as
the same day
Flory’s
that
Flory’s
statements,
death
the following
reasons.
na’s
(accord
among
boys
divided
money was
First,
testimony was offered be
McLenna’s
testimony McLenna),
ing to the
conspiracy,
proof
requiring
thus
fore
at a local hamburger
were
stand.
Wolf
record.
view
whole
us to
direct examination
response to
an examination
the record as
Where
attorney,
owner of the
prosecuting
facts from
whole shows
which the trial
a
testified:
stand
reasonably infer
could
the existence
court
unusual
their behav-
Q. Anything
ought
case
conspiracy, the
not to be
of a
you recall?
ior that
proof
because
conspiracy
reversed
Well,
that
did an awful
they
not
A.
Often,
here,
time.
wrong
at the
as
came
all, just bought
buying;
lot
alleged
co-conspira-
overt acts
long.
day
all
may go partly to the establishment
tors
you’re
Q.
referring
was that
Who
conspiracy.
If inadmissible state-
“they"?
out of
are
and it
admitted
order
ments
Rory
A.
and Steve.
showing
sufficient
of a
develops that no
A.
Q. And what
recall?
coke
[******]
I
don’t
or —.
recall
did
what it
they purchase, if you
was.
Possibly
at
ought
them,
conspiracy has
if
to strike the
proper relief
time.
the case cannot
been
statements on
ought to
made,
stand without
be
the court
granted
motion;
at 503.
Thompson,
N.W.2d
v.
State
they
Q.
many
day
How
times
in?
it has been held that evidentia-
Secondly,
times;
Well,
say
many
I
how
in the state’s
be
may
couldn’t
A.
deficiencies
ry
there
evidence,
over and over
they
because
defendant’s
supplied
day long.
over
all
just
present testimony.
decide
defendant
Watson, 99 Idaho
Viewing reliable informant not *11 evidence, beyond was sufficient he has lieve there what seen but also as to only as to McLenna, from which the testimony heard. what he has reasonably could infer that a trial court requirement there was no Consequently, to rob and to existed conspiracy reliability testimony of McLenna’s Flory. it was admitted before in be established co-conspir- that the We conclude evidence. Reliability. hearsay ap- to the rule was exception ator testimony to McLenna’s plicable Accordingly, we turn Brooks’s received in evi- testimony properly was even if a conspiracy contention that was an dence. showing there insufficient proved, reliability of testimony McLenna’s as a OF III. TESTIMO- CORROBORATION for admission of the testimony.
condition AN ACCOMPLICE NY OF was right that he denied the argues reliability of the contends that the trial court conversations Brooks next contest McLenna, parties refusing grant because the his motion for reported by in erred (with exception acquittal at the judgment conversations close of the to those McLenna) not called as witnesses His motion was predi- state’s case-in-chief. subject were therefore not failure of on the the state to meet its the state cated by by Brooks. Contrary proof concerning burden corroboration of to cross-examination assertion, require testimony we find no of an accomplice—McLenna.1 Brooks’s “reliability” of McLenna’s testi ment that motion acquittal After Brooks’s to be established mony had before admis denied, presented defense, then Brooks testimony concerning of his the conver sion calling Esquivel as a witness. Brooks by sations. presented rested his case. state then given and the no rebuttal not a This is case where the co-con jury. acquittal Brooks’s motion was not reliability whose is in spirator, question, at the close of the case it renewed before made out-of-court statements. Compare jury. was submitted Thomas, 430, 94 v. Idaho 489 Rather, (1971). the co-conspirator— 1310 procedure followed in Under reliability is in question, McLenna—whose case, we decline to entertain Brooks’s in the form made his statements of testimo the trial court contention committed in courtroom. His ny reliability as a acquit. to the motion to regard error in It be, was, could tested by witness cross- in Idaho that when a is settled defend well by jury. examination evaluated As evidence in introduces defense of his ant by noted the United States Court case, objection he waives to the denial Evans, 74, 88, v. 400 in Dutton U.S. 91 S.Ct. acquit of his motion at the close of the (1970), L.Ed.2d 213 27 case, right state’s and waives his to assign rule does not hearsay prevent a wit- appeal error on the order overruling [t]he as to testifying what he has ness from Watson, 694, 698, motion. State 99 Idaho heard; a restriction is rather on the it (1978); Territory 587 P.2d v. Neil through extrajudicial proof of the fact 614, 617, son, 2 Idaho 23 P. the viewpoint From Moore,
statements.
also 84 J.
Moore’s
See
Federal Prac
Clause, a witness under
¶¶
Confrontation
(Thompson
29.01-09
1973);
tice
2 C.
oath,
cross-examination,
subject and Wright, Federal Practice and Procedure
can be
demeanor
observed
whose
(2d
1982).
ed.
§
provides:
connect
1. I.C.
19-2117
§
defendant with the commission of
offense;
testimony
the
cient,
and the corroboration is not suffi-
had on the
A conviction cannot be
merely
accomplice,
if it
shows
commission of the
an
unless he is corroborated
evidence,
itself,
offense,
in
circumstances thereof.
and without the
or the
accomplice,
aid of the
tends to
ed
REQUESTED INSTRUCTION
error,
IV.
instruction to be
and to reverse
ACCOMPLICE
REGARDING
conviction because he was
denied the
protection of I.C.
19-2117.
§
issue raised by
next
court’s
trial
refusal to instruct
concerns the
accomplice
of an
The definition
law,
matter
that, as a
Brooks’s
quite
clear.
Esquivel, was
witness,
accomplice.
Mitch
person
is a
“accomplice”
An
concerned
Esquivel
was the
witness called
crime,
of a
commission
whether he
of the boys
one
whose case
Brooks and
directly participates
the commission of
juvenile
adjudicated
court.
*12
had been
constituting the
act
offense or
aids
Esquivel, defense coun
questioning
Prior to
its commission....
and abets in
[Cita-
trial
court instruct
sel
to have
moved
tions omitted].
Esquivel was an accomplice
that
jury
murder. Defense counsel
robbery and
at,
presence
acquiescence in,
Mere
or
testimony had not been
McLenna’s
believed
consent
commission of
silent
an
corroborated, and he did not
sufficiently
not,
is
in the absence of a duty
offense
to
Esquivel’s
use
jury
to
want the
act,
sufficient, however
legally
reprehen-
accomplice
An
nei
can
for corroboration.
be, to
one
may
princi-
it
constitute
sible
himself nor another accom
corroborate
ther
accessory,
abettor,
or aider and
pal, an
or
a conviction within the re
plice to sustain
accomplice is
accomplice. An
one
an
who
I.C.
19-2117.
v.
quirements
§
State
another;
with
joined
is
or united
one of
59, 64,
Rose,
109,
267
Idaho
P.2d
112
75
felony;
in a
an
concerned
several
associ-
(1954).
crime;
co-operates,
who
in a
one
ate
aids
testified,
Esquivel
the trial court
Before
committing
assists in
it.
or
[Citations
counsel’s offer
proof
re-
heard defense
omitted.]
Defense
garding
motion.
counsel stat-
this
605,
Emmons,
608,
v.
94 Idaho
495
State
Esquivel
testify
ed that
that he had
11,
(1972).
14
P.2d
aiding and
pled guilty
abetting
voluntary
plea bargain,
in a
manslaughter,2
purpose
in return
of Brooks’s
For the
con
prosecution
error,
with the
cooperating
aiding,
some
abetting or
tention
involved;
that he was involved
boys
encouragement
other
on the person’s part
actual
Brooks, Wolf and
plan-
McLenna in
make that person
essential to
an accom
is
ning
robbery-murder;
Grant,
he had fol-
189, 197, 140
plice. State v.
26 Idaho
boys
three
to Plory’s
house
959,
(1914).
lowed the
acquiescence in,
Mere
P.
or
house;
enter the
but refused
on June
commission of
consent to the
an of
silent
waiting outside when the other
bystander,
that he was
of a
part
on the
however
fense
with the
money;
out
stolen
boys
be,
came back
crime may
is not
reprehensible
suffi
a share
money.
he received
and that
accomplice.
to make one an
cient
State v.
any direct
deny
participation
He would
you that one IN the same cell with V. OPENING was in STATEMENT summer he Brooks; of them could ARGUMENT neither Rory up and talked. One they sat sleep, so also contends Brooks that remarks they talked about was the things of the prosecutor in by opening argu the made Henry Flory. robbery and murder the regarding expected testimony of a ment you Rory tell told will Nick Alonzo Alonzo, witness, who Nick later recanted him— testimony, was prejudicial so as to Objection, your COUNSEL: to a DEFENSE right fair trial. At deny his the close object outlining I to the state case-in-ehief, honor. state’s moved of the alleged statements from the de- any prejudicial the arguing effect for mistrial without foundation. fendant prosecutor’s right statements on his of the The trial court fair trial. denied the to a Overrule the objection. THE COURT: mistrial, but gave a curative may opening motion make the statement. jury they instruction you, Thank your PROSECUTOR: honor. specific complained the of statem disregard you will tell while they Alonzo Nick ents.3 sitting up, Mr. Brooks were outlined facts, him who the participants told the scope of opening argu- purpose were, planned they how had and exe- Griffith, in State v. addressed 97 ment was you. Thank this murder. cuted There the court said: trial, of the During the course Nick Alon- statements serve to inform
[o]pening
as a
by
zo was called
witness
the state.
of the
issues
case and briefly
jury of
testimony,
Prior to his
court removed
litigant
each
evidence
intends
required
prosecutor
outline
jury
support his allegations
or
to introduce
as he would
question Alonzo
before the
defenses,
may
the case
be. While
as
defense counsel
because
had been
jury,
gave
general
stating
of the
concerning testimony
instruction
The court
State’s case
3.
to be
any
“you
as evidence
witness,
consider
state-
by
must not
given
Nick Alonzo. Those
during the
made
trial” and
may
ment of counsel
are not evidence and
not be
statements
following specific
gave the
instruction:
then
by you.
considered
disregard
specifically instructed to
You are
prosecutor
opening
of the
at the
the statements
so
recently notified that Alonzo
testify.
prejudicial
would
error,
that a finding of
given
had
a taped
Alonzo
statement
error,
to a
even constitutional
would be una-
To
police
surprise
detective.
here we
But
have no
voidable.
more
Alonzo
prosecutor,
recanted those state-
objective
summary
than an
evidence
ments, maintaining that he had lied when
prosecutor reasonably expected
which the
made to the
detective.
the statements
Many things
produce.
might happen
was made
story
said
up,
Alonzo
based
during
the course
the trial which
he
heard while
rumors
had
incarcerated
presentation
prevent
of all the
Brooks;
disclosed that
he
Brooks nev-
Certainly
evidence described
advance.
spoke
robbery
to him
er
every
variance between the advance
incident.
description and
actual presentation
error,
constitutes reversible
when a prop-
There is no indication
record that
suspicion
any
limiting
given.
had
that Alon-
instruction has been
prosecutor
er
open-
his statements.
zo would recant
Cupp,
Frazier v.
U.S. at
89 S.Ct. at
prosecutor regarding
ing remarks
testimony accurately
expected
described
We believe
Court’s observa-
made
taped statement
Alonzo. The
applicable
are
in Frazier
to this case.
tions
presented is
now
whether the re-
question
made
prosecutor
no more than an
Here
prejudicial
deny
marks
so
summary of
objective
evidence he reason-
trial,
light
a fair
right to
Brooks’s
ably expected
produce.
Any potential
supporting
circumstance
jury
misleading the
diminished
presented
never
those remarks
repudiation of
the witness’s
in the trial.
give.
event,
expected
he was
This issue was addressed
the United
general
specific limiting instruc-
*14
both
in Frazier
Supreme
Cupp,
Court
v.
States
by the trial
the
given
judge to
tions were
1420, 22
89 S.Ct.
L.Ed.2d 684
394 U.S.
jury.
conclude that Brooks was
We cannot
There Frazier had been
convicted
procedure.
by this
Under these
prejudiced
degree murder
in an
second
Oregon
of
circumstances, we hold that the trial court
His conviction was
Court.
affirmed
State
denying
not
in
Brooks’s
for a
did
err
motion
Frazier,
v.
appeal. See State
on
Or.
upon
predicated
prosecutor’s
mistrial
the
(1966). He
petitioned
then
for
418 P.2d
and the
statement
failure of Alon-
opening
corpus
federal judicial
of habeas
writ
testify
prosecutor.
as outlined
zo to
was reviewed
his case
on certio-
system
Supreme Court.
to the
rari
VI. SENTENCE
for
of Frazier’s claims
relief was that
One
Finally,
contends that
informed the jury,
had
in his
prosecutor
its discretion by imposing
court abused
trial
trial,
at
statement
a co-de-
opening
of twenty years.
sentence
an indeterminate
Rawls,
fendant,
testify,
pros-
for
contention
sole basis
is that
The
expected
summarized
ecutor
age of seventeen at the time of
youthful
witness, Rawls,
The
jury.
thereafter
to the
of sen
propriety
“taints
the incident
testify, asserting his privilege
refused
long
tencing
young
a
defendant for so
such
The
court
against self-incrimination.
trial
time.”
a
limiting instruction
in-
jury,
gave
opening
statement
forming them
pre-
was within the limit
This sentence
should not be
prosecutor
considered
of
We
statute.4
have held that a
scribed
record,
of this
In view
as evidence.
reasonable,
is
and not
term confinement
stated:
Court
excessive,
appears
extent
it
neces-
some remarks included in
may
sentencing,
be that
time
to accom-
sary, at the
[i]t
statement
closing
objective
could be
protecting
or
opening
primary
plish
year
imposed
degree
twenty
The
for
is
second
sentence
on Brooks
4. The maximum sentence
imprisonment,
§
I.C.
18-4004.
life
murder is
within
maximum.
news
goals
marketing techniques
highly
achieve
related
are most
society and to
time,
deterrence,
same
the dissemi-
ap-
rehabilitation
retribution
At the
developed.
necessarily has be-
Toohill,
case. State v.
information
given
nation of
plicable to
news stories are
Potential
(Ct.App.1982).
potential listening community. The case be- ing and Rather it is with a more extremes. This “big story.” profile elevated a comes subtle, phenomenon ex- modern willingness affect of profoundly may —incessant news. packaged to posure serve, impar- and the strived-for jurors to who do serve. those tiality of coverage of news events media Modern to reporting news environment, resemblance potential little bears for ex- this past. Today, competition for upon decision-making of decades is impact jury ternal print between attention and electron- impact public ominous. often but subtle media, between sources within each prejudice against ic of latent form takes medium, heightened. However, The sheer volume person. it is also the accused information reaching pro- of if a has been condi- intensity conceivable has taken a quantum leap, publicity to confront a jurors pretrial spective tioned criminal, they areas of the state where but instead find a in urban especially hardened being adjudicated who acts like an ordinary However, human citi- under the Act. courtroom, pendulum zen in the of feel- in Rory when this individual testified way. ing may veer the other In either trial, the district judge Brooks’ refused to event, is to distract the jury result from accomplice. The issue of his an deem him for truth. a search purpose of determin- participation, an ing accomplice, he whether Accordingly, I believe the gov- standards jury. submitted to change of erning longer venue no should be impassioned content in news sto- limited argued Esquivel’s It has not been ries, of prospective jur- to the number nor accomplice turned upon any status factual challenged disqualified for overt ors beyond allegations admit- requirement of bias. These expressions traditional fac- pro- in Youth Rehabilitation Act ted be viewed in the should broader tors con- Rather, ceeding. the contention seems to jurors’ absorption pretrial of of infor- text trial, Esquivel’s possi- testimony be that at The fundamental test be mation. self-interest, bly hedged created an issue jurors can take a fresh look at whether me, concerning his To participation. fact trial. adjudication that an plainly this connotes Act, upon under the Youth Rehabilitation jurors entirely forget what I doubt that petition, a taken at admission to was not trial, particular- been told before they have in the district court. full face value pretrial exposure to information ly if their repetition reinforced or been has cases and youth rehabilita- Most criminal packaged found in news. At intensity upon pleas are decided proceedings tion most, separate will hope jurors the in- we complaints upon or ad- criminal guilty to during pretrial absorbed publici- formation petitions. pleas juvenile Such missions presented information from the to them ty solemnly should be made or admissions judge a believes that at If district trial. They carefully. are too serious to accepted coverage of media has so been the intrusion as mere lightly negotia- tools of be treated process separation great is im- tion, to be postures adopted sound discretion would periled, indicate plea of the moment. A convenience venue even if the change of traditional in- means petition, admission guilty, or an potential prejudice are not dicators are true. allegations taken be prominent. less, truth-seeking anything If it means carefully in this case judge justice examined are system of our criminal objectives pretrial publicity. not did jeopardy. the record review to the traditional factors confine failing erred in district court I believe the inflammatory reporting or diffi- undue accomplice matter as a Esquivel rule selecting jury. Consequently, culty law, admission. upon prior based greater given I have although weight as an accom- been treated Esquivel Had impact of quantitative publicity could have been plice, his might granted change have case—and that of to corroborate deemed *16 I sitting been as the had district of venue However, there was accomplice. because judge’s regard ruling do judge evidence, —I con- independent corroborative of his discretion. an abuse money by expenditure of cerning unusual boys immediately af- Brooks and II I not hold robbery-murder, ter warning flag is marked “the second error to be reversible. court’s the district accomplice.” In this case one elusive had witnesses, Esquivel, Mitch admitted the petition in a allegations under
truth Act, charging him as Rehabilitation Youth En- robbery-murder participant admission Upon Flory.
rico