State v. Currington
746 P.2d 997
Idaho Ct. App.
1987
Check Treatment

*1 setting objectives opinion, apply forth the time parole could for if parole “(3) of punishment criminal included found years board that 30 penitentia- in the rehabilitation,” possibility 111 Idaho at ry of them viable candidates for completely at 723 P.2d and then Proceedings rehabilitation. under Rule excessivity avoided the issue of of the sen- coming directly on the heels of the convic- tences: tions, being “plea leniency,” a for could not record, expected

Upon any of the have been review are have chance for success. The Appeals recognized inclined the view that the court Court of trial did its view that it would be not abuse discretion. too soon. This Court did particular weighing difficulties in not. countervailing the in- considerations in case, we

stant affirm the decision of the and, if proceeding

trial court an I.C.R. 35 initiated, may the trial court reexamine pursuant

its sentence thereto. proceedings, Under Rule 35 we in 746 P.2d 997 fully vite the court to each trial examine Idaho, Plaintiff-Respondent, STATE the considerations set forth v. dissenting majority opinions of the CURRINGTON, Edward Appeals, Court of provide and to full Defendant-Appellant. findings consideration relative to primary sentencing out criteria four CURRINGTON, Edward Wolfe, supra. lined in v. Mar State Petitioner-Appellant, tinez, 111 Idaho at 723 P.2d (footnote omitted) (Emphasis added here). Idaho, Respondent. STATE go opinion This did unnoticed in on my Nos. 15815. petition rehearing. denial “In Idaho. Appeals anomaly, classic our June opinion af- imposed, firms the sentences but Oct. same time judge instructs trial to con- 25, 1988. Feb. Denied for Review Petition case, sider the and then re-examine Wolfe light its sentences in thereof.” opinion today crystal Our now makes it

clear that criminal conduct short of murder

does not in instances require all considera- likely sign

tion of rehabilitation —which is

of the times.

Having previously sympathized with the judge

views the trial entertained to this case,

particular accepting, albeit reluc

tantly, philosophy sentencing

judges weigh may any out consideration any rehabilitation,

whatever of it after

10, 20, 30, confinement, years or 40 of close

I only write document the which stage opinion

was set our 1986 and the result foreseeably flowed Un therefrom. Appeals,

der the decision of the Court of

the defendants would have confined been years

for at least 30 one-half than —more of an adult lifetime—and at the end *2 (Ada Odessey County Deputy

Edward B. Defender), Boise, petitioner-ap- Public for pellant. Jones, Gen., Atty. A.
Jim Michael Henderson, Gen., Boise, Deputy Atty. plaintiff-respondent.

WALTERS, Judge. Chief Early morning one a fire occurred at the Currington. Boise home of Edward Subse- quently, Currington charged was with and arson, first-degree I.C. convicted of see 18-801, damage and of to and destruc- § intent to property tion of insured with the the insurer. 41-1326. defraud See I.C. § Currington to be jury The also found ton’s home. Investigators concluded that violator,” “persistent under I.C. 19-2514. the fire incendiary was in origin. Curring- § judge subsequently district sentenced ton charged with arson. fifteen-year period an indeterminate *3 trial, At the state asserted Curring- that custody of the Idaho Board Correction.1 .ton motivated by was his financial straits Currington appealed judgment. from the attempt to to defraud his insurer. The appeal pending, Currington was While that alleged Currington state either started application an filed with the district court encouraged the fire or someone else to do post-conviction The application for relief. so. The a panoply state offered of circum- Currington appealed was denied and Firefighters stantial evidence. described appeals from Both that order. are now the fire. A series investigators opined us, having before been consolidated. For arson, that the fire was the result of below, set reasons forth vacate the not could have resulted from other causes. judgment Currington and direct that agent An company insurance for a granted new trial. a than one that insured the home testi- Currington fied inquired had Currington’s appeals present the follow- about potential ing (1) recovery in case of a fire. Anoth- issues: whether his oral statements Currington er witness testified that had tape recording included in a introduced at burning voiced idea in procured residence right trial were in his violation of order to avoid and, Testimony foreclosure. therefore, assistance of counsel documentary presented evidence were re- admissible; (2) not whether his trial garding Currington’s financial status. counsel’s failure to suppress to move Currington Other witnesses testified that recording provide constituted a failure to photographs had removed furniture and assistance; (3) effective whether remarks home, shortly from his before fire. regarding Currington’s during race prosecutor’s closing argument deprived proffered The state also two witnesses trial; (4) Currington of a fair whether the placed Currington who at a restaurant deprived state’s loss of certain evidence when the reported. fire was The first was (5) Currington of process; due whether the manager. the restaurant The second was a knowingly testimony offered false companion Currington’s, named Coch- trial; (6) and whether sup- the verdict was ran, who described on the their activities ported by substantial evidence. We con- night question, including their breakfast the tape recording clude that was errone- o’clock, a.m., together at four the same ously admitted. remaining We address the time had Apparently as the fire. Cochran only they likely issues to the extent are Currington acquainted become with some arise at a new trial. trying months earlier while a collect debt by Currington to third party. owed The few uncontested facts are as fol- Currington previous- Cochran testified that lows. In June of Currington was $4,000 ly him had offered to burn the purchasing a home Idaho. His wife and home, and that he declined the offer. recently child had moved an out-of-state fire, Following anonymous an threaten- Currington residence. unemployed, was ing claiming fire responsibility note for the difficulty debts, having paying was his was found on vehicle. Coch- Chapter for had filed relief under 13 of the ran testified that he wrote this note Bankruptcy approximately Code. At four Currington’s request. a.m., 16, 1982, o’clock on June one Cur- rington’s neighbors awoke the sound of Cochran also was in the instrumental breaking glass. Upon discovering Curring- presentation by the state of certain incrimi- ablaze, neighbor ton’s home nating by Curring- contacted oral statements made department. heavily the fire arraigned, The fire dam- After ton. aged the interior Curring- allegedly prosecut- and contents of approached Cochran imposed 1. Because district court concluded that the ment was See the insurance fraud. act, punish- two crimes arose from the same I.C. no 18-301. § ing attorney’s claimed office and that Cur- A rington threatening him had been and his right to assistance of counsel in a Cochran, family. According to an investi- prosecution criminal is right a fundamental gator provided him that office with a applicable to the states the Four tape phone recorder and attachment so re- teenth Amendment. Gideon v. Wain cordings any subsequent wright, could be made of U.S. S.Ct. 9 L.Ed. (1963). 2d 799 This resulting recordings threats. One of the also embodied Const., in our state constitution. See Idaho was of a conversation between article § Although containing and Cochran.

threats, copy was intro- Massiah, government surrepti *4 by duced at trial tiously utilized the services of a codefend incriminating because it contained other ant, informant, as an to obtain incrimina tape statements. The was admitted over ting statements from an indicted defendant Currington’s objections played and was to who had retained counsel and had been released on bail. When jury. During closing argument, the statements were the by informant, made the defendant to the prosecuting attorney tape summarized the present. counsel was not The United prepared playback by and it for jury the Supreme States Court held that the defend during their deliberations. ant’s Sixth right Amendment to counsel trial, Currington At allegation denied the was violated against “when there was used expert arson. He called an witness who him at his trial evidence of his own incrimi contrary opinion offered a regarding the words, nating agents which federal had cause of Currington disputed the fire. deliberately elicited from him after he had the evidence connecting him to the fire. been indicted and in the absence of his attorney argued His that the state’s evi- counsel.” 377 U.S. at 84 S.Ct. at 1203. dence was far from conclusive. The state’s The Court concluded that because such witnesses, as well as those who testified statements had been elicited in contraven Currington, placed him in a location rights, they tion of the defendant’s were other than his home at the time of the fire. However, not admissible at trial. as the The state offered no regarding evidence explained, exclusionary this rule actually who set the fire. any Nor was does not continuing investigation bar the time-delay evidence of devices introduced. suspected the criminal activities of the de His attorney Currington noted that had fendant. “All that we hold is that the taken steps reorganize statements, his incriminating financial af- defendant’s own fairs, which ran by agents counter to the obtained federal under cir state’s moti- the disclosed, vation theory cumstances here could not consti accounted for by a sale tutionally by prosecution be used the of furniture he had removed against evidence him at his trial.” 377 from his home. U.S. at (emphasis 84 S.Ct. at 1203 original). I In United Henry, States v. 447 U.S. Because we dispositive, find it to be (1980), 100 S.Ct. 65 L.Ed.2d 115 immediately turn to the admission of the question Court faced the whether recorded telephone conversation between government “deliberately had elicited” Currington and Cochran. con statements from custody a defendant in tends that this was obtained in when the statements were made to an in violation of his Sixth Amendment formant who had been instructed not to was, therefore, counsel and improperly ad There, questions. ask the informant and mitted. He cites Massiah v. United placed the defendant had been in a cell States, 377 U.S. 84 S.Ct. 12 overlooking the scene of the crime. The (1964), L.Ed.2d 246 and later United States informant specifically instructed not Supreme Court cases. with, any to initiate conversation nor to question, prosecution The defendant. thorities because he anony- had received contended that defendant’s statements police mous The provided threats. him government by were not “elicited” telephone recording with a device and in- thus, were admissible under Massiah. any structed him record threats or con- versations with the defendant. After rejected argument. The Court this recordings were by made and reviewed Court noted that the informant was not police, police “body-wire” attached listener, passive simply a but had con informant advance defendant, meeting of a be- versed with the and that these tween the produced informant and the incriminating conversations defendant to discuss upon statements. The Court focused their defense. meeting, three At this brought defendant, factors which the case within was scheduled First, Massiah rule. the informant was defendant statements. paid acting and was under the instructions Although “body-wire” recordings Second, government. the informant meeting Moulton made at arranged represented himself to the defendant as no defendant, apparently for the Third, more than a fellow inmate. the de purposes gathering information concern- custody fendant inwas and under indict *5 ing anonymous protecting threats and of emphasized surrepti ment. The Court the witnesses, the Court the held that Sixth government’s acts, tious nature and Fourteenth Amendments barred admis- psychological the inducement “to reach for sion of respect pend- the statements with to Further, aid” inherent in confinement.2 ing, charged crimes. the noted that Court the conversants were The Court viewed the fact that the state acquaintances, more than mere and that advantage took of the circumstances as gained the informant had Henry’s confi significant. particularly The Court ex- 274, 12, at dence. Id. note 100 S.Ct. at plained: 2189, note 12. The Court concluded that The guarantees Sixth Amendment the government the ac- intentionally created a cused, after “likely situation to the at least the initiation of for- induce” defendant to incriminating charges, right make mal the on rely statements without to counsel counsel, the assistance of and that this act as a “medium” between him and the right violated the defendant’s to above, counsel. guarantee State. As noted this 274, Id. at 100 S.Ct. at 2189. includes the State’s affirmative obli- gation not act in to a manner that cir- Supreme Two recent United States Court protections cumvents the accorded the cases have refined the Massiah rule. In by invoking right. accused The this de- Moulton, 159, Maine v. 474 106 U.S. S.Ct. particular by termination whether action (1985), 88 L.Ed.2d 481 a divided court agents right state violates significant (1) the accused’s resolved two issues: whether to of the assistance counsel must be applies Massiah even if the defendant ar ranges Thus, meeting light obligation. made in this during the in the made; (2) the criminating Sixth Amendment not violated statements are “good-faith” exception by happenstance whether luck or to the whenever— State —the exists, predicated other, rule legitimate incriminating on obtains statements surveillance, reasons the right such as con from the accused after to coun- tinuing investigation of criminal sel activities. has attached. [Citation omitted.] There, approached However, a codefendant knowing exploitation by state au- suggests requirement, In the instant case the "custody” state a distinc This is to read a where, here, prerequisite which is a Miranda Amendment. Massiah was in to tion must made the attachment the defend rights, into this of the Sixth branch custody incriminating ant was not in when no sense in Supreme were made. statements The Court ad custody at the time of his conversation with argument Henry. Referring dressed a similar Rather, his codefendant. of the fact believe factor, Henry’s incarceration as a relevant custody on Government bears whether the Court said footnote 447 U.S. at 100 "deliberately elicited" the state- S.Ct. at 2188: Henry. ments from

543 counsel at had not attached the time the opportunity State an confront obtained, being present simply accused without counsel evidence was because time, is as much a breach the State’s obli- charges pending other were that gation right not to circumvent unnecessarily pub- would frustrate the as is the inten- assistance counsel investigation lic’s interest in the of crimi- opportunity. tional creation an such Consequently, nal activities. incrimina- Amendment is vio- Accordingly, the Sixth ting pending pertaining statements lated obtains incrimina- when State charges are inadmissible at the trial of ting knowingly statements circum- charges, notwithstanding those the fact venting right to the accused’s have coun- police investigating that present sel in a confrontation between crimes, if, obtaining this evi- agent. the accused and a state dence, violated the State Sixth (emphasis 106 487 add Id. S.Ct. at knowingly circumventing Amendment ed). accused’s the assistance of counsel. rejected argument

The Court also suppression of the evidence was not 179-80, (footnote Id. at at 489-90 106 S.Ct. required legit- because the had other omitted). imate reasons for the conversa- year Supreme One later the re Court acknowledged, tion. as it had in passive listening turned to the issue of Massiah, passive listening pur- for the reached different result. Kuhlmann pose investigating uncharged crimes is Wilson, U.S. S.Ct. permissible. But Court held that the (1986), reported L.Ed.2d 364 a cellmate Sixth Amendment limits use of the *6 statements the by made defendant. The information obtained. The Court reasoned: trial court the found that defendant’s state police The have an interest in the thor- spontaneous. ments were and unsolicited ough investigation of crimes for which The Supreme Court concluded that this charges already formal have been filed. finding by supported was the record. They also have in investigat- an interest Hence, the confronted Court was with the ing new or crimes. Investiga- additional living “listening post” by alluded to tions of either type may require of crime majority in Henry, United 447 States surveillance of already individuals under 271, 9, 2187, U.S. at 100 S.Ct. at note note Moreover, indictment. law enforcement by Rehnquist 9. As Justice foreshadowed officials investigating an individual sus- see, in his in dissenting opinion Henry pected of committing one crime and for- Henry, supra United note States v. mally charged having with committed an- J., 100 (Rehnquist, S.Ct. at note 9 obviously other crime seek to discover dissenting), in held Kuhlman evidence useful at a trial either crime. merely a defendant’s reporting state In seeking pertaining pend- evidence to ments does not the Sixth Amend violate however, ing charges, the Government’s “Rather, ment. the defendant must dem investigative powers by are limited police onstrate and their informant that the Sixth rights Amendment of the accused. action, merely listening, beyond some took To allow the admission of evidence ob- designed deliberately that was to elicit in tained from the accused in violation of criminating remarks.” Kuhlmann v. Wil his rights Sixth Amendment whenever son, supra 477 106 S.Ct. at U.S. police alternative, legit- assert an imate reason for their surveillance in- primary The Court that “the vites reiterated by person- abuse enforcement law line nel in concern of the Massiah of decisions is the form of investiga- fabricated interrogation by investigatory secret tions and risks tech the evisceration of the right niques equivalent Sixth recognized Amendment that are the direct in hand, police Massiah. On the interrogation.” to exclude 477 U.S. at pertaining charges illustrate, evidence to as to S.Ct. at 2630. As these cases the Sixth “deliberately Amendment standard of elicited” Massiah broadly applied has been to bar regard, incrimina ments. In this we find the Moul- ting presence particularly statements made outside the helpful. ton decision spon of counsel unless such statements are Although the instant facts are remarka taneous and unsolicited. At least one com bly Moulton, similar argues the state suggested mentator has that the Massiah distinguishable that Moulton is on two replaced by “likely formulation has been First, grounds. Moulton, police Note, to induce” standard. See Criminal knew as a result of provided information Eliciting Meaning New Procedure — from by informant that the meeting recorded Eliciting” “Deliberately v. Moul —Maine purpose was for discussing ton, (1986), 21 Wake Forest L. Review 1093 charges and the conversants’ defense. Sec see Henry, supra also United States v. ond, the Moulton informant induced in (Blackmun, J., atU.S. 100 S.Ct. at 2190 criminating statements repeatedly dissenting). feigning lapses memory asking and

Moulton to review the crimes. While we exist, must admit that these distinctions do B dowe not find them determinative. case, judge In the instant the district Moulton, Currington Like ruled that the recorded was free on statements Moulton, As appar- bail. admissible because was not in informant custody made, ently provided when the with device statements were and paid investigat- Cochran was not a instructions as a means of informant directed However, ing interrogate Currington, threats. the conver- was aware relationship sations between Currington. were initiated informant, that, judge just district informant. Since the Coch- stated “the state ran, was one of advantage Currington’s principal took alibi that situation.” We witnesses, relating Curring- discussions ruling note that the trial court’s in this prior expected. Clearly case was ton’s defense were to pronouncement Supreme knowledge the state was not Court’s without decisions Moulton might statements result. Kuhlmann. *7 Nor be can it said that acted Cochran Clearly, none of these factors merely “listening post.” as a Even assum- ques alone would be determinative of the ing Currington that initiated the conversa- tion whether the in this ease was active, in question, tion Cochran was an admissible. The defendants in Massiah passive, participant. portion The recorded custody. Moulton were not in See slightly of the conversation lasts ten over 2, And, note by illustrated Hen infra. During period, minutes. Cochran this Moulton, ry the Sixth Amendment approximately twenty questions, asked may apply, although the defendant initiated likely some which were to elicit incrimi- conversation, the if exploited nating example, statements. in re- For relationship or a set of circumstances sponse by Currington a statement that likely where statements were check, recently he had received Cochran to be made. in Apparently Moulton pay- asked about the amount what the formant cooperating was also with Currington was When expressed ment for. state for com monetary reasons than appearance some concern over a scheduled pensation. Therefore, do not find the court, in quizzed why Cochran him about compensation lack of to the informant de Currington he was what worried and about terminative. thought “going up to come in court.” was Instead, surrep it is problem inquired Currington Cochran also about interrogation by agency money titious paying created some which Cochran claimed permeates Therefore, him; which these cases. was “due” later in conversation question we now confront the in central told Cochran Cochran case, is, this grand coming.” pressed whether state “de “five Cochran liberately elicited” state- con- for the substance of some among the mem continuing disagreement Currington with third by versations held Supreme States Court. of the United questioned Cur bers Finally, parties. Cochran supra, See, Henry, v. e.g., States if Coch United happen rington what should about (Rehn at 2196 100 S.Ct. 447 U.S. prosecutor. subpoenaed ran was J., Com dissenting). generally See view, quist, role in this Thus, Cochran’s in our ment, Exclusionary Amendment Sixth to “the functional amounted conversation Counsel, Right Stepchild in Rule: interrogation” described equivalent However, (1987). 24 Hous.L.Rev. 765 Powell’s concurrence II of Justice Part con majority rule as set forth Moulton Henry, 447 v. United States Henry. See acts where the state tinues to be that even Compare 100 S.Ct. at 2190. U.S. faith, must be exclud good the evidence Innis, 446 U.S. Rhode Island the defend (1980) if in violation of 1682, 1689, ed obtained 64 L.Ed.2d 297 100 S.Ct. Therefore, rights. Amendment ant’s Sixth Fifth and Sixth (noting distinction between oy admitting See, the trial court erred we hold “interrogation”). e.g., Amendment incriminating statements Moulton, in evidence the 474 U.S. at Maine v. informant, procured by the state’s Cochran. S.Ct. at note 13. alternative, the state con In the D agent an of the tends that was not Cochran contend, state does not nor therefore, and, his acts are not attrib reasonably argued, this it could sup utable to the state. There little was harmless. See I.C.R. evidence Although al port argument. this Cochran testimony and introduc Prior to Cochran’s legedly approached police protec prelimi recording at a continued tion of the services, paid and was not for his he tion pre nary hearing, hearing judge was acting pursuant to instructions from pros charges. As the pared to dismiss attorney’s employee prosecuting an closing ecuting attorney during ar stated recording. office when he made the Fur guments jury, “Perhaps the most ther, equipment provided he utilized Curring devastating against evidence Mr. and, according that office to his own testi during admitted the course ton that was mony, promptly tape after he returned the phone call between Mr. the trial is that making recordings.3 these cir Under Currington and Mr. We con Cochran.” cumstances, we do not find the lack of not harmless. It clude that the error was monetary compensation signifi particularly disregarded. Currington is en may not be making cant. We hold that when the re trial. titled to a new cording, acting agent Cochran was as an whose acts are attributable the state. *8 II stated,

As the trial “took court the state that Having reached the conclusion advantage” of the It is circumstances. must be set judgment of conviction knowing exploitation that which Massiah aside, upon necessary pass for us to it is and expressly the Sixth Amendment forbid. may at a which arise those other issues only such new I.C. 1-205. The trial. See § C Currington’s claim that presented issue is Having that reached the conclusion process due when the he was denied Currington’s constitutional to counsel gathered in the fire lost certain evidence “interrogated” was violated when he was investigation. by an individual not known to him be an to state, investigators removed agent of the fire we next must determine One the floor of requires samples carpet of from whether law exclusion of that three the fire. La- Currington’s evidence. This residence after issue has been a matter of trial, appears original to tape Our we note that there examination of the record- introduced at be no ing distinguishing favor actually factors which would indicates that two conversations Although recorded conversa- were recorded. concerned of the second are admittance tion, only with that trial. recorded conversation which was at a new ter, Here, samples at these were tested has not shown that de- presence laboratory for the of “ac- carpet forensic samples deprived struction of the which increase celerants” —substances opportunity anything him of develop an to burning rate of other materials. The tests other already than what state had es- presence to show the accelerants.4 failed negative tablished—a test for accelerants. samples following were lost the labo- Consequently, he has not satisfied either ratory tests. exculpatory the test of or value the test of conclude, materiality. therefore, samples contends that these We potentially exculpatory evidence missing samples were not material to independent he an op did not have Currington’s defense their loss did not portunity to to examine. We fail see how deprive process. him of due these be Cur samples would material to above, For the reasons stated the district defense, rington’s depriving him of due judgment convicting Currington court’s process by inquiry their loss. The initial first-degree arson of destruction of cases where evidence has been or withheld property hereby insured is vacated. Cur- preserved by not the state is whether the rington is to a new entitled trial. Case nature the evidence is known sufficient remanded. ly evi to allow a determination materiality. dence’s State v. Leather See

wood, (Ct.App. Idaho 656 P.2d 760 BURNETT, J., concurs. 1982). Here the nature the evidence— SWANSTROM, Judge, dissenting. carpet samples purportedly showing nega sufficiently tive tests for accelerants—is I respectfully dissent from the conclu- question known. The next then whether my colleagues part In my sions of B. that evidence was material. Evidence is view the facts of are “remark- this case not raise, appears if material it to or would Moulton, ably similar to” those Maine v. raised, have concerning a reasonable doubt supra. significantly Here facts are guilt the defendant’s when viewed in rela they different and should lead to a result competent tion all evidence admitted from closely different that reached a trial. Id. 656 P.2d at 765. Where divided Court in Moulton. ascertained, materiality be duty can preserve Currington’s telephone call Cochran evidence shortly preliminary hearing before the has be might

must limited to evidence that be jn entirely an different context from re- expected play significant role meeting suspect’s To corded in Moulton where defense defense. meet this stan- Here, strategy materiality, dard constitutional evi- to be discussed. Cur- possess exculpatory rington’s dence must both an call he not shows that did know apparent value that was evi- against before the stood him whether Cochran with or destroyed preserved], dence was guard- him. [or statements were such a nature that suspicious obviously ed. He was defendant would be unable obtain him someone who hurt at trial had could comparable reasonably evidence attorney. prosecuting Cur- talked to *9 available means. and citation [Footnote rington feeling seemed to be out Cochran omitted.] to determine whether he the one. At Trombetta, Currington least three times indicated that v. 467 U.S. California 488-89, 2528, 2534, may 104 did who have S.Ct. 81 L.Ed.2d he not know Cochran (1984). may or Cochran have said talked to what performed complete 4. consumption The technician who ex- of accelerants in tests plained negative may that the result Although opined of tests fire. that his the technician (1) samples have been due to collection of prove of test conclusions did not the absence from areas in the house where no accelerants in connection with the accelerators otherwise fire, used, (2) had been level accelerants in testimony to the he offered no favorable samples below level that could be detected theory state’s of arson. tests, (3) instruments used or Currington. I would hold that there from happened.” It is true that “about what upon no intrusion questions. several How- has been asked Cochran ever, Currington’s rights. invit- Ac- Currington’s cryptic statements Sixth Amendment judgment affirm the questions cordingly, ed from Cochran. I would conviction. letting Currington point made a Coch- large sum know that he had received ran money a “settlement between apparent reference to

boys.” This was an According the trial Tony.”

“Jim Cochran, pre- Currington had

testimony of

viously frequently discussed his two associ- a Den- Currington had talked about ates. 746 P.2d through they

ver business “front” BROWN, Alan Jack Curring- large money. sums of “filtered” Petitioner-Appellant, be a suggested that Cochran could ton According well-paid “collector” for them. Cochrane, fire after IDAHO STATE BOARD OF Tony him about what Jim and talked to PHARMACY, Respondent. them; he would do if someone crossed No. 16590. mentioned, example they were ca- girl pable pouring acid on Cochran’s Appeals of Idaho. friend, permanently separating her or of be- from her child. Cochran testified that Nov. prose-

cause of these threats he went to the

cuting attorney agreed record Cur-

rington’s testimony, calls. This for what- worth,

ever it was stood unrebutted at

trial; helps explain implications it the full call to Cochran. tape recording of the call reveals know, Cochran, told “You you anything,

if haven’t said then I don’t get anything ya you

have to— know— ya.” Currington what’s due comin goes everything

it clear that “if smooth to,” supposed

like it’s would have Cochran grand” coming.

at least “five all of

this, sugges- there was a much more subtle

tion made to Cochran that he would have

something quite coming from different go boys” help things

“the if he did not hearing.

smoothly preliminary at the trusting

This one hardly the case of confiding in another. Nor is

co-defendant action induced the

this a case where state any

defendant make that he statements Here, the

otherwise would not have made.

only provide was to the means action recording Currington’s telephone call to context, questions

Cochran. Cochran’s

and answers characterized as cannot be

intended elicit statements