State v. Elisondo

ported to private authorize any business

venture company up operate to set

lottery in jurist, Idaho. As I op- would

pose such as amounting to very viola-

tion proscribed by our Idaho Constitution.

If the legislature 1989 Idaho should decide

to commemorate the one-hundredth anni-

versary of Idaho’s statehood and its Consti-

tution repealing the lottery initiative

legislation, that will be no concern of mine.

The view which as I see it is entertained

by Justice Bakes justices join who

his people cannot do

what legislature cannot do. That no-

tion has been addressed and sufficiently

dispelled, but nonetheless four votes beats

one even more soundly than three beats

two.

Justice Bakes is also seemingly of the

view that even the legislature state cannot

create a state-owned state-operated lot-

tery. What I have written should serve to

dispel that notion as well. It is not seen

where Justice attempted Bakes has to com-

prehend what the founding fathers were

stating by very their careful and select

сhoice light of words in particular of those experience times and the legisla- state Hoff, Caldwell, defendant-ap- Renae for tures which had private authorized lotter- pellant. ies. Jones, Gen., Minert, Atty. Jim David R.

Deputy Atty. (argued), Boise, Gen. plaintiff-respondent.

SHEPARD, Chief Justice. This is a review of the decision of the 757 P.2d 675 (State Appeals Elisondo, Court of Idaho, Plaintiff-Respondent, STATE of P.2d appellant aggra- Elisondo’s conviction for battery disposi- vated was affirmed. The ELISONDO, Richard here tive issue is the admission at trial of Defendant-Appellant. preliminary hearing testimony of an No. 17209. eyewitness to the crime. Prior to 1981 the prohibited decisions of this ad- Supreme Court of Idaho. preliminary hearing mission of such testi- June mony. 1988. In 1981 the then constituted Court overruled those decisions in Rehearing Petition for Denied (1981) 632 P.2d 663 July held that the admission of such hearing testimony was not error. In the instant case the Court of followed the decision in Mee and affirmed the convic- Potter, 57 P. 431 Idaho in v. Today the decision tion. we overrule Evans, 2 Idaho conviction, Territory v. Mee, overruling the supra, reverse (1890). agree. We 23 P. 232 proceedings. and for further remand to Vil- proceeded overrule The Court then the uncle of victim the was .crime and Potter. larreal Elisondo, 74-year-old Cruse Gal- appellant severity of indo. The circumstances and indulged in considera- In Mee the Court opinion Potter, in the the are set forth the crime to in as the facts ble discussion Appeals perhaps and are also Court of Potter Court was out that the pointing imposi- by witnesses, the trial court’s demonstrated “depositions” of dealing with 14-year indeterminate sentence. tion of on the asserted viola- its decision and based hearing, testimony At preliminary the clause of the Unit- of the confrontation tion given by the Galindo the defend- victim and in Mee ed States Constitution. Martha, and the defendant’s ant’s sister decisions of the correctly analyzed the Christina, daughter were Court, both of whom hold Supreme States United to the crime. witnesses clause of the United the confrontation when is not offended Constitution States Although subpoenaed, the defendant’s preliminary a witness at a testimony of testify appear to sister Martha failed trial certain hearing is later used at under to of the locate trial. efforts State i.e., circumstances, is un- witness witness, produce whether the good efforts trial and faith available at good ef- State made “reasonable faith made to secure attendance at have been fort” of Martha to secure attendance sufficient indicia and that there exists set in amply are forth the decision of reliability. See of trustworthiness Appeals. The of a Court of issue witness Roberts, v. supra; v. Ohio being spite in California “unavailable” State’s Green, 90 S.Ct. 399 U.S. “good presence at faith effort to obtain his (1970). L.Ed.2d 489 trial,” by in majority was raised Mee, to related asserted violation any atten- gave Mee little if The Court in thе confrontation clause of sixth this Court previous decision of tion to amendment the United States Constitu- Villarreal, supra. The Court v. State Roberts, 56,100 tion. See Ohio v. that the sole basis Mee inferred S.Ct. 65 L.Ed.2d 597 Since pre- was the Court’s decision Villarreal on con- today our decision is based Potter, supra. v. decision State vious frontation clause of United States Con- peremptorily over- in Mee then The Court stitution, Mee, fur- and since we overrule ruled both Potter and Villarreal. unavailability ther or decision discussion Roberts, arguably supra, and Ohio despite good faith of the witness asserted Green, suggest that supra, California State, unnecessary. efforts of safeguards certain the satisfaction of by As stated the Court of its pre- at a testimony of a taken witness opinion in the instant case: hearing is at trial and liminary admissible Mee, departed In the Court con- procedure not offend the does such practice by condoning 80-year-old Idaho Con- of the United States frontation clause preliminary the admission at trial of the hand, are cited On the other we stitution. re- hearing testimony of witness who Su- authority no of the United States to despite testify at trial reason- fused court, Court, holding other preme by efforts the trial court and able prohibition introduction of such that the testify. state to have her somehow preliminary 3-2 In this Court stated in its decision: United the strictures offensive to fact, court in Constitution. of States

Appellant contends that use that the points out both Green and Roberts hearing testi- Miss Priest’s make their own deci- remain free to states mony was foreclosed State Villar- violating the con- area without real, supra 486 P.2d 257 sions [94 Constitu- of the federal case frontation clause (1971)], predecessory and its tion. As stated Chief Burger Justice in customarily prosecution demolish the special his concurrence in magistrate’s Green: “I add court” it is assumed only emphasize this comment impor- indulge most to be a tactical error to allowing tance of States experiment extensive prosecution cross-examination of and especially innovate “may easily area of witnesses since such crimi- amount justice. grant nal If to a gratis discovery new standards proce- and to the state.” Brennan, dissenting dures are tried in See one State their J. in success or California Green, guide supra. failure will be a As noted in the in to others dissent and to Congress.” Mee: Until today it has been deemed advisable In Mee the Court noted that Idaho was prosecution, the the the defense and minority then a distinct of the states in granted pre- courts that an accused be a prohibiting testimony. such agree. We liminary hearing at very early point a Nevertheless many we note that Reflecting time. the the concern of jurisdictions decisions of other are based court is Idaho Criminal Rule 5.1 indicat- only upon alleged the violation оf the con- ing custody, if that an accused is in a frontation clause of the United States Con- preliminary hearing must be held “in stitution, and policy do not deal with con- days following event not later than 14 may siderations which dictate the need to request preliminary defendant’s for a prohibit the of preliminary admission hear- hearing,” custody and if not in “no then ing testimony of a witness. days later request than 21 after the for a preliminary function of a hearing in hearing. preliminary Idaho is to if an determine offense has standpoint From prosecu- committed, and further if there is tion, clearly to, it is undesirable at the probable cause to believe that the crime preliminary stage, conduct an entire was committed the accused. State v. only present rather it is better to Ruddell, 436, (1976); 97 Idaho 546 P.2d 391 satisfy probable such as will evidence 249, v. Haggard, State 94 Idaho 486 P.2d requirement, cause thereafter file (1971); Linn, 430, 260 State v. 93 Idaho prepare go then information and for and (1969); State, 462 P.2d 729 Freeman v. quickly possible to total trial as to be (1964); Idaho 392 P.2d 542 State v. consistent with accused’s Bilboa, 128, 190 (1920); P. 248 see speedy trial. From the defense stand- Linn, I.C.R. 5.1. also As stated case, point, prosecution if it has no supra, 93 Idaho at 462 P.2d at will be in its failure sustain discovered hearing preliminary is in no sense a “[a] showing probable its burden of cause require trial and therefore it does early will and the accused be free at an formality precision same observed at a time. Green, In suрra,

trial.” California anticipate If an must that accused U.S. S.Ct. at was stated: he may his ultimate trial be faced “In most prosecutions pre ... criminal prelimi- with taken at the liminary is conducted examination as a nary thoroughly pre- must hearing, he be perfunctory proceeding rather uncontested pared preliminary hearing. at the Clear- only likely one order with denouement—an de- ly discovery all holding the for trial.” defendant Thus a completed prior to the fense must be preliminary hearing proceed a truncated hearing presumably all preliminary relatively ing conducted in a informal man physical or for or a suppress motions to for purpose ner which the to make a mental examination and the like should cause, finding probable as contrasted upon prior and ruled have been made guilt beyond with establishment hearing. preliminary The defense reasonable doubt. to, presently as is would not be able preliminary hearing customary, the defense has its cross-examination At a reserve brief, result prosecution for the time of trial. reason to little cross-examine hearing procedure would preliminary “only lawyers television witnesses since case, years ten duplicative and then largely time and effort Villarreal join spent subsequent of that at a trial. I one later forces Justice month thorough I prepa- doubt the increased Bakes overrule it in the Mee cаse. hearing preliminary Shepard’s ration can be dissent Mee joined Justice case, today pleased conducted within time constraints I am to vote for the Villarreal, present policies. equally our rules and I just as was return to v. Palos gratified Cheney Verdes erred in We conclude the Court 665 P.2d 661 Corp., Inv. supra, when authorized Shepard turned the Court Justice introduction of the tes- path righteousness when back into the timony at trial. a witness not overruling step he took final of Cox ‍‌​‌​‌‌‌‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​‌​​‌‌​‌‌​​‍v. Hence, we overrule State v. Mee 683, 496 P.2d 682 Stolworthy, 94 Idaho our extent is inconsistent with decision 904, (1972). supra, 104 Idaho Cheney, today. emphasize our We decision and Stolworthy, P.2d at Cox today is on an not based asserted violation case, companion Jolley Puregro, its of the confrontation clause of United (1972) 702, Idaho 496 P.2d 939 were both Constitution, indepen- but States rather departures long-estab- aberrational dent a state its own to exercise lished case law which were not solic- Idaho area, authority view in this and our parties ited who were before public policy require considerations such Court, I purely were a result what but this determining decision. In whether deci- tinkering by judicial as the au- denominate apply prospectively sion should retroac- legal judi- thors that which writers call tively, weighed purpose we this appellation the rule, cial activism. Under either reliance trial new of our courts pastime improрer activity ap- for Mee, is an prosecutors on and the State v. court, pellate especially sought. when not effect of this new rule on administra- Whitman, justice. tion of State v. 96 Ida- exactly way I the same when felt Villar- 489, 491, ho 531 P.2d We needlessly in Mee’s real was overruled Mr. apply conclude only that our decision shall My case. own caution extended there was i.e., case, to prospectively, this to future generally and that the trial bar the liti- appeals, appeals pending and to now in gants in criminal cases fare better if would which similar was admitted. long-estab- not Court did interfere illuminating any The conviction is lished case law absent rea- reversed cause proceedings. doing remanded further son so. at 102 Idaho for Mee at 675. P.2d BISTLINE, HUNTLEY and peruses The interested reader who Cole- JOHNSON, JJ., concur. Alabama, 1, 90 S.Ct. man v. HUNTLEY, Justice, concurring. (1970) find a 26 L.Ed.2d 387 will discussion preliminary involving proce- the Alabama majority opinion I concur in the and fur- (which appear dures as in to be same ther note even were the law be as Idaho) language which is much the same Bakes, stated the dissent of Justice 70-year as then from the old Potter case reversal of the conviction would be re- Shepard quoted again Justice Mee quired not because witness was “un- as he had Villarreal: explained more fully available” as every lawyer as When we recall who has separate opinion Justice Bistline. any experience extended law Justice, BISTLINE, specially do, practice may very perfunctory how concurring. are, these examinations only part prosecution, of the

I. frequently, necessity, more on defendant, I found it difficult to understand how the uncharitable- apparent. always Donaldson ness of the rule is It is Justice McFadden Justice prosecution, join Shepard's policy prelimi- in Justice could examinations, nary only carry its in- Majority Op., p. 676. What the Court of vestigations to the necessary extent to Appeals say did not was that in Mee the holding defendant; secure the departed from an 80-year old it is seldom that defendant feels war- practice by upholding the trial court’s ad- going ranted in fully into his defense mission of preliminary hearing testimo- upon a preliminary examination before a ny. my book there is a world of differ- court, where only required it is that it ence between court upholding against shall be made to appear that the offense a court condoning. Any dictionary defini- committed, named has been “and that tion of condone will sustain that assess- there is sufficient cause to believe the ment. general usage, It is a word defendant to have guilty thereof.” Appeals its use the Court of had to Id., 94 Idaho at 486 P.2d at suggest reasonable mind that a quoting Potter, supra, 6 Idaho unanimous Court of was less than 57 P. at 432. change enthralled with the in the case law 474, 486, 632 P.2d of Idaho wreaked majority. the Mee 663, 675. That court went on explain, “Heavily

relying arguments raised in the dis- senting opinions, Elisondo invites us to re- II. ject Mee. We decline the invitation to do It is understandable that Justice Bakes Regardless so. of the merit of those dis- would rise to opin- the defense of the Mee senting opinions, we adhere must ion, and at the same time attack the Court’s determination of the matter.” Regrettably, Chief Justice. how- Elisondo, 815, 817, 736 ever, sustainable, that defense is not and 867, P.2d (Ct.App.1987). the attack unjustified. So burdened with Ap- Mee the Court of overruling Because of the of Mee and the peals then made its review of the record Villarreal, return to the Chief Justice has and found no trial court having error in written that “further discussion or decision allowed into evidence the of an unavailability despite of the witness as- brought absent witness who would be into good serted faith efforts of the State is very shortly courtroom jury after the unnecessary.” 676). (Majority Slip Op., p. trial had ended. my view, In the content of Justice Bakes’ requires Moreover, dissent response. The Chief Justice in his Mee dissent had trial bench and bar are entitled to more raised unseeing eyes before his well-con- enlightenment good as to “the faith ef- well-expressed sidered and caution as to forts” of the State to have its witness majority opinion the effect of the Mee over- giving at trial for the of live testi- Villarreal, ruling it, “saying of mony jury whereat the can assess its verac- erroneous and will result in substantial and ity credibility seeing on a far-reaching damage system to our of crim- petitioned basis. When we were to review Mee, justice.” supra, inal 102 Idaho at Appeals’ opinion, my Court of attention 484, explained 632 P.2d at 673 He immediately para- aroused 486-87, length. 102 Idaho at See graph quoted which the Chief Justice in P.2d 675-76. Court, today’s opinion for the which for foregoing predictions views ease of reference is: fully proven Shepard Chief Justice were departed the Court from an rulings true and vindicated practice by 80-year-old condoning Elisondo, trial court in and affirmed the admission at trial of the Appeals. Court of hearing testimony of a witness re- who The Court of its assessment testify despite fused to at trial reason- prosecution good faith by the trial court and the that the had acted able efforts available, testify. attempting to have her to have the witness state She’s not checked our office. leading up timing the events ignored the here. to trial:1 Therefore, pursuant to Idaho Code filed February 1985 Information 710,2I ask the Court 9-709 and Section April trial on March 1985 Set for for her arrest for to issue a warrant stipulation of counsel court By of a I’ll sub the attachment witness. 27th trial reset for June warrant to the Court. mit the bench affidavit May 1985 Cruse Galindo’s Very well. COURT: 1) (see filed footnote 27,1985 session of At the afternoon June subpoena has 1985 Prosecutor

June following occurred: court the appear Elisondo to Martha issued Hоnor, at this MR. Your MORROW: at trial on June Martha Eli- I had intended to call time Court convenes for June next witness. As sondo as the State’s following occurs: and at 9:46 a.m. the knows, she was served you prepared Are now to COURT: appear ap- and has not subpoena in the Elisondo Case. proceed a war- The court has issued peared. Yes, Your Honor. MR. MORROW: get her here. rant Yes, Honor. HOFF: Your MS. Deputy just spoken with Van- I’ve you Judge, did MR. MORROW: attempting to locate scoy who’s been of State’s up take the matter day, want to he has throughout her all at this time? witnesses so. unable to do you your propose witness- to do at this Do What I would COURT: testimony of introduce the es? time is to provide some information about, ness Vanscoy was crucial and aware since follow ple that come to court of her to She Deputy MR. MORROW: He learned is parked to the State’s 5:00 a.m. this in her to the fields subpoena missing she had left two my see whether she was today’s Vanscoy material and the Sheriff’s Office being judgment is an near her house to through talking with this or not. last trial. Martha has been morning, and can Judge, I have one case, was served morning, initially week necessary days to the Court Elisondo. keep absolutely in Parma going to Leonard ago and is try to I track peo- wit- do, the victim. that the ing transcript at trial. Russell Martha Elisondo witness Deputy Rule hearing transcript. mony der Idaho—or rather been described quest by the And further I would ^[*] material and eyewitness conсerning the Vanscoy for some short Martha testimony of ^[*] deposition, also use of a State, I to the events that have in a ^[*] purport Elisondo. necessary. She was from the support way by Mr. I would do so un- would and State ^[*] Martha Elisondo unavailability of Idaho Criminal to the Court preliminary of this re- like to call ^[*] versus Galin- hear- testi- ^[*] Oregon. Q you relate to the Court in the State of Would apparently while that that occurred the events certainly here. I’ve She’s place, please. taking service was morning. She this the halls checked to I for Martha Yes. waited A subpoena at 9:30. under due here there, employ- to work come from back clock, I’ve it’s 9:53. By court’s her in her car. I served er’s house. corridors hallways and the checked the against the mo- Ap- trial court ruled accident. The Court of giving mention in the Not 1. tion. alleged vic- motion of the peals is the Galindo, form, tim, to dismiss in affidavit Cruse 9-709, the Code of are 2. I.C. 9-710 §§ affray an was all prosecution because the Procedure, since and have been so Civil courtroom, paper, gave I then advised the Martha —I served the court pertinent part: copy, jury her her her what date to be told court, what time what person A by the name of COURT: charges were for. alleged Elisondo is to have Martha been longer to eyewitness me she was no the event which is set She advised incident, pa- I to threw the forth the Information that read involved this you. per out of the car. presence jury, picked put

I it in the baсk- Outside of this up and duly Deputy her constituted Sheriff of Can- seat and advised her—re-advised County this yon in court on June has testified before that she was to be personally he her with at 9:30. Court that served 27th was not there. that? attempting way to er’s house Martha Elisondo ing. block down the road to the—in [June again out, 509 Grove A We checked her residence. She We A A Q Q Q She drove ^[*] threw And And when did Yes, Now did Approximately went and drove work, ^[*] 1985] what did Street, sir. down hoping ‍‌​‌​‌‌‌‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​‌​​‌‌​‌‌​​‍away, could not locate locate her? ^[*] you paper to where away. today stopped her you to went attempt you 5:30 this morn- ^[*] catch her on do in about a half being doing her this date? ^[*] regard front of car, employ- ground her. locate ^[*] her got cers) play of a on June until reported to demonstrates since rectly grasped The trial her since left, out ahd threw down on the that after ness cessful tance appear. believing information subpoena subpoena June 21. To the had been the date earlier this in this in those very wholly non-cooperative attitude And, judge apparently misunderstood they the trial no then where he served that, notwithstanding driving briefly on June case, trying further presented morning appear “they” incident of fact, and have been efforts. and she judge. contrary, the record to locate her at this morning (the action but was to him. trying officer testified —a Sheriff’s the service of the has failed to her, time and on ground was taken brief as a wit- trial, as to locate in error He cor- her she unsuc- again offi- dis- dis- got for her vehicle. I then checked town design prosecution If the the to it was locate that. I was unable to not certain that Martha Elisondo was make spoke people few and We had to a en- present exactly the non-action working she was in the Roswell said accomplish admirably that gaged would area up I went to the Roswell area. a sher- It is difficult conceive of result. to of the in the talked to one fields who experience of even limited iff’s officer boss, her crew that had hired farmers prosecutor’s have advised would today, crew she was not in the Elisondo. the run-in with Martha office of in the area for a had not been seen she up prose- equally conjure difficult It is to days couple now. proper taken cutor who would not have information you any Q Did have immediately to that such steps ensure may the state? have left she that be and hostile would reluctant witness my directly, sir. Just Not especially A present at where trial — thinking that she has an judgment witness “is prosecutor’s left. nec- absolutely further crucial and material I have no MR. MORROW: to case.” essary witness the state’s questions. Rules 46.1 of the Idaho Criminal Rule ruled court prosecution, and not admitted, to the available testimony was would be trial to the an excuse was offered to the shred of jury had returned p.m. at 2:07 judge earlier, for the failure to actuality, pointed have used it. Mar- In out clearly tha had subpoena Elisondo demonstrated her recipient was served. But the contempt subpoena for the crystal-clear which was it made that she would not 21; served her on June respond. she threw it Hence it cannot be said that a ground. serving In the words effort “reasonable was made” to have the officer, she made it known that she was witness the trial. Rule 46.1 having nothing prosecution to do might just with the as well never been written. charges against aware, prosecution her brother. previous And was short, may she had serving shown—“not that to Martha Elisondo with the sub- “impractical father, become”—but that it poena, alleged was that her victim of presence assault, secure by subpoena her already away for ... had backed trial.” prosecution perforce and would be an unimpressive and reluctant witness. contemplates

Rule 41.6 that exact situa- tion. Moreover, the trial court did not reach point specifically ruling good

Rule that a 46.1. Bail for witnesses. If it appears by faith effort had been made to testimony affidavit that the have the person Instead, any is material in witness available at trial. the rul- proceedings ing simply and if it is made may shown that it that “a reasonable impracticable become pres- secure his effort was made.” One effort which was by subpoena trial, made, ence for a hearing or successfully, was that of service of may require the court such witness to subpoena. A futile effort was made give appearance bail for his as a witness the officer on morning of the trial to in an amount fixed Elisondo, court. Such locate Martha but the officer had may deposited bail in the same man- with him no bench warrant! Where has person ner as bail for a charged under by anyone to be conceded that the witness person Rule 46. If the give fails to bail going was not to come to court—as wit- appear witness, as a may court morning nessed the officer’s of trial him custody commit of the sheriff her, effort to locate such did not in pending disposition final proceed- way showing constitute a of an effort to ings in which his is needed.3 produce her in the courtroom. For certain good there was no per- faith exhibited in The brief of the state which was sub- forming a futile act. On the morning of mitted to the Court of states at day trial, then, prosecutor for the page 9, [prosecutor] “The argued state obtain issuance of a bench warrant adequate it had made an showing that Mar- almost ludicrous. tha Elisondo was unavailable and that a good faith effort had been made A reasonable effort to serve the witness attempt points to locate her.” The brief to done, subpoena, with a which was and a the trial ruling: court’s witness, last minute search to locate the my prop-

There’s no doubt in mind that a coupled with a last-minute issuance of a predicate er admissibility. is laid for prеsenta- bench warrant for her arrest and Supreme And based Court deci- court, tion simply does not up mount sion in Russell good to a faith effort on the of the 663], 474 P.2d it’s admissible. [632 prosecution to have that witness be a live Efforts have been made to In serve. witness the courtroom. And the trial fact, Yet, judge of the officer is that did not so rule. here is what throwing away there was a deliberate Appeals opinion the Court of transformed subpoena. “Here, obviously, So a reason- those circumstances into: based on made, able was undisputed testimony this case has Vanscoy, of Officer effort decided, and it can be admitted be- the trial court concluded that a reason- jury. added). (Emphasis fore this good-faith able was made to secure effort goes provide may length 3. The rule days on to that the court an unreasonable of time. Six until order release of the witness if he is detained trial would not amount to such. appeal, sions of the Confrontation Clause On we the attendance Martha. ruling in the of a uphold will this absence majority here Federal Constitution transfor- of discretion.” That clear abuse up merely set and demolished a straw ruling simply is trial court’s mation of the opin- There no reason for that man.” was to justified, ought not be allowed ion, reasoning into it. A fine and no went stand. cases, yes; any on federal dissertation exposure law Long, long before existing application realistic to our school, my understanding that it was judges The district procedure, criminal no. held for witnesses could be Idaho material here, recognized, they were bound make In law they unless could bail. Appeals recognized by Mee. The Court of that this is so most school we learned it, too, Mee, “Regardless was bound informs us Counsel for Elisondo states. dissenting opinions, merit of those Canyon practice not unknown in that the are incompatible was with what ...” Mee filed in In 4 of her brief County. footnote practice. the realities of the law by this support petition of her for review opinion pointed to Ohio v. Rob- Mee Court, even as she was she states that 2531, 56,100 erts, 65 L.Ed.2d 448 U.S. S.Ct. in this writing seeking review brief (1980) that “unavail- proposition for the 4, Court, had held p. prosecutor’s office prerequisite to ability is a Constitutional weeks, Jail, County Canyon prior testimony against a de- admission alleged murder—all witness to an material 480, at trial.” 102 Idaho presence fendant the better to insure relevant to judicial proceedings witness went on to P.2d at 669. The Mee it is also alleged murder. that brief Roberts, “A witness is not ‘un- quote from the one and one-half pointed out that after prosecutorial au- unless the available’ ... by sentencing Friday, on day trial followed good made a thorities have faith effort 1985, witness had the recalcitrant June 102 Idaho at presence at trial.” obtain his brought into Court been located P.2d at 669. 2, 1985, of which and admonished—all July record which shows thаt the We look at a unknown until to defense counsel was prosecutorial au- total effort of the sum pp. appeal, record on surfaced in Elisondo’s case was obtain thorities is not on the bench warrant The return and, subpoena thereafter of a record, likely spec- the issuance counsel and defense witness, we, had ulates, knowing what the officers of the reluctance of as must success at dis- say as to their belated morning nothing further until on the do inquiry was made of covering her. No for the arrest a bench warrant trial when any statement nor did he make prosecutor, obtained. the witness was minutes reflect. as the court insofar Green, 399 Long before California present. prosecutor 26 L.Ed.2d 489 90 S.Ct U.S. of the Court here was a decision Truly, 719, 88 (1970) Page, and Barber deserving of review. Appeals which was the Su- 20 L.Ed.2d S.Ct. presented review petition for appeal Idaho ruled an preme Court of to reconsider opportunity degree murder acquittal in a first from an thereof, prompted reasoning, or lack wit- deposition of a material charge that case, to overrule Villarreal this Court prosecu- inadmissible unless ness was precedent destroying case-law thereby show, or absent as to a live tion could well the and served had endured witness, diligence had exer- due been “that justice system since criminal people presence of to secure the in an effort cisеd majority the Mee re-reading A of 1889.4 v. Zarlen- at the trial.” State said witness assessment of drives home opinion (1908). P.2d 55 94 ga, “In its discus- Shepard: by Justice made century. vintage being nineteenth of by margin of seven dissent Bakes in 4. Justice case as the Potter to refer to is able months

421 op the accused has an in in which deposition is admitted evi- witness Before such only testing the recol portunity, not dence, further prosecution should sifting the conscience of lection and is unable to attend show that the witness witness, compelling him to stand but of death, infirmity, sick- by reason his jury with the in order that face to face ness, insanity, or of his absence from or him, by his they may judge look state, diligence and that due has and the manner demeanor the stand procure in an been exercised effort testimony gives he his whether in which presence witness at the trial. said worthy Mattox v. he is of belief.” Unit shown, facts have When these been 237, 242-243, 15 States, 156 U.S. S.Ct. ed may then in evi- deposition be admitted (1895). 337, 339, More re 39 L.Ed. 409 in dence. These facts were not shown cently, holding in the Sixth Amendment case, no and the court committed applicable to the right of confrontation refusing deposition in to admit error Amend through the Fourteenth States in evidence. of said witness said, ment, “There are few this Court Zarlenga, 14 Idaho at 94 P.2d perhaps, upon which this Court subjects, added). (emphasis at 59 nearly more and other courts have been statutory provisions All of the related expressions than their unanimous Zarlengа opinion have been of confrontation and belief that practice parcel of the criminal act since an and fun cross-examination is essential amendment, 1984—without Zarlen- requirement for.the kind of fair damental synopsis ga case form has been an anno- country’s trial which is this constitutional tation to what is now 19-824 ever I.C. § Texas, goal.” Pointer v. 380 State of since the criminal code was recodified 400, 405, 13 U.S. S.Ct. year simply It not believable (1965). Douglas also L.Ed.2d 923 See prosecutor that there is a unaware of those Alabama, 85 S.Ct. State of provisions of the criminal code or of crimi- (1965). 1074, 13 L.Ed.2d 934 nal rule 46.1—all of which can used trial, although make a witness available at comparatively origin recent 46.1 traditionally It is true that there has seemingly superfluous appellate exception to the confrontation been procedural code statutes. requirement where a witness is unavail- the reader of that ob- What will given testimony previous and has able recog- serve therefrom is that the Court judicial proceedings against the same de- early requirement nized at that time the subject fendant which was to cross-exam- presence diligence due obtain E.g., ination that defendant. Mattox witness before his can be States, (witnesses supra v. United who presented previously recorded form original trial died testified by deposition whether testi- trial). exception This has second been actually mony the witness is out of arising necessity explained as —albeit case, Zarlenga sparse- out of a state. ground justified has that the state, barely ly just settled western into initially right of cross-examination af- statehood, par is on a what the Su- with compliance provides forded substantial preme Court of the United States would purposes behind the confronta- years Page, write 60 later Barber v. requirement. Wigmore, tion See Evi- supra. 1395-1396, (3d 1940); dence ed. §§ McCormick, Evidence C. Many years ago stated §§ this Court primary object of the [Con- “[t]he argues

frontation Clause of the Sixth Amend- Here the State that the intro- * * * prevent depositions transcript duction of the is within ment] * * * (cid:127) being grounds used that Woods parte exception or ex affidavits jurisdiction and there- against prisoner personal lieu of a was outside the at the time of and cross-examination of the fore “unavailable” examination 422 right issued out of state courts. Cf.

and that the of cross-examination candum petitioner prelimi- Willingham, was at the v. 373 F.2d 731 afforded Lawrence Cir.1967) (C.A. (habeas nary hearing, although corpus not utilized then 10th ad purpose prosequendum). him. For the of this decision petitioner we that made a shall assume In this case the state authorities made right valid waiver of his to cross-examine no of either of effort to avail themselves preliminary hearing, al- Woods at seeking alternative means of to above assumption open though such an seеms presence petitioner’s tri- secure Woods’ at question to under the cir- considerable Appeals majority ap- al. The Court of cumstances. pears to reasoned that because have request an exer- State would have had to 723 of federal cise of discretion on authorities, obligation to it was under no We start with the fact that the State request. Judge make such Yet as absolutely made no effort to obtain the Aldrich, designation, pointed sitting by presence of at trial other than to Woods below, possibility in dissent “the of a out prison ascertain that he was in a federal equivalent asking and refusal is not the outside Oklahoma. It must be acknowl- receiving Page], rebuff.” edged [Barber ‍‌​‌​‌‌‌‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​‌​​‌‌​‌‌​​‍various courts and commen- that Cir.1966)]. 1479], [(10th 381 F.2d at 481 tators assumed heretofore short, not “unavail- a witness is In the mere absence a witness that foregoing purposes ex- able” ground jurisdiction for sufficient ception to the dispensing with confrontation confrontation impossible com- theory that “it is attendance, process pel his because the 725 is no without the trial Court force prosecutorial requirement unless party desiring jurisdiction, ” good-faith have made a authorities helpless. 5 his ef- therefore presence at trial. The 1940). to obtain his (3d Wigmore, 1404 ed. Evidence § fort and, here, so made no such accuracy effort may have been the Whatever reveals, the sole reason far as this reсord time, theory at one of clear testify in present why Woods was in- time State did not person was because the cooperation creased between States presence. attempt to seek his themselves and between the States may dispensed not be of confrontation largely the Federal Government has de- lightly. with so validity in prived any continuing it of 88 Page, 390 U.S. 719 Barber v. law. (footnotes omitted, em- at 1320

S.Ct. added). phasis writing separately in Justice Harlan example, prospec- in the case of a For Green, these supra, made currently custody, in federal tive witness California concur- justification of his observations 2241(c)(5) gives federal 28 U.S.C. § holdings: ring in the Court’s of habeas power to issue writs courts ap- Notwithstanding language request at the corpus ad testificandum Clause equate the Confrontation pears to authorities. See prosecutorial state and, cross-examine, States, right to F.2d with a v. United Gilmore early hearsay, exclude Cir.1942); implication, (C.A. 10th United States can, think, only I (D.C.E.D. dicta holdings and McGaha, F.Supp. 949 viewing the confrontation addition, harmonized Tenn.1962). policy is the an avail- being confined to guarantee as of Prisons States Bureau of the United produc- rule, requires the ability one that testify in prisoners to permit federal he is available when pursu- tion of a witness proceedings court criminal state recogni- explains testify. This view corpus ad ant to writs habeas testifi- 423 dying exception, tion of the declaration I What wоuld hold on States as a I dispenses process which matter due is what also requirement with cross-examination, meaning deem the correct of the Sixth and the refusal Amendment’s Confrontation Clause— exception make an for recorded may not in that a State a case statements, subject taken to cross exami- hearsay use when declarant is avail- accused, nation when the witness Louisiana, supra. able. See v.West testify. Compare still available to why no a There is reason States, supra, Mattox v. United fairness not, long as State should retains States, supra Motes v. United U.S. [178 trial, produce traditional adversarial 458, 993, (1900)]. 20 S.Ct. 44 L.Ed. 1150 op- witness and the accused an afford early This rationalization of the deci portunity to cross-examine him when only justified by logic sions is not he can be made available. That this precedent. also anchored in In West v. principle is an essential element of fair- Louisiana, 258, 650, 24 194 U.S. S.Ct. 48 only by precedent, ness is attested to not (1904), reviewing L.Ed. 965 this Court in States, supra; Motes v. United Barber early empha its confrontation decisions Illinois, Page, supra; supra v. Smith v. availability sized as the thread that tied 129, 748, U.S. 88 S.Ct. 19 L.Ed.2d [390 together. them involved the admis West (1968)], 956 but also the traditional deposition sion into evidence at trial of present exceptions hearsay testimony, subject taken to cross-exami recognize greater flexibility rule which oath, depo and under nation where the receiving evidencе when the witness “permanently nent was absent from the Furthermore, is not available. it accom- thereof, State and was a non-resident modates the interest * * * his attendance could not be case, making yet recognizes the obli- procured.” alia, Eeferring, Ibid. inter gation to accord the accused the fullest Motes, Mattox, Kirby United v. opportunity his best defense. States, 47, 19 174 U.S. S.Ct. 43 L.Ed. Green, v. 90 S.Ct. at 1950 California (1899)], Reynolds 890 United [v. added). (emphasis States, (8 Otto) 145, 25 L.Ed. 244 dissenting opinion Justice Brennan’s fol- (1879)], the Court concluded that “in not separate after Justice lows Harlan’s con- that, one of those cases was it held under curring. stating First that the issue had Court], facts such as before the [were years been resolved two earlier Barber there would have been a violation of the supra, quoted at he Page, 90 S.Ct. in admitting deposition Constitution language People therefrom the exact U.S., S.Ct., in evidence.” Gibbs, Cal.App.2d 451 P.2d 422 uppermost at 654. That the considera Shepard quoted in his Justice tion the availability of the witness is dissent, respectively Mee further underscored the West discus quoted approvingly He also S.Ct. sion of the common-law rule that admit teaching Supreme of the California deposition testimony “upon ted proof be (from whence Idaho’s Code of Crimi- ing made to the satisfaction of the court adopted) nal Procedure was in that Green was, that the witness at the time of the case: trial, dead, insane, too ill ever to be ex Supreme The California Court in the pected trial, kept away to attend the or present case discussed in more detail the by the connivance of the defendant.” distinctions between a hear- U.S., S.Ct., at 262 at 652. ing stating purpose that ‘the Green, 90 S.Ct. at 1948. California preliminary hearing explo- is not a full point Justice Harlan at foot- added ration of the merits of a cause 17, the note first sentence of which read: testimony of the witnesses. It is de- availability “That the critical element is signed adapted solely to answer the preliminary question cannot be doubted.” He continued on the far narrower probable for a same vein: whether cause exists sub- 424 sequent judge trial. The in preliminary are of little question aid when the enters

proceedings required is not to be con hazy ground into the middle “good of vinced guilt ‘beyond of defendant’s a faith effort.” present We examine the doubt,’ reasonable only need look for controversy within this context and find credibility reasonable charge that it fog rises above the of constitution- against him. A a witness’ testi al fortiori violation. While the State’s research mony, though only adduced, evidence avenues, did possible not touch all it was convincing need not be or credible be minute, not a last mad-dash effort. yond doubt, a reasonable and cross-exam 474, (Okl.Cr.1977). 559 P.2d 478 surely impeach ination which would a good It cannot in urged conscience be witness at preclude triаl would not a obtaining that the of a bench warrant on finding probable prelimi of cause at the morning appeared of what to be a nary stage. given opportunity Even * * one-day trial for a witness who had *, prosecution neither nor defense subpoena “trashed” a that was earlier generally willing or able to fire all its her, letting served it then be known guns early stage proceed at this language unmistakable that she would not ings, for considerations both of time and * * * participate against as a state’s witness her efficacy. Indeed, it is seldom that brother, own was not a last-minute mad party either investiga has had time for dash glaring effort—indeed it was the most possession tion to obtain adequate in example imaginable at the far distant end pursue depth formation to direct or spectrum. [People cross-examination.” v. Green] [654], 70 Cal.Rptr. [782], Cal.2d at 75 Accepting prosecutor’s at face value the [422], at 451 P.2d at 428 [1969]. assessment of the recalcitrant and absent Elisondo, i.e., “material, crucial, Martha F.N. pp. S.Ct. at necessary,” it cannot be said that The Oklahoma Criminal Court of present state’s failure to her falls recognized has also the state’s burden to category of harmless error. Thomas have its witnesses trial. States, (D.C.1987). United A.2d Grizzle v. State that court stated the law applied it: process, Procedural due whether it be of The defendant’s first and second as- rules, genesis court-promulgated signments аllege of error a violation of enactments, statutory prece- or case law right defendant’s to confront his accus- dent, guides system juris- of criminal ers, by the admission into evidence of the prudence carefully and must be adhered to. Carolyn recorded testimonies of Tanksley. Haas and Robert testi- Said III. given monies were the defendant’s The final II comment Part has caused first trial of this cause. The defendant pause purely gratui- me to and add some contends that the State failed to estab- thoughts reported practice in a tious as to unavailability lish the of the witnesses geographical area of the state where statu- for this and there was an absence case-prece- torily procedures, mandated adequate confrontation of these wit- dents, promulgated being are not rules unavailability As nesses. these faithfully by magistrates, byor adhered to parties, long recognized we have that the magistrates acting prosecu- on behest proving, State shoulders the burden of rumor, Report, tors. better than can while effort, by good faith that said witness- detail; accuracy hopefully, still lose truly es were unavailable. Barber v. nothing at all is amiss. Page, 390 U.S. 88 S.Ct. suggested practice (1968); It has been Bishop, L.Ed.2d 255 In re Okl. Cr., complained honoring of is that of not 443 P.2d 768 Whether the accused, being given statements of their can maintain this burden is neces- warnings, they indigent are sarily question proof. glaring Miranda attоrney. examples spectrum the services of an at either end of the and want defender, of public warnings advising attorney. include Miranda course, satisfy himself with and should just can suspect of his to have in-custody indigency detained or the of the lawyer’s being questioned, advice before or custodi- suspect. Only where a detainee lawyer present during and to have the affirmatively suspect al has not answered suspect the questioning, but also that be nec- inquiry does it become to the officer’s lawyer if informed that he wants a proper the essary for the court to make one, lawyer provid- cannot afford a will be ap- detainee-suspect first inquiry the when charge suspect. ed free of pears. forewarning warnings is that where such given, are an officer assumes the risk not “state should beyond It is cavil that the botching might what have otherwise the earliest provide counsel at feasible prosecution a commendable for a bad

been is taken into custo- time after an accused crime. Wuthrich, dy.” (Ct.App.1987)(emphasis 732 P.2d 329 required warnings are Miranda added) Providing (citing Task Force on Ser- questioning the sus- an officer before when Services, vices, 1 A.B. Providing Defense pect custody is in does not neces- —which A. Standards Criminal Justice for patrol car and/or sarily placed mean the (1979)). The mandate of the stat- 5-5.1 § police taken station. Even when a should not public ute is clear: the defender he suspect formally has not been told that kept bay indigency a until formal arrest, constructively in is under he is cus- pursuant has held to I.C. been when, detained, tody being the officer after be al- public 19-854. A defender should § strong suspicion of the sus- entertains a lowed, encouraged, indi- nay, to interview un- pect’s complicity in an offense and is requested counsel gents who have willing away, him there is to let walk indigency formal any appearance court or some official behavior which would induce hearing. go suspect to feel that he is not free to time” does not The “earliest feasible pleases. do as he circum- Under those court-promulgated equate as well questioning suspect stances would 44(b) 44(a) it Rule Rule does with I.C.R. interrogation amount to a custodial the re- that, im- procedures “The for which states might sults of which be excludable on chal- plementing right set out subsection lenge giving of the Miranda absent (a) provided by law.” shall be those above warnings. general fashion Such are adopted in December of Rule 44 was game as to the rules Miranda July as of 1980. and made effective warnings by Supreme mandated Court by legisla- “provided by law” mean words of the United States. Supreme When the tive enactment. requirement But there is the of state legisla- 44 in enacted its Rule law, 19-853, person that a who has I.C. § July in effect since ture’s “law” had been merely and is detained an officer unfortunately, de- Fortunately, or represented by attorney an must be rules, perspective of the pending on one’s right that officer of his informed procedure to the rule failed to mention the counsel, needy (indigent) person, if a suspect or accused be followed when represented by attorney his to be indigent, that he is detainee tells an officer public expense. counsel, public de- and there is a desires that, however, than the officer county. More employed by the involved fender thereupon notify done, however, either the court or must is fol- All that needs to be one, statute, and if public notify public defender if there is de- low is, public statutory defend- there then it must be the then assume his fender —who will none, Im- providing representation. If there be then er who is function of notified. may of this should be done before portantly, “or as case be” all 19-853(a)(2) more in the case play, magistrate into because does comes § defendant’s true the court than ascertain the obligation other will then become name, arraignment. and set a date indigency appointing inquire into before assumes, course, This discourse “Assembly justice line” is inconsistent detainee/suspect charged accused system. with a with the Idaho criminal Other- wise, legisla- “[sjuddenly serious crime as also defined becomes clear that for ture. most defendants in the process, regard there is scant for them as individu- Obviously early interposition They doсkets, als. are numbers on face- public defender between the detained sus- processed less ones to be and sent on their pect prosecutor will a salu- way.” Hamlin, Argersinger v. tary concerned, effect all and moreover 25, 35, 2006, 2011, 92 S.Ct. 32 L.Ed.2d 530 magistrate remove the from the unenviable (1972). Hobbling willing public servant position having explain of to an accused public such as the defender would be admi- being what is charged pros- entailed if mere efficiency disposition rable ecuted. presence all likelihood the goal. However, we should avoid the public may defender result in some economy false assembly line which unclogging felony of the trial calendar efficiency justice. elevates over appears when it that go both sides can forgotten Back of it all and not to be are away happy agreement on the that statutory requirements of the code plead guilty accused will to a misdemeanor. require that suspect/accused might argued It be that it is a waste of placed custody must be forthwith taken judicial public resources to have the de- magistrate, charge against before a and a early stage fender involved at such an him laid magistrate. be before the I.C. may where it be later found at a formal 19-608, through 19-601 19-615. Forth- §§ not, fact, that the accused is forthwith, tomorrow, with means cases, methinks, indigent. Those are infre- pro- not when convenient. I.C. 18-702 § quent. important, More suсh a considera- penalty delay vides a for willful light prejudice tion is de minimis of an officer. absent, resulting from the but not unwill- LaMere, In State v. ing, public service of a defender at the court, P.2d 46 the district the Hon- Moreover, appearance. initial bond should Towles, suppres- orable James G. entered a public not be set without the defender. sion order as to the defendant’s statements Constitution, guaran- art. 6§ by custody, made LaMere while tees that excessive bail “shall not be re- any compliance statutory without with the quired.” person lay confronted requirement taking LaMere before a prosecutor likely seasoned is much less effectively magistrate, and also without in- personal recognizance released on be —and forming right him of his to counsel at likely more an im- excessive bail public expense. Judge Towles’ posed the aid of counsel. More- —without prosecutors tells and defense counsel how over, unrepresented indigents prej- are also important comply mandatory it is to with indigency hearing udiced an when unwit- statutes: ting admissions are made as to one’s Contrary to the State’s contention I.C. inquiry of criminal record—which is an defendant, any clearly pertains 19-853 lucky court a matter of course. Those not, needy or and is one of the whether enough private attorney to afford a do not warnings mandated Miranda. suffer a similar fate. require- Idaho statute adds an additional ment to the case and was de- certain, Miranda plea To if a is made at an signed fact that the warn- to ensure the appearance, initial which is often the case proved the ac- ing could be as well as cases, indigent has the in misdemeanor knowledgment understanding by the Maryland, to counsel. White defendant. 1050, 10 L.Ed.2d 193 U.S. 83 S.Ct. is Again, seeking process any person the truth At time that a arrested prior to excluding public custody questioned and is

not served defend- Court, it is abso- arraignment before er. credence to the defendant’s lutely imperative police officers This lends (e) delay was for the comply argument 19-853. Subsection I.C. obtaining a statement more purpose of statement taken from the As to the reason, any other and cannot be than for p.m., defendant at or about 4:35 on Octo- by the Court as a clear viola- 23rd, 1978, condoned apparent ber duty police officer to tion of the Warning acknowledgment Miranda a neutral and present an accused before warning was contained on the Magistrate “forthwith”. The tape of detached taped statement and that day question Monday was a such statement was filed with sup- at the time and available. open next concerned Court was hearing. pression concludes that The Court therefore However, certainly would be more by the de- statement volunteered preferable for a written Miranda Warn- booking at the time of the initial fendant ing acknowledged in to be suppressed, accordance but the viola- would not be support to further with the statute tion of 19-853 would invalidate I.C. such statement. The voluntariness of subsequent interrogation of the defend- by original interview the Chief of Police by of Police and Officer ant the Chief Wadsworth, course, did and Officer Wadsworth, taking delay and the comply statutory require- with the not Magistrate would dic- defendant before result, fashion, ment in and as a taped finding tate a that the interview suppressed. such statement must be p.m. voluntary 4:35 was not question The next serious involves the hence, defendant, may not be delay presenting between the arrest and used at the time ‍‌​‌​‌‌‌‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​‌​​‌‌​‌‌​​‍of the trial. Magistrate arraign- the matter to a 874-5, P.2d at 81-2. 103 Idaho at ment. BAKES, Justice, dissenting: voluntary “The character a confes- eschewing any sugges- today, The Court arraignment sion obtained tion that its decision based placed in doubt when there is an unrea- clause of the sixth amend- confrontation delay sonable between arrest and ar- Constitution, ment to the United States however, raignment, the confession is prelimi- the admission of the concludes that per not se Wy- inadmissible.” State v. nary hearing testimony of an unavailable man, 97 Idaho 486 P.2d [547 531] subsequent trial vio- witness in a delay arraignment, As to the it is “public policy considerations” lates certain the Court’s there was no old, nearly century gleaned from a case delay reasonable excuse nor was the it- Potter, 584, 57 P. 431 6 Idaho police self If reasonable. officer had (1899),1 early explaining how those without defendant, probable cause to arrest the relate to the “public policy considerations” probable he also had sufficient cause to public expressed in the current stat- policy Magistrate the facts to for the utes, the Idaho Rules Court decisions and of a issuance Warrant Arrest and to of Evidence. bond, permit Magistrate ap- fix if Therefore, policy considerations ex- propriate. public, the excuse that essentially busy gath- pressed in were two—the the officers were too or were Potter of the United States ering additional evidence and therefore confrontation clause Constitution, perceived absence could not take the defendant before the any statutory authority for the admission Magistrate, is not credible. If further secured, prior preliminary hearing testimo- needed to be the arrest of such evidence Both of accomplished. ny of an unavailable witness. should not have been ny. in the later case of in Potter had itself overruled an Potter was reaffirmed 1. The Court 246, Villarreal, Territory 486 P.2d 257 earlier decision of this Court in State v. 94 Idaho even which, Evans, (1971). (1890), Subsequently, Potter and Villarreal 23 P. 232 both case, by recent decision in contrary had were overruled this Court’s to the Potter allowed Mee, preliminary Statе v. 102 Idaho 632 P.2d 663 admission of such testimo- policy those considerations have subse- though confrontation clause.2 Even quently rejected by the United States majority purports deciding the case Supreme Court and this Court. The Su- something other than the confrontation preme States, Court of the United in Ohio clause, though and even it denotes its rea- Roberts, 100 S.Ct. “public sons for decision policy con- its L.Ed.2d 597 held that the confronta- siderations,” ante at majority’s tion clause is not by offended the admission really ratio decidendi is based on the preliminary hearing testimony at a crimi- of confrontation as is evidenced its dis- trial, nal where the repre- defendant was regarding examination, cussion cross mo- sented counsel opportunity and had the suppress, tions to physical motions for a to cross examine at the hear- short, mental examination and the like. In ing. The Court in Ohio v. Roberts held majority “public policy cites no consid- public policy having all the erations” other naturally than those ema- relevant evidence submitted in a criminal nating clause, yet from the confrontation outweighed any trial claim the defend- majority contends that its decision is rights ant that his to confrontation were not based on the confrontation clause. violated because he did again have an opportunity to cross examine a witness. Furthermore, majority overrules Secondly, the any legislation absence of 632 P.2d 663 authorizing the prelimi- admission of such (1981). If, asserts, majority as the nary hearing testimony at which the truly instant ease is not based on the con- in significant, Court Potter found is no clause, frontation then we no occasion longer significant. In 1985 this Court to overrule in Mee. The decision Mee was adopted the Idaho Rules of Evidence which squarely based on the confrontation clause specifically permit the admission of such of the United States Constitution. The ma- preliminary hearing testimony. Those much, jority acknowledges as ante at provide rules further that the Rules of states, when it “In Mee the Court ... based precedence any Evidence take over conflict- its decision on the asserted violation of the ing statutory provisions. I.R.E. 1102. The confrontation of the clause United States presumably prece- rules also would take summarizing Constitution.” In its confron- statutory dence over the absence of discussion, tation clause the Mee Court provisions which the in found Court Potter stated: significant. unavailable, the declarant is “When public Based policy considera- previously judicial has testified in a fo- expressed tions in both confrontation oath, complete recordation, rum Constitution, clause of the United States presence counsel, of the defendant and recently most defined the United States adequate opportunity to cross-exam- Supreme Roberts, Court in Ohio v. supra, ine, that earlier is admissible adopted and the Idaho Rules of Evidence without violation of the confrontation by this the trial court did not clause of the United States Constitu- admitting hearing preliminary err tion.” 102 Idaho at 632 P.2d at 672. testimony of the witness Martha Elisondo. sepa- Each of these issues will be discussed Thus, premised the decision in Mee was on rately depth. in more clause; yet the confrontation the decision majority in the instant action “is not I based on the confrontation clause.” The adequately has not ex- Court’s analy- majority is inconsistent its plained why necessary overrule our places, majority In at least sis. two not 1980 decision in Mee. states that its decision is based today based Ante at "Since our decision is not is not asserted violation of the 2. clause____" ...,” on the confrontation clause and ante based confrontation emphasize today “We that our decision stat- prosecution. The Potter Court

ii by the ed: deciding this majority purports to be authority for “public policy considerations.” find no the admission case on “[W]e Idaho____ However, public policy of the State statutes of find [W]e preliminary the admission of territory Idaho favors or state no statute of either like hearing testimony cases the one authorizing the use of such permitting or trial____ instant action involves three bar. The [Tjhere is no depositions on the (1) public policy: expressed sources of permit- provision of our Revised Statutes Constitution, i.e., the Stаtes the United depositions taken on ting the use of clause; (2) expressed confrontation to be used preliminary examination (or, accurately, expressed) more upon his trial---- against the defendant statutes; (3) expressed to authorize the required If it a statute of Evidence. As will be the Idaho Rules depositions in favor of the admission shown, (1) clause infra, the confrontation defendant, certainly be con- would not preliminary permits the admission against him depositions tended that issue; (2) hearing testimony at the Idaho equal authori- received without should be not address the issue of statutes do 587-588, Idaho at 57 P. at ty.” 6 prosecution’s use of interpreted legislative si- The Potter Court void, (3) and, filling that testimony; practice rejection, saying, lence as “[A] expressly Idaho Rules of Evidence autho- [i.e., authority of law no which wants the testimony. of such rize the admission authorizing expressly existed statutes preliminary hearing prosecution’s use of A. derogation testimony], is in of a and which Supreme States Court has United recognized elementary of the citizen pre- previously held that the admission of [i.e., conflicts with the confrontation liminary hearing testimony, like that at is- clause, yet appli- had not been made here, sue does not violate the confrontation states], gain sanctity should no cable Roberts, 56, 100 clause. Ohio v. 448 U.S. Thus, there were two rea- by user.” Id. 65 L.Ed.2d 597 With S.Ct. (1) there sons for the decision Potter: I; quarrel, majority this the does not nоr do authorizing the expressly no statutes were policy public embodied confronta- hearing preliminary prosecution’s use of prohibit does not the admission tion clause (2) testimony testimony, use of such prior preliminary of witness Martha’s hear- elementary recognized would violate the ing testimony. every citizen. clause confrontation The confrontation clause rationale B. by the annulled Potter decision has been possible public policy A second source of Su- recent decision of the United States statutes, specifically the Idaho I.C. are Roberts, preme Court Ohio v. seq.3 19-3101 et Our decision State §§ (1980), 56, 100 65 L.E.2d 597 S.Ct. Potter, supra, premised was on the fact upheld preliminary the use of such the statutes then in existence did Likewise, hearing testimony. the “absence prosecution’s use of expressly permit the prong abrogat- has of a statute” also been hearing testimony at trial. preliminary by adoption of the Idaho ed this Court’s use The statutes allowed the defendant to Idaho Rules of Rules of Evidence. The hearing testimony at preliminary by the have filled the void left Evidence prosecution’s use. silent as to the were interpreted in Potter. statutes Potter, overruling earlier The Court Evans, policy expressed in the Idaho public The contrary, Territory v. case to the regarding admission of of Evidence interpreted that Rules 23 P. 232 hearing testimony at preliminary issue legislative rejection expressing a silence as general in I.R.E. hearing testimony is first reflected preliminary of the use of seq. materially present 19-3101 §§ I.C. et not differ at issue in Potter do The statutes regarding evidence, rule admission of ilar to develop testimony motive by which reads: direct, cross, or redirect examination.” [ie.,

“All relevant evidence evidence hav- The record is clear that the defendant was ing any tendency to make the existence present with his counsel at the preliminary consequence fact that is of hearing and witness, cross examined the determination of the proba- action more Additionally, Martha. majority has not probable ble or less than it would be Appeals’ disturbed the Court of holding evidence, without the I.R.E. is ad- 401] that Martha was unavailable at trial. The except missible provided as by otherwise remaining 804(b)(1) elements of I.R.E. were these by applicable rules or other rules in also met. preliminary hearing Martha’s the courts of this state. Evidence which testimony clearly qualifies as “former testi- is not relevant is not admissible.” mony” because her testimony given Here, the witness, oath, witness’s hearing under judicial at another testimony is relevant (the because it tends to hearing preliminary hearing), and at identify Elisondo as the perpetrator of the represented Elisondo was by Certainly crime. such evidence “is of con- counsel and opportunity had an and a mo- sequence to the determination оf the develop testimony [in- tive to her by cross ex- action.” I.R.E. gen- 401. Under the stant] Accordingly, amination. the admission of public policy expressed eral in I.R.E. testimony expressly Martha’s former au- preliminary hearing Martha’s testimony is Evidence, thorized the Idaho Rules of admissible unless its admission conflicts filling thus the void left the aforemen- with some other rule of evidence.4 tioned Idaho statutes. inquiry other into the admission of Evidence, The Idaho specifically Rules Martha’s preliminary hearing testimony is 804(b)(1), adopted Rules 402 and were 801(c), that under I.R.E. the hearsay rule.5 1985, Mee, supra, when State v. was the Although testimony hearsay, Martha’s controlling represent decision. Those rules there is a clearly applicable exception to present public policy regarding the ad- hearsay type rule for testimony preliminary hearing mission of 804(b)(1), in I.R.E. which reads: where the witness is unavailable Hearsay exceptions; “Rule 804. de- defendant and his counsel were

clarant unavailable.— ... opportunity and had the to cross examine. “(b) Hearsay exceptions. following 804(b)(1) ruling Rule codifies this Court’s hearsay Mee, are not excluded if supra. rule Court’s action declarant is unavailable as a witness: today, overruling impliedly also re- 804(b)(1). peals I.R.E. “(1) Ironically, the Court Former testimony. Testimony given does re-adopting century that the 19th as a witness at another reasoning of this Court’s 1899 decision in proceeding, same or a different or in a Pottеr, supra, deposition compliance taken in State v. which was with law based in legislature, by the course of the same a rationale that the or another permitting proceeding, party against prelimi- if the a defendant to use such whom offered, or, testimony nary hearing testimony the is now in a when no similar state, proceeding, predecessor given civil action or a authorization was to the had interest, opportunity in had an impliedly prohibited and sim- admission of such tes- phrase applicable preliminary hearing testimony 4. The "other rules in the does not conflict courts of this state” in I.R.E. 402 would refer to with the confrontation clause. the constitutional of confrontation. “Al- though specifically not stated in Rule it is following 5. "Rule 801. Definitions. —The defi- implicit that evidence in obtained violation of apply nitions under this Article: constitutionally protected rights party the of a applica- would be inadmissible under ‘the rules statement, “(c) Hearsay. ‘Hearsay’ is a other Clark, ble in the courts of this state.’" M. testifying than one made the declarant while Report the Bar Evidence Idaho State Commit- of hearing, offered in evidence to at the trial or tee, But, (4th p. Supp.1985). C as has prove the truth of the matter asserted.” above, been established the admission of such the however, the conviction of proffered by the That earlier it reverses timony state. implied policy in the statu- case found an case. defendant Elisondo this State However, that been tory void. void has Mee, recognized the that supra, Court 804(b)(1), adopts filled I.R.E. overturning existing precedent and was specifically permitting admission of policy applied stated its decision was to be that prior preliminary hearing of the Mee, did prospectively only. In the Court Furthermore, I.R. an unavailable witness. ruling parties the in that apply its to provi- provides “[statutory that E. case, Mee’s conviction but rather reversed governing admissibility sions rules the prior the to because under law that existed evidence, they the extent are eviden- of to the Court’s decision Mee defendant tiary they and to extent are in that Mee convicted.6 could not applicable rules of conflict states, again case as it did Court in this Evidence, are Rules no force Mee, that its decision is to be State v. may jus- Whatever have been effect.” applied prospectively, only but nevertheless interpreting for the Potter tification Court re- applies the decision to this case and indicating legis- a void statutes Eli- verses conviction of the defendant preference for of this lative non-admission even'though, sondo under law evidence, express statutory pro- an sort decision, today’s properly Elisondo effect, existed, if vision would prospective If the decision convicted. 804(b)(1) preempted by now be I.R.E. liti- applied Mee was not to the I.R.E. It is difficult to understand case, gants in that then before the Court statutory interpretation how the void prospective in this case should decision preemptive survive can effect I.R.E. applied litigants not be 804(b)(1) when, before fortiori, and I.R.E. 1102 express statutory provisions today, judgment would Court of convic- be preempted. unequal tion should be affirmed. litigants for the case as treatment “public policy” The most current ex- Mee, compared resulting from State pressed by Supreme United States overrulings oc- prospective which have interpreting the confrontation cases, hardly comports curred in both now supports type clause of this admission justice law. equal with the ideal of under “public poli- of evidence. The most recent Court, cy” expressed by this in both its trial judgment court and supra, decision and in its decision of the Court of should adopting order I.R.E. 402 and I.R.E. affirmed. 804(b)(1), supports the of this admission recognizing evidence. After its deci- today contrary great weight

sion authority in both state and federal

courts, and acknowledging without even today its ‍‌​‌​‌‌‌‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​‌​​‌‌​‌‌​​‍decision with our conflicts 804(b)(1), I.R.E.

own evidence rule ma- proceeds

jority nevertheless to reverse the court the Court

trial even

though correctly two courts decided those

this case. apply- that it is Court further states today prospectively;

ing only its decision precedent recognized In 102 such circumstances "To apply Idaho, and stated: validity a new it was page appellate of an overturning earlier the Court Mee ruling here would be conviction in existing passing prospectively set forth 627 P.2d law in violation of both federal and constitutions. equivalent ^[788] only." [State Court herein applying [1981]. Byers, an ex Thus, to be post facto applied state 159], rule

Case Details

Case Name: State v. Elisondo

Court Name: Idaho Supreme Court

Date Published: Jun 9, 1988

Citation: 757 P.2d 675

Docket Number: 17209

Court Abbreviation: Idaho