*1 only a purposes is all re- practical of trust is for District Court decision in mortgage with of sale. power court retains spects affirmed. The trial jurisdiction litigation. to conclude this in his petition
At the time Williams filed he had interest bankruptcy, legal Costs to respondents. good persons property against all Compa- except County the Lewis Abstract SHEPARD, DONALDSON, C.J., and pow- ny, nothing which held more than JJ., BAKES BISTLINE, concur. certain upon happening er sale (com- contingencies. Williams’ interest ownership)
prised all other attributes
passed to Sec- bankruptcy. the trustee in provides:
tion 541 of Title U.S.C. estate, (a) The com- “Property of
mencement of a case under section
302, or this creates an estate. 303 of title of all the follow- comprised
Such estate
ing
(1) ...
property, wherever located:
Williams and to inferior Long’s County
lien. Consequently, when Lewis Reconvey-
Abstract executed the Deed of
ance, it no conveyed interest.
Long subsequently purchased proper-
ty position. Avco and stands Avco’s subject to Wil-
Long’s acquired interest
liams’ exemption. priorities homestead set District parties forth
Court are correct. attorneys’ ap on
Long requests fees
peal pursuant 54(e) contending to I.R.C.P. frivolously
the case was and with appealed
out Dis foundation. The decision of the compre
trict well Court was reasoned and
hensive. The record establishes that Bankruptcy
case has also before presented same here issue
in, Wil Long prevailed. in which case also with provide
liams has failed law applicable support relevant or
any fees are therefore position. Attorneys’
granted. *2 Home, for
George Hicks, G. Mountain defendant-appellant. Gen., Thomas, E. Jones, Lynn Atty.
Jim Boise, Gen., plaintiff-respondent. Sol. HUNTLEY, Justice. was arrested and
Appellant charged with aof controlled possession substance after officers police discovered a leather “kit” jacket pocket. drug The kit contained paraphernalia and a small bottle of white powder which later proved to be cocaine. Appellant’s jacket part as searched general search of his motel room. A war- rant for search was issued on the strength of the following circumstances: (1) appellant had given eight pills six or which he eggs” referred “robin’s (street slang type amphetamine) for a clerk; (2) an all-night store convenience appellant told the clerk he had sixteen thou- pills sand more where those came from; (3) the store clerk police, notified the controlled substances would be within the who ran laba test on the pills which was motel room and the vehicle which the war- “inconclusive”; (4) a field test was later rant authorized to be searched.” run, yielding “positive” result for the Appellant also the warrant contends that presence amphetamine. was invalid as on erroneous being based
The magistrate judge
information,
determined there
or on
misrepresentation
willful
probable
cause and issued a
of information. We
in the record abso-
search
find
warrant. Police then
suggestion
searched
no basis for the
appellant’s
lutely
motel room
deliberately
and obtained
pills
police
misrepresented
a box full of
officers
similar to those given
clerk,
to the
in their affidavit.
the con-
store
information
To
the kit referred
both
Laboratory
trary, they
to above.
included
tests in their oral
.
tests
affidavit,
later indicated that
and indicated the first
test
pills
contained no
did
substance;
amphetamine
amphetamine.
More-
pow-
positive
not test
der was
over,
testimony
tending
cocaine.
there was
at trial
that the
contained a substance
prove
pill
to
Appellant
that, given
contends
a
which causes
reac-
(ephedrine sulphate)
failure of the first test
pres
to indicate the
amphetamine
to
tion somewhat similar
amphetamine
ence of
pills
gave
in the
he
officers,
by the
of field test used
type
clerk,
the store
there was not sufficient
longer
a
reac-
although generally requiring
probable cause for a warrant
Ap
to issue.
legitimately
could
tion time. The most that
pellant’s motion
suppress
to
the evidence
field test in
regard
be claimed with
to the
obtained incident to the warrant was denied
misinterpreted
question is that
the officer
by the district court. The district court
Lindner, 100 Idaho
the results.
relied in part
Oropeza,
on State v.
“negli-
(1979),
mines; the offi- “Secondly, the statement they plastic bag; were taken from a cer we are appellant presented jury, stated he had sixteen thousand them, of in es- introducing purpose more of which he it for the had obtained sence defendant. airport. incriminating We find no error in the district I’m ruling coming particular court’s that the “affidavit Where from on support to the ef- questioning basically facts line of provided the search warrant sufficient this vial that when he discovered finding probable cause that fect support containing substance, testify. qualified white and the court trials She’s kit, that the defendant him observed take it was expert. gentlemen, Ladies and that out and ... he stated him nothing to cocaine, you it if construe you know at that time. He deny didn’t he owned it. reasonableness with any this evidence He deny did not that he was unaware mean, standard, I higher all. Even a itof ... I go if had been allowed to [sic] to a ‘reasonable’ the word you when use further, we would have established talked what we up to standard almost that he remained silent that point after doubt, about, testimony her all beyond in time. And I think I that’s relevant. added.) (Emphasis uncontradicted.” think it’s admissible. And that’s where objected, arguing that Defense counsel we are going on this particular line “a blatant refer- remark was prosecution’s questioning.” didn’t ence to the fact [the defendant] The defense then out that the pointed pros- sustained the take the stand.” ecution was attempting to make of the de- *4 called objection jury when the was fendant’s silence guilt. a tacit admission of back, the re- disregard instructed them to agreed The court and instructed the prose- mark. The defense’s renewed motion for a cution that such testimony would not be was mistrial denied. admissible. prose clearly It is erroneous for a After re- jury returned trial of the defend cutor introduce evidence sumed, during direct examination postarrest silence for the purpose ant’s witness, prosecution another brought up guilt.1 v. raising an inference of State matter silence: 1344, White, 708, 97 Idaho 551 P.2d cert. “Q. During investiga- the course of this denied, 842, 118, 50 429 U.S. 97 S.Ct. room, tion motel did defendant Arizona, v. (1976); 111 Miranda 384 L.Ed.2d remain silent? 436, 1602, 16 694 86 S.Ct. L.Ed.2d U.S. A. All except for one statement. (1966). prose is likewise erroneous Well, Q. all we right. That statement to the cutor comment defend can’t go into. testify failure to at trial. v. Chapman ant’s A. Okay. 824, California, 18, 87 386 U.S. S.Ct. 17 Q. that, But other than he remain did California, v. L.Ed.2d 705 Griffin silent? 1229, 609, 14 106 380 U.S. 85 S.Ct. L.Ed.2d Yes, A. he did. (1965). Object, Honor, MR. HICKS: Your move that that from be stricken the rec- Turning the prosecutor’s first ord. remark that state witness Server’s testimo THE COURT: Yes. The Sustained. “uncontradicted,” we hold it ny was will disregard that an- question and an refer impermissible does not constitute swer and it your strike minds.” testify. failure to ence to the defendant’s recessed, The court and defense counsel weight Rather it is a comment on consideration, moved for mistrial. After ex presented the state produced: evidence the court denied the motion. chemically had by one who pert testimony
The second in defendant’s alleged reference to defend- tested the substance found cocaine; ant’s prosecution’s silence occurred in the it to be and determined possession argument: hand, closing defense, presented on other expert testimony means of by no “I note in arguments the defendant’s evidence — tending to contradict or basically they are not saying he’s otherwise — the sub suggested because this state’s conclusion guilty wasn’t cocaine. Pam qualified implica- Server has been There was no numerous stance was cocaine. 1602, 1624-1625, pre-arrest apply si- 16 L.Ed.2d or The rule would also where, here, interrogation,” the defendant was lence where there “custodial informed Arizona, 436, 467-468, right v. Miranda to remain silent. tion that right defendant himself had obli- cisión to exercise that later be some cannot gation to was (and inferring any take the witness stand made the basis for admission White, However, supra. v. State admitting guilt doing so). guilt. As stated Court, si prosecutorial California reference to defendant’s per se reversible lence does not constitute “Griffin [supra] forbids either direct or California, supra. v. error. indirect upon comment failure of see error court will look to whether such defendant to take the witness stand. The was “harmless.” rule, however, does not extend to com ments the state of evidence or on LePage, v. State 102 Idaho the failure of the defense introduce denied, 1057, 102 cert. 454 U.S. to call logical material wit (1981), this court 70 L.Ed.2d Jackson, People nesses.” Cal.3d applied to be where inad set out the test 603, 623, Cal.Rptr. put missible evidence was before jury. denied, cert. appel alleged is harmless if the error 68 L.Ed.2d beyond a reasonable late court is “convinced
We
the same result would have been
turn now
more difficult
doubt that
the evidence
ex
properly
matter of the
reference to de
reached had
prosecutor’s
Id. P.2d at 383. See
time of
fendant’s silence at the
his arrest.
cluded.”
also,
Hoisington,
prosecutor
By his own admission
(admission
tainted evi
attempting
part
(1983)
to establish
the state’s
P.2d 17
(and
guilt)
drawing
dence will be held to be harmless error
case
the defendant’s
*5
evidence provides beyond
inferences
from the defendant’s
silence.2 where admissible
“ ‘overwhelming
the
and
The record shows that at
time referred
a reasonable doubt
”);
proof
guilt’
the
had
of a defendant’s
by
to
the
defendant
conclusive
prosecutor
LaMere,
State v.
tainted
reference to
Justice,
part
concurring in
BISTLINE,
the defendant’s silence at the.time of the
dissenting
part.
search, would still
a substantial body
leave
of evidence
illegal posses
his
establishing
general
Although
Court’s
sion
prose
controlled substance. The
the issues and the under
correctly portrays
was attempting
cutor
to show defendant’s
facts,
to subscribe
lying
I am unable
acknowledgement
possession
of the
his
by
trial
contaminating
view that
kit when defendant
after
nothing
said
be
silence is in
exhibiting the accused’s
ing “confronted”
with
cocaine taken
evi
admitting
same
error in
category as
jacket pocket.
his
His ownership
from
prob
dence.
evidence was the
Inadmissible
contested,
jacket
was not
nor did he
Le
in State
lem
considered
which we
knowledge of
deny
presence
of the “kit”
Page, 102 Idaho
had,
pocket.
in his
he
Even if
his wallet
may
any
Evidence
be inadmissible for
num
his
jacket
identification were in the
reasons,
ber of
some of which are not based
pocket,
pointed
a fact
out
district
grounds.
on constitutional
In State
(which
court
noted when it denied the mo LaMere,
need arises:
majority concedes that the prose-
where the
is the
in this rationale
fallacy
“The
directly
conduct flew
into the teeth
cutor’s
the vast dif-
comprehend
total failure
ruling
the district court’s
secured imme-
between,
hand,
on the one
evi-
ference
beforehand.
diately
and,
admitted
improperly
dence
sum,
majority
who
today’s
issue
hand, inflammatory comments used
other
speak
for the Court
in terms of the
bring
out the
on the passion
turn
to remain
mere
right
constitutional
silent as
everyone
con-
Obviously
prejudice.
knew,
impermissibly
and as the
run-of-the-mill evidence
in-
the case
nected with
his in limine
terjected,
proceed
insisted with
to see no harm done
prosecutor had
motion,
history
sexual
girl’s previous
in a remarkable
of wisdom
display
because
to do with
had
whatever
nothing
have
would
it
is divined
predicated
charge against
the defendant
the prosecutor
reached the same result had
*7
girl’s age
that the
on the immutable fact
gist of
the actual
not misbehaved —which is
engages in
only
was
The Court
years.
ease which
LePage, a
was stated in
what
an untenable
in its resolution
exercise
admitted
improperly
truly deal with
did
treating
improper
the issue
com-
by
The
nothing more.
evidence,
and
only that
ment as evidence.”
beyond
do
it can
majority says that
868,
was overwhelming conclusive. 100 Ida time there has been mentioned. Since ho at 149. We noted increased criticism of the doctrine of that “The purpose of a harmless error rule “harmless” error —a creation constitutional is to ‘block setting aside convictions for own Supreme making. Some Court’s little, small errors or that have defects if of that criticism from members of has come any, having changed likelihood of the re High opinions. in their Other Court ” sults of the trial.’ 100 Idaho at pens criticism has come from schol- P.2d at 149. ars, judges telling The most attorneys. criticism of was LePage, fifty which involved a Massiah which I know mem- vio- lation, state ber class of law destroying third-year conduct effective students de- (Massiah assistance of counsel v. United nouncing applied the doctrine as in Le- States, Page. thrust of their criticism was an L.Ed.2d 246 of the fact- (1964)), appellate usurpation we court’s abruptly departed Garcia, from our holding in jury. followed finding question function of the Milton v. know, Wainwright, commenting that: was: How court appellate could an know, would have done really what a
“We have
more
today
squarely faced
in
not heard the evi-
question
LePage’s
case had it
Supreme
than did the
dence which
constitutionally prohibited
in that
majority
outright
case
conced-
ing
person
under the Massiah
Not one
improper testimony supplied
that the
rule.
by unconstitutionally planting
fifty
accept
an officer
class of
that such a
would
adjacent
LePage’s
appellate
the cell
did con- violation could be
an
verdict, but
tribute to the
we have never-
considered as the
error which
trivial
has
applied
theless
‘harmless
been defined in
criminal
Idaho’s
code since
just
error rule’
as the
did
1864 as error other
that which
than
“has
Wainright,
on the basis of overwhelm-
actually prejudiced the defendant
to his
ing and conclusive evidence.’’
substantial
prejudice
respect
right.”
to a
students,
Obviously,
I.C.
19-3702.
those
§
102 Idaho at
n.
630 P.2d at
n.
practicing attorneys,
now
shared the view
(emphasis added).
Shepard
entertained
when he
In the text we allowed that “the evidence
wrote
this Court:
of LePage’s conversation with the State’s
*8
...;
process
informant
“While the due
clauses of the
highly damaging
it
Constitution,
1,
13,
Idaho
and of
say
would border on the absurd to
that the
art.
§
to the
arriving at
their
fourteenth amendment
U.S.
jury ignored it in
deci-
396,
guarantee
Constitution do not
errorless
sion.”
they do at least ensure that criminal Court, tri- courts, this the trial and the als fundamentally shall be fair.” trial bar take appropriate note of the con- tent of Winters, opinions. those 18, Schwartzmiller v.
19, 1052, (1978). 1053 all, First of it is to be noted that What Supreme might Court have done Chapman, Court retrenches to and takes the with our LePage interesting specu case is an view continued a merely lation.1 In announcing its Milton v. Wain trend away practice reversing doctrine, wright that Court declined to con “for the most trivial errors.” It is better sider whether a Massiah violation had taken perhaps, due to the of the importance case place, trend, declared itself as simply having and another which I have perceived, read the record from which it con exercise appellate some courts to misuse the them, cluded that presented there was harmless error doctrine for a manner ready we ourselves said in again Garcia and in which convictions, to affirm to set out LePage, overwhelming itself, evidence of Milton’s the text Part IIA of re- which is a guilt, absent the informant’s testimony. view Chapman, it, preceding cases Hence, bring that Court did not itself to cases following it: grips with challenged whether the “In Chapman, this Court noted that contributed jury’s conviction. We ‘there are some constitutional so rights so, did contributed, and admitted that it so basic to a fair trial that their infraction and was highly damaging. can never be treated as harmless error.’ 23, 8, 386 828, U.S. and n. 87 S.Ct. at
Recently
Supreme Court has revisited
and n. 8 (citing
Wainwright,
its
Gideon v.
constitutional harmless error doctrine.
335,
372
792,
U.S.
83 S.Ct.
597 Act, violate the unsuccessfully actment of harmless error statutes Sherman de- signed to that a requested eliminate reversals based on had an instruction union errors, technical it was assumed well into agents’ its unlaw- guilty can be found this century that ‘automatic reversal was actually partici- ful if union only acts required any case involving the viola- in, authorized, or ratified the acts. pated tion of a right guaranteed by the Federal requested in- This Court held that Note, Constitution.’ Harmless Error: law, stated the correctly struction Standard, The Need for a Uniform 53 St. refused to find error harmless even John’s L.Rev. 544 (1979). Before though showing was that assumption was altered in Chapman, in the participation conspiracy: unions’ “ had the Court decided certain not direct verdict of judge may ‘[A] cases that remain instructive here. how conclusive no matter guilty “In Bollenbach States, v. United 326 way There is no of know- evidence.. U.S. 66 90 S.Ct. L.Ed. 350 (1946), jury’s verdict was ing here whether a guilty returned just verdict on facts within condemned based five minutes after receiving a supplemen- ... actual authoriza- instructions or tal instruction containing an improper of such acts.... A ratification tion or presumption. This reversed the correctly is not harm- charge failure conviction, noting ‘say less, might have re- since the verdict lay jury will enough disregard know incorrect instruction.’ sulted from the the judge’s if bad law in fact he mis- S.Ct., Id., (foot- at 782 408-409, 67 at guides them ... would transfer to the omitted). *10 598 applicable state harmless error statute opinion, which is decried in favor of
Court’s
procedure.
to errors of state law or
only
the ef
allowing appellate courts to “assess
52-265;
v.
State
the facts of each
See Conn.Gen.Stat.
light
§
fect of the error
L’Heureux,
312, 323-324,
166 Conn.
348
hoc approach
preferable,
case.” This ad
578,
(1974). The state rule is
A.2d
584
Powell,
only by
Justice
“For it is
as
says
stringent
than the federal
strikingly less
against
of the evidence
sessing
weight
that
places
proving
since it
the burden of
the effect of the error
the defendant
‘materially injurious’
the error was
103
judged.”
on the
verdict can be
jury’s
who claims the trial court erred.
party
at 982. Justice Powell also believes
S.Ct.
not
its state stan-
apply
Connecticut does
the-
Court
United
to federal constitutional error.
dard
States,
oblige
attorney
for the State
rule.
instead a federal
As
applies
Connecticut, “properly
could decide the
explained in
Supreme Court
Connecticut
at
question of harmless error.”2 103 S.Ct.
260,
Coleman,
355 A.2d
167 Conn.
State v.
of Justice Pow
Secondly,
985.
(1974):
11
emphasizes
ell
the states are free to
appellant
rule is that
‘The usual
doing
cling to their own constitutions.
establishing that
bears the burden of
so he notes that
has a statute
Connecticut
injurious”
“materially
an error was
similar to ours:
[52-265; State
him. General Statutes
“The harmless error rule announced in
312, 323,
L’Heureux,
348
v.
166 Conn.
designed
to establish the
Chapman
When,
a federal
A.2d
necessary
protect
federal
standard
‘to
occurred,
error has
constitutional
people
from infractions
the States
state,
burden shifts to the
and before
at
federally guaranteed rights.’ 386 U.S.
harmless,
can be held
this
the error
course,
21,
State,
A
87
at 826.
S.Ct.
“must
able
a belief
to declare
apply
stringent
a more
state harm-
may
it was
a reasona-
beyond
harmless
Chapman
less error rule than
would re-
California,
Chapman
386
ble doubt.”
v.
Shopping Center
quire. See PruneYard
18,
824, 828, 17
24
S.Ct.
U.S.
[87
2035,
Robins,
74, 81,
447
100
v.
U.S.
S.Ct.
v.
[1967],
L.Ed.2d
see also State
705]
(1980). ‘But ... a
jority otherwise, seems to believe it can and reason error in affording not the ac- will rise give to whatever inferences the by naught cused a trial jury is but constitu- jurors individually or decide to collectively tional harmless error. place it. upon Jurors come all from walks I concur that much of the Court’s of life and many and various the infer- are upbraids prosecutor which for ences may be they drawn. The tactics, agree that the opinion also obvious one is that men who nothing have correctly analyzes the reference to uncon- speak to hide freely, guilty say whilst the testimony concerning identity tradicted nothing. might One well that suppose for I pills. dissent view Court’s jurors twelve there will be twelve versions displaying defendant’s silence note, inference. As the majority because, the jury simply was harmless error the trial court agreed with defense counsel said, so it is admissible evidence established prosecution attempting “to guilt. conclusive proof the defendant’s make of the defendant’s silence tacit ad- This determination I would leave for a guilt.” mission of at a peers unanimous defendant’s The harmless error doctrine should never trial, majority second not a of an appellate be applied to criminal trials were above, court. set For reasons out I fundamentally fair. Where there has not join cannot of the Court affirm- trial, fundamentally fair court, ing judgment of the district but should be another trial which rises to that would for the fair fundamentally remand five, standard. It will simply not do Shepard trial says mandated seven, nine appellate judges uphold the Idaho Constitution. convictions derived trials not fundamen- tally fair on the predicate that a review of
the evidence judges convinces those always defendant would convicted
any reasonable the evidence which
was proper. is, course, usurpation of
the jury function.
If that an it be accused cannot be convict-
ed except by a unanimous jury all members
of which are convinced his guilt beyond a doubt,
reasonable how can it be that
accused can be convicted by appellate an
court which is not unanimous
believing
notes
jury the judge’s function of measuring
the evidence by appropriate legal yard-
‘a
“The
held that
consistently
has
Id.,
613-614,
S.Ct.,
sticks.’
at
at 405-
trial
entering a
judge is
prohibited
406.
rejected
The Court
the Govern-
judgment
directing
conviction
ment’s contention that
the error was
jury to come
a verdict
forward with such
harmless in
view of
abundant evi-
...
regardless
overwhelmingly
of how
dence
question,
on the issue in
stating:
“
the evidence may
that direction.’
point in
‘This is
disregard
the vital fact
United
Supply
States v.
Linen
Martin
that for seven hours the jury was un-
Co.,
564, 572-573,
U.S.
97 S.Ct.
able to
guilt
find
the light of the
1355-1356,
see
L.Ed.2d
main charge, but reached a verdict of
Carpenters
States,
&
United
v.
Joiners
guilty under the conspiracy count five
782;
Sparf &
U.S. at
at
67 S.Ct.
inquiry
minutes
their
answer-
after
51, 105,
States,
Hansen v.
United
ed
an
legal
untenable
proposition.
(1895).”
L.Ed.
294, 39
It would indeed be a long jump at
omitted).
(footnote