State v. Hoisington, 657 P.2d 17

State v. Hoisington

657 P.2d 17

Idaho

1983

Check Treatment

*1 the likes of the fantasies of them to duced crimes that type the same LSD —Heroin—Cocaine—Marihuana. terms for been involved in. Ybarra has Johnny feel that Ybarra is bad influence toup and looked Ybarra is admired Johnny on the young people up look Mexican-Americans young a lot of likes leadership. why, of him for And be- Burley. They City North side of young cause are too to know bet- gain his attention anything do ter. I feel that Ybarra is a candidate for do that he can I don’t feel gratification. see Penitentiary. Idaho State If others responsible I feel that he is any good. them consequences getting what the are for in- are now people that good many young for a world, they might volved in the Narcotics dangerous other to Heroin and addicted Johnny think twice and not become another young to some of drugs. spoken I have Ybarra. John- once associated with people that were Segovia CpI. C. Francisco /s/ Pet. Ybarra, anonymous. and wish to remain ny Segovia Francisco C. Cpl. Det. Johnny like people that because of They say Dept. Burley Police many kids futures of Ybarra the lives and Division Detective intro- Johnny marred for life. Ybarra are EAST 14TH STREET CENTER LAW ENFORCEMENT - Burley City of Police Chief MAY-TELEPHONE RICHARD J. 208/678-1106 IDAHO BURLEY, P. O. BOX 22,1977

Fеbruary IT MAY CONCERN: TO WHOM P.2d Idaho, Plaintiff-Respondent, STATE of I was in Ybarra since Johnny I have known known about grade and have the seventh fellow my narcotics on pushing his activities HOISINGTON, Craig Monte days, high school Through my classmates. Defendant-Appellant. drugs my pushing active in very he was No. 13104. and friends. fellow classmates old December, 1976, year two 14 he and Court of Idaho. Burley sniff- Park in females were North Jan. 1983. were runa- juveniles ing paint fumes. harbouring he was Pocatello and

ways from from the officials.

them Saldana

/s/ Ruben

Ruben Saldana

Patrolman

155 *2 fingerprints

latent on the outside bathroom window sill. 4,1977, July

On Tracy Boyd was accosted Lewiston, Idaho, in her apartment approximately 6:00 testified a.m. enough there was light natural to al- low her clearly. to see testified that She *3 Aherin, Rice, Lew- of Aherin & Darrel W. assailant, appel- whom she identified as iston, defendant-appellant. for lant, had knife just stood and stared at her for a few During seconds. this time Gen., Lynn E. Leroy, Atty. David H. Boyd said that she saw the face. appellant’s Thomas, Gen., Petrie, Sp. Depu- Gordon Sol. Thereafter, Boyd’s walked around bed Gen., Carsman, Deputy Howard ty Atty. stopped just a few inches from it. Gen., Boise, plaintiff-respondent. for Atty. Boyd then screamed twice and the assailant grabbed her shoulder and ordered her to BAKES, Justice. roll over onto put her stomach. He then pillow over thе back of her head and or- I. dered get up her to looking without at him. FACTS The assailant then placed the knifepoint near Boyd’s pushed throat and her out of his for two Appellant appeals convictions her room and into her roommate’s room. rape counts of and one count of an infa- Following entry room, their into the count of against mous crime nature. One assailant ordered both Boyd and her room- rape and the count of an infamous crime mate place pillows over their heads. The against perpetrated against nature were testified, however, roommate prior part the same victim and occurred as of one that time she saw the assailant’s full appellant attack. The was tried on both face seconds, for a few and that such obser- counts in one trial. The second count of vation was made with the intent of remem- rape arose from an attack on a different bering appearance. Thereafter, his she saw place. Judg- victim at a different time and again assailant’s face once when she ments on all convictions, three however, looked out from pillow. under the It was were entered at the same time before the during this time in the roommate’s room same judge and are all of this rape and unnatural act were com- one appeal. Since the facts surrounding left, mitted on Boyd. The assailant then three related, convictions are we telling the women stay in the room facts in fashion, combined five minutes. Boyd discuss the and her roommate as- merits of each case separately. sisted in making composite On June Linda O’Connor was assailant; however, drawing of the no ar- accosted raped at approximately 2:30 rest was made in either the or the a.m. in apartment Lewiston, Idaho. O’Connor incidents. At the attack, time of the she awoke to find 6, 1977, On December appellant Monte a pillow over her face. did She not see her Hoisington was place contacted at his attacker, but felt a wavy type curly hair employment by Lewiston police officer that was about length. collar The investi- Spears, who said he was investigating a gating police officer, Sgt. Saleen, inspected prowling incident. At the bathroom, suggestion downstairs which contained a Spears, Hoisington sliding accompanied window to the officer the outside. Saleen to the police found dust or station. Within a dirt on the few minutes right portion of of arriving police station, toilet seat. He at the Hoisington also observed a dirt or scuff mark top recognized as bearing of the small telephone resemblance to box below the rape bathroom suspect being window. In addi- sought. He was tion, candle given holders which Linda O’Connor rights, Miranda but was not ar- placed had on the windowsill were located rested. Detective Spears asked whether patio. outside on the also Saleen found two appellant understood those rights, and he fall, er agreed that he did and to talk to Hoisington indicated and both showed that with Spears. Appellant by Spears length was told almost shoulder wavy hair. On 12, 1977, December description suspect police presented fit the appellant same 8 X photos to Tracy Boyd, again informed rapes. Spears of a series of also obtaining a positive identification. On De- compos- him that he fit the of a 14, 1977, cember charged rapist, ite had with been done rape and crime against nature in length. (Hoising- his hair exception of Also, 14,1977, the Boyd case. on December time of the ton’s hair was cut short at the both Fuller and Boyd apрel- identified the however, questioning; composite lant in corporeal lineup. Linda O’Connor newspaper been run in a local on November failed, however, to identify Hoisington’s 15, 1977.) voice in a voice lineup. Spears requested per- questioning, After 22, 1978, On March a hearing was held Hoisington’s photograph. mission to take before the district court mo- concerning a photo Spears explained *4 tion suppress both the in-court identifica- rapes question. the shown to victims of Hoisington Fuller, tion of by Boyd and and Thereafter, Ap- was taken. photograph the suppress Hoisington’s prints obtained on polygraph pellant was also administered December 6 and 10. In regard to the iden- examination, which were in- the results of question, tification the court found that Then, Spears appellant conclusive. told Boyd’s and Fuller’s identifications of Hois- latent had been taken fingerprints ington were based on their own recollection scenes, the rape from one of the and and were not suggestive the result of iden- police department compare wished to tification procedures. In particular, the was then prints Appellant with the latents. court noted that a comрosite drawing was dis- fingerprinted. appellant The state and shortly made after the Boyd, attack on agree on whether there was consent to the that “there is a striking resemblance to the he fingerprinting. Appellant asserts that addition, defendant in picture.” was not asked about nor did he consent to court concluded in reference to the six-pic- Rather, fingerprinting. argues he lineup ture that “there is great not real merely acquiesced authority to asserted difference in general appearance of police fingerprints. of the to take the each of pictures.” As to finger- December, 1977, On the 8th and 9th of prints, the court found that the December 6 roommate, Fuller, Boyd’s Sharon who was fingerprints were taken by consent of Hois- Boyd separately six-pho- shown a ington, impliedly concluded that lineup containing Hoisington’s picture. December 10 fingerprints were taken pur- Hoisington’s picture Both selected as resem- suant to Hoisington’s arrest. The motion to December, rapist. the 9th of bling On suppress was therefore denied. notified p.m., Spears at 6:00 Detective was case, At trial in the Boyd the court refus- FBI that the latent taken prints permit ed to expert testimony as to the from windowsill matched Linda O’Connor’s reliability eye witness identification in Hoisington’s military prints. service On general. Also, case, in the Boyd trial of the 10,1977, Hois- police December arrested permitted reporter to tes- ington alleged rape for the of Linda O’Con- tify to an incriminating comment which she arrest, Hoisington nor. Incident to the heard the defendant make to his counsel 11,1977, refingerprinted. po- December On during the preliminary hearing. Appellant presented photos lice two 8 X 10 of Hois- was convicted in the rape case of both from the Lewiston Tribune ington obtained and an against infamous crime Fuller, nature. Af- files to who identified Sharon separate trial, ter a appellant at- was also con- person pictures Tracy Boyd’s in the victed of the Hoisington rape of Linda All photos tacker. The showed O’Connor. three convictions are large next to a elk which he had shot. One of this appeal. earli- photo appeared newspaper police sta- company Spears officer to the

II. Rather, controversy centers tion. having voluntari- Hoisington, whether after O’CONNOR CASE station, thereafter gone police to the ly The primary appеllant issue which taking fingerprints. of his consented to raises in the regard O’Connor case is with after arri- undisputed Hoisington, It is to the admission of the evidence fingerprint station, a Mi- ving given at the at trial. The fingerprint evidence admitted informed that he fit warning, randa at trial prints consisted of the latent obtain in a series of suspect residence, ed at the O’Connor the December being photo- both to rapes, and consented prints upon appellant’s taken ar of- a graphed and to the administration rest, and photographic negatives and en incon- polygraph proved examination largements of the same. In particular, Following clusive. the administration Hoisington argues that the court erred in examination, fin- polygraph admitting the fingerprints, December 10 be gerprints Spears. were taken officer cause were obtained as a result of the dispute There is some as to what occurred December fingerprinting which ap regard fingerprinting. Hoising- to the pellant unlawful, asserts was and which pre-trial hearing just ton testified at a therefore constituted poison “fruit of the place poly- before he went ous tree.” Since we conclude that the De examination, graph offiсer Saleen told offi- cember 6 fingerprinting itself was not un Spears, accompanying Hoising- cer who was lawful, we do not address the “fruit of the ton, Spears Hoisington’s should take poisonous argument. tree” Then, Hois- fingerprints. Saleen also told *5 ington state the effect argues, and the trial words to that while Hois- found, 6, ington December 1977 had to be asked whether he would finger- printing Hoisington examination, of pursuant was done take a or would polygraph taken, to Hoisington’s photograph allow his to be he did not consent. is one Consent of the specifically exceptions police established have to be asked whether the could to the search requirement warrant fingerprints, under take his and that he had to Fourth and Fourteenth Amendments. own give Hoisington’s reply, them. in his Bustamonte, 218, Schneckloth v. 412 U.S. words, “fine, Hoisington whatever.” 219, 2041, 2043, 93 S.Ct. 36 L.Ed.2d 854 then that after the ex- polygraph testified (1973). In Schneckloth it was held that amination, said, Spears officer “I think while the state bears proving the burden of going your fingerprints we’re to take now.” was, fact, that consent freely and volun- was, Hoisington’s right.” answer “all tarily given, 222, 412 U.S. at 93 at S.Ct. rebuttal, In officer Saleen contradicted 2045, question of “whether a consent to much Hoisington’s of statement. Saleen a search was in ‘voluntary’ fact or was the stated that while he had Spears asked product coercion, of duress or express or obtain fingerprints, some he had not made implied, is question of fact to be deter- any statements to Hoisington to the effect mined from the totality of all the circum- give he had to fingerprints. Offi- 227, stances.” 412 at U.S. 93 at 2047. S.Ct. Spears, rebuttal, cer also testified that Mendenhall, See United States v. 446 U.S. Hoisington’s statement was inaccurate. 544, 557-58, 1870, 1878-79, 100 S.Ct. 64 Spears added that after the polygraph ex- (1980). L.Ed.2d 497 recently recognized We amination, he Hoisington asked if he could applied totality the circumstanc- take a set of fingerprints. Spears showed Christofferson, es test in v. Hoisington fingerprint card and ex- 156, (1980), 610 P.2d 515 and are upon called plained why prints were wanted. Hois- again to do so case. ington said, then “okay.” appellant, dispute There is no between light the state and of the foregoing, argue does not Hoisington Hoisington consented to ac- rather, was no consent given, he ar-

158 given consent that was gues has proof. Consequently, met its burden of “acquiescence no more than perceived say since we cannot the trial court’s police authority.” Apрellant par relies in finding consent was voluntary upon Carolina, ticular Bumper erroneous, v. North 391 appeal. will it on we not disturb 543, 1788, Wasserteil, U.S. 88 20 E.g., S.Ct. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍L.Ed.2d 797 United v. 641 F.2d States (1968), 704, which held that (9th Cir.1981); there is v. 707 United States “[w]here Sanchez-Jaramillo, 1094, coercion there cannot be (7th consent.” 391 U.S. 637 F.2d 1098 550, denied, 862, at 88 at 1792. Application Cir.1980), S.Ct. 101 cert. 449 U.S. case, however, Bumper subject 166, to this (1980); to S.Ct. 66 L.Ed.2d 79 United Berd, 979, “totality (5th circumstances” test set States v. 634 F.2d 986 Cir. Williams, forth in the subsequent 1981); case of F.2d Schneckloth United v. 604 Bustamonte, 218, 2041, 1102, 1125-26 412 (8th Cir.1979); U.S. 93 S.Ct. United States (1973), Miller, 1117, Cir.1978), 36 L.Ed.2d 854 (1st as discussed above.1 v. F.2d denied, 1499, With Bumper, following reference to cert. 440 U.S. 99 S.Ct. Amos, (1979); stated Sehneckloth: L.Ed.2d 771 United States (4th Cir.1979). 566 F.2d under all the circumstances it has “[I]f appeared given that the consent was not argues taking also voluntarily was coerced Davis v. fingerprints prohibited under —that force, threats or or granted only in sub- Mississippi, 394 U.S. S.Ct. mission to a claim of lawful authority— Davis, L.Ed.2d 676 round- then we have found the consent invalid up ed least 24 black and took youths at See, the search unreasonable. e.g., them police headquarters where Bumper Carolina, v. North at U.S. questioned briefly, fingerprinted and 548-549 at S.Ct. [88 1791-92].” released without charge. Fingerprints (Emphasis 2050. add- obtained from the defendant in roundup ed.) led to his conviction rape. The Supreme Davis, rеversed the conviction in Under “totality of the circumstances” holding that detentions for the sole standard, purpose it was for the trial court to deter- of obtaining fingerprints are no less mine, questions fact, whether the al- amendment, constraints of the fourth leged made, statement was and whether the than are arrests or investigative detentions. statement was the motivating factor in the *6 727, 391 at 89 U.S. at S.Ct. 1397.2 granting of consent by Hoisington. Hois- ington present case, had voluntarily come to the police however, the appel- station, lant voluntarily “detained,” allowed was not photo- but rather was graphing, and had voluntarily voluntarily present submitted to at police station, examination, polygraph all of which were and voluntarily consented to the finger- equivalent intrusions of greater or severity printing. The Court in pointed Davis out than fingerprinting, see United v. that the case did not involve a situation Dionisio, 1, 14-15, 764, 410 U.S. 93 S.Ct. where the defendant had voluntarily con- 771-72, (1973). view, 67 L.Ed.2d In our sented to accompany officers to the police the evidence is sufficient support station and willingly finger- submitted to finding by Hoisington’s the trial court that printing. 394 726, at U.S. 89 S.Ct. at 1397. consent voluntary, was and that the state Subsequently, in Dionisio, United States v. Christofferson, itself, narrowly procedures in- State v. in 101 Idaho circumscribed 1. We held Bumper 156, cluding judicial approval (1980), not of brief 610 P.2d 515 was detention obtaining, during in- applicable the course of a criminal where officers did not state that warrant, vestigation, fingerprints of individuals for their use had a and did not condition of the defendant probable on a refusal of a warrant whom there was cause to arrest no consent, despite the defendants might reasoning the fact permissible. be Dionisio, police warrant wait until a Supreme in United States v. believed the Court 1, 764, (1973), arrived. 35 L.Ed.2d 67 93 S.Ct. support seem to that conclusion. would also however, Davis, intimated court 2. The See I.C. 19-625. § fingerprinting nature unintrusive to the due 764, 35 L.Ed.2d 67 1, III. 93 S.Ct. U.S. (1973), Supreme Court the United States BOYD CASE the initial Davis it was pointed out that “in dragnet detention— seizure —the lawless A. reporter’s testimony. and Fourteenth the Fourth

that violated With regard Boyd case, Hois finger- Amendments, taking of the not the ington argues allowing first 770, 11, 93 prints,” 410 U.S. at reporter concerning an testify incrimina expecta- reasonable because there can be no ting appel statement which she heard the characteristics, physical tion of privacy lant make to his counsel the preliminary are exposed fingerprints, such as hearing right violated appellant’s to counsel 103 Idaho Curry, v. public. Cf. State under the sixth and fourteenth amend (no ex- 332, (Idaho App.1982) 647 P.2d 788 ments. preliminary hearing, At the Tracy worn). pectation being in shoes privacy pillow testified concerning that was Hoisington’s presence since Consequently, placed over her head assailant. At voluntary, and police at the station was trial, rebuttal, as a witness in the state’s his volun- in no limited or conditioned way reporter subpoenaed and testified finger- tary appearance, protested or during the above described forcefully or coercive- printing, and was not hearing, at the preliminary she heard the so, doing it cannot be ly intimidated from appellant say attorney to his words to the Hoisington’s fingerprinting said that effect placed that “he had pillow not detention, and there- illegal the result of an way, or how pillow that was not Fourth Amendment fore violative of the placed.” Generally, if the client choos supra. Mississippi, and Davis v. See State es to make or receive communication to or 698, 7, Dillon, 705 n. 471 P.2d 93 Idaho from his in the and hear attorney presence (1970). 560 n. 7 ing person of a third the communication is error, Although assigned not confidential, party and the third briefed, appellant argument at oral also as compelled to disclose the statements which serted that the trial court erred in denying Perry, he heard. admission of concerning evidence a voice 236-7, Am.Jur.2d, (1894); 38 P. proceeding identification in which Linda Thus, Witnesses in Weather § O’Connor misidentified voice of a Bursey, ford v. 97 S.Ct. U.S. officer as the voice assailant. The (1977), L.Ed.2d 30 Court held trial court denied admission the evidence that a to counsel had not right defendant’s on the basis that was nothing presence of an been violated due to attomey/client record an jury agent during “that could lead the to believe undercover court noted the meeting. point, At one complaining thought witness ever interception of attor differences between she could identify the voice.” neither Since by electronic sur ney/client communication party has raised or this argued issue their *7 interception by un opposed veillance as to briefs, we do not review issue. I.A.R. agents. The court stated the fol dercover requires 35 and arguments issues lowing: presented parties’ thereon be briefs. consistently “This Court has followed the “One threat to the effective assistance of rule that it will the actiоns of a not review posed by government interception counsel specifi district court which have not been of attorney-client communications lies in cally assigned error[,] [especially where exchanges the inhibition of free between there are cited nor argument no authorities defendant and counsel because of the upon question.” contained in the briefs However, fear being overheard. a 93, Baker, 99, Bolen v. 69 Idaho 203 P.2d fear party may that some third turn out 376, (1949) omitted); (citations e.g., 379 agent to be a will inhibit government Dennard, 824, 2, State v. 102 Idaho 825 n. attorney-client communication to lesser 61, 642 (1982). appellant’s P.2d 62 n. 2 degree government than the fear that monitoring conviction in the case is affirmed. those communications O’Connor 160

through presence electronic eavesdropping, security per- be- officers and court cause the former intrusion may be avoid- sonnel. ed by excluding parties third from de- appear There be two lines of cases that to fense meetings refraining divulg- or from issue particular have relevance to the ing strategy parties defense when third presented. ability line concerns the One are present meetings.” at those freely with a defеndant to communicate 4, (empha- at 554-5 n. 97 at 843 n. 4 S.Ct. guard. of a presence counsel in the added). sis general right to view is that defendant’s hand, quotation On the one the above guard testifying from precludes counsel interception shows that of an attor concerning that he has over- conversations ney/client by communication a court re attorney. heard between defendant and his to porter similarity interception has some 63, Harris, 445 E.g., People v. 84 A.D.2d means of electronic surveillance. While by 520, line (1981). 547-48 Another N.Y.S.2d parties, a defendant can exclude third such be an although may of cases dictates that meet agent, as an undercover from defense inconvenience, is not denied his a defendant ings, reporter he cannot exclude the court require right to counsel if circumstances judicial from a From that proceeding. whispers. United communicate standpoint, distinguishable this case is from Denno, v. supra; States v. United States Castiel, 653, Cal.App.2d v. 153 315 People Grant, Fay Fay, supra; supra. v. State (1957), reporter P.2d 79 where a court Grant, no violation of the courts found concerning to a conversa permitted testify where the de- right defendant’s to counsel and defendant which tion between counsel were seated in close fendant and counsel situation, In that during occurred recess. no viola- proximity jury. In Denno the defendant and his counsel were not though officer tion was found even compelled presence to be in the of the court in the first security was seated for reasons reporter. hand, great On the other row, spectator’s only a few feet behind the danger flowing from electronic surveillance Thus, defendant though defendant. even is that client and counsel are unaware of required to sit in close and counsel the access of others to their conversation. others, they were nevertheless proximity However, the courtroom both client “[i]n dis- obligated keep their communications attorney presence are conscious of the whispering. requirement creet Such persons of third and necessarily must know considering one certainly a reasonable from the persons location of such as to where the judicial proceedings nature of may whether or not their conversations jury spectators and even reporter, Denno, overheard.” United v. States as to be able to hear must be seated so 626, (2d Cir.), F.2d cеrt. denied 349 U.S. proceedings. course of the (1955). 99 L.Ed. 1289

Thus, while it be inconvenient Assuming deciding allowing without client and counsel to have to converse reporter testify would have whispers, the existence of such a burden violated either the constitution appellant’s upon itself the fair and trespass does counsel, ally protected right or would ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍innocence, guilt reliable determination of or inadmissible, otherwise have been we never infringe right. federal constitutional theless conclude that admission of that tes Denno, United supra; States United timony was harmless error in this case. (S.D.N. v. Fay, F.Supp. (1894); Perry, State v. 38 P. 655 Grant, Y.1964); 135 Vt. Witnesses, 81 Am.Jur.2d As § State, (1977); A.2d 847 cf. Dobbins v. *8 in v. Le recently this Court stated 255, (conversation 260 (Wyo.1971) P.2d 387, Page, (1981), 630 674 P.2d In by spectator privileged). heard not held, however, applying “This Court has in attorney the courtroom the and client are error’ rule that where the ‘harmless quite aware of the adversarial circumstanc themselves, and the a rea- provides, beyond es which find admissible evidence

161 102, at 577 no. 99 Idaho conclu- answer is ‘overwhelming and doubt, sonable reasoning behind 1151. The P.2d at the admis- guilt, defendant’s of a proof sive’ rule is as follows: to be be held will evidence of tainted sion corpo unlike a showing, “A 395, photographic 630 P.2d at Idaho 102 error.” harmless identification, ‘trial-like ad is not a real is an there case present In the at 682. an ac between versary confrontation’ upon evidence of other abundance government; agents cused and The victim based. be could conviction hence, arises that the ac possibility ‘no description police a gave roommate by misled his lack might cused the crime. following immediately rapist overpowered with the law or familiarity (with fit that appellant Moreover, adversary.’ professional witness- Both length). his hair exception of attending prosecution’s even without photo out of picture picked appellant’s es defense counsel showing, photographic rapist identified positively Both lineup. trial prepare equal has an chance Both appellant. picture from another dis photographic his own by presenting corporeal ain appellant identified victims trial .... before plays to witnesses identi- positively witnesses Both lineup.3 is a defense counsel ‘[Duplication by attacker. as the at trial fied the defendant available normally is not safeguard that ” is, We hold that because beyond confrоntation occurs.’ when a formal doubt, reasonable overwhelming and con 3, Illinois, 220, 227 n. 98 434 U.S. Moore v. proof clusive of this guilt, defendant’s 458, 3, (1977) 464 n. 54 424 S.Ct. L.Ed.2d admission of the reporter’s testimony, (citations Ash, supra, to United v. States erroneous, if was harmless. State v. Le Ash, omitted); see United 413 States Page, supra. 317-19, at 93 U.S. S.Ct. at 2577-78. Thus, Hoisington was not entitled to have B. Identification. counsel photographic lineups at The next issue by appellant raised and showups. whether the trial court erred in admitting identification testimony by Tracy Boyd and Appellant’s process due argument Sharon Fuller. Appellant’s primary argu Crawford, is more substantial. we rec ment in respect this is that the photograph ognized Brathwaite, that under Manson v. ic lineups single subject photo showups 98, 2243, 432 U.S. S.Ct. L.Ed.2d 140 presented to Boyd sug and Fuller were so 188, (1977), Biggers, and Neil v. gestive as to deny process him due of law 375, (1972), S.Ct. 34 L.Ed.2d 401 due “[t]he under the fourteenth amendment. Secon process test for suppression of an in-court darily appellant’s argument, is also allegedly identification that is tainted an suggested that he have been denied his impermissibly suggestive out-of-court iden right to counsel in photo lineups tification is whether the out-of-court identi and showups were not conducted suggestive fication was so there is a presence of defense counsel. Both of these very substantial likelihood of misidentifica arguments were recently of re tion.” 99 Idaho at 577 P.2d at 1151. view by Crawford, this Court in State v. Under the standards established in those 87, 102-04, Idaho 577 P.2d 1150-52 cases, “very there will be a substantial regard With question long likelihood of misidentification” as as whether a defendant has the right to have “the identification present during possesses counsel sufficient as photographic line Crawford, pects in Man up showup, reliability.” we held in Id. As stated follow son, ing ruling “[Reliability linchpin the United is the in deter States Ash, in United mining admissibility U.S. of identification (1973), S.Ct. L.Ed.2d 619 testimony.” 432 U.S. ed, today, infra, by appellant. III(B), urged

3. We hold in Part identifications made in this case were not taint- *9 162

2253. That applies rule to both in-court Brathwaite, 109, at at 432 U.S. 97 S.Ct. identification as well as Also, evidence concern- danger of misidentification 2250. the ing out-of-court 432 at presented identifications. U.S. may increase where witness 9, 106 n. 97 Thus, at 2249 which a lineups showups S.Ct. n. 9. in with several stated in Biggers, 199, recurring presence. Neil v. 409 has a single at 93 individual U.S. 382, States, Fos- supra; e.g., S.Ct. at v. United question the central is “wheth- Simmons 440, 1127, California, 89 er under ter v. 394 U.S. S.Ct. ‘the of the totality circumstances’ case, In the present L.Ed.2d 402 22 the though identification was reliable even lineuр a some- six-photo the initial elicited the procedure sugges- [identification] identification, least on at what tentative tive.” by of It was followed part Tracy Boyd. corpo- and single showup

Factors to be then considered under the de- lineup including of persons real six totality circumstances test in determin fendant, strong positive which resulted in ing whether an identification is reliable in Hoisington both wit- identification (1) clude opportunity to the witness single use In of the of the light nesses. crime, view the criminal at the time of the showups, the several identifica- photo and (2) attention, degree (3) witness’s had a procedures tion accuracy of prior of the description presence, there recurring we conclude criminal, (4) of certainty the level demon suggestive- indicia of is at least sufficient identification, (5) strated at and re- procedures to ness in identification length of time between the and the crime bal- Manson-Biggers quire review under Brathwaite, v. identification. Manson Thus, ancing test.5 we turn a review to 114, 2253; Big U.S. at at v. 97 S.Ct. Neil the facts of the case light 199, If gers, at S.Ct. at 382.4 U.S. Manson-Biggers test. are “aspects reliability” evident from an of those factors which evaluation 1. The opportunity rape to viеw. The outweigh corrupting are sufficient “the place took approximately 6:00 a.m. on identification,” suggestive effect of the 4,1977. July Testimony of defendant’s wit- testi then admission of identification ness, Kenneth Kenney, weather observer proc mony or will not violate due evidence for the National Weather Service in Lewi- Brathwaite, ess. Manson v. U.S. ston, indicated although at that sky 2249, 2253. 97 S.Ct. at overcast, time was 9/10ths the sun had ris- a.m., en at visibility 5:01 and at 5:57 a.m. present case some In the thirty surface miles. Tracy Boyd testi- employed procedures identification fied that her about bed was three feet from sug respects been in some have draperies a window with white and that single subject show- In gestive. particular, there was “plenty of natural for her light” suspect inherently generally are ups “very to see clearly.” testified that States, condoned, v. not Simmons United saw she first the defendant standing at 967, 970, 19 377, 383, 88 S.Ct. foot of her bed and that stared at each Denno, 388 (1968); v. L.Ed.2d 1247 Stovall other for a seconds. 1967, 1972,18 few She stated that L.Ed.2d 293, 302,87 U.S. there was no (1967); Sadler, 95 Idaho obstruction her view of the v. (1973); Manson defendant. see The defendant then moved P.2d agree the trial court with We would Biggers, supra, these 5. in Neil indicated 4. As suggestive. lineup photo was not varying six circum- initial from are drawn factors trait, identifying Hois- fact, regard to one with Court’s of the United stances hair- short photo him with a ington’s showed U.S. at opinions in this area. previous given cut, quite from the Thus, different 196-99, does 380-82. 93 S.Ct. at photos Fuller, five the other by Boyd while neces- were factors appear enumerated styles close- more hair exclusive, individuals showed rather sarily to be intended descrip- Boyd’s Fuller’s approaching ly be required core of factors seen “totality tions. of circum- applying the considered test. stances” *10 stopped. to the side bed and tions, exclusively around on the she focused almost Likewise, stated his face Fuller Boyd that she watched assailant’s face. Sharon moved, stopped and that he was at the assailant’s when he testified that she looked particular “because away. Boyd two or three feet the second time in face once, Clearly it.” both and defendant told her to remember screamed I wanted during observers up.” Boyd again, to “shut and women were attentive screamed to view the assailant. said, they I’ll kill time which had up the defendant “Shut Boyd then told defendant that you.” the description. The On accuracy 3. scream, trying was not but could not shе 4,1977, the rape, Boyd and July date it. help The defendant then knelt down with provided general a Fuller bed and told to look at him. Boyd not matching of the assailant testified that time she Boyd up that until appearance of the On that same appellant. looking been had at the defendant’s face date, Boyd and Fuller met with Officer and that the view was unobstructed. police department. of the Lewiston Stueker Thereafter, Boyd made roll defendant composite The two a women constructed stomach, he put pillow over and a from a of the assailant kit. With picture her over head. Then went to Sharon composite, the district reference point room. Boyd Fuller’s After that did found, court later not unreasonably, that However, see the defendant’s face. “there is a striking resemblance to the de- Tracy Boyd’s makes it clear that testimony fendant in that picture.” although perhaps she saw the defendant for 4. The level witness’s of certainty. minute, good a half she look at very had Fuller Sharon on December the defendant from proximity close and un- Tracy Boyd 9,1977, on December sep- good lighting der conditions. arately six-photo shown the lineup contain- Fuller Sharon also testified that it was ing Hoisington’s picture. Both positively “fairly light” in her at the time room identified Hoisington as the rapist; how- attack. She further testified that when ever, Tracy Boyd’s identification was slight- Hoisington entered her room she ly tentative in that she stated that she was an of Hoisington’s unobstructed view “relatively certain,” Hoisington’s photo said, me,” He face. “Don’t look at but was that of the rapist. slight hesitance kept Fuller looking. Hoisington repeated evidenced the response may well be ex- voice, the command in a louder but Fuller plained by photo the fact that the of Hois- kept looking. got She stated that she “[a] ington hair, showed him with short while clear look. I saw his whole face.” Then rapist had significantly longer and Hoisington put told Fuller a pillow over wavy hair. The existence of the 8 X 10 head, complied. she At one point photos of Hoisington, which he was thereafter, Fuller looked out from under shown with length almost shoulder curly pillow. She within arm’s reach of hair was not until discovered December Hoisington and stated when she looked during a search of appellant’s house follow- out their faces Hoisington again met. Then ing his Spears arrest. Officer testified as said, me,” “Don’t look at and Fuller put the fоllows: back pillow up. While Fuller seems Sharon Hoisington’s house “When we were in Mr. to have had a period briefer of time to I observed this serving a search warrant Tracy Boyd, observe defendant than did on an end table. picture same in a frame opportunity still Fuller had to obtain two the hair was much looks at close And I good range defendant at observed adequate given by the victims lighting. more close to that as presently than what Mr. degree Boyd was

2.The of attention. that he had. observer, style wearing. casual rather the victim “no I took reason humiliating of the most This was the main personally of one obtained the —or the Tribune and Biggers, all crimes.” Neil went to display it did testimony larger at 382. Her indi- because pictures hair.” during the time her observa- style cates different Hoisington and photo seriously This lineup frontation. Viewing the Here, most eases. negative it is differ- factor photo, 8 X clear however, undisputed significant difference style made ent hair previous no identifi the victim made upon being Immediately his appearance. *11 any of another at cation Hoisington, Tracy individual] X 10’s of [of shown the 8 photographic or showups, lineups, the stated, red, it, to and pointed Boyd turned reliability Her fоr was showings. record circumstances, the Under “That’s him.” one, previously she had good a and thus of notwithstanding suggestive the nature suggestiveness inures resisted whatever Tracy Boyd’s subject showup, single the 200, 93 at showup.” in 409 U.S. a high. It is certainty very was level of 382. level cer- of Sharon Fuller’s evident that case, Likewise, present the record in the the time of the even from tainty high was previously that the women had been shows lineup.6 photo first photo showups presented single with both of time between the crime length 5. The interval, during five month lineups and the Although and Boyd and the identification. any prior and made identification had not completed Fuller a provided A month five the defendant. identifying to July of the composite the assailant negative than less certainly also interval is not rape, did day the we Consequently, interval. month seven five Hoisington rapist the until identify Biggers the reasoning of the believe is to months This situation similar later. the applicable is to equally on this Biggers, in Neil v. su- that which occurred case at bar. pra, where there was a gap seven month In light of the of totality the circum- the crime and the identification. between case, presented stances the aspects in this of Biggers was stated: following In the reliability regard Boyd’s and Full- was, sure, er’s lapse to be seven identification “There of the defendant far out- rape weigh suggestiveness between con- months the the have hair, long distinguishable the such but had cut it not before from had is Foster 6. This case lineup photograph photo California, the taken. for six was 89 S.Ct. signifi- Foster, It the is clear that short haircut made a was In a witness L.Ed.2d Hoisington’s presented lineup appearance. containing in cant difference Second, the defendant. showup jacket in Foster the and second line- defendant wore a leather similar to legitimate up supported by any one worn the were not need robber. witness was viewings; only pur- say “thought” for rather the additional more he the de- unable to than man, pose appears repetitive served to have been the was not Then fendant was but sure. case, however, present presented exposure. the was before the witness In the the defendant person showup. showup in a one Still the witness was X was because of the held Finally, present- discovery the defendant was uncertain. of new evidence with identification time, Hoisington’s new regard personal appearance, ed lineup. the witness а third in a before rapist time the was That witness “convinced” that he resembled the which established condemning In was man. the defendant the closely previously known. than had been more procedures, the those present identification Also, corporeal lineup in the case the United States stated: not, important had because the witnesses time, Hoising- suggestive up personally in this seen elements identifica- ever “The Certainly, physical pho- procedure tion made it all inevitable identification and ton. identify petitioner or tographic whether two David are different identification effect, Foster, In viewings corporeal. was in fact ‘the man.’ things. all witness, police repeatedly ‘this although Tracy Boyd’s said Finally, initial identifica- ” 443, 89 S.Ct. 1129. tentative, 394 U.S. at certainly man.’ bit it was much tion was a sequence lineup-showup-lineup While the stronger the witness in Foster viewings. than parallel proce- present Thus, in the case events following the first there two Foster, important differ- there are dures in influence less room undue First, in there no evidence Foster ences. procedures repetitive in through identification significant difference between there was present Foster. case than appearance at the of the robber time procedures Consequently, we conclude appearance of the defendant crime and present the dictates case did not violate Here, rapist lineups showup. of Foster. wavy longer curly in fact hair. in the proce- been identification sistencies and deficiencies elicited in cross employed by police. Consequent- Porraro, dures examination.” A.2d find the identi- ly, we admission of (R.I.1979). testimony

fication was not erroneous. We find therefore no error in the court’s refusal to admit the of Dr. testimony Lof- Expert testimony. C. tus. Finally, appellant argues The defendant’s conviction court erred in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍refusing trial case is affirmed. expert psychia admit Loftus, trist, reliability concerning Dr. DONALDSON, C.J., SHEPARD, J., and eye witness identification. It is a well McFADDEN, (Ret.), J. concur. *12 admissibility known rule that of ex “[t]he J., BISTLINE, concurring dissenting. and pert is tri testimony discretionary with the Although I concur in that portion of the ..., al and of court absent an abuse [that] opinion Court’s the appel- affirms discretion, a decision will not be disturbed case, in lant’s conviction the O’Connor I do appeal.” Griffiths, on State v. 101 Idaho join in not the remainder of opinion. the (1980) (citations 610 P.2d appellant’s conviction in thе case omitted). reversed, should be primarily on the ground testimony Such reliability the of wit it prejudicial was error the for trial ness identification repeatedly has been court to the reporter allow court to testify proffered by rejected by defendants and the on rebuttal as to the incriminating state- courts. E.g., Fosher, United v. allegedly ment which she the appel- heard (1st Cir.1979); F.2d 381 v. United States lant make to his Brown, during prelimi- counsel the (10th Cir.1976); F.2d 1048 Unit Amaral, nary hearing. ed States v. (9th F.2d 1148 Cir.1973); People Lawson, Colo.App. in Olsen, As the recent of case State v. (1976); Dyas P.2d v. United 278, 286-287, 647 734, 742-43 P.2d States, 376 A.2d 827 (D.C.App.1977); State J., (1982) (Bistline, the dissenting), “rebut Brown, 17 Wash.App. 564 P.2d 342 tal” offered in testimony by this case the (1977) (rejecting testimony by same Dr. the reporter court can be properly charac Loftus). agree We with following the con terized as by an admission appellant. the clusion reached the of such, As the offered testimony was Rhode Island: a part which, material of the State’s case if are persuaded “We that the mat- accurate, admissible and if properly would proffered ter of the testimony in this have been introduced to establish the appel case, general the trustworthiness in of guilt.1 The lant’s views expressed which I eye observations, witness not bеyond and, in Olsen were sound no seeing reason jurors, the ken of the and therefore the case, to to discard them fit this I would hold justice trial did not abuse in his discretion (1) reporter’s court the excluding Through this evidence. cross upon should not been have allowed rebutt examination, defense counsel was able to al,2 (2) it should have been excluded on op- into the probe capacity witness’s grounds the it was obtained viola observation, attention, portunity her of appellant’s right tion the effective to jury interest and distraction. The perfectly capable assessing Despite assistance of counsel. what wit- credibility believe, ness’s by weighing majority opinion might bring incon- one to defendant,” reporter’s complete testimony gues is 1. The court that it “offered its files to the Appendix. requires 16(b)(6) set forth in the this is not sufficient. I.C.R. prosecuting attorney provide to a defendant proper 2. Because this witness was not rebut- with “a list of written the names and addresses witness, required tal the state was to disclose persons may of all ... who be called appellant pursuant name re- to to his state witnesses at the trial.” quest. 16(b)(6). Although I.C.R. ar- the state appel- necessarily case which the tioned near counsel benches has this not at all a is understand; judicial so otherwise the to to lant chose to make communication will have come a standstill process to to parties. of third attorney presence client, attorney speak when an to his than attorneys more practicing Most speak attorney. or the client would to his certain, would, feel en- experience limited surrepititious A court will not be reporter reporter the view that court tertain listening party, device for either either in- himself, and judge trial right arm inadvertently. tentionally darling jury as well. usually the situation, Compounding instant it instance, will relied reporter, for be court reporter, me if the would seem to court stenographic or steno- upon to read back attending duty, hear while to did is in need the court type notes where to, thought perti- testified which was order been knowing what has testified trial, should have nent the remarks And, although there ruling. to make stenographically been taken down —but exchanges be- argumentative trial conclusively did establish- happen, not even counsel, and sometimes tween ing reporter’s understanding reporter part is no the court judge, alleged reported later conversation short, reporter such goings-on. part prosecutor of the trial. is in the important room serve Then, too, reporter if the as a citizen felt recording all that function said —and *13 duty-bound to inform others of the conver- by that I mean all that is said at trial the sation, that it would seem if it was worth trial, wit, has to —which do with the to the hearing, surely the then was worth the counsel, of questions answers of wit- the writing. that It is indeed such manner in nesses, objections counsel, arguments of are upon, court records made and relied thereon, rulings by the court. nothing being left to recollection. A person, than that she he is a other or willing is to majority assume without reporter, get court does not to where sit deciding reporter’s the testimony that reporters reporters sit. Court sit however, this, was inadmissible. From the do they they ques- where so that can hear jump holding is made to a quickly witnesses, counsel, tions of the answers of is, beyond “because there a reasonable rulings and the remarks and court. the doubt, proof overwhelming and conclusive reporters are close placed Court thus in guilt, of this defendant’s the admission of attorneys to proximity the and their clients. testimony court reporter’s the was harmless They placed аre so in the furtherance possible by resorting error.” This made They placed business of court. are many what I fear in has now to courts they thought there with in mind that trite cliche that “there is an become the privy are or can be to conversations upon abundance of other evidence which short, In in histo- attorney and client. such agree. could be based.” I cannot conviction customs, prac- I have known of ry as agree Nor can I with Court’s conclusion tices, reporting and habits of court —which error.3 was harmless years, is a all of lifetime in excess of being upon rec- other early years which but within “abundance of evidence” relies, see reporters nothing, primarily ollection —court hear which the Court consists nothing ap- and do other than that Fuller’s identification of the nothing, Boyd’s and (or to obligation photograph) is the of their as the assailant. pellant which duties addition, fact see, the Court relies on the hear, reporter posi- or A court so In do. error,” by on Harmless Error is “harmless cle Constitutional an ab- 3. Constitutional created Court, who be- solute must for defense counsel the United States coming is fast prose- prevail appeal for its creation. thе most destructive tool Gold- berg, appellate guard use Harmless Error: Constitutional Sneak cutors against awarding courts Thief, Criminology a new and error-free to a 71 J.Crim.L. & trial appeal preju- who on has defendant established Goldberg’s error. Professor Steven arti- dicial by omission of sev- achieved the convenient the appellant general fit what was a rather does the important eral facts. Nowhere given by of the assailant Spears mention that detective testi- shortly two To women after the incident. time he showed fied he believed that my hardly this an mind constitutes “abun- Fuller, lineup Boyd especially photographic dance.” This is true when one photos one of the was a great potential considers for misidenti- he told them “that suspect.” fication in such as this and Nor situations does Court mention that appellant fact that identifications of the regard show-up eight with the two can in this case occurred under what be best glossies appellant, ten detective “I Spears testified: [Boyd advised and Full- highly questionable characterized as circum- picture that I had a the person stances. As the in er] court noted United Russell, picture had identified on (6th lineup. 532 F.2d States Explaining tо them Cir.1976): picture dis- played the individual longer hair.” great potential “There is a for misidenti Spears also testified that he had stated at fication when identifies a stran witness time that the man photograph ger solely upon single based brief obser suspect.” “was a neglects The Court also vation, and this risk is increased when the observation was at a of stress consider that Boyd made time and Fuller were shown danger glossies or excitement. this in appellant shortly Since after kind, story been published herent identification of this had every local news- paper vigilant rapist courts should be had especially been arrested in the fact, make certain that no O’Connor case. Tracy there is further admit- ted that distortion of the or the time possibly incomplete she shown the glossies, she perception well-meaning reading mistaken of a knew from the news- paper an witness in arrest been suggestive other unfair made in a local vestigatory techniques. rape United case. More suggestive circum- Wade, 218, 228-29, stances, my opinion, U.S. 87 S.Ct. imagined. cannot be 1932-33, Thus, (1967); *14 L.Ed.2d cannot agree with the Court’s con- Frankfurter, see aspects F. The of clusion Case Sacco reliability of of the (1927), Ringel, and Vanzetti 30 W. Identi idеntification outweigh suggestiveness Lineups (1968), fication and Police P. procedures used. I would hold that Wall, Eye-Witness the suggestive Identification Crim procedures identification de- (1965), Fenstel, inal Cases & Eisenberg appellant nied the process due and that the Identification; ‘Pre-Trial Attempt An in-court identification the appellant of Criteria,’ Articulate 58 should Constitutional have been excluded. Marquette (1975), Grano, L.Rev. 659 ‘Kir I Because believe that the out-of-court Biggers, by, and Ash: Do Constitu Any identifications were improper and necessari- Safeguards Against

tional Remain had ly to result in tainted in-court identifi- of Danger Convicting the Innocent?’ 72 cations, certainly agree cannot with a (1974).” Mich.L.Rev. 717 Court which succumbs to the argu- State’s ment The Court in this case is an of concludes abundance evi- dence other than the although reporter’s the out-of-court court pro- identification im- proper used suggestive cedures sustains the convic- aspects reliability regard “the to tion. v. LePage, Boyd’s and Fuller’s identification of the de- 630 P.2d 683 (1981), the Court far outweigh any suggestiveness fendant stated that the question to be answered ” have regarding been .... I can- the error in that case was: “Is agree. appellate While thе Court’s analysis court beyond convinced a rea- sound, may appear the issue be re-my sonable doubt that the same result would view the record reveals that this result have been reached the evidence been Q properly long excluded?”4 I must How have been a court you In this case re- answer, as an reporter, “no.” The court porter? court, aurora of carried an official A years. Four doubt, without authority, testimony, Q And where your did receive train- you agree, will attorney any practicing trial ing? per- most jury of a would be eyes in the A Academy At a school called the ad- was an here that evidence suasive and Francisco, Stenographic Arts in Cali- San in fact he had appellant mission fornia. very fact the crime. committed mention held prosecutor back Q training how does that long And he was in evidence until that testimonial take? closing argument of his final seconds years. A Two It in the case. importance its demonstrates complete successfully Q you And did anyone, me how to see impossible training? court, easily can so appellate an especially school, no graduate A I did not from a reasonable beyond convinced declare itself have been sir. same doubt that the result ex- be reporter’s testimony

reached had you have been a Q Okay. long How elastic no stretch of the most By cluded. reporter in this area? it be said error doctrines can harmless years. A Two and a half appel- evidence harmless. such report in? Q you And what towns do case should conviction lant’s reversed. Judicial District A I cover Second Grangeville anywhere from which would be

APPENDIX Moscow. up to called on GERSTENBERGER JEAN you do Q special training, any, if What sworn, tes- State, duly behalf of first reporter? receive to become tified as follows: that. know how to answer A I don’t operate the machine

You learn to REBUTTAL EXAMINATION and to lis- verbatim everything take down carefully. ten BY MR. PETRIE: whom? Q carefully full Listen Q your the record state you For will please. name To is speaking. A whoever Gerstenberger. A Jean *15 Q you I see. Did occasion have an to living? Q And what do do for a you preliminary take a on the 27th hearing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍December, A I am a court reporter. 1977? diet,” prosecutor’s question had the statement been error even

4. The harmless to be answered LePage particular that such It would seem to me was excluded. fashioned for case, rule, jury usurpation pаraphrasing was not a as which is of the rule Garcia, 108, 111, function, applied unless the stated in State v. should never be applies (1979), applied in it is a unanimous court. 594 P.2d 149 and also court which Stewart, court, 185, 187, distinguished State v. as from a mere Idaho 595 P.2d How can a court, (1979). majority anything re- Both Garcia and Stewart of a be convinced Smoot, upon language beyond constituently lied similar in State v. a reasonable doubt when percent LePage percent Idaho 590 P.2d is convinced or 60 it so recently erroneously harmless error rule So it is a rather mon- was so convinced? viewed deciding LeMere, strously dangerous misapplied Idaho doctrine. crimi- in State v. record, guilt, excluding nal on a cold (1982), evi- four members 655 P.2d where erroneously dence regardless being inflammatory allowed or advised Court prosecutorial comment, proper relying a court of five on a different mem- State was standard, it, finding required bers should as using itself unanimous as is insisted Garcia, jury. Smoot, beyond LePage doubt that Stewart and “convinced reasonable courts were unanimous. jury would still have arrived at the same ver- sir. A Yes sir, A Yes I did. Q And what did that entail —not precise topic what was the testimony, but Q hearing preliminary And what about? you taking at thаt time? pillow. A The topic was about versus Monte A It was of Idaho Hoisington. Q pillow? And what about the Q Boyd involve the Traci And did that if you A I don’t want me to understand rape? say what she was or what. saying

A Yes sir. Q Well, testify- what was she basically ing concerning to the pillow? Q Boyd when Traci was you Do recall hearing? at that testifying preliminary A be- testifying pillow She was hind her head. A Yes sir. Q Okay. And at that time did the de- Q reporter at that you And were fendant —did you say hear defendant

preliminary hearing? anything? A Yes sir. A Yes sir. Q Where was that taken? Q What did you hear him say? A In three in the Nez Perce courtroom MR. AHERIN: If please, the Court I am County Courthouse. going object to to that. Is this to some- Q This building? same thing she recorded or an unrecorded state- A Yes sir. ment? Q anything Do unusual you recall THE COURT: is something This —the being preliminary hearing said during that question was directed as to something she testifying? while Traci Boyd heard. I don’t know whether it was record- A Yes sir. ed or wasn’t, whether it that she heard the Q And do recall when this unusual you defendant —the question, it, as I understand topic item recall what the you was said —do is something she say heard defendant Boyd testifying? was when Traci while Miss testifying regarding the pillow. A Yes sir. Q And what was she topic testifying to MR. AHERIN: If please, the Court I am

at that time? going to move object the to— on the basis that improper impeach- please, MR. If the I AHERIN: am ment if that attempt is an to impeach the going object. know I don’t where coun- testimony of someone that has already tes- sel is is having testify headed. If he tified. I think improper it is an form of recorded, part what was of her rebuttal. reporter. official duties as the court If he is trying impeach some testimony, objection THE COURT: The is overruled. is a recorded statement. MR. you, your PETRIE: Thank Honor. not, MR. your PETRIE: I am Honor. *16 Q record, To was the defend- clarify the merely get topic want to of the conver- ant testifying at that time? testifying sation that the witness was to. A No sir. Yes, objection

THE is over- COURT: ruled. Q defendant at that Where was the time? you.

MR. PETRIE: Thank A At counsel table. Q you topic Do recall of conversa- Q away you from And about how far topic tion —or the at was he? time? you sir, you heard it because

A Yes quiet. asked him to be A Five I am good feet. not too at dis- tance. was the date Q time —what At the statement? this

Q And at Okay. that time when Traci testifying position was hearing during preliminary A It was pillow did the if say, you what defendant 27th, December 1977. which was on recall? ever Q thing only you Was A I do not recall exact his words. time? during that say heard the defendant Q Do you recall the effеct of those I thing understood. A That is words? what said Q remember You don’t A Yes sir. before that? right

Q they? What are Aherin, recall, nothing. I Mr. A As A placed pillow That he had not Q said he never saying You are way, pillow or that not how anything up to that time? to me placed. right sir, just saying I am A No Q say And to whom did he to? sitting saying that he was before nothing. A Mr. Aherin. this Q testifying

MR. a witness at questions. PETRIE: No further Was there time? CROSS-REBUTTAL EXAMINATION Boyd. A Traci BY MR. AHERIN: Q Boyd— Do you remember what Traci Q How close Hoisington? was I to Mr. you page do remember what that was on the transcript? A You were seated next to him. sir, A No I haven’t tran- looked

Q Closer than you? script part since I—I believe it is the first A Yes sir. I am not sure. Q you And are absolutely sure that that recess, you THE Do want a Mr. COURT: is what he said? ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Aherin? A Not exact words but that was MR. AHERIN: Yes. idea, yes sir. THE Q right, How COURT: All we’ll you do take a know that was idea if short recess. you don’t know the exact words?

A Because I remember when he made (RECESS TAKEN AT 10:50 O’CLOCK the statement it indicated to me that A.M. 11:15 RECONVENED AT O’CLOCK he had been there because knew what he A.M.) was talking about. THE COURT: Mr. Aherin. Q you Could have been since mistaken MR. AHERIN: If please, the Court you didn’t it hear exactly? this time I would move for mistrial on the MR. PETRIE: Objection, your Honor. grounds that the impeachment attempts by That is an improper question. prosecutor was improperly done in that the defendant was THE never COURT: confronted Overruled. statement, this if they trying are to make MR. PETRIE: you. Thank statement, an inconsistent and it has results A I heard but I exactly do not re- ed in highly prejudicial being matters be- member what words are now. fore the jury. puts It also me in posi- Q youDo think I would have heard that problem tion an ethical those statement if it was made? reasons would move for mistrial.

Q you any knowledge Do have whether Mr. Hoisington had read the statements is denied. The motion THE COURT: my the material that was in file? the witness was Q You indicated that pillow? about a testifying knowledge. A I no have A Yes sir. Q you Then don’t know if was mak- ing statement, you? reference to another do materi- Q that time the youDo recall at par- at that als that on counsel table were A No sir. ticular time? MR. ques- AHERIN: have no further A Your table? tions. Q Correct. REDIRECT REBUTTAL EXAMINATION your thing A I recall would BY MR. PETRIE: file, nothing else. Q Gerstenberger, Mrs. you subpoe- Q papers, police youDo recall a stack naed to testify today, here weren’t you? reports? A Yes sir. recall them. A I have no idea. I do not MR. questions. PETRIE: No further Q You have no idea then? THE COURT: You may step down. being there but your A I remember file I do know else. what MR. PETRIE: The State calls Dennis Garnet.

Q you question Now answered was at least Your answer alternative. time do recall if I you

an or answer. At the was writ- pad anything

had a note

ing?

A I believe so.

Q Do recall if Mr. you papers before him?

A I do not recall.