The STATE of Idaho, Plaintiff-Respondent, v. John HORN, Defendant-Appellant.
No. 12602.
Supreme Court of Idaho.
April 21, 1980.
610 P.2d 551
Therefore, DOWR was without authority to authorize a change in the nature of the use and therefore there are no factual issues in dispute. We decline, to address the other issues raised by the appellant, and affirm the district court‘s granting of the motion for summary judgment. Costs to Respondent.
DONALDSON, C. J., and SHEPARD, BAKES and BISTLINE, JJ., concur.
David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.
SCOGGIN, Justice Pro Tem.
Appellant Horn appeals from a conviction of kidnapping and robbery.
Before midnight on December 6, 1976, Horn left a party with Royer and McGinnis, all three were intoxicated. Shortly after midnight, Cartwright, a cabdriver, responded to a request for service in the vicinity of the party. He picked up three intoxicated men, one of whom he identified as Royer. According to Royer‘s testimony, McGinnis threatened Cartwright with a 9 mm. automatic pistol and forced him to start driving. Horn then demanded all of the cabdriver‘s money, which Cartwright gave him. Cartwright was forced to continue driving for several more blocks before he was ordered to stop the cab and the three men left. One of the men fired the pistol at the departing cab.
Cartwright immediately radioed the police. Shortly after their arrival, the police spotted three men within six blocks of where the three assailants had exited the cab. One of these men fled; the other two were arrested and were identified as McGinnis and Royer. Several minutes later, Horn was observed walking toward the police from the direction where the third man had fled. He was also arrested and searched. No incriminating evidence was found at the time of the search. Later, however a friend of Horn‘s found Cartwright‘s wallet in the pocket of Horn‘s jacket.
During a search of the area, the police found a spent 9 mm. shell near the spot where the three men had left the cab. A 9 mm. pistol was found within three to four feet of where the three men were first spotted by the police. Pabst Blue Ribbon beer cans, a brand that was consumed at the party, were found near the spot where the cabdriver picked up the three men. Cartwright testified that the man who had demanded the money was wearing a Levi jacket with fleece lining. Horn was wearing a down-type jacket with fleece lining.
The three men were charged with robbery and kidnapping. Royer‘s charges were subsequently dropped. McGinnis pled guilty to robbery; his kidnapping charge was dismissed and the State did not appeal. Horn insisted that he was not in the cab during the robbery; McGinnis corroborated his testimony. The jury, however, believed Royer, who had testified that Horn was present, and found Horn guilty of robbery and kidnapping. The judge sentenced Horn to ten years for robbery and imposed no sentence for the kidnapping conviction. Horn appeals.
“Defendant further moves the Court for its Order requiring that the State disclose any and all information which may assist said defendant in preparing for trial as required by State and Federal Constitutions and further that this Honorable Court make available to this defendant and his attorney, copies of all documents filed with the Court which are matters of public record.” Rec. at 19-20.
The trial court eliminated the quoted language above and limited the discovery order to language paralleling
The State has a constitutional duty to disclose to defendant exculpatory evidence material to the preparation of his case. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979); Note, The Prosecutor‘s Duty to Disclose Exculpatory Evidence, 14 Idaho L.Rev. 223 (1977). The prosecutor‘s failure to disclose does not violate his constitutional duty unless the omission is of sufficient significance to deny defendant his right to a fair trial. United States v. Agurs, 427 U.S. at 109, 96 S.Ct. at 2400. Furthermore, there is “no constitutional requirement that the prosecutor make a complete and detailed accounting to the defense of all police investigatory work on a case.” Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972). The prosecutor is, therefore, only required to disclose information favorable to defendant and material to either his guilt or punishment. Moore v. Illinois, supra; see State v. Owens, supra. Contrary to appellant‘s claims the State is not constitutionally compelled to “disclose any and all information which may assist said defendant in preparing for trial . . .” Nor does the constitution require the court to facilitate defendant‘s preparation by compiling for him all relevant public documents.
It is unclear what appellant hoped to gain by his discovery motion. Appellant has not shown that he was prejudiced by the court‘s order; indeed he has not even alleged the existence of favorable evidence. As this Court will not presume errors, appellant must affirmatively show error on appeal. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). As appellant has failed to show how he was injured by the court‘s order and as the discovery order was well within the limits set by the constitution, we must affirm the court‘s action.
Appellant also argues that at the preliminary hearing the State failed to show probable cause that the appellant committed the offense. According to the appellant, only his proximity to the scene of the crime linked him with the offense.
The standard of proof required at a preliminary hearing is not as stringent as that required at the trial. At the preliminary hearing, the State need only show that a crime was committed and that there is probable cause to believe that the accused committed it; proving the accused‘s guilt beyond a reasonable doubt is not required. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979); State v. O‘Mealey, 95 Idaho 202, 506 P.2d 99 (1973). Once the magistrate determines that probable cause exists, a clear abuse of discretion must be shown in order to overturn the magistrate‘s finding. State v. Owens, supra; State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979).
In this case, sufficient evidence exists to support a determination that appellant probably participated in the kidnapping and robbery. Appellant attended a party in the vicinity of the crime with the two other men implicated in the crime. He left the party with these men, all were intoxicated. The victim testified that his assailants were intoxicated. Beer cans with the same label as those consumed at the party were discovered where the cabdriver first picked up the three men. When called
Appellant Horn next asserts that the court‘s refusal to dismiss the kidnapping charge denied him equal protection of the law. He argues that the State violated the equal protection clause of the Fourteenth Amendment by pursuing the kidnapping charges against appellant Horn but not against Royer and McGinnis.
Prosecuting attorneys are vested with broad discretion in deciding when and whom to prosecute. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973). The exercise of that discretion does not violate the equal protection clause unless the selectivity is based on unjustifiable standards, such as race or religion, see Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), or on improper prosecutorial motives, such as a desire to hinder defendant‘s first amendment rights, United States v. Falk, 479 F.2d 616 (7th Cir. 1973), see United States v. Kahl, 583 F.2d 1351 (5th Cir. 1978). In Oyler the Supreme Court made clear that “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” 368 U.S. at 456, 82 S.Ct. at 506. According to the Court, because “it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification[,] . . . grounds supporting a finding of a denial of equal protection were not alleged.” Id..
In the case at bar, appellant‘s allegations do not satisfy the above criteria. There is no evidence that the prosecutor based his decision to prosecute them for kidnapping on improper standards or motives. Mere failure to prosecute other offenders is not sufficient by itself to support a finding of a denial of equal protection. Cook v. City of Price, 566 F.2d 699, 701 (10th Cir. 1977).
Appellant also argues that his simultaneous convictions of robbery and kidnapping were constitutionally and statutorily impermissible. As the kidnapping was contemporaneous with the robbery, appellant argues that he is being punished twice for the same act.1 This arguably violates both the Double Jeopardy Clause of the United States Constitution and the Idaho multiple punishment statute.
The Double Jeopardy Clause of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). One function of the clause is to protect against multiple punishments for the same offense. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In determining what constitutes the same offense, the Supreme Court follows the Blockburger rule. See, e. g., Brown v. Ohio, supra (applying Blockburger to find joyriding and auto theft are the “same offense“). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Court stated that “where the same act or transaction consti-
In this case, the Blockburger test is satisfied. Robbery requires the taking of another‘s personal property, kidnapping does not. Kidnapping requires detaining a person against his will; robbery does not. Compare
Idaho‘s multiple punishment statute,
In arguing that the kidnapping and robbery ensued from the same act, appellant relies on the logic of State v. Woolard, 259 Or. 232, 484 P.2d 314 (1971) and subsequent Oregon cases. The Oregon Supreme Court held that Woolard could not be convicted and sentenced for burglary and larceny, both of which arose out of the same criminal conduct. The Oregon rationale, however, was explicitly rejected by the Idaho Supreme Court in State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979). In McCormick this Court held that § 18-301 does not prohibit conviction and sentencing for both burglary and rape. According to the Court, the act of burglary was completed when defendant entered the home with intent to commit rape; the rape, however, was not completed until defendant forced intercourse on the victim. As the rape occurred after the completion of the burglary, the two crimes each constituted a separate act under § 18-301. This Court also looked to the temporal sequence of the crimes in determining whether § 18-301 applied in State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963). See also Smith v. State, 146 Ga. App. 444, 246 S.E.2d 454 (1978); Stalley v. State, 91 Nev. 671, 541 P.2d 658 (1975) (Nevada Supreme Court applied temporal test to determine rape and kidnapping were separate crimes). Applying the McCormick test to the present case, we find that the robbery and kidnapping constituted two separate acts.
Appellant finally asserts that the evidence is not sufficient to support the verdict. A jury verdict will not be disturbed on appeal where there is substantial and competent evidence. State v. Kellogg, 100 Idaho 483, 600 P.2d 787 (1979); State v. Warden, 100 Idaho 21, 592 P.2d 836 (1979). We have reviewed the record and find substantial and competent evidence to support the verdict.
Judgment affirmed.
DONALDSON, C. J., and BAKES and McFADDEN, JJ., concur.
BISTLINE, Justice, concurring and dissenting.
I agree with all portions of the Court‘s opinion other than its disposition of Horn‘s contention that
I find more logic in that which Justice Donaldson wrote in Brusseau, other than his belief that he preferred to forge an “assault-murder” exception to the statute—based upon a theme common to both his opinion and that of the majority that the state ought not to be expected to wait a year and a day to see if the person assaulted expires from his injuries. This rationale is not all persuasive. Where the victim‘s fate is in doubt, there is no reason to, and every reason not to, move so swiftly as did the prosecutors in Randolph and in Brusseau. As I pointed out in my dissent in Stockwell v. State, 98 Idaho 797, 573 P.2d 116 (1977), in writing of the prosecutor‘s statutory options to bring about a dismissal under
As a matter of actual fact, in Randolph the prosecutor only two days after filing the criminal complaint charging assault and battery, and likely upon receiving some sage advice from older practitioners, moved the court to dismiss, but inexplicably thereafter withdrew his motion. The defendant, of course, had quickly gone into court and entered a plea of guilty the very day on which he was charged. On appeal the Court‘s holding on jeopardy as to the assault and battery charge was a sublime equivocation, to say the least: “[J]eopardy attached probably before, or at least on, appellant‘s plea of guilty.” 61 Idaho at 459, 102 P.2d at 914. The Court did not give any consideration to the State‘s right to dismiss, the motion having been withdrawn, and in what appears to be an obvious intent to “correct” the result of the prosecutor‘s poor judgment in having moved too swiftly, reached the conclusion that
Brusseau is a clear and convincing example of a single act which the legislature has made punishable in different ways by different provisions of the criminal code. State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979) is an example, admittedly a close one, of two separate acts.
In Horn‘s case, his single act was entering a cab, and by use of threat of force both relieving the victim of his freedom and his money. Had he in the same drunken escapade shot the cab driver in order to seal his lips, then the case would be McCormick. Any time a defendant has wrongfully de-
BISTLINE, Justice