State v. Jones

court’s Accordingly, affirm the trial we is that paragraph 24 of the Restrictions respondents summary judgment for grant of legal in connection grantor employ counsel Appel- appellants. fees to and its award of beyond question It is the Restrictions. with appeal, on to fees Elmar lants are also entitled requirement was met since that this 24 of the Restrictions. original grantor pursuant paragraph and a both an Grabher was respondents, as this in connection employing counsel No fees are awarded defendant Contrary plaintiffs’ or without founda- appeal the Restrictions. not frivolous with was change applicabili- suggestion, it does not tion. in Farm there

ty of Farm Credit that Credit party, plaintiffs here prevailing was no while BISTLINE, McDEVITT, CJi, and legal Under Farm prevailed on the issues. SILAK, JJ., concur. JOHNSON Credit, attorney contractual fees unless the such, “pre- specifically requires provision imposed

vailing party” requirement will be right to recover fees.3

on a contractual defendants, awarding fees to the trial requested found that the fees defen- The court observed

dants were reasonable. represented by the that all defendants were defendants, counsel, same and that one of the IDAHO, Plaintiff-Respondent, STATE of Grabher, original one of the Elmar Thus, grantors in the Deed of Restrictions. requirements paragraph 24 the contractual JONES, the fact Defendant-

were met. The court also found that Robert Richard Appellant. attorney represented that one all defendants legal and that the actual bill for services No. 19432. may to a defendant rendered have been sent original grantor who was not an did Idaho, Supreme Court of Fur- change application of Farm Credit. Boise, February 1993 Term. ther, the court found that the amount of fees would have been the same had Elmar Gra- April only bher been the defendant. trial court’s factual determinations re-

garding clearly the fees cannot be said to be them on

erroneous and we will not disturb

appeal. The trial court involved in this inception;

case from its it knew the issues case, in the had considered the at-

involved arguments

torneys’ written work and oral

and had a sense of the amount of work attorney put had to into the case.

defendants’ court, therefore, position was in a

The trial had been the

determine that Grabher

defendant, legal work entailed would and was in a better

have been same scope to assess the

position than this Court legal involved and the reason- work requested. of the fees

ableness it, issue, subsequent we do not consider concede this 3. For a restrictive covenant to bind holding regard question grantees In their make no it must run with the land. Court, attorney provision plaintiffs fees runs with the state that the Re- whether the briefs to this plaintiffs land. strictions run with the land. Because 125 Idaho Rptr.~17

479

481 thirty twenty or kill for Cordell to Vance Wystrach’s thousand dollars. case, providing prosecution’s

integral to the conspiracy, its knowledge of the first-hand Wystrach testi- subject payoffs. matter present several fied that she was Donna Cordell and Jones meetings between money ex- information and were at which changed. The trial court allowed concerning of the conversations the content meetings place at these under took 801(d)(2)(E). Wystrach testified also in her surveiled Vance’s house that Jones company. Wystrach explained the relation- one of ship and Martinez as between Jones selling partners in the business business Hamilton, Clark, Drescher, Michaelson & drugs. ar- Nampa, appellant. Mark L. Clark grand jury hearing, Wystrach de- At the gued. murder, eve- stating that late one tailed the EchoHawk, Larry Atty. Lynn E. Gen. ning, and Martinez went to Vance’s Jones Boise, Thomas, Deputy Atty. (argued), Gen. house, him in overpowered him and shot respondent. for this testimo- head. The trial court restricted trial, product ny at as it was the of confiden- McDEVITT, Chief Justice. Wystrach tial communications made between during marriage. The mur- and Jones their OF THE CASE STATEMENT victim, by weapon, der which was owned by In December on indictment was found in a farmer’s field across (“Jones”) jury, grand Robert Richard Jones prints the victim’s house. No street from Troy charged having was murdered gun identified as were on the or at the Jones’ (“Vance”) Charges Vance June fact, crime. there was abso- scene of the initially brought by complaint against were lutely forensic to connect Jones evidence (“Mar- Jones and Jose Alfonso Martinez crime. tinez”) in October but were dismissed adjudged by Wystrach the trial court was 1989, Sherry February 1982. In October accomplice as a matter of law to be an wife, Wystrach (“Wystrach”), Jones’ former crime and the court’s instruction warned concerning came forward with vital evidence jury to take that fact into consideration. result, Jones, the Vance murder. As a Mar- Wystrach’s testimony by corroborated was Cordell, tinez, Spalding Donna and Rebecca girlfriend, Spald- that of Martinez’ Rebecca degree Wys- indicted for first murder. were ing, appel- testified that Martinez and who grand jury trach testified at Jones’ indict- evening lant would leave the house each ment. time the same time and return at the same pled guilty. pretrial Jones not Several murder, night except for the when hearings were held to resolve Jones’ motions they returned much later than usual. Rebec- venue, change preliminary for for a hear- night, Spalding ca also testified that on that ing concerning conspiracy, the existence of a home announced that Martinez returned indictment, sever, to dismiss the and to leaving immediately Mexico. he would be for jury. independently voir dire the The trial objected testimony but it was Jones to this change court denied the of venue motions 801(d)(2)(E). ruled admissible under I.R.E. preliminary hearing. and for a The court conspiracy was The trial court ruled that the also refused to dismiss the indictment. payment complete until the final was trial, made, theory uttered At wove its and Martinez’ statement was State Wystrach’s testimony by Donna finalization. Jones and Martinez were hired before actions by of one certain nonverbal further corroborated VI. Whether was Wys- place took Jones George placing Florence Jones near between crime, jailhouse marriage protected their are trach and that of scene privilege. appel- canopy of the marital colleague of Jones’ testified that under who confessed the to him. lant murder uncharged Whether VII. erroneously admitted crimes Jones impeach strove to defense counsel 404(b). by the trial court under Wystrach in order the foundation to dissolve intro- an undis- case. counsel of the State’s Defense VIII. Whether evidence, extrinsically and via excluded both witness should have been duced closed cross-examination, prior alcohol and of her the trial court. abuse, relationships, her vin- drug her failed in- jury properly IX. Whether dictiveness, propensity lie and become her structed. forgetful, immunity and the confused the trial court conducted X. Whether Moreover, de- granted her the State. sentencing hearing. fair theory of counsel its own

fense constructed murder, establishing a different time ANALYSIS firm to coincide with alibi. death Jones’ trial, on December At the conclusion of the I. returned a verdict TO THE GRAND MOTION DISMISS hearing, the guilty. sentencing At the JURY INDICTMENT that Jones de- presented to show penalty. presented the death Jones served grand argues during the Jones first to rebut letters of reference several attorney jury proceedings, prosecuting correc- and also submitted State’s deliberately illegal and elicited and allowed addition, presentence report. In tions to the witness, testimony key misleading its from marijuana introduced evidence that Jones illegal testimony allegedly Wystrach. The being grown Wystrach’s present in resi- hearsay testimony and in violation involved credibility at impeach to further her dence privilege I.R.E. marital under of Jones’ life hearing. to the Jones was sentenced 504(a). testimony misleading and The false this appeal and an to imprisonment filed of a hair found allegedly concerned evidence Court. matching purportedly crime scene at the stipulated by prosecution the but later Jones’ that must address The issues this Court further contends to be the victim’s. Jones include: process preju- also the indictment that prejudiced in the I. Jones was Whether alleging testimony by the admission of diced false, of jury proceedings by the use grand of Jones. uncharged crimes other irrelevant testimony such misleading, privileged and the indict- this Court to dismiss Jones asks indictment be dismissed. the should mis- alleged prosecutorial because this ment deny- in erred II. trial court Whether by process right his to due conduct violated change of venue. motion for a Jones’ impartial right his have an denying him to in rul- court erred III. Whether trial grand prob- independent jury determine and concerning sufficient ing on Jones’ motions able cause. in- proof conspiracy to independent of a grand jury governing indictments The law 801(d)(2)(E). voke and rules. from numerous statutes derives Whether there is sufficient IV. § “[t]he 19-1107 states Idaho Code accomplice testimony of to corroborate indictment when grand jury ought find an verdict. guilty Wystrach support them, together, before taken all the evidence would, uncontradicted, or Washington unexplained law Idaho or V. Whether by a judgment, a conviction admissibility a warrant of their applicable to the issue of jury.” § 19-1105 describes Idaho Code telephone between trial taped conversation jury may consider: type of evidence the Wystrach state lines. and across Jones that, ly apparent independent illegal investigation charge a of this In the of evidence, legal purpose presentment of either or indict- there is sufficient ment, grand jury jury any support grand can receive evi- had the indictment. by forty given produced pages dence that is witnesses it of from before over except as Wystrach describing preceding, and sworn before them hereinaf- the events provided, by legal murder, during, following including ter furnished documen- and tary evidence, of deposition a witness summary meetings detailed of took by legal- code provided Cordell, Jones, in the cases this or and place Donna between ly hearsay. admissible Wystrach concerning which information at money payment was dis- Vance and 6(f) states that “[i]n Idaho Criminal Rule closed, surveillance of the Vance as well as investigation charge purpose of a for the Wystrach. property by Wystrach Jones indictment, presentment grand either or also Jones’ Martinez’ testified about evidence, jury legal can receive none but murder, preparations night on degree, the best evidence exclusion from about their absence home hearsay secondary evidence.” Section murder, (h) critical hours of the and about appears grand states that “[i]f disposition payoff final received after evidence been laid them has before Wystrach meeting at a final probable there is cause to Cordell. believe an addition, George Florence offense has been committed and offered the accused it, shortly jury ought placing near the crime committed to find an indict- Jones scene 6(h). ment.” I.C.R. before the murder occurred. This is suffi- support finding proba- cient evidence to upon allegations Based Jones’ improperly ble cause therefore the ad- case, inquiry propriety our into the mitted evidence does not overturn the indict- First, grand jury proceeding is two-fold. we ment. whether, independent must determine grand jury inadmissible prong re We now turn to the second of our legally inquiry. Edmonson support ceived sufficient evidence to held that This Court cause. State v. Edmon finding probable “in order be entitled to of an dismissal son, 230, 236, grounds, process 465 indictment due the de- on (1987). Second, affirmatively must dismiss fendant prejudice we the indict must show if, despite the misconduct.” Edmonson adequate finding prob ment caused cause, 237, prosecutorial Specifically, able the misconduct in at 466. P.2d the defen- submitting that, illegal egre the illegal evidence so dant must but for evi- show the dence, Id. at gious Id. prejudicial. as he not have would been indicted. Edmonson, P.2d at 466. exception In the defendant took prosecutors regarding comments the After a careful review of the tran credibility weight of witnesses and and the grand script jury proceeding, agree of the we sufficiency of the evidence. The Edmonson with the trial illegal court’s conclusion that court, balancing gravity the and seriousness by grand jury evidence was received the in sufficiency of the the of the misconduct with testimony concerning the form of privileged probable the supporting cause find- marital uncharged communications and circumstances, totality under the Wystrach testified, in crimes. violation of insignificant found the to be so misconduct 504, as to a confidential conversation second-guess the need to the obviate Jones, that occurred her and between her grand jury. husband, immediately the after murder of testified, case, Troy addition, Wystrach although In Vance. the instant we do In 404(b) in prosecutor’s violation of I.R.E. and as to not find in re the misconduct uncharged burglaries vealing at privileged hearsay least one other and allegedly by agree also insignificant, murder committed Jones and to be as we do not Although Martinez. it clear that this testi with trial court’s conclusion that such mony by prejudicial according should not have been elicited the misconduct was jury, test announced Edmonson. prosecutor grand equal- it “but for” in Be- before trial, legal fair an independent cause ceived a and thus whether abuse there is occurred, support finding probable of and be- of discretion has are existence a cause totality in the indicating prejudice cause of the circumstances at the of affidavits com- grand munity; do not as to jury proceeding demonstrate at voir dire whether prejudice, juror opinion no for any there is basis dismissal formed an the de- had guilt pretrial on the indictment. fendant’s or innocence based publicity; challenged the defendant whether selected; finally jurors any for cause II. pretrial publici- the nature content of the FOR CHANGE OF MOTION VENUE ty; length elapsed of time between the trial; pretrial publicity and the as- argues next trial court Jones given jurors surances themselves con- refusing grant erred in his motion for Needs, 99 cerning impartiality. their juror change prospective of venue because 890-91, 591 P.2d at 137-38. possibly county in could rendered have an verdict. Jones bases this asser unbiased reveals Our of the record that a review First, tion factors. victim in on several Canyon County from was selected with- prominent a Caldwell business case was significant difficulty. out Jones did introduce Consequently, man. at the time when Jones opining affidavits that he could not receive a the murder in was first accused of in Canyon County. fair trial Jones also sub- publicity veritable flood heralded reflecting media mitted news articles cover- prosecutor’s investigation. events age naming published him as the defendant high profile This case in was a which However, within six his trial. months of in public subsided interest only factual articles contained accounts original years terim between and second occurring events then and were of an aired investigations. Numerous stories were Furthermore, jurors inflammatory nature. 1989,' again alluding in both questioned extensively and those ulti- were Second, sever and his co-defendants. Jones absolutely no mately hesi- selected indicated pretrial attorney al affiants stated tancy impartiality and lack affirming their impossible publicity for Jones to made Finally, not prefabricated opinion. one of Third, Canyon County. obtain a fair trial jurors challenged for the final cause majority peremptory of his spent Jones foregoing, we upon Jones. hold Based jurors with knowl challenges on extensive its that the trial court did not abuse discre- Finally, edge of the case. examination denying change for a tion the motion that most of venire transcript shows venue. digested exposed to and men had been media alternative, challenges In the Jones murder. coverage of the Vance motion the trial court’s denial of his change A motion to the venue of a sequestered light of our hold voir dire. to dis trial is addressed the sound criminal change of for ing concerning the motion ven Bain cretion of the trial court. State v. ue, voir dire sequestered hold was we that a 335, 273, 276-77, bridge, 698 P.2d 108 Idaho not error for the necessary not and it was Needs, 883, (1985); v. 338-39 State 99 Idaho deny the motion. trial to (1979). 890, 130, 137 591 P.2d Well-settled appears case that “where law holds III. actually trial received a fair defendant difficulty experienced that there was PROOF CONCERNING MOTIONS grant change selecting jury, in refusal to a a OF A CONSPIRACY ground for State of venue is not a reversal.” adopt 1310, to Thomas, 430, 432, urges this Court Jones v. Idaho 489 P.2d 94 (1971). oppor of Bainbridge, procedure allowing a defendant 108 Idaho 1312 See also Needs, hearing to determine 339; tunity pretrial 277, at have a at P.2d at 99 Idaho 698 independent proof 890, in whether there is sufficient at 137. Factors consider 591 P.2d co-conspirator conspiracy of a to invoke has re- determining whether the defendant

485 for qualify do not proce conspiracy of exception hearsay rule. This 801(d)(2)(E). disagree. We process has been denominated a admission under dural holding specifically in found hearing” “James based on the The trial court (5th James, for ad- providing springboard conspiracy v. 590 F.2d 575 United States denied, Cir.1979), 917, under mitting 99 statements cert. 442 U.S. S.Ct. Martinez’ (1979). 801(d)(2)(E) 2836, simply for the murder 283 was not 61 L.Ed.2d We decline Vance, paid murder of appellant’s According of but was for the invitation. ex State, further found that isting in the trial court has Vance. The trial court law this conspiracy end until the final to admit of a co-con did not discretion statements made, and, pursuance payment because the spirator conspiracy in of had been “made a Martinez’ statements conspiracy or evidence showed that there some evidence of proof payment, final a of of existence.” were made before the sufficient offer its 642, 638, under Hoffman, 123 were admissible State v. Idaho 851 statements Caudill, 801(d)(2)(E). 934, (1993), citing that there is sufficient P.2d 938 State v. We hold (1985); ruling 222, support trial 109 706 456 State v. court’s Idaho P.2d So, (1951). 324, conspiracy paid murder 71 Idaho P.2d that the was 834.) (Tr. Therefore, of vol. at Vance. IV argues Jones that the trial court complete conspiracy until final not erroneously hearsay admitted statements made, payment all made statements through Martinez of Rebecca conspiracy until furtherance of the final 801(d)(2)(E) Spalding, under I.R.E. without a payment v. are admissible. State Cau- Cf. finding independent conspir evidence of a dill, 226, 706 109 Idaho P.2d acy. again, require Once Idaho law does not (1985). independent contemporaneous proof of a con that, spiracy. simply requires law also Jones asserts because conspiracy underlying conspiracy there some was barred be crime limitation, promise production, hearsay of its before the court the statute of state can admit evidence of statements made in of that crime are also ments furtherance argument conspiracy furtherance of the under I.R.E. barred. This suffers at least one 801(d)(2)(E). “conspiracy” It fallacy. Id. We will disturb trial internal confuses as long concept decision to law court’s admit statements so of substantive criminal with princi permit “conspiracy” part evidentiary as there is “sufficient of an evidence to as reasonably ple, trial court to infer that the latter all the for there and burdens conspiracy.” Hoffman, requirements existed a 123 Idaho mal of the former. The ninth concisely (citing proper 851 P.2d at 938 has circuit articulated Brooks, 892, 901, approach the issue: (Ct.App.1982)). differences between what must [T]he proved to hearsay exception invoke the whole, Looking indepen- at the as a record proved and what must be order to con- Jones, Martinez, dent of the statements of person conspiracy, vict a crime as Cordell, and Donna there is sufficient evi- proof, well the difference burden permit reasonably dence to the trial court estoppel mean that neither collateral nor conspiracy infer that a existed between judicata automatically res bars the use of Wystrach’s testimony clearly three. estab- person who statements has been ac- Thus, conspiracy. lishes the all statements quitted conspiracy. crime by any co-conspirators made 1003, Peralta, conspiracy and in are v. 941 1006 furtherance ad- United States F.2d (9th Cir.1991) Gil, against v. quoting each United missible under States (7th Cir.1979). 801(d)(2)(E). 546, that, argues further if 604 F.2d 549 See also Jones Carroll, 500, any all, conspiracy 860 F.2d 506 there was it was the United States v. (1st Kincade, Vance, complet- Cir.1988); v. 714 murder of which murder was United States (11th 1064, Cir.1983); ed to which 1065 United before Martinez’ statements F.2d Stanchich, (2nd Thus, contends, 1294, 1299 Spalding v. 550 F.2d testified. Jones States Cir.1977); Cravero, 545 the statements were not made in furtherance United States v. F.2d 486 (5th

406, Cir.1976), denied, ing necessary 419 cert. of his 430 U.S. corroboration testi- 983, 1679, Wilson, 194, (1977); 200, mony. 97 52 S.Ct. L.Ed.2d 377 State v. 93 Idaho Bass, (1969). 207, 433, United States v. 472 F.2d 213-14 457 P.2d 439 Corroboration (8th Cir.), denied, 928, accomplice only cert. U.S. 93 S.Ct. an need connect the accused (1973). 2751, crime, By may slight, 37 L.Ed.2d 155 the same and need with the it be token, only may go the statute of limitation for the crime to one material fact or it be conspiracy automatically entirely Aragon, does bar the circumstantial. State v. 358, (1984); by person use of statements who cannot be Idaho 690 P.2d 293 State v. (1945). Mundell, 339, charged conspiracy with the crime of due to 66 Idaho 158 P.2d 799 operation of the statute of limitation. adjudged Wystrach The trial court to be conspiracy, substantive criminal law of accomplice agree as a matter of law. We areas, though overlaps many simply it has Accordingly, the trial with this conclusion. application evidentiary principle. to this properly gave limiting court instruction Thus, once there some evidence of a con concerning accomplice testimony.1 The rec- spiracy promise production, any of its ample ord reveals evidence to sustain an by co-conspirator during statement made jury finding implicit of sufficient corroborat- of the course furtherance con ing Corroborating which evidence. spiracy are admissible. makes no dif “[I]t jury easily tending could have found ference whether the declarant or other connect Jones with the murder of Vance tried, partner actually in crime con could be Florence, Tisdale, includes the testimonies of punished conspir victed and for the crime of Spalding, accom- none whom were Gil, 546, acy.” United States v. 604 F.2d 549 plices. (7th Cir.1979). V.

IV. CORROBORATION OF ACCOMPLICE THE TAPED SUPPRESSION OF

TESTIMONY TELEPHONE INTERSTATE CONVERSATION that the trial Jones next contends erroneously court admitted the uncorrob argues next that the trial Jones testimony accomplice Wystrach. orated erroneously applied Idaho and federal § Idaho Code 19-2117 states that: Washington in determin law instead of law A conviction cannot be had on the testimo- admissibility taped telephone of a ny accomplice, of an unless he is corrobo- Washington conversation between Jones itself, which in rated other Wystrach Washington in Idaho. law of the and without the aid recording specifically prohibits of tele accomplice, tends to connect the defendant “points within phone conversation between offense; commission of the with the and without the state” absent the consent of sufficient, is not if it corroboration 9.73.030(l)(a).2 parties. both R.C.W. merely the commission of the of- shows require and federal law the consent of fense, or the circumstances thereof. party. Supreme Court has one The Idaho adopted significant § contacts” test appears as a matter the “most I.C. 19-2117. When accomplice choice of law issues. See John that a is an to determine law witness Pischke, defendant, so instruct son v. the court should 399— (1985). “significant 21-22 con- jury also instruct them concern- P.2d and should other evidence which tends to 1. The trial court instructed the that “the corroborated accomplice of an which tends to in- with the commission of connect the defendant defendant, any, ought to be criminate the crime.” not mean that viewed with distrust. This does testimony, you may arbitrarily disregard such but Williams, 94 Wash.2d In State weight you give which find it to should it the (1980), Washington Supreme Court examining entitled after it with care and cau- preemptive in this held that the federal law is not light in the tion and in the of all the evidence area. accomplice testimony must be ... of an case certainty, First, the need for weigh court must two-step process. entails a tacts” test result, the significant uniformity of in predictability, and the court must examine certain having applied. an interest Once each state of the law be “contacts” with determination according impor- statute application in the relative of the Idaho again, issue the particular tance the contacts to the issue. An principles. of these aptly more achieves Second, court must examine the contacts the in case analysis Washington law reveals underlying the area light principles in the prohibition Washington exercised its which jurisdic- of law the law of the relative originating against taping calls Idaho officials tions. Idaho, require suppression of in nor Allowing by taping. obtained such originated in Idaho In case the call this rely on an Idaho statute officials to Idaho by supervised Idaho and was and recorded taped telephone concerning conversations in police order to obtain evidence officials facili- originating promotes within its borders in concerning a murder that occurred Idaho. uniformity of ty, certainty, predictability, and placed The call to an inhabitant Wash- test, trial Accordingly, we hold that the prong result. ington. the first Under sup- regulating properly applied tele- Idaho law the to the issue of interstate court conversation, in phone pression the contacts Idaho issue. Washington. outweigh those in

significantly we are prong the second the test Under VI. required weigh policies first relevant jurisdiction. Washing- of each involved PRIVILEGED TESTIMONY protect privacy of its ton law is meant to the trial Jones contends citizens. The Idaho law balances need testimony erroneously con protect privacy against of its citizens court admitted provide engaged by cerning social need to reasonable means of acts” in two “marital procuring prosecution of crimes Wystrach, of the mari violation Jones Although Fowler, Washing- committed Idaho. privilege.3 tal heightened protections (1980). provides ton law The first individuals, provides signifi- law Idaho alleged surveillance of incident involves individuals, protection private all cant property, and the second entails the Vance regardless citizenship, by requiring of state “meaningful glance” exchanged at view Thus, party. the consent of at least one both ing story on the murder. We hold of a news Washington policies Idaho and are furthered correctly ruled that the trial court by applying Washington Idaho rather than protect privilege does not the two nonverbal law to the issue. properly excluded from acts. The trial court evidence all confidential communications principle promoting We next consider the Wystrach dur occurred between Jones and justified expectations. protection Indi- The surveillance of the marriage. then' expect telephone their conversations viduals by Wystrach and Jones can property Vance private. expectation would to be This be regarded not as a marital communication application Washing- served either any concerning more than law. must also consider the ton We spouse’s possessions or whereabouts can be. policies underlying particular basic field Id., 550, 617 P.2d at 854. The case, 101 Idaho at significant privacy this law. recognized By properly trial this fact. governmental limiting in- interests underlie contrast, “meaningful glance” that passed telephone trusion into conversations. Once Wystrach although appellant, again, privacy adequately pro- between interest communicative, Finally, presence occurred tected either state’s statute. ____A party proceeding privilege provided by in an action or has I.R.E. 3. marital 504. privilege prevent any It states that: as to confi- party if it is dential communication between A is "confidential” made communication marriage by any spouse during marriage. privately person to his her made his or spouse, for disclo- or her and is intended person. sure to other 488

Wystrach’s parents specified jury’s and was therefore far murder did not influence the complained from confidential. verdict. The most that of testimony could have contributed was to bol VII. credibility Wystraeh. of The ster the ample opportunity had other to discern the EVIDENCE OF UNCHARGED CRIMES credibility Wystraeh weigh against that the court Jones asserts trial Therefore, appellant. that of the error is allowing testimony uncharged erred and does not warrant reversal. harmless appellant relating unspecified crimes of to an sale, possession, murder and to the use and VIII. delivery of controlled substances under 408, Arledge, and State v. 119 Idaho TESTIMONY OF UNDISCLOSED 584, (Ct.App.1991). 808 P.2d 1329 We dis WITNESS agree respect testimony regard sale, ing possession, delivery argues use and of a Jones next that the trial testimony erroneously testimony controlled substance. This is ad admitted the 404(b) witness, Squires. under I.R.E. Lisa missible which allows undisclosed motive, may prior wrongs evidence of to show State call an undisclosed witness when However, plan. testimony testimony intent or con the witness concerns evidence, cerning unspecified possession the chain of of certain murder was errone Goodrich, 773, 777, ously according P.2d admitted to I.R.E. 403. The State v. 95 Idaho 958, (1974), testimony “unspecified” during came rebuttal. The murder Wystraeh’s psychologist testimony Squires from Dr. of Lisa fits crite Hamblin. neither rebutting Squires purposes It was offered for ria. Ms. was used to establish the attempt impeach credibility custody chain of of the Red Lion Downtown- Jones’ Wystraeh. testimony registration charge The doctor’s referred er hotel room ac Wystraeh signed by prosecution count Had the notation he made admit Jones. counseling Squires, him so confined its examination of Ms. ted to session someone,” Squires’ testimony presumably re the admission of Ms. Jones had “killed ferring surpass scrutiny the would under to Vance. The court allowed Goodrich. However, further into the prior as a consistent statement to the State delved episodes surrounding stay at the Red charges rebut of recent fabrication. Because Jones’ Lion, Squires Wystrach’s vague eliciting to the vic from Ms. inference as tim, prior concerning money car qualify the statement does not as a the amount of Jones justifies specificity the admis consistent statement for lack of ried with him. The State unduly portion Squires’ testimo suppressed and should have been sion of the latter ny characterizing prejudicial. admitting error it as rebuttal statement, nonetheless, emphasizing on is harmless accord that the defense cast doubt credibility by examining her Wystrach’s the standard set forth in State v. (1921), prior testimony under Petrogalli, 200 P. 119 about inconsistent 34 Idaho Pizzuto, denying any involvement on her or v. 119 Idaho oath State murder, (1991), require part in the about her bad and therefore does not Jones’ abuse, Rice, 52; memory drug and alcohol based on reversal. I.C.R. (1901). propensity about her to lie as evidenced 66 P. 87 The standard for deter rape charge, her false and about her mining whether error is harmless is “wheth love/ affair with The State asserts possibility a reasonable that the hate Jones. er there is directly supports Squires’ testimony might have contribut complained Wystraeh’s testimony on direct examination and that the court must ed to the conviction sojourn concerning between her and harm a recent able to declare a belief that it was Pizzuto, appellant at the Red Lion Downtowner beyond a reasonable doubt.” less (citation Boise, Idaho, breakup shortly their before 810 P.2d at 700 witness, omitted). that, Wystrach’s turning state’s beyond a rea We conclude Wystrach’s doubt, thereby rehabilitating prior un somewhat the evidence of the sonable

489 trial court hold that the first 594 P.2d at 643. We credibility. disagree. We Goodrich’s instruction, give a Holder properly after refused to contemplates called witnesses criteria entirely on is not based presented their case the case party has because opposing the Phillips, by the State v. brought to bear evidence. allegations to circumstantial rebut 1211, 182, 178, P.2d 1215 Squires a 845 opposition. Ms. was not rebuttal 123 Idaho includes, (1993). among witness, oth- state’s case- Direct evidence surfaced the but Therefore, concern- the of Tisdale things, her concern- er in-chief. Wystrach con- quali- ing not and of bankroll Jones carried does Jones’ confession the surveillance, and fy cerning conspiracy, trial court committed the as rebuttal and the However, admitting testimony. drug buy. her error Martinez’ not warrant the error is harmless does the trial court claims that Jones also reversal. “on about” instruction allowing erred in an alibi, thereby affirmative in the face IX. prove to burden each relieving the State’s beyond a crime every element INSTRUCTIONS JURY Mode, v. 57 State reasonable doubt. argues trial that the Jones also (1961).5 159, 829, 834, P.2d 164 360 Wash.2d erroneously give jury a failed to court not an of death is disagree. time We instruction, asserting that State’s Holder of an of the crime and defense element solely cir jury case before the consisted period does not particular time alibi for Generally: cumstantial evidence.4 constructively create such an element. jury, must state charging In court given by the court “on or about” instruction necessary for them all matters of law to to the state of its burden did not relieve party may pres- Either their information. prove any element. charge court ent to the written request given. it If be X. it pertinent, it must be thinks correct and not, given; it must be refused. SENTENCING HEARING THE question § 19-2132. The whether I.C. fairness question of Jones also attacks the properly was instructed is a neutrality sentencing process. re- over which Court exercises free law Idaho, reviewing is v. sentences See First Sec. Bank Our standard view. Suitts 15, (1985). “Sentencing a matter committed 713 P.2d 1374 In Ida- is 110 Idaho ho, defen give judge, trial and the the failure to a circumstantial evi- discretion instruction, showing clear abuse by the the burden of dence when warranted dant has appeal. exercising Hold- that discre is reversible error. State v. thereof on er, (1979). tion, 129, is re a fundamental 100 Idaho 594 P.2d 639 reasonableness Broadhead, v. 120 Idaho requires quirement.” State Holder circumstantial instruction (1991) 401, (quoting given linking the 814 P.2d 404 to be when the evidence Dillon, 723, 724, entirely 604 P.2d charged is defendant to the crime Holder, 133, 737, (1979), grounds, on other overmled circumstantial. 100 Idaho innocence, guilt your it is proposed and the other his 4. The instruction reads as follows: points adopt duty interpretation which permitted You are not to find the defendant defendant’s innocence. charged guilty against of the crime him based proved unless the on circumstantial evidence that: The contested instruction states are not consistent with circumstances crime, case, alleged is theory guilty as in this it is When defendant charged or about a was committed "on in a rational conclu- crime but cannot reconciled date,” jury finds that the crime if the each which is essential to com- certain sion and fact committed, necessary that necessary it is plete estab- a set of circumstances was proved proof it committed on that guilt be- show that the defendant's has been lish date; Also, proof if the shows yond certain it is sufficient a reasonable doubt. if the evidence interpreta- on or about that susceptible of that the crime was committed two reasonable tions, points the defendant’s date. one of which Brown, 385, 394, cause, Edmonson, State v. 121 Idaho probable citing State v. (1992). (1987), pre- Based on the evidence 743 P.2d 459 and be- appeal, opinion majority totality sented on cause the of this finds that the process preju- Court that circumstances does not establish reasonable and dice. properly the trial court fairly weighed and the evidence. The record demonstrates that majority opinion nobly attempts The the properly trial court entertained and re- Edmonson, make sense of a rather contradic- objections solved presentence Jones’ tory confusing opinion, at least on the report, accommodated all of mitigating Jones’ point grand jury proceed- of misconduct in evidence, and evaluated the sum of the evi- ings. I disagree majority’s write to with the dence before it. We find no abuse of discre- prong” articulation of the “second of the in sentencing phase

tion the of this ease. test, specifically, Edmonson its discussion of “prejudice.” what constitutes upon

Based foregoing analysis in sec- X, I through tions we find no in Edmonson, merit Jones’ In essentially the defendant concerning contentions cumulative error and complained transgressions during of two wholly affirm the trial court. one, grand jury proceedings: hearsay ad- 19-1105; two, § duced violation of I.C. TROUT, J„ SCHROEDER, J., Pro prosecutorial consisting misconduct of com- Tern, concur. sufficiency ments on the of the evidence and credibility of the witnesses. As to the BISTLINE, Justice, dissenting part, claim, hearsay finding Edmonson held that a concurring part. probable cause established admissible commenting Without on the innocence or evidence preju- is sufficient to overcome the guilt defendant, justice respectful- (the by hearsay dice incurred “inde- ly majority dissents from opinion. Be- test). pendent probable majority cause” The infecting cause of the various errors Jones’s opinion independent probable calls the cause trial, day the Court this should reverse the prong” in determining test “first judgment proceedings. and remand for new propriety grand jury pro- indictment Those explained errors are enumerated and ceedings. independent probable The cause below. test, however, applies only when defendant (or hearsay claims that inadmissible some I. BECAUSE OF PROSECUTORIAL evidence) other, illegal similar was intro- MISCONDUCT THE DURING Here, duced. the heart of Jones’s claim is GRAND JURY INDICTMENT PRO- prosecutor engaged types various CEEDINGS, THE INDICTMENT misconduct, including the introduction of BE SHOULD DISMISSED. case, privileged testimony. In that the inde- grand jury pendent probable proceeding apply. The cause test does not was fundamen- tally prosecution’s tainted introduction majority opinion’s This leads us to the illegal and inadmissible evidence. The prong.” majority absolutely “second The majority has concluded that such misconduct correct wherein it holds that this Court must does not suffice to dismiss the indictment. I gravity balance the of the misconduct with am persuaded. question not so The basic sufficiency supporting of the evidence seems in determining to be when “a little” is instructs, probable cause. As Edmonson too much. gives To determine whether misconduct dismissal, reviewing rise to court will Proper A. The Test Prosecutorial gravity have to balance the and the seri- Jury Misconduct in Grand ousness this misconduct with the suffi- Proceedings ciency supporting prob- extreme, majority opinion finding. reaches the conclu- able cause At one legally outrageous sion that Jones’s indictment was suffi- misconduct can so that re- be gardless probable cient because the trial court found that there of the extent of cause competent support required. was sufficient evidence to will be At dismissal amounts language extreme, may for/prejudice test be but other the misconduct Furthermore, for/preju- but unnecessary to mere dicta. slight, becomes so law. by Idaho unsupported judgment language question independent dice Edmonson, New from In ex- we cited cases grand jury. the middle these tremes, Mexico, Iowa, only Idaho court must examine totali- Illinois. Kruse, cited, ty of circumstances to determine ease (1980), thoroughly inapposite. dis- the indictment should be whether P.2d 981 sup- majority cited Kruse missed. The Edmonson order to “[i]n port the statement Edmonson, 743 P.2d at on due indictment to dismissal entitled added).6 (emphasis affirma- defendant must process grounds, the problem with Edmonson is that it sets A by the miscon- tively prejudice caused show mutually appear exclu- what to be two forth Kruse, however, pre- duct”; only dealt with analy- analysis. The line of sive lines of first complaint wholly delay, differ- accusatory in prejudice must sis is that defendant show during a prosecutorial from misconduct ent (the “but guise the for test but pro- constitutionally-bestowed grand test”), reality noth- for/prejudice which in is ceeding. independent probable ing more than if defendants cannot cause test restated: majority opinion’s It is thus clear that remaining that evidence failed show test analysis quantification should follow cause, probable they will not be establish prejudice Of test. rather than the but/for illegal for the able to show that but course, from the prejudice must adhere some not been indicted. The they would have complained-of for this Court misconduct second, analysis line of is the antithetical A more sensible an indictment. set aside quoted paragraph, which sets forth above harmony one in with prejudice test of and reviewing is balancing in which the test is: strictures is there Edmonson’s various quantify the level of misconduct and evi- strong complained-of likelihood that (the strength probable cause to the indict- significantly contribute dence test”). analyses “quantification These two keeping in ment? This test is more mutually application are exclusive because balancing if the miscon- test: Edmonson’s outrageous probable if is but misconduct severe, that the effect duct was the likelihood very strong, according to but cause is obtaining significant in of misconduct was test, for/prejudice the indictment should mandating thereby high, is an indictment however, test, quantification ex- upheld. The dismissal; insignifi- if the misconduct pressly precludes such a result. Another cant, to be the case Edmon- was found inconsistency rather illustration of internal son, probably did not contrib- misconduct fairly severely prosecutorial where miscon- significant manner to the indict- ute “outrageous,” strong though is not duct determining proposed test for ment. This weak, probable very cause albeit existent. com- prejudice particular in this context also test, the prejudice indict- Under but/for underlying concerns ports with the various survive; quantification under the ment would jury pro- grand the issue of misconduct test, have be dis- indictment would hand, every ceedings. one indictment On missed. merely because the should be dismissed “i” all the ’s and cross prosecutor irreconcilable did not dot apparently of these Which ’s, particularly the defendant all the “t” when analyses we follow? It is clear are hand, quantifica- up being convicted. the other it ends On holding of Edmonson is away test; feign applied ignorance look actually we cannot tion Edmonson test, is involved. significant misconduct balancing determining the miscon- when gain prosecutors eventually a convic- slight probable need Even cause duct so tion, hand, they provide a mean- it still vital that questioned. the other not be On Edmonson, prosecu- 113 Idaho cause was irrelevant. Court held that insignificant so tor's misconduct was P.2d at 466. establishing probable sufficiency of the evidence ingful other, grand jury proceeding impar- leaving clearly courts, up to the trial charging procedure, tial review, as mandated appellate on this Court to be oversee- CONST., Idaho constitution. See IDAHO done, justice referees lest not be I, § prosecutors Art. 8. The need for sound. comport with they the few rules which are light bound is acute in of the nature of Complained-of B. The Misconduct

present day grand jury proceedings. See Edmonson, generally, State v. How severe is the misconduct and ef- its (1987) (Bistline, J., 743 P.2d 459 dissenting) fect here and is there a likelihood that the (discussing history procedure grand significantly misconduct contributed jury proceedings). grand jury Even when grand jury’s indictment? To detail the mis- proceedings according are to Idaho laws and conduct: procedures they oft-times fall short of what 1) prosecutor The hair. The elicited a de- proceedings historically such were intended tective’s relative to an FBI test protection to be—a for defendants to ensure comparing hair taken from the murder scene probable that sufficient cause exists to bind and from Jones. This was the Edmonson, defendants over for trial. direct, physical tie between Jones and 243-245, Idaho at 743 P.2d at 472-473. the victim’s house. The result of the com- There grand jury is reason for concern that parison test was a conclusion that hairs two proceedings notoriously are the tools of the prosecutor had similar characteristics. The prosecutors, by very restrained few checks FBI, jury did not advise the that the follow- Edmonson, prosecutorial power. results, ing its test had warned that hair 246, (quoting at 743 P.2d at 475 from Haw- comparison positive is not a means of identi- Court, 584, Superior 587, kins v. 22 Cal.3d notwithstanding fication. This was so that (1978), which turned questioning the detective had informed a quoted prosecutor stating a former as that grand juror that the odds of such a match “[t]oday, grand jury captive is the total Ironically, were one several thousand. who, prosecutor candid, if he is will con- FBI in fact later determined that the tested time, anybody, any cede that he can indict at Vance, actually hair was that of the victim. anything, any grand jury.” for almost before (1973) Campbell, Jury Eliminate the Grand Although prosecutor may not have had 174.) prosecutor 64 J.Crim.L. & C. The outright duty grand to volunteer to the interrogate any by free to witness called jury warning reliability, the FBI’s as jury, grand including potential defendants. thereof, regarding or lack compari- the hair Edmonson, 113 Idaho at 743 P.2d at 474. identification, positive son test as a means of Furthermore, proceedings these are closed duty juror grand that matured once a in- witnesses, prosecutor, grand all but the and quired import of a witness as to the of the jurors, meaning that neither defense counsel Having testify test. detective impartial judge may present. nor even an defendant’s, probability that the hair was might Id. The few constraints that check and, moreover, jurors failing supply power this immense derive from the Idaho limitation, appears with the FBI’s abe (and thereby, Code certain rules of evidence duty part prosecu- dereliction of on the incorporates), which it the Rules of Profes- tor. Conduct,7 sional and the Idaho and United 2) argument, uncharged Wystraeh States constitutions. Jones’s that The murder. prosecutors because are bestowed with tre- mentioned that she first met Martinez after none, power “Goody prosecu- mendous and defendants with The Goodrich murder.” prosecutors play according engaged following must at least tor then her in the ex- constrained, by they change: the few rules which are responsibility specific obligations

7. The Comment to Rule 3.8 of the Idaho Rules of carries with it prosecutors procedural Professional Conduct reminds to see that the defendant is accorded they responsibility justice guilty upon have "the of a minister of and that is decided the basis justice simply and not that of an advocate. evidence.” This sufficient highly idly prosecutor while you Now stood ATTORNEY: PROSECUTING being introduced. was Goody Goody prejudicial evidence made a reference to — murder. Goodrich 3) Undoubtedly testimony. privileged likely Um-hum. serious, [WYSTRACH]: WITNESS and questionable, the most which Jones act misconduct of inexcusable When and ATTORNEY: PROSECUTING adducing con- complains prosecutor’s was the occur, you know? where did Wys- from Jones to communications fidential trailer, happened It their WITNESS: her testi- marriage trach their after They came home right the door. outside as to the time mony quite made it clear had into party from he started to walk place, thus evidenc- marriage took when the him, somebody killed shot door were indeed such communications him. prosecutor chose to privileged. Because Jury Proceedings of De- Transcript of Grand Evi- Rules of play with the fast loose testimony p. 39. Such cember dence,8 grand heard such clearly substantially outweighing prejudicial, following: as the probative prejudicial nature value. you ATTORNEY: Did PROSECUTING prosecutor’s elicitation of at that time? a conversation Bob have murder is reflected about the Goodrich Yes. [WYSTRACH]: WITNESS juror’s grand questioning: later Would ATTORNEY: PROSECUTING they Had [Jones GRAND JUROR: conversation, you please? relate that been involved a murder be- Martinez] they fore? him if had taken WITNESS: I asked yeah, Troy and he said care of Vance Yes. [WYSTRACH]: WITNESS now we’d be set over with and that Both of GRAND JUROR: them? time, long meaning money had for a we WITNESS: Yes. again. live on they were not JUROR: And GRAND Did he ATTORNEY: PROSECUTING guilty found of that one? you what occurred? describe No. WITNESS: WITNESS: Yes. GRAND Is that the one over at JUROR: you ATTORNEY: Can PROSECUTING that in Boise? trailer house told tell us what occurred —or what he them, yes. That was one of WITNESS: you? they went WITNESS: He house — they got GRAND JUROR: And out of house, they and he—and went went to that one too? door, sliding glass they through the went charged. They never WITNESS: were reason, kitchen, I through the for whatever know, that, Proceedings and made a mess of then Transcript Jury of De- don’t Grand downstairs, Presumably for him to p. they waited cember 91. went support rules evi- During hearing pretrial exception has no in the on defendant’s dis- motion, statutes, dence, prosecutor attempted ex- missal case this One or law of state. plain away of Evidence this breach of Rules explana- thing prosecutor’s certain: even if by advancing exception that an exists notion good belief that such tion stemmed from faith privilege spouses when are co- marital (rather exception an after-the-fact exists than argued public conspirators. prosecutor acts), perfidious attempt to insulate himself from reading policy supports of the Rules Evi- grand proceedings the forum in are not 801(d), co-conspirator dence wherein I.R.E. evidentiary new theories which which to advance provisions hearsay exception, trumps express by appear unsupported the Rules of Evi- to be 9-203, governing § marital of I.R.E. 504 I.C. statutes, dence, by evidentiary case law. Fair- or privilege. superficial reading Even a of the two advancing proper forum for ness dictates that argument, rules evidence controverts law, dicey in a whereat theories is such merely co-conspirator exception however. The by prosecutor may be held in check defense provides be consid- that what otherwise would surprisingly, court. counsel and Not hearsay hearsay, not ered is not inadmissible privileged testimony at court excluded this trial co-conspirator qualifying a statement under the trial. exception per But such an se admissible. .is in, home, they jurors come when came possibility may Vance tied sonable be im- up, they him I properly publicity, would assume used hand- informed such it is cuffs sequestered because Bob used handcuffs when he crucial that voir dire allowed people up, stuck Al giving potential juror exposed and was Vance a so that each to that beating up publicity may real bad time and kind of him a articulate what is known with- trying little him educating venirepersons. bit to scare out Vance the rest of the Otherwise, begging started appear well-nigh impossi- for his life and started it would offering money drugs pervasiveness Al and Bob or ble to demonstrate the to, just know, they you publicity, placing whatever wanted the defense in a Cateh-22. made, not to hurt him. And Al for whatev- noteworthy It that most of the cases reason, Al, er Bob took kind orders from upholding dismissal of a motion defendant’s and he took the first shot and then Al venue, change the district court al- pulled the second two shots. sequestered lowed voir dire of the witnesses. Transcript Jury Proceedings of Grand of De- See, Hall, e.g., v. State Idaho 19,1989, pp. noteworthy cember 69-70. It is Brooks, (Ct.App.1986), P.2d 1255 other or evidence exists as (Ct.App.1982). 655 P.2d 99 Even to where Jones and Martinez were or what change the motion for of venue in the case they doing during Wys- were the murder. judice denied, sub properly the district trach testified that she was at the trailer refusing court abused its discretion in evening site that entire and thus had no sequestered jurors, conduct voir dire of the knowledge as to the events of the murder considering showing that Jones’s satisfied except confidentially. for what Jones told her (the the Needs factors several affidavits lapse and the short of time between the The instances of misconduct listed above dire), articles and in the voir as discussed testimony arising show that from the majority opinion. prosecutor’s questioned likely actions had a significant, profound, if not effect on the III. THE JAMES HEARING grand jury. though independent prob- Even BE PROCEDURE SHOULD record, present able cause is on the cold such IN ADOPTED IDAHO. probable weighty;9 cause is not the com- plained-of misconduct is. In view aof show- problem III first with Part misconduct, prejudice of such clear majority opinion is that it not at all clear is is, in dismissal of Jones’s indictment this co-conspirator that the law in Idaho as to view, justice’s mandated. majority statements is what the declares it to be. This has never held that a trial Court II. THE ERRED BY DISTRICT COURT may co-eonspira- court admit statements of a REFUSING JONES’S MOTION FOR prior proof conspiracy being tor of the laid SEQUESTRATION. JUROR before the court. The cases cited the majority summarily majority opinion supporting proposition, The that concludes Caudill, the mo- State v. light holding concerning our P.2d “[i]n of 109 Idaho 706 456 So, (1985), v. venue, and change tion for of we that a 231 hold (1951), So sequestered necessary fully apposite. voir dire was not and P.2d 734 are not deny it was not error for the trial court to was decided before the Idaho Rules of Evi- dence, support including adopted; the No case is cited in were motion.” law Caudill proposition, that is not “[i]t of this which is understandable: the statement holding necessary charge conspiracy no case that the that a formal there exists law sequestered against co-conspirators made before this standards for voir dire and necessary change exception applies, but is that there of venue are identical. Nor indeed conspiracy promise any so hold. When extensive be some evidence of should case production court can admit publicity precedes a trial and there is a rea- its before the strong begin brought why prosecutor if a case to with. 9. One is to wonder the dence he had illegal evi- felt the need to allow in all sorts of If, however, proof. udice in the order of statements in furtherance evidence of made sheer, the end of judge should conclude at conspiracy” of the is unadulterated P.2d has not proper 109 Idaho at at foundation dicta.10 the trial that laid, the will have been been defendant problem opinion the The with the is second jury’s having prejudiced from heard reasoning why explain failure evidence____ the inadmissible adopted, at procedure James should not be Jones, although prospectively. least he does “danger” Both because of hearings accepted are argue not that James con- defendant the statement state, argue such law this does should ser- and because inevitable nected persuasive makes be the law. Jones a most time, energy efficiency and ious waste case: required in order to when a mistrial is public policy Supreme

As a matter of we danger, such conclude obviate procedure adopt should of allow- procedure Court present warrants opportunity have proof a defendant preferred of a order statement pre-trial hearing].... [James such a in such a case. district upon following legal scholars Based should, reasonably practicable, whenever eases, reported respectfully we re- conspiracy a require showing Supreme adopt quest Court connection of defendant with pre-trial Hearing” procedure a “James a admitting declarations of co- before requested by when a defendant. conspirator. Berger Judge Weinstein Professor added). James, supra, (emphasis at 581-82 state, courts have at times followed Different It the contention of this treatise that procedures, court has other but trial practicable pro- fair and method of affording a reversed ever been defen- for viding protection to the defendant with- hearing. Appellate courts dant James violating spirit the letter or out have, however, reversed trial courts that insisting stringent lies on a stan- rules See, hearings. to conduct James failed proof dard of the court admits before Radeker, e.g., 664 F.2d United States v. co-conspirator in a criminal statement (10th Cir.1981); Stipe, v. United States case. (10th Cir.1981). 446, esp. at 449 F.2d Weinstein, M., Berger, J. and Weinstein Leading courts have come state Evidence, 801(d)(2)(e), at 176 on Section People Montoya, conclusions. In same (1981) added). (emphasis (Colo.1988),the 753 P.2d 729 Colorado Su- spirit, same the United States preme Court stated: Appeal initi- Court of for the Fifth Circuit prosecution ... bears the burden of requirement hearing of pre-trial ated the establishing ... defendant predicate admissibility which of a the declarant were members con- laid, any co-conspirator hearsay must be spiracy and that the declarant’s state- have such Courts on occasion allowed in during made the course and ment was [i.e., alleged co-conspirator statements conspiracy. of furtherance hearsay] jury upon heard 104(b) of promise prosecutor Although [local evidence] will rule course, it a admit a co- up.” it Of is con- authorizes trial “connect conspirator’s conditionally11 up, prej- suffers no statement nected the defendant 104(b) only co-conspirator's of allows 10. held that a statement 11. Rule Evidence Caudill conditionally evidence to be admitted when hearsay. Idaho at inadmissible 109 104(b) ("Whenever Moreover, issue is relevance. only authority 706 P.2d at relevancy depends upon the fulfill- promise proposition cites for the Caudill fact, ment of a the court shall admit condition production Appeals Court of sufficient to, subject upon, or in the court’s discretion case, Brooks, v. 655 P.2d 99 State support a of evidence sufficient to introduction binding (Ct.App.1983), in this is not which Court (em- finding of the fulfillment condition” precedent. case law added).). phasis in co- But the issue at stake Brief, (emphasis preferred procedure, Appellant’s pp. ... in our 40-44 added). view, require prosecution Unfortunately, majori- is to footnote requirements ty ignores extremely persuasive argu- the foundational establish co-conspirator’s though appellant for the admission of a ment as had never ad- prior statement offer of the state- vanced it. jury____ ment into evidence before the majority opinion I am able to concur

Montoya (emphasis supplied). at 733-4 result in this section because Jones ulti- Pierre, State v. St. Similarly, in mately prejudiced was not the trial court’s (1988), Wash.2d 759 P.2d 383 refusal to hold a James hearing, sufficient Washington Supreme Court held: conspiracy of a was introduced be- fore the conclusion of the trial. For admitting co-conspirator Prior to state- future, however, the above ex- well-worded

ments, the trial court must first deter- cerpt appellant’s commended to from brief is shown, mine whether the state has they may avoid the the trial courts so pri- independent substantial specters dual of unfairness to defendants and conspiracy____ ma facie case of judicial inefficiency in the context co-con- trial court must also find that the state- spirator statements. were made the course and ments conspiracy____ the furtherance of the AS TO IV. WYSTRACH’S TESTIMONY Dictado, St. Pierre at 391 citing THE “MEANINGFUL GLANCE”WAS (1984) Wash.2d A MARITAL PRIVILEGED COMMU- Goodwin, 186 P.2d 935 (1947). State v. AND NOT NICATION SHOULD see, [e.g.,] ... effect, To the same HAVE BEEN ADMITTED. State, (Fla. Henderson v. 372 So.2d 217 Dist.Ct.App.1979)____ fully majority opinion’s I concur with the pre-trial hearing analysis

A surveillance of the Vance is the best available Jones’s clearly avoiding unnecessary property an act was not com- mechanism for —such waste, majority fundamentally expense, delay of municative. But the mistrial concept misapplies in the of “confidential” and should the court determine midst thereby missteps analysis conspiracy a trial that a has not its of the “mean- been James pre-trial hearing ingful glance.” The mere fact proved. The glance Wystrach’s par- sought by Appellant needs not be occurred front hardly proves glance lengthy consuming time in nature. ents that the [nor] pivotal question deter- Weinstein observes that in most cases the confidential.12 The colloquy, mining communication is confiden- judge can determine from docu- whether a parties present should be suppres- ments marked in advance of trial tial when third are (i.e., parties perceived hearings, and one or two witnesses whether those third sion saw) heard, or, case, in this the communica- whether there is sufficient evidence to war- least, co-conspirator’s very tion. At the it should be demon- rant admission of a state- information, “speaker” intend the strated that the did not ment. Armed with this confidential, conditionally even judge on admissi- communication to be should rule per- Weinstein’s Ev- though parties present the third did not bility possible. as soon as idence at 104-56. ceive the communication.13 which, relevance; rather, according telepathy conspirator to Webster is not element statements through than the hear- is "communication means other it is whether the statement is inadmissible senses, by mystical powers.” the exercise of say. as II, Dictionary, Webster’s New Riverside brought 12. One is to wonder at the evolution of (1988). evidence, "meaningful glance” into admissible might especially setting capital 13. It be contended that the lack of basis in the of a case. The "meaningful glance” proposition knowledge the fact that a communication supposed re- as to goes credulity. indeed communicative to show that the quires on For certain is an undue strain word, spoken intended be confidential. equivalent communication was to it is not the of a instance, alone, accepting Wystrach’s inter- In this even which reason as a mode of communica- "glance,” Wystrach’s pretation knew persons, of the Jones tion between two there need be inadmissible, State, violating both I.R.E. proponent challenged patently as The 403. evidence, prove 404 and to the communi- needed confidential was not intended to be cation instance, drug testimony as to For privileged. not This the State and therefore complains embraces Jones offenses of which physical set- utterly failed to do. As to the testimony drugs sold Wystrach’s that Jones Wystrach only testified that “Mom up, date. years the trial roughly thirteen before they sat on had two recliners and [D]ad testimony could demonstrate How this Bob I down on recliners and sat intent, motive, murder plan to or Jones’s feet out ground in front of the couch with our ut- years later is approximately seven Vance news____ only watched The and we all Wystrach’s Similarly, terly inconceivable. really sitting in thing that bothered me was drug testimony of Martinez’s Jones’s and testimony my parents.” does front of This approached dealing prior to when Cordell adequate an foundation not constitute any bearing the Vance cannot have on them Court) (or could the trial court which Moreover, disputed Jones never murder. glance two indi- determine that between plan for the of motive14 or intent. As lack exchanged. confidentially viduals was testimony drug possession as exception, satisfy might after and sale murder Wys- whispered something to If had Jones 404(b)’s gener- “plan” exception to the I.R.E. parents her across the trach while were against prohibition character evidence. al room, it to contend that would ridiculous Wystrach court to testi- But the trial allowed a communication not confidential such was beyond fy a multitude of such instances intended to nor was it be confidential. Cf. evidence, holding testi- [the that “I think that Hoisington, excep- mony drugs] does as to fall within (1983) (conversation 17, 24 between de- P.2d general plan, the show the scheme or tion to report- fendant and client overheard you specific.” life-style, long get as don’t er held to be admissible and that the alterna- Tr., certainly a first p. 509. This instance is courtroom, speaking in tive to aloud advancing “lifestyle” exception in [having] and counsel “client to converse The court much too far I.R.E. 404. went whispers,” adequate safeguard defen- determining that fell within Similarly, rights). constitutional dant’s fact, plan.” “general or scheme Wystrach’s parents position to were not in a plan apparent or from such testimo- scheme glance, it observe the would still be confiden- general plan ny be Jones’s scheme or would tial. words, propensity to break the law—in other very I.R.E. 404 strict- THE V. EVIDENCE OF UNCHARGED ly prohibits. AD- CRIMES WAS IMPROPERLY if it testi- But even were clear that all the AND MITTED WAS REVERSIBLE mony as to controlled satisfied substances ERROR. 404(b)’s exceptions, majority fails I.R.E. Drug A. offenses 403, as court fail apply I.R.E. did the trial 404(b) majority opinion apply hardly The contends that it. Rule marks the sale, testimony regarding posses- analysis. drug probity various end of the sion, use, best, delivery sub- minimal of controlled as demon- 404(b). above; potential preju- stance is admissible under strated for undue however, dice, great. at this ex- could Yet it arrives conclusion without any legal analysis. allegedly upon factual pounding have concluded because Jones analysis surprise, drugs Wystrach not a This is for such dealt involved young age, challenged that the at a he to be sent would reveal trade deserved $15,000 knowledge Logic parents did not have of un- would seem to that the sufficient dictate signifi- derlying sufficient allegedly facts to understand the offered to and Martinez to kill Jones Thus, glance. is no cance of the because there enough. be motive Vance would Wystrach’s parents perceived the either evidence reasonably perceive the or were even intended to glance glance, privileged. was the 498 prison, questions guilty surrounding

to even were he not In of the the of the view Furthermore, might juiy significance psychiatrist’s testimony, murder. the the a have of type person engage the concluded that of wiser course would be to conclude that this declare, perfectly capable beyond in such a conduct of Court cannot reasonable hire, doubt, again, powerful murder precisely type of that such could not evidence conceivably impermissibly conclusion the Rules of Evidence have seek contributed prevent jury arriving jury’s from at. to the verdict. majority drug testimony, vast VI. ALL NEED BE EVIDENCE NOT

then, admitted, should not have been and its REQUIRE CIRCUMSTANTIAL TO inclusion constituted reversible error. A HOLDER INSTRUCTION. Unspecified B. Murder majority engage comprising The Justices when, yet significant sequitur in a subtle non To find that an admitted violation of the correctly after stating requires that “Holder Rules of is Evidence harmless error should given a circumstantial instruction to be when require strong conviction that “there was linking to the evidence the defendant possibility no reasonable that evidence circumstantial,” charged entirely crime complained might of have contributed to the they properly “the hold that trial court re- Pizzuto, 742, v. conviction.” State 119 Idaho give a fused to Holder instruction because 762, 680, (1991), 810 P.2d 700 cert. de — entirely is not on circumstan- case based nied, -, 1268, 112 U.S. S.Ct. 117 Holder, happened tial it so evidence.” (1992), L.Ed.2d on 495 overruled other that all of the evidence was circumstantial. Card, grounds by State v. 121 Idaho 825 Holder, 129, 133, State v. (1991) added, (emphasis P.2d 1081 citation (1979). 639, 643 The Court reads into Hold- omitted). high is about Such standard as binary opposition er a where none exists. they jurors as come. The fact that the “had is that a in- third alternative Holder ample opportunity other to discern the credi required when struction even the evidence bility Wystrach weigh against of it entirely mostly is not but circumstantial. As appellant” support majority’s not does opinion, justice the author of the Holder doubt, “beyond conclusion that a reasonable itself, way Holder in believes that limited prior unspecified the evidence of the murder it, nor has this Court limited instances jury’s not did influence verdict.” The entirely which the evidence is circumstantial. is, question posed majority can the properly Nor indeed is there reason to so limit confidently jurors assert because implicitly Even Holder limited its Holder. Wystrach’s credibility, had other holding to cases in which unspecified murder no effect had on circumstantial, against entirely a defendant is jury’s I do think so. In addi verdict? logical adopt more would be the Califor- thereto, tion it is far from clear that test, expressed People Wiley, nia v. 18 jurors many opportuni have other did indeed Cal.Rptr. Cal.3d P.2d credibility Wystrach ties to discern the (1976): apart Wystrach’s testimony. from own duty It is the the trial to instruct majority’s Finally, disagree I con- general principles on law relevant complained clusion that that the “[t]he most raised facts of ease be- issues could have contributed was to it____ obligation fore This includes credibility Wystrach.” The bolster the duty given instruct the effect to be on majority opinion finds the as to the cir- circumstantial evidence but when light murder to be error fact ‘substantially re- cumstantial evidence is ‘Wystrach’s vague as to vic- inference is proof guilt.’ upon for lied Thus, may specificity.” tim” and we “lack[s] Cal.Rptr. jury Wiley, have 554 P.2d at 888 conclude that could believed 65, 286 actually (citing People Yrigoyen, another mur- 45 Cal.2d murder added)). (1955) der, (emphasis thus P.2d 1 admission of which would violate Since help understanding requires how I.R.E. 404. light interpret circumstantial evidence standard, there is

the reasonable evidence giving an instruc- refrain from such

reason to most, all, but not the evidence

tion when

circumstantial.

CONCLUSION errors, as

Because of the aforementioned majority, pointed out as the error

well should reverse and remand

this Court

cause for a new trial.

JOHNSON, Justice, dissenting. respectfully I would reverse on

I dissent. failure to dismiss

the basis of the trial court’s I) (part

the indictment and because uncharged crimes evi-

admission at trial of VII). (part

dence I, part I conclude that Jones showed

As required by prong of

prejudice as the second

Edmonson. join part

I Bistline’s dissent to VII Justice part opinion, as contained in V

of the Court’s dissenting concurring opinion.

of his

873 P.2d 144 Idaho, Plaintiff-Respondent,

STATE WERSLAND,

Shirley Defendant- (Two Cases)

Appellant.

Nos. 20453. Idaho,

Supreme Court of Falls, November 1993 Term.

Twin

April

Case Details

Case Name: State v. Jones

Court Name: Idaho Supreme Court

Date Published: Apr 7, 1994

Citation: 873 P.2d 122

Docket Number: 19432

Court Abbreviation: Idaho