State v. Mee

Idaho, The STATE of

Plaintiff-Respondent, MEE, Defendant-Appellant.

Russell

No. 12879.

Supreme Court of Idaho.

July m., a.

Breen returned home around 1:00 system and his December found stereo missing; signs were of forced en- there days men- try. later Ms. Priest Several stor- that she tioned in a conversation was ing equipment a stereo friend. Follow- ing theft concerning comments the earlier equipment, of Breen’s Priest others Ms. and inspected components at her and the house (he previously found them Breen’s had components marked his and the with initials numbers). police recorded the serial im- were equipment called was pounded. Appellant ar- subsequently was charged rested theft. admittedly circumstan- state’s case is tial and is unalter- Ms. Priest’s Peter D. McDermott of McDermott & case. ably primary component of that McDermott, Pocatello, for defendant-appel- at the Ms. above facts Priest testified to the lant. 14,1977 preliminary hearing December held her following immunity given to grant a H. Leroy, Atty. Gen., David Lynn E. preceding day. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent. presented issue here stems from testify

fact that Ms. Priest refused to trial. Priest to steadfastly Ms. refused McFADDEN, Justice. speak light of all reasonable effort on appeal This stems from a conviction of part procure her the court and counsel to degree second burglary entered February appears It Ms. that Priest a guilty verdict the jury. fully rights stemming informed her single, difficult, yet Faced here with a ques- granted well immunity, possible as as of concerning propriety of admission consequences her should she maintain prior preliminary hearing testimony jury. stance testifying before the witness, of a we reverse. aid Counsel was made to her available to Appellant was entering accused of her these Following decision. failure of residence of Vaughn Pocatello Breen and testimony, efforts to secure Ms. Priest’s removing multiple component Breen’s preparation transcript ordered a night system stereo of December her preliminary hearing testimony. De- Appellant day earlier had that bor- registered fense his point counsel Vaughn’s car, in process rowed receiv- objection order, relying specifi- keys house well as as those to the cally on prohibition of such use set forth car. Villarreal, P.2d preliminary hearing,

At the friend of Priest, appellant’s, Upon Brenda testified. Ac- resumption the follow- Priest, cording appellant to Ms. her ing day, met presence but outside the night jury, service station that and asked her if Ms. Priest was to the once called stand system again she store a him could stereo questioned as her residence, her agreed. to which she Later hearing testimony. noted that she had She evening, appellant equip- time, delivered “told the truth” at refused appellant Priest ment and unloaded either testify reaffirm that Vaughn’s rear components from the seat of anew argu- for the district court. After counsel, car. ment pre- the court allowed the liminary transcript by counsel, sented the opportunity to be read and had the jury objection. over Appellant defense to cross pre- examine the witnesses at the subsequently found guilty of liminary Thus under examination.1 charge degree burglary. of second Evans, rule of Territory testi- mony was admissible. single presented issue is whether the allowing trial court erred in the use of the however, Potter, ap- The defendant in testimony preliminary hearing aof witness pealed ground that admission was at trial but who refused depositions, these as well absent witnesses’ testify. preliminary hearing as the use of his own deposition impeachment, improper was Appellant contends the use of magistrate presiding since the failed to preliminary hearing testimony Ms. Priest’s “certify” prior to their those documents use Villarreal, by v. was foreclosed State required applicable at trial as under the case, Potter, predecessor and its justice statute.2 The trial court allowed the (1899), overruling Idaho 57 P. 431 Ter committing peace acting mag- of the as Evans, ritory v. Idaho 23 P. 232 (who trial) appeared istrate testified at agree. We deposi- to add to the antedated certificates Evans, supreme In the territorial court pro with tunc. operation tions nunc given testimony preliminary held that at a procedure, supreme “questioned” this court (at time called “preliminary yet actually propriety did not rule on the examinations”) presence of the de- light of depositions admission of the subject fendant and to cross-examination formal defect.3 upon was admissible at later trial the ab- testifying sponte, sence or death of the witness. an additional Sua the court raised by objection The court found such use sanctioned of the hear- the use common law and not e., they violative of the con- ing depositions, whether were i. court, frontation clause of the federal constitu- reviewing admissible all. The tion. statutes, explicit no refer- the Idaho found depositions by ence to the the state use Potter, depositions At trial in of two examination.4 upon taken absent witnesses were introduced into evi- to the tak- Finding statutes addressed other dence. A review of the statements of the ing depositions generally, and use of Potter, as well as of the records on the inclusion those court determined that case, file with this court concerning that required the exclusion provisions impliedly indicates the “depositions” in- state to any right part of the use on the actually volved were the transcripts of the “depositions” taken at the given prelimi- at the defendant’s hearing. use of the earlier tran- nary committing examination before Thus the trial was magistrate. These documents scribed at Potter’s held further show present, repre- that the defendant was to have been error. Potter, 27-31, magistrate proper, transcript 1. 62-66. certification (1887), generally depositions See Penal; Rev.Stat. Part Fourth— been admissible. would have VII, II, III, Clark, 7, 10, (1894) (com- Part Title Ch. 7565-7589. §§ 35 P. 710 Idaho deposi- pliance requirements except The court’s statement in Potter that the certifica- with all just well have ex substantially legislative tions could as been taken satisfies mandate parte supported is not on the face of the record proper). later certification light applicable statutory protec- or in guaranteeing con- tions counsel and defense However, 4.Facially, there ex- this is correct. of witnesses at ex- frontation statutory pre- isted no liminary to the use of reference amination. hearing testimony either the de- being legis- prosecution. fense or There 7576(5). requirements

2. All Rev.Stat. other time, point, as lation on at this noted in the rule of that section were met. allowing law rule ad- was the common Evans, supra, mission. P. 3. Had the Idaho Court addressed e., question presented, i. whether antedated erally depositions concerned ground An alternative the court’s rul- with was com- mented application Wigmore. Potter was of the con- Professor frontation clause of United States Con- “In dealing depositions and former use prelim- stitution.5 court saw testimony of or absent deceased witness- inary es, hearing testimony trial as violative unanimously our courts have almost them, protection. of that constitutional received offered when however, prosecutions, accused in criminal as not applicable clause was Texas, being pro- obnoxious to constitutional the states. See Pointer vision, if cross-examination 85 S.Ct. 13 L.Ed.2d 923 had been satisfied. (confrontation binding upon clause made through the states the Fourteenth Amend-

ment). A discussion of current constitu- early But nevertheless doubt as to the law subject appears tional on this infra. allowing of propriety constitutional the prosecution depositions against to use the We find the of conclusion the Potter widespread bar, accused was at the the law statutory of the state years ago. hundred The doubt showed and federal required constitutional law the omission, legislature’s itself in the when exclusion of preliminary testimony providing taking for authority depositions (“depositions”) erroneous. generally, authorizing statutes to include A review of in the statutes effect in the taking the depositions of on behalf of the early years latter territorial and statehood prosecution. This omission was almost indicates a provisions of concerned number Hence, universal in the several states. “depositions.” with Major legisla- areas of regardless might of what courts have pronouncement tive provided taking for the (as held if depositions distinguished such depositions parties and use of on of behalf trial) a former testimony at were of defendant it was when feared that sought used, there was little or no these witnesses be unavailable would for opportunity present question; for trial, provision however there was for practice taken, in they not be lack- could preservation testimony by similar of officer authority in to take legislative only state.6 The other state- them.5 concerning “depositions” ments were entire- ly concept unrelated to of deposing wit- “5 rulings application following show the anticipation nesses in use of of testimo- principle: of the prelimi- (depositions 57 P. on taken ny trial —these were the above noted nary by state not to be used at examination provisions providing recordation of trial, expressly all at the because authoriz- preliminary hearing testimony. The under- statute; opinion ignores ed the com- practice, supra; lying belief of the court that mon-law this is in truth Idaho these § 1375 all, deposition testimony not a but at a “depositions” only were not unconstitution- ” trial); (Emphasis original.) former .. .: impliedly legis- al but also forbidden Wigmore (Chadboume p. 185-189 rev. provisions gen- of 1974).7 lature’s enactment other Constitution, provisions, (cur- 5. United States 6th amination Rev.Stat. § Amendment (“In enjoy prosecutions, 19-821, 824) rently allowing preser- all criminal the accused shall I.C. §§ right ... to be confronted with the testimony through deposition by vation of ”). against him witnesses ... Idaho Con- appear state if a insufficient. witness’ sureties equivalent stitution has never contained lan- See, infra, guage. n. 8. Wigmore 7.§ 1375 of 5 referred to states in pertinent part, p. 61: Penal, II, See Rev.Stat. Part Part Ti- Fourth — “Testimony committing magistrate X, (Examination before IV §§ tle Ch. 8160-8171 justice peace. Conditionally) or of the Similar considera- Witnesses V §§ Ch. 8176- (Examination apply proceedings tions ting magistrate before a commit- Witnesses Commis- sion), currently justice seq., peace. I.C. 19-3101 et or a If §§ 19-3201 seq. only procedure chapters preserva- Both et involved there was under that official See, however, cross-examination, opportunity the defendant’s behalf. the tes- “security” admissible; timony sections of the ex- otherwise not. There These comments reveal the initial error witnesses him not afforded of the Potter failing court in distinguish by conferring at the between testimony former “depositions” hearing [citing Angell, U. 11 F. 34 S. and depositions properly so called. The (1881) and Potter ] comments presage also the second error of Angelí case is harmony out of the court in holding testimony inadmis- court, later cases in the Federal so that sible. There was indeed an historical con- the only court which seems to be commit- prosecution cern that depositions use of ted, time, present at the to the rule that parte ex affidavits would be constitutional- reproduction of an unobtain- ly impermissible, apprehension and this provision able witness violates the subject of considerable debate at our Constitution seems to be Idaho.” state’s constitutional convention.8 How- A.L.R. at 511-512.9 ever, the propriety using constitutional appears Thus it the Idaho former testimony upon unavailability in 1899 was mistaken not a witness had never questioned. been so As assuming legislature impliedly that the ex- noted in the annotation at 15 A.L.R. cluded use of former preliminary hearing “Use in criminal case of testimony given on assuming ruling also trial, formal examination, or preliminary prohibited that the federal constitution witness not available trial”: It is use.10 the decision of this court that “The rule has prac- been settled now in decision in v. should tically jurisdiction every repro- not stand. testimony duction of taken at a former presence trial or in the of accused aat It is also the conclusion of the court that preliminary hearing, when presence the reaffirmation of Potter in v. Vil- secured, of the witness cannot be does not larreal, 246, (1971), right contravene the constitutional of an approval which this court cited with accused against to confront the witnesses “policy” grounds for exclusion set forth in

him, in language right whatever has Potter, ap- must be overruled. As is now given.” been 15 A.L.R. at 503. parent, the ratio decidendi of Potter was After elaborating upon weight of au- implied statutory twofold —the exclusion thority in support statement, of this application omission and the of the federal annotation continues: apparent confrontation clause. The misun-

“Some other courts derstandings by have held that the the Potter court relative to itself, of accused to be confronted with grounds both renders the decision any point expressly never has been doubt on this since to the federal confrontation clause general that, ground legislature establishment of the doctrine . .. should the decide to ____ in 1696 provide depositions so on behalf of the out, principle, pointed state, On as has often arguments been policy thereon should not be question depends simply in all such cases proportions. elevated to constitutional upon opportunity whether there was an ” (footnotes omitted) cross-examination 9. While the annotation mentions that the feder- provision writing al was not at the time Debates, generally, Proceedings 8. See Con states, applicable to the it fails to mention that Idaho, (Hart, stitutional Convention of 1889 ed. language Idaho had no confrontation clause I, 1912), pp. Vol. 281-288. The framers were necessarily upon relied instead the Sixth possible concerned with use the state Amendment to the United States Constitution. affidavits, parte of ex and some felt that allow prosecution depositions to take could 10. See Justice Brennan’s dissent California However, process. lead to abuses of the others Green, infra, 149, 189, 1930, v. 399 U.S. 90 S.Ct. legislature legis felt that the should be free to 1951, (1970). 26 489 L.Ed.2d See also Gov't regard provide late in this if it wished for 540, (3d Virgin Aquino, 378 F.2d 549 Islands prosecutorial deposition of witnesses contin 1967) (dislike accept but must rule which Cir. gent upon guarantees of counsel and cross-ex distinguish does between former trials and group amination. This latter of convention del preliminary hearings for confrontation clause egates having was successful omitted from purposes). any language equivalent the Idaho Constitution

479 authority setts, 107, its suspect. [97], use as in Villarreal 291 [330], U.S. 54 S.Ct. vitality “policy” continued state 65, at 333 L.Ed. U.S. [78 674].” cases, expressed in these being essentially 2538-9, S.Ct. 65 L.Ed.2d at 607. dependent upon the federal constitutional princi- The court states that the underlying provision, contingent upon the construc- ple analysis for confrontation is whether tion of the confrontation clause sought put the statement before the United Supreme States Court. The law in trier of fact bears sufficient “indicia of regard has been clarified in the decade reliability” satisfactory to create a basis for Villarreal, since support and does not exclu- ascertaining evaluating the truth of the sion of prior recorded 65-6, statement. 448 U.S. at S.Ct. the preliminary hearing. also, Mancusi 65 L.Ed.2d at 607. See Roberts, Ohio v. 448 U.S. 100 S.Ct. Stubbs, 204, 213, (1980), 65 L.Ed.2d 597 the most recent (1972); 33 L.Ed.2d California statement of the United States Green, 149, 161, subject, Court on the was not at the decided 26 L.Ed.2d The Court time of the trial of this case nor at the time continues in Roberts: briefing the initial by counsel. The court in Roberts sets forth ap applied the fundamental “The Court has this ‘indicia of proach to be followed when tak reliability’ requirement principally by en at a preliminary sought examination is concluding that certain hearsay excep- to be introduced at trial a criminal tions rest such solid foundations defendant. virtually any admission of evidence “The Confrontation operates Clause comports within them with the ‘substance two separate ways to restrict the range protection.’ the constitutional re- This First, of admissible hearsay. in conform- flects the truism ‘hearsay rules and ance with the preference Framers’ generally the Confrontation Clause are accusation, face-to-face the Sixth Amend- values,’ designed protect similar . . . ment establishes a rule necessity. of In ” and ‘stem from the same roots’ . . . . (including usual case pri- cases where (citations omitted) 66, 448 at 100 U.S. occurred), cross-examination has 2539, 608; at 65 S.Ct. L.Ed.2d at prosecution produce must either or dem- and concludes: onstrate the unavailability of the declar- sum,

ant whose “In when hearsay statement it wishes to declarant is use the defendant. See Mancusi v. present trial, for cross-examination at Stubbs, 204, 2308, 408 U.S. 92 33 normally Confrontation Clause re- (1972); L.Ed.2d 293 Page Barber v. [390 quires showing that he is unavailable. 719, 1318, U.S. 88 255], 20 L.Ed.2d then, Even his statement is admissible supra. States, also See Motes v. United only if it adequate bears ‘indicia of relia- 20 S.Ct. 44 L.Ed. 1150 bility.’ Reliability can be inferred with- (1900); Green, U.S., California v. 399 at out more in a case where the evidence 161-162, 165, 167, S.Ct., n. at 1936- firmly falls within a hearsay rooted ex- 1937, 1938, 1939, n. 16. cases, ception. In other the evidence aspect operates second once a wit- excluded, must be at least absent a show- ness is shown to be unavailable. Reflect- ing particularized guarantees of of trust- underlying its purpose augment to worthiness.” Id. accuracy in fact-finding process Supreme Thus the Court mandates ensuring the defendant an effective analysis on two fronts: whether the declar- evidence, means to test adverse ant is unavailable and whether the state- Clause only hearsay countenances marked adequate ment guarantees with such bears trustworthiness of reliabil- that ‘there is departure ity material placed the reason of trustworthiness to allow it general rule.’ Snyder v. Massachu- before the trier of fact. faith, It clear and thus to estab- is from Roberts that una would be sufficient vailability prerequisite “unavailability” is a Constitutional to Ms. Priest’s under the lish Supreme of a de prior testimony against admission standards established Roberts, supra, fendant trial. nec 448 U.S. at The trial court below Court. Ohio essarily found Ms. “unavaila 65 L.Ed.2d at 613. Priest 100 S.Ct. (Admission of testimony jury ble” for live also 92 A.L.R.3d 1138 before See non-party when it witness reading ordered' the of her testimo former of transcript. testify at ny present refusing from the to subse- unavailable, privilege); quent If Ms. Priest was trial without valid not in fact Evidence, (13th however, prior testimo § admission of her Wharton’s Criminal ny Cumm.Supp.1981); would be erroneous Roberts' two- ed. McCormick under 1972) Evidence, p. (2d (great analysis. facet ed. weight authority of holds witness’ refusal It was stated in Roberts: pres- testify despite judicial appropriate to “The basic litmus of Sixth Amendment purposes unavailability for sure establishes unavailability witness established: ‘[A] hearsay exception); Federal Rule Evi- purposes is not “unavailable” for the 804(a)(2) unavailable for dence declarant exception ... to the confrontation refusing purposes hearsay rule when requirement au- prosecutorial unless the so). despite court to do testify order of the good thorities have made a faith effort to regard reliability” to the “indicia of trial, presence obtain his [citations observed component, omitted] Roberts: question ultimate is whether need not whether “We decide Su- despite good the witness is unavailable correctly preme Court of dismissed Ohio prior faith efforts undertaken suggesting in Green statements locate and As that witness. opportunity to cross-examine ren- mere evidentiary prose- other proponents, prior dered the admissible. establishing cution bears the burden Westen, Confrontation, the Future of See 74-5, predicate.” (issue 77 Mich.L.Rev. S.Ct. at 65 L.Ed.2d at 613. difficult resolve under ‘truly conven- long The court also line notes that a confrontation’). tional theories of Nor precedent requires the efforts undertaken ques- need we decide whether de minimus to obtain the “reasonable.” testimony to be sufficient, tioning is for defense counsel key this is a Clearly concept evaluating tested, in this case testi- declarant’s] [the the situation below. Here reasonable and significant with the mony equivalent appropriate judicial applied pressure was in Roberts, cross-examination.” Ohio v. to solicit Ms. order Priest’s at at at L.Ed.2d U.S. S.Ct. once, was trial. She warned more than the at 610. reflects, possible record sanctions includ- in State Rob- The Ohio contempt for should she .incarceration erts, 55 Ohio 378 N.E.2d 492 St.2d testify. continue to refuse to was re- She perceived (1978), had dictum in California immuni- granted minded that she had been Green, supra, to the effect mere regard in to her ty possible involvement in for at opportunity cross-examination grounds and that no crime she had judicial proceeding, earlier refusing testify to on that score. She was hearing, for confrontation was sufficient once, called to the stand more than court, purposes. in clause This counsel was made for her to con- available Villarreal, also statement sult; labeled that dic- given opportunity she to con- tum: periods fer with him in the between the attempts

various to her obtain “It is true that court in Green unfor- appear indulged These actions of the and state tunately appears in what be good discussing to be reasonable and undertaken dictum in that after the merits guarantees case Court found of trustworthiness it then went on to discuss hearing whether or not in the accoutrements testimony of been might ....”) 69,100 the witness have hearing at itself 448 U.S. admissible if he were in fact (“These at 65 L.Ed.2d at 609-610 at trial and available cross-examina- provided .. . all that factors Sixth tion.” 94 Idaho at 486 P.2d at compli- Amendment demands: ‘substantial purposes with the behind confron- ance “dictum” referred to both courts ”). requirement.’ tation declared: “We also think that Porter’s de- [the Admittedly, the court Roberts seems to preliminary hearing testimony clarant] that, ease, upon the fact in that actual focus was admissible as far as the Constitution as a matter of cross examination occurred wholly apart ques- concerned from the And, if not the court function form. while tion of whether respondent had an effec- disavows need to decide whether either tive opportunity for at the confrontation opportunity the mere to cross-examine subsequent trial. For Porter’s statement questioning is suffi- actual de minimis at the preliminary hearing already had cient, supra, the court later states nota- given been under closely circumstances tion: approximating those surround “We need not consider whether defense oath; typical trial. Porter was under re- questioning counsel’s spondent represented by counsel— inevitably some surmounts nebu- repre- the same counsel in fact who later lous threshold of ‘effectiveness’ trial; him respondent sented at the had ‘unusual’ circumstances [Under every opportunity to Por- cross-examine Mancusi, supra,} necessary it was to ex- statement; ter his as to proceed- plore character the actual cross-ex- ings were judicial conducted before a tri- adequate op- to ensure that an amination bunal, equipped provide judicial rec- portunity for full cross-examination had hearings. ord of the Under these circum- been afforded to the defendant. Cf. stances, would, Porter’s statement we Texas, Pointer U.S. at think, have been admissible at even 1069. We hold that in all but such in Porter’s absence if Porter been had cases, into extraordinary inquiry ‘ef- unavailable, actually despite good-faith holding required. fectiveness’ is A produce efforts him. every involving prior testimony case re- being case, That we do not think a inquiry frustrate quires an would different result should follow where the principal objective generally vali- is actually produced.” witness exception dating prior testimony 1938-1939, 90 S.Ct. at 26 L.Ed.2d place increasing certainty first — at 501. consistency application Con- Roberts, however, The Supreme Court in ” . frontation Clause. .. vigorously holds the statement 2543, n.12, n. S.Ct. at 65 L.Ed.2d dictum, in Green be neither nor alter- at 612. holding,' native anything nor else that might presented precedential limit its Thus we are with a facial significance. Roberts, 69-70, Ohio v. supra, professing 448 of the court that the U.S. at statement n.10, 2540-41, question sufficiency 100 S.Ct. at of of 65 L.Ed.2d at the constitutional 73, 610. also See 448 opportunity U.S. 100 the mere to cross-examine at S.Ct. 2542, (“In 65 L.Ed.2d at 612 the Green is reserved.11 Yet 1980); Wyrick, Phillips (8th 11. A number of state and lower courts v. 558 F.2d 489 federal addressing 1088, 1977), “opportu- this issue have held that cert. 98 Cir. den. S.Ct. nity” “adequate 1283, opportunity” Allen, (1978); to 55 cross-exam- L.Ed.2d 793 U. S. v. 409 preliminary hearing (10th 1969); Virgin ine at the is sufficient for F.2d 611 Cir. Gov’t of Is- 10; purposes. Wilson, g., Aquino, supra confrontation See e. v. v. n. 1966); v. Glenn lands Butler Dallman, 1183, (6th (9th 635 F.2d 1185-87 Cir. 365 F.2d 308 v. Califor- Cir. Jones 482

language pointing in in his Green conclu- observes treatise McCormick reaffirmed; strongly sion is the determina- evidence in Green that the accoutrements of the unavailability of the is “When declarant prior hearing reliability themselves lend admitting precedent made a condition noted; again favorably statement, held prefer- it is that state- hearsay a rule of his ments well-recognized hearsay being personal within ex- is in fact stated. His ence more, court, subject ceptions presence in oath generally, without meet under and cross-examination, clause; preferred. would be demands of the confrontation it is however, had, If, his cannot be then further in extraordinary held that all but falling par- hearsay statement within inquiry is no for into situations there call although ad- hearsay exception, ticular of cross exami- effectiveness earlier inferior, preferred still to mittedly be nation; tightly within a and all this occurs doing entirely without evidence over emphasizing legal structured framework McCormick, supra, ‘from that source.” prior for cross examina- need not actual 253, p. 608. § of tion but rather for sufficient indications in sup- Supreme itself stated reliability and which And the Court trustworthiness 410 93 Mississippi, v. U.S. port prior submission of the statements Chambers (1973): 35 297 L.Ed.2d to the trier of fact.12 While earlier cases may have indicated that cross-examination is more right of cross-examination “The important guarantee was the of trust- most procedure. a desirable rule of trial than worthiness, may while “be- it still be of implicit in It is the constitutional confrontation, legal engine ‘accu- yond any greatest helps doubt assure 13 truth,” discovery truth-determining process’ for the racy ever invented indeed, is, fun- longer it is no to be considered It ‘an essential and apparently fair requirement sine non of clause the kind qua confrontation damental country’s which is this constitutional analysis. trial Harlan, nia, (9th 1966); to Cali- Justice set forth concurrence v. 364 F.2d 522 Russell Cir. Evans, State, Green, (Tex.Cr.App.1980); supra, 914 Dil- and Dutton v. 604 S.W.2d fornia v. State, (Okl.Cr.1980); worth 611 256 27 213 v. P.2d 91 L.Ed.2d 400 Hicks, (Mo.App.1979); Green, (1970). 591 184 State v. S.W.2d the con- Justice viewed State, 282 383 A.2d 1097 establishing Crawford v. Md. ne- “rule of clause as frontation cessity” Erickson, (1978); v. 241 N.W.2d 854 State produce state under which the Dixon, (N.D.1976); 489 107 Ariz. were whose statements declarants all available Roebuck, (1971); 75 P.2d Wash.2d 225 v. After at trial. to unavailability the defendant be used (1968); Commonwealth shown, the declarant Mustone, (1968); 353 Mass. 233 N.E.2d 1 process and inquiry one of due was to become Crawley, Or. P.2d they if suffi- be used were statements could (1966). also, See Annot. 15 cases collected ciently a fair the defendant reliable to afford (1921), supplemental A.L.R. 495 annota- theory may not have Justice Harlan’s trial. gained (1932), tions at 79 A.L.R. 1392 A.L.R. express recognition it in Roberts (1939), (1945); and 159 Whar- A.L.R. “pure” rule since disavowed a deserved Harlan 650; Evidence, supra, ton’s Criminal McCor- ground necessity in Dutton on Evidence, 255, 257, mick on 258. §§ require production “availa- of all a rule would great potentially undue declarants at a ble” Clearly prior cross-examination is a relevant when their actual even burden state regard hearsay exception concern to the utility presence to the or no would be of little regarding former In other situa- tions, fact and would hearsay or the trier of defendant statements offered proc- independently significantly fairness alter the absence the declarant must be unnecessary production of regard Examples reliability evaluated for without to the ess. reliability testing through the Justice included mentioned of the statement for declarants See, Field, exceptions g., hearsay learned cross-examination. Shaffer e. within those (9th 1973) (spontaneous also 484 F.2d 1196 records. See Cir. for business treatises Westen, Confrontation, exception). ex- 77 Mich. statements Future of pressed that well founded belief Roberts L.Rev. hearsay exceptions generally establish the reli- ability very their nature. conclusion 1367, p. supra, Wigmore, 32. 13. 5 adopted strikingly theory is similar to

483 ’ v. goal course, . . . . As in the recent case of Of to con- State and front to is not absolute cross-examine (1981), 627 Byers, 102 Idaho P.2d 788 to may, cases, and in appropriate bow to apply ruling passing appellate a new in legitimate accommodate other interests upon earlier validity of an conviction in process criminal trial But its such circumstances as here would significant denial or diminution calls into equivalent applying post be the an ex question ‘integrity the ultimate facto law in of both federal violation and fact-finding process’ requires that state 627 provisions. constitutional P.2d at be competing closely interest exam- forth 795. Thus the rule set this ined.” 410 93 U.S. at S.Ct. at prospectively only. herein is applied L.Ed.2d (citations omitted). 35 at 309. Moreover, explained Byers, in as also today apparently Court feels precludes jeopardy double clause a second that, closely in these examining competing reviewing trial once the court has deter- interests, the reliability inherent in the for- mined that there was insufficient evidence mer hearsay exception, guaran- introduced at sustain trial to the verdict. teed the accoutrements of the former 627 P.2d at 796. judicial proceeding including opportuni- ty subject declarant cross exami- judgment of conviction is reversed nation, weighs presenting in favor of and the cause remanded with directions to earlier to the trier of fact. When complaint. dismiss the unavailable, the declarant previ- but has ously judicial testified in complete a forum J., BAKES, J., DONALDSON, C. oath, recordation, presence of the de- concur. counsel, adequate fendant and opportu- cross-examine, nity earlier that testimo- BISTLINE, Justice, concurring dis- ny is admissible without violation of the senting. confrontation clause of the United States Constitution. majority A have now of the Court deter voting mined that in error in they were light discussion, preceding In both Villarreal,1 Shepard with Justice State v. State and State v. Villarre- al, supra are just years ago. overruled. There exist no which was ten handed down independent grounds state for exclusion of persuaded, agree I am not so but do that hearing testimony, nor does Court, reversing with directions to appear it that there exist constitutional dismiss, correctly applying Greene v. Mas grounds for exclusion of that sey, 57 L.Ed.2d 15 U.S. States, (1978),

A final matter requires our attention. and Burks v. United The state has conceded that without L.Ed.2d —which Priest, testimony of Ms. the evidence would Byers.2 recently we relied appellant insufficient be convict Shepard, point I siding with Justice charge pressed; a review of the indeed longtime stance out that the Court’s record reflects as much. Under rule hear- the use at trial today recognizing announced the admissibil- purpose tuned to the testimony remains ity hearing testimony, of such preliminary scope hearings in Idaho’s supported, yet the conviction would un- be nothing I see basi- jurisprudence. criminal der rule in the time of existence making change in the case cally wrong appellant’s was insuffi- evidence change I simply it is a law because regard It can be cient. noted in —but advisability making doubt appellant’s specifically counsel raised and by the change until it is made clear argued prohibitory of Villarreal to rule magistrate hear- the district court below. Villarreal, Byers, Idaho 2. P.2d 788 (1971), is, majority opinion The all at the same time ing magistrate who as lawyer will be a too much and tells too little. The given to tells grand jury, is the with a case majority tells us more than we need or even prohibited he is not from understand that Green, want to know of California v. reaching making factual determinations 26 L.Ed.2d 489 a crime has been his determination4 that (1970), Roberts, 56, 100 and Ohio v. there is sufficient evi- committed and that (1980), 65 L.Ed.2d 597 neither of probable cause that dence establish particularly applicable which are to the case may guilty. accused be Also, majority at bar. tells us much yet point, has not reached that “depositions” about and on the other hand however, reason, plus the fact for which nothing overruling tells us of its reasons for problem the trial court is before policy policy considerations and deci one, consistently recurring not a I believe explicit sions which are both and inherent litigants generally that the trial bar and the 6 Idaho 57 P. 431 represented fare far in criminal cases would Villarreal, (1899), and State v. 94 Idaho better were the Court not to interfere at (1971). Finally, majority law, long this time with established case consider fails to even mention or much less illuminating especially absent reason- opinion changes which its will the enormous doing so. prosecution and defense bring about in the aspect of this case which fails Another in the of Idaho. of criminal cases excite the interest of other members presented in the following issues I see the manner in which the Court is the unusual First, is the sixth amendment instant case. testimony came to be offered the Federal Consti- Clause of Confrontation expect accepted. Although one would state, by statute or when a tution violated advanced this prosecuting attorney that the testimony of a ruling, permits the judicial quite clear from remedy, alternative it is intro- hearing witness to be court, correctly record the trial is not in when that witness duced at trial turnabout anticipating this Court’s I “unavailable.” deem court or is otherwise Villarreal, procedure to the suggested the probably possibly yes, be the answer to sure the trial court prosecutor. To be Idaho, Secondly, as a matter no. whether seeing that all of the only interested in permit now policy, has or should of local got jury, but there is state’s case before the introduction of a trial strong my doubt mind that Villarreal Potter and instruct, suggest or inti- judge should ever negative. question answer that prosecutor ways and means mate to a totally question is part of that latter against a may which evidence be submitted majority by the completely unanswered those person criminally accused. On e., considera- policy what local opinion, i. save the I would reverse and grounds alone mandate either the state of Idaho tions in another demise or survival of Villarreal for presently upholding the overthrowing or would I so hold where the day. Especially Potter and Villarreal. existing rule of tenacity was not test- recalcitrant witness’s Villarreal, supra, As indicated in State jail. hours in ed even few Green, supra, case of California matter. from the instant distinguishable SHEPARD, Justice, dissenting. who was on involved a witness Green is, believe, and whose opinion majority during I the trial stand or refreshed sought impeached will result in substantial erroneous and testimony at a previous of his reaching damage system far to our of crimi- the utilization Hence, hearing. In Green respectfully justice. nal I dissent. 797, 813, State, n.1, 98 Idaho Ruth, 4. See Stockwell v. 3. See State v. J., dissenting). (1977) (Bistline, (1978) (Bistline, J., specially P.2d P.2d 1360 n.1 concurring). opinion majority having here deter- particularly noted that declarant was present testifying at trial and that the permitting mined the introduction of that thereby defendant was assured of full and preliminary hearing testimony is not viola- effective at cross-examination the time of tive of the Confrontation Clause of Fed- trial. specifically That court stated: Constitution, eral then asserts: “We present have no occasion in the case ground “An for the alternative court’s to map theory of out the Confrontation application ruling Potter was of the validity Clause that would determine of Confrontation Clause the United hearsay ‘exceptions’ permit- all such saw States Constitution. The court use ting declar- the introduction an absent preliminary hearing testimony of the ant's For declar- statements. where the trial as violative of that constitutional absent, testify ant is not but is protection.” cross-examination, and to our submit to support Such finds no whatsoev- statement cases, anything, support if the conclusion only er in in Potter of Potter. mention that the admission of his out of court the federal constitutional Confrontation statements does not a confronta- create Clause is: tion problem.” Id. 399 “It is true that the framers of our consti- (Emphasis added.) S.Ct. at 1937. saw tution fit omit from that instru- Therefore, in Green the court had for provision ment usual which obtains in consideration an testifying in court declar- constitution, the federal but in ant and language whatever overbroad that of most of the providing states regarding used the statements of out prosecutions in all criminal the defend- remains, course, court declarant dicta. It ants shall be confronted with witnesses should also be noted that in Green Justices against him. Doubtless this omission was Marshall and participate, Blackman did not advisedly, made and the effect was to the Chief Justice and Justice Harlan filed leave the legislature.” matter with the special concurring opinions and Justice Id., Idaho, (Em- 57 P. at 432. Brennan dissented. Therein it is noted that phasis added.) the concurrence of the is se- Chief Justice The decision in Potter not based on understanding cured his clear noth- the Federal Confrontation Constitutional apply- forbids individual states Clause, pointed as a scant later year out ing a different rule. White, Idaho 61 P. 517 Likewise, Roberts, the case of Ohio v. permission was based the lack of distinguishable from the instant Finally, therefor in the Idaho statutes. case. a preliminary hearing There witness provisions those Constitution Federal disappeared had at the time applicable were not to the states at the time state sought to introduce her of Potter. hearing testimony under an Ohio statute so Thus, in its discussions of the Confronta- permitting the use of examina- tion Clause Federal Constitution Ohio Rev.Code Ann. majority merely up here has and demol- set (1975). Upon 2945.49 conviction Ohio question ished remains a straw man. The Supreme reversed, holding Court that the opinion majority unanswered in the as to statute was a violation the Confrontation policy presently what exist for ei- reasons Clause of the United States Constitution. overthrowing upholding ther rule of turn, the United States Regardless of the Potter and Villarreal. reversed, holding that there was no such “depositions,” it is majority’s discourse on Hence, constitutional violation. Roberts crystal clear that court Potter upholds the basic rationale Green that hearing testimony stated states remain free to make their own permitted would not be introduction tri- violating decisions in this without area Confrontation Clause of the Federal al. The reasons therefor were enunciated Consti- tution. and, quoted as in Villarreal: stated, lawyer right.

“When we recall as who has It “In every tional has been most * * * experience extended law in criminal prosecutions, criminal the preliminary do, practice may very perfunctory how per- examination conducted as a rather are, these examinations not functory proceeding only uncontested only part prosecution, on the of the likely holding order one denouement —an part frequently, necessity, more on the the defendant v. for trial.” California defendant, of the the uncharitableness of 196, Green, supra, 399 90 S.Ct. at apparent. always the rule is is It J., (Brennan, dissenting), quoting 1955 Peo- policy prosecution, preliminary of the on Gibbs, 739, 743-44, ple Cal.App.2d v. 255 63 examinations, investiga- to only carry its 471, (1967). 475 has Cal.Rptr. defense necessary tions to the extent to secure prosecution reason to little cross-examine defendant; holding of the it and is “[ojnly lawyers since television witnesses that the warrant- seldom defendant feels customarily prosecution demolish the going fully upon ed in into his defense a court,” magistrate’s it is and assumed court, preliminary before a examination indulge to be a tactical error to most only required where it is it shall that be prosecution extensive cross-examination appear made to that the offense named “may easily since witnesses such amount to committed, has been there ‘and that is grant gratis discovery to the a state.” sufficient cause to the defendant believe Until, point preliminary in time a Id. ” Id., guilty to have been thereof.’ 94 hearing proceeding has been a truncated 259, quoting 486 Idaho at P.2d at relatively conducted in a informal manner v. 57 State 6 Idaho can only at the conclusion of which there be P. at 432. finding “probable” cause as a contrasted purpose, timing pre- nature of a beyond guilt with the establishment of a hearing in liminary system our of criminal doubt. reasonable justice disability to me dictate of a rule prelim- timing of a is in the area of the It excluding preliminary hearing hearing perceive majority inary where I only proceedings. áctual trial from the havoc. opinion will create the most Until hearing preliminary of a in Idaho function it has been deemed advisable today public a has is to determine if offense been the courts prosecution, the defense and that probable committed and if cause to there granted preliminary be a hear- an accused believe that was committed crime very early point a in time. Reflect- Ruddell, v. Idaho the accused. State 97 ing the concern of the court Idaho Crimi- (1976); Haggard, 546 P.2d 391 v. 94 State indicating Rule 5.1 that if accused is nal (1971); Idaho 486 P.2d 260 custody, a must be Linn, (1969); 93 Idaho 462 P.2d “in event not later than fourteen held State, v. Freeman Idaho P.2d request (14) days following the defendant’s Bilboa, (1964); hearing,” and if a not P. 248 See also Idaho Criminal twenty-one “no custody then later than Linn, supra, As Rule 5.1. stated in request for a days after pre- Idaho at P.2d “[a] standpoint pros- hearing.” From the hearing is trial and liminary in no sense a to, ecution, it is undesirable at the same for- require therefore it does trial, stage, conduct an entire a trial.” precision observed at mality it is better to but rather evi- for that perhaps It is reason probable will satisfy as cause evidence prelim- a are dentiary rules more relaxed file an requirement, thereafter informa- Rule inary hearing. 5.1. See Idaho Criminal go prepare and then total Indeed, State, supra, pre- in Freeman v. be quickly possible as as consistent hearing was to be not liminary determined speedy accused’s to a trial. proce- with the stage of the criminal such a critical prose- standpoint, if the the defense counsel From the failure to furnish dure case, has no it will be discovered in constitu- cution denied the accused fundamental showing its failure to its sustain burden

probable cause accused will be free Idaho, Plaintiff-Respondent, STATE of early at an time.

If an anticipate accused must his may ultimate trial he be with the faced CHRISTENSEN, Craig Steven preliminary hearing, taken at the Defendant-Appellant. he thoroughly must be prepared pre- at the No. 13213. hearing. liminary Clearly, discovery all part completed defense must be Supreme Court of Idaho. prior the preliminary hearing pre- sumably all motions to or suppress for Aug. physical or a mental examination and like should have been made and ruled

prior preliminary hearing. to the The de- to,

fense would presently not be able isas

customary, reserve its cross-examination for brief, time of In trial. the resultant

preliminary hearing procedure would

time and largely duplicative effort be

that spent subsequent at a trial. I doubt

that the thorough preparation increased

a preliminary hearing can be conducted

within present the time constraints of our policies.

rules and timing The nature and our procedures provide do not Hence,

sufficient indicia reliability. our

procedures change. must

This state has since early days consistent-

ly prohibited the prelimi- introduction of

nary hearing testimony my trial.

judgment, ruling such is bottomed on sound

policy practical considerations. The opinion

majority mention, does not much discuss,

less practical policy consid-

erations the rule of exclusion nor the

impact today’s merely decision. It blind-

ly overrules. The decisions of the United

States Court discussed the ma-

jority state, by hold if statute

judicial ruling, permits hearing trial, to be introduced at

does not offend the Confrontation Clause

the United States Constitution. I know case, none, majority opinion and the cites

holding prohibits if a state the intro-

duction testimony, it has somehow committed

error of constitutional dimension.

I say am authorized to that Justice BIST- opinion.

LINE concurs in this

Case Details

Case Name: State v. Mee

Court Name: Idaho Supreme Court

Date Published: Jul 21, 1981

Citation: 632 P.2d 663

Docket Number: 12879

Court Abbreviation: Idaho