*1 P.2d 572 Idaho, The STATE of
Plaintiff-Respondent, RAMSEY,
C. Jackson
Defendant-Appellant.
No. 12294.
Supreme Court of Idaho.
March Lynn, McDevitt, Boise,
John C. Chas. F. for defendant-appellant. Kidwell,
Wayne Gen., L. Atty. L. Mark Riddoch, Gen., Atty. Asst. Lynn Thomas, Gen., Boise, Deputy Atty. plaintiff-re- spondent.
DONALDSON, Justice. conducting
State narcotics officers were an investigation undercover in Boise in De- 15, 1975, cember of 1975. On December an agent phone undercover amade call at 5:30 m. p. residence Gossi agent Boise. As a result of the call the arranged buy pounds ten of marijuana p. officer, from Mrs. Gossi. At 6:20 m. this agents, with two undercover drove to the Gossi residence to make the buy. The first officer went to the door and was invit- ed inside. Mrs. then showed him and inspected large plastic bag which con- marijuana. pounds tained 9.74 Mrs. Gos- agents si was arrested and the other two in the came house. agents try
At this decided to supplier. They “bust” the waited in the Gossi house for about an hour when Mrs. phone Gossi received a call at p. about 7:35 m. After a conversation between Mrs. Gos- officers, si and the a plan narcotics bathroom, made. One officer hid in the one *2 excused, Gossi, whereupon and the first Mrs. Gossi was de- upstairs went with Mrs. objected fense counsel and moved for At in the kitchen. agent stayed downstairs judgment acquittal. or Defense mistrial Ramsey arrived at the p. about 8:00 m Jack asked for a clarification of the front door and was let in the officer. judge ex- excusing Mrs. Gossi. The court’s about the They had a brief conversation force her plained that he would not to an- just bought. had marijuana the officer any questions. swer Defense counsel then (Ramsey had been in the Gossi house earlier objection being no to her stated he had day marijuana in the and knew a sale was excused. on.) to take later going Ramsey jury was convicted the of two point, testimony disputed. this the At possession felonies: of a controlled sub- Ramsey The officers contend that then delivery stance and of a controlled sub- drug tried to to be a recruit the first officer stance. I.C. 37-2732. § Ramsey salesman for in North Idaho. Ramsey appeals his conviction on two agree Both that Ramsey denies this. grounds: get Ramsey tried to narcotics officer or fifteen additional procure him ten (1) construed the trial court whether marijuana day. Ramsey against that self-incrimi- pounds right fifth amendment overly deny Ramsey could not do this. nation broad so as to replied that he witnesses; right to call Ramsey thirteen The officer then showed (2) prosecutor whether abused his placed that he had on the table in bills $100 power immunity deprive so as to money He indicated this living room. Ramsey right of his to call witnesses and pounds the ten pay Ramsey for was to present a defense. received officer had marijuana the table, Ramsey went over to the Mrs. Gossi. I was arrested. money, counted guarantees The sixth amendment subpoenaed Mrs. had prosecution right to compulsory process to obtain prepared had an immuni- for trial and witnesses. This right applicable to state testify. her to How- agreement to allow ty proceedings by virtue of the fourteenth ever, she was not called process amendment due clause. Wash immunity given. was and no Texas, ington v. State of witness, but she her as a Ramsey called S.Ct. self-incrimina- privilege against claimed right “The to offer the of wit- counsel. from defense to all tion nesses, attendance, compel and to their if from the record appear It does necessary, plain right is in terms the the defense or subpoenaed by she was . . . present a defense .” Id. at given immuni- requested she the defense at 1923. ty to recognized right compul- It is that this and ad- her name she had After process important is an one to sory be af- in- dress, he would attorney indicated recognition possible. full where forded ques- her not to answer struct Westen, Clause,” Compulsory “The Process counsel then contended (1974). However, tions. Defense 73 Mich.L.Rev. 71 to answer right witness should be instructed conflicts with a often claimed incriminating against self-incrimination. question which was each excused, jury nature. After practical pur- for all A defendant judge the submitted his right compulsory defense counsel poses be denied going he was to ask Mrs. Gossi. process by virtue of the countervailing proposed impact concluded of the privilege against self-in- privi- within the fit crimination. Where “would all the two rights are in questions, conflict, the exercise I would honor lege, and self-incrimi- prevailed. has nation regard.” in this Cook, Rights Constitutional of the Ac- found. is not to say J. This that she could be cused, Rights, Trial on all guilty counts, found of these especial ly if possible violations arose out of the Amendment and Fifth
When
Sixth
same
Idaho
act.
Code
precludes
18-301
§
under
guarantees
Amendment
collide
punishing
the state from
the same
circumstances,
act
Amend-
these
the Sixth
*3
However,
ways.
different
potential
Gossi’s
right
yield.
ment
must
liability
enough
was real
present
to
dan
Wolff,
1033,
D.C.,
F.Supp.
Holloway v.
351
ger
Miller,
of self-incrimination.
State v.
(1972).
1038
608,
Or.App.
14
513 P.2d
(1973);
1199
the sixth
say
This is not
to
Parker,
79
Wash.2d
485
60
P.2d
process
to
compulsory
amendment
(1971).
also
possibility
There
existed the
of
any way
right.
a second class
For a fifth
in
possession
a federal
for
of mari
dominate, the
privilege
amendment
to
need
juana.
seq. (1971);
21 U.S.C.
801 et
Ab
§
asserting
right against
self-incrimi
States,
bate v. United
must be shown to
well founded
nation
(1959).
spiracy, possession ounces, denied, over three 1974), cert. U.S. frequenting marijuana where jury excused the immedi- It cannot be said to be the court an abuse of
Here
clear that Gossi would
it became
ately after
immunity power
it
when
At this
fifth amendment.
claim the
requested.
has not been
The immunity
asking ques-
again began
defense
power granted by
solely
statute in Idaho is
After she had
of Gossi.
tions
prosecuting attorney.
for the use of the
address,
attorney advised her not
This
granting
pow
Court has held that
The court
questions.
answer
er
prosecutor
is not unconstitutional.
an outline of the
got
for and
then asked
Court,
Dutton v. District
Idaho
expected
answers
de-
P.2d 1182
counsel.
fense
hearing defense counsel’s outline
After
the issue is wheth
Ramsey contends
Gossi, the court’s
purpose
questioning
er “under certain circumstances does due
*4
self-incrimination
ruling on the
call
re
process
right
and the
to
witnesses
and was not so
proper
within
discretion
was
granted
that
certain
quire
immunity
to
Ramsey
right
to
deny
as to
overly broad
accomplices or co-defendants.” This is not
Defense counsel did
ob-
call witnesses.
justice by
an
a case of
obstruction
the
was not
being excused and she
ject to Gossi
prosecutor.
Ramsey
alleging
What
is
as
Defense
questions.
further
any
asked
prosecutor,
error is the failure of the
sua
any
were
areas
does not show there
sponte,
help Ramsey present
to
his case.
help
to
could have testified
where Gossi
no
prosecutor
took
affirmative action
the fifth
which were outside
Ramsey
to deny Ramsey any evidence. What the
amendment
prosecutor
subpoena
did was to
Gossi as a
decide,
and then
for whatever rea
II
son,
hardly
not to call her. This is
an abuse
assignment of error
Ramsey’s second
immunity power.
Immunity
the
was not
immunity
abused the
prosecutor
the
given
all involved.
was not
immu
at
19-1114,
by
him
I.C.
granted
power
§§
nity,
Ramsey request
given
nor did
she be
the
Ramsey says this is because
-1115.
immunity.
have executed an immuni-
would
prosecutor
testi-
had he needed Gossi’s
ty agreement
appeal, Ramsey urges
recognize
On
we
felt Gossi’s tes-
prosecutor
the
mony. Since
process
certain defense
right
due
to have
Ramsey, he did not
only help
timony would
We do
witnesses immunized.1
not rule on
offer her
a witness and did not
her as
call
this issue since it was not raised below as it
immunity.
requested
was not
that Gossi be
im-
important
the case are
The facts of
munity.
subpoe-
was
this issue. Gossi
addressing
judgment
of conviction is affirmed.
for trial. She
by
prosecution
naed
Further, Ram-
by Ramsey.
subpoenaed
SHEPARD,
McFADDEN,
J.,
C.
request she be
any
time
sey did not
BISTLINE, JJ.,
concur.
immunity
BAKES
granted
only
immunity
process
provides
witness “use”
when
re-
Although
due
the Idaho Code
immunity
Leonard,
grant
quires.
U.S.App.
power
prosecutor
United States v.
with the
witnesses,
process
(1974) (concur-
Ramsey suggests a due
D.C.
79n.
ring
Judge
dissenting opinion
immu-
right
witnesses
Ba-
certain defense
of Chief
to have
Note,
zelon);
support
“Separation
some
in United
Powers and De-
There is
nized.
theory.
Immunity”
Supreme
As the
cases for this
Court
fense Witnesses
(1977);
66 Geo.L.J. 51
Kastigar
Westen,
pointed
Compulsory
v. Unit-
out in
“The
Process
Court
States,
Clause,”
Note,
(1974);
73 Mich.L.Rev.
ed
prosecution
(1972),
nor
neither
Defense
Immu-
L.Ed.2d
“A Re-examination of
Witness
by
granting of
nity:
Kastigar,"
“use”
Harv.J.Leg-
is harmed
the defense
immunity.
A
New Use for
urged by
Note,
several
(1972);
“Right
been
It has
of the Criminal
is. 74
have an inherent
Testimony
must
Compelled
that the courts
sources
power
Defendant to
nesses,”
of Wit-
in-
This would
a fair trial.
to ensure
67 Colum.L.Rev. 953
grant
power
a defense
the court to
clude a
BISTLINE, Justice, specially concurring.
belief
the line
of questioning being
pursued by
might
defense counsel
eventual-
result
I concur in the
reached
ly
things
lead “to
which
incriminate
majority opinion.
assignments
Given
today
here
in this courtroom.” The
appeal
which are raised on
and the
error
following exchange then occurred:
below,
procedures
actual
followed
result
inferred,
not be
how-
sound.
should
THE
right,
COURT: All
do
want
ever,
proce-
endorses the
Court
client,
your
time to confer with
Mr.
which
followed in this case.
dures
were
Roos?
today
to resolve
The Court is
called
MR.
I previously
ROOS:
conferred with
Ramsey’s
a conflict between defendant
her,
Honor,
Your
and I might state to
right witness-
present
Sixth Amendment
. the
my
it is
intention from
es in his own
and the witness Gossi’s
behalf
this point forward that she will not in
compelled
Fifth Amendment
any way waive those constitutional
way
tend
might
which
rights,
instruct her from now on to
far as
problem,
her. The
so
incriminate
no
answer
in this re-
concerned, has
been elimi-
largely
State is
gard inasmuch as should she start
passage
nated
I.C.
19-1114 and
§§
unintentionally
enter
into
area
an
-1115,
permit
State to
im-
whereupon she could incriminate her-
to a witness whose
munity
technically
self that that
is a waiver of
*5
incriminating
it seeks
otherwise
rights,
those 5th Amendment
and
Here, however, we are faced
to obtain.
I
therefore will instruct her from now
deeply disturbing
in which
with a
situation
on
to
grounds
not
answer on the
she
deprived
allegedly
a
is
defendant
may incriminate herself.
testimony of a witness who was
exculpatory
only
non-police eyewitness
to the
the
objected
Defense
that
every
not
result
drug transaction. The
is a conviction
asking
would be
question he
Gossi would
hardly
that
based
evidence
could
be
tend to incriminate her and that
the court
overwhelming.
described as
ques-
should instruct her to answer every
The United
Court has
incriminatory
tion which was not
in nature.
said,
rights
“Few
are more fundamental
The trial
then dismissed the jury
court
and
present
than that of an accused to
witness-
opportunity
the
offered defense counsel
v.
es in
own
Chambers Missis-
his
defense.”
proceed.
again,
witness was
Once
1038,
302,
1049,
93
sippi, as
gave
High-
asked and
address
“514
see,
(1973).
And
Wes-
“Joan,
land.”
counsel then asked:
Defense
ten,
Clause,” 73
Compulsory
Mich.L.
“The
Highland
514
were
a resident of
on
If,
(1974).
majority says,
Rev. 71
as
Again
December
1975?”
Gossi’s counsel
defendant’s Sixth Amendment
interrupted and instructed
not to an-
present a defense is not
to become a
grounds
might
swer
on the
that she
based
procedures
rate
certain
right,”
“second
Thereafter,
eventually incriminate herself.
meticulously
a
followed whenever
must be
to an
defense counsel resorted
offer of
testify.
refuses to
key witness
proof
upheld
which
after
court
majority
states that defend-
opinion
privilege
Gossi’s
witness,
Gossi as a
“but she
ant called
noted, however,
It should be
that at no
against
her privilege
claimed
self-incrimina-
time
ever
privilege
did Gossi
claim that
questions
from defense counsel.”
tion to
privilege
herself. The
against self-incrimi-
is, perhaps,
overly
an
broad statement.
This
nation is a civil
which
liberty
personal
asking
counsel succeeded
Defense
me,
It
questions
therefore,
name
individual.
seems
only
two
Marie
—her
though
interrupted
there is case
being
authority
address —before
con-
and her
Roos,
counsel,
trary,1
who stated his
the better
Gossi’s
rule is to be
by Mr.
found in
Mayes,
United States
F.2d
512
637
jurisdictions
short,
those
insist
The privilege,
which
is the privilege
the witness
claimed
himself
against being compelled to respond
ques-
his counsel:
vicariously by
and
tions
might
which
tend to incriminate the
witness,
long
It is and
has been fundamental
privilege against
not a
being asked
privilege against
self-incrimination is
such questions by defense counsel.
claimant,
personal
individual
Bell,
to the
and
112 N.H.
298 A.2d
(1972).
it must be
election to invoke
exer- Recognition of
is in derogation
himself, on
cised
the witness
the stand
of the search for
since
truth
away
takes
oath,
hearing
question
under
after
from the trier of fact evidence which may
or
to him.
addressed
is not
arriving
crucial to its
at the truth of the
attorney
surrogate.
invocable
an
as
matter.
It follows that
the privilege Jennings,
N.J.Super.
State v.
only
sustained
a response
when
ques-
A.2d
tion would in fact
tend to incriminate a
insisting
The reason
for
witness witness.
court,
It is for the
not the witness
himself invoke his
being
to determine
whether
truthful and com-
compelled
fear of
self-incrimi-
plete answer might be incriminating and
nation is clear:
only
determination can
be made on a
witness,
counsel,
is the
who
[I]t
question-by-question basis:
state,
oath,
must so
do so
and must
under
[Bjecause of the elusive character of the
for it is the
penalty
perjury which is
privilege against self-incrimination [cita-
the sole
against
spurious
assurance
as-
tion
may vary
ques-
omitted]
apprehension.
sertion of a claimed
In re
question,
tion to
must be
Boiardo,
N.J.
A.2d
propounded to the witness on the stand
basis;
one-by-one
the witness must
Where,
here,
as
the witness herself has not
question
then evaluate
severally
each
so much as
apprehension
stated that
decide, question by question, whether to
exists, the
self-incrimination
lacks
assert his
or not. The trial
*6
foundation for
inquiry
it must make
an individual
judge must then decide on
the validity
into
claim.
para-
of the
To
question
privilege
has
basis whether
phrase
holding
a
New
of the
York Court of
he, the
properly
been
asserted or whether
Appeals in a slightly different context: The
judge,
the answer under
compel
must
privilege against self-incrimination does not
State,
Conway v.
contempt.
threat of
being
embrace a privilege against
required
198, 219,
(Md.
A.2d
Md.App.
See,
to claim that Cunningham
Nadjari,
N.Y.2d
N.Y.S.2d
Here,
properly
acted
in
the trial
MR. I ROOS: instruct and that cannot answer[s] possibly have such tendency” to incrimi- grounds answer based whereupon lead into an area Id., (Emphasis nate. original.) at at 819. The test must be refusal to answer must be supple- [A] mented liberally administered because the witness statement of the area or nature of exposure the criminal cannot, justify privilege, which is in order to Quite feared. obviously a court cannot divulge compelled very information myriad asked to scan the offenses un- designed guaran- which the der the laws of all of the states and of hand, tee. the other is not On the United States in search of possible upheld say-so. witness’s mere to be connection between question and one Amendment,” the Fifth The “mechanism of of them. That course would be but a Appeals as the Fifth Circuit Court of ob- guessing game in which the witness recently, “is not automatic or self- served would become in effect the final judge of Gomez-Rojas, winding.” United States his claim privilege. The area must be The pinpointed to the extent to which it is one, heavy is not a but he witness’s burden possible to do so without eliciting a hurt- response particular must show that a to the Boiardo, ful answer. In re 34 N.J. question might incriminating, tend to be 170 A.2d simply conceivably that it could lead to court, The trial upon hearing defense coun- question unwary another which an sel’s offer of proof, concluded without fur- precipitately: might answer too ther ado that Gossi compelled could not be Yet, least, of the most theory, some because appearing questions innocuous could lead practically anything involved implication criminal conduct. crime, with controlled substances is a disclosure of a witness’ true name or his delivery, possession whether it’s with in- particular of residence could in a deliver, tent possession of over three very theoretical situation be the informa- is, ounces or five ounces or whatever it police waiting. tion for which the are felonies, any and I’m sure involvement Certainly, the line in- beyond which the course, the witness testifying to —of terrogation may go must not be her involvement would be a violation of danger drawn until has more than privilege. a theoretical basis. . . . such No The majority reaches the same conclusion. say one can whether in this —or simple. matter is not so The record interrogation case—continued of wit- us, though before sketchy, establishes that may progress ness into an area where already pleaded guilty Gossi had danger threatens. But until real real possession of a controlled substance and re- danger apparent, the court must been convicted thereof. It is basic that a reciprocal hazard main sensitive plea guilty constitutes waiver of the to obtain of a Defendant self-incrimination as to testimony may be frustrated relevant Moreover, if, the particular crime. as is claim of a fancied or fraudulent case, frequently plea was entered in closed the door too We think the Justice exchange for dismissal of all (Emphasis original.) here. quickly charges stemming transaction, from this Robbins, (Me. 318 A.2d then Gossi was in no of further criminal and her *8 it point A final deserves mention since possibly could not have tended to be self-in- this apparently parties missed criminating. Even if were not abso- is not a litigation below. The prosecution lutely immune reason silent, a privilege to remain but it well plea-bargain, may of a have been the The witness against self-incrimination. prosecution case that further would be given ques- response that a to a placed must show barred because of not to be fact, danger in of may, jeopardy in him twice in for the same offense. tion is has held Again, required more The United States Court self-incrimination. joyriding, example, for acts as a bar to say-so: witness’s mere than the
9 indict- and, discharge court to him from the in auto theft for further ment, We refusing prose- or for his may not be that a defendant general, why reason a legal discovered no he has have after greater a offense cuted for of plea who has entered the defendant included offense of a lesser convicted been thereafter, Ohio, upon the trial of guilty cannot v. facts. Brown set of on the same codefendant, ei- required defendant as the ther for the state or the (1977). be; nor and neither the state may case area, Ninth example, the drug In the legal any trial has the defendant on has held as fol- Appeals of Court Circuit objection . . 11 Ida- grounds for lows: 526-27, P. ho at 83 at guilty of plea entered a Sandino Furthermore, ex- the trial court should criminal drug-related of the first count whether plea sen- amine the itself to see charge and has been conspiracy really tends proposed interrogation fur- line of appear any It does not tenced. than witness to incriminate the against Sandino charge pending is ther Otherwise, it been admitted. time, already contend that has appellants do nor that, We well be the case anticipated. may charges are additional longer no in is conclude Sandino testimony comprised detailed While his thus incriminating himself and of danger in no guilt, placed him confession the fifth amendment as not raise may previous- his light heinous than had more United compelled testimony. bar guilty. pleas entered formal State ly 548 F.2d Hodge Zweig, v. N.C.App. States Elledge, v. S.E.2d (9th Cir. Texas, Appeals of of Criminal The Court is, again, cases once of all these attempting to with a witness also faced Amendment the defendant’s Sixth of further incrimina- silent for fear remain witnesses in his own behalf will right to call along similar drug charges, held tion on right” become a “second rate unless the lines: carefully procedures adheres to trial court clear, on the basis of the State’s designed safeguard right: are which the motion in limine and
admission in every entitled to A defendant assist- Mar- attorney that Julia testimony of give compel- can ance which posses- on the been convicted tinez had of witnesses and re- ling the attendance therefore, could, no charge. She sion evidence, give them to short of quiring Franco v. longer claim her violating any rights they may properly State, S.W.2d If a the Fifth Amendment. claim under already pleaded guilty has to an witness the same con- this Court reached Long ago, longer privi- no claim the offense Knudtson, 11 Idaho In clusion. rights of the lege as to that offense. existing (1905), under the 83 P. explored can be and determined statute, question arose as to immunity hearing at a before the trial out- would have to the trial court whether presence jury. side the United to force a codefendant immunity order Sanchez, (2d Justice Ail- accomplice. testify against question could arise that no such shie held pleaded had himself the witness once was not made a careful determination Such Rather, guilty: case. we have a situation in this trial court sustained a soon, however, the defend- which the as one of As claimed, the witness had never guilty, plea entered the ants has her counsel had response these to a motion which provisions requirements of stated, regarding questions which had as to never immunity statutes statutes] [the asked, met, based and the never been fully are defendant such *9 which had never been either self-incrimination longer exists for reason no shown procedure, though to exist. Such a complained appeal, of on represents a
completely inadequate balancing of the fun-
damental interests which are at stake when
a conflict arises between a proper witness’s
exercise of his Fifth Amendment
against self-incrimination and the defend-
ant’s call witnesses in his own Gould, United v.
behalf. Nothing say we today
should be taken as it. condpning
McFADDEN, J., concurs.
576 P.2d
FIRST AMERICAN TITLE COMPANY IDAHO, INC., Corpora- an Idaho
OF
tion, Plaintiff-Respondent, CLARK,
J. L. “Mike” Assessor of Ada Idaho, Marjorie Jonasson,
County, County, Idaho,
Treasurer of Ada De-
fendants-Appellants. ESCROW, INC.,
LAND TITLE AND
corporation, Plaintiff-Appellant, COUNTY, body corporate,
CASSIA Shir- Povlsen,
ley County Treasurer, Cassia Heiner, County Assessor,
Calvin Cassia
Defendants-Respondents.
Nos. 12244 and 12670.
Supreme Court of Idaho.
March