634 P.2d 435 (Idaho 1981), 13300, State v. Ybarra

Docket Nº:13300.
Citation:634 P.2d 435, 102 Idaho 573
Opinion Judge:BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Inez Martinez YBARRA, Jr., Defendant-Appellant.
Attorney:Richard D. Petersen, Burley, for defendant-appellant. David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Judge Panel:BAKES, C. J., and McFADDEN, DONALDSON and SHEPARD, JJ., concur.
Case Date:September 22, 1981
Court:Supreme Court of Idaho
 
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Page 435

634 P.2d 435 (Idaho 1981)

102 Idaho 573

STATE of Idaho, Plaintiff-Respondent,

v.

Inez Martinez YBARRA, Jr., Defendant-Appellant.

No. 13300.

Supreme Court of Idaho.

September 22, 1981

Page 436

[102 Idaho 574] Richard D. Petersen, Burley, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BISTLINE, Justice.

Defendant-appellant Inez Ybarra appeals from a conviction for robbery. We affirm. A summary of the facts adduced at trial is as follows:

At 3:21 a. m. on December 15, 1978, the Overland Car Wash in Burley, Idaho, was robbed of approximately $30. The attendant and only eyewitness, Lucy Cole, stated there was one $10 bill, two $5's and some $1's. Cole described the robber as about 5'8 and 180 lbs., wearing a ski mask and a blue ski parka (Ybarra is 5'9 and weighs 215 lbs.). Cole stated that the robber said he was holding a gun in his pocket and that he had a Spanish accent.

Officer Mason had observed a car similar to Ybarra's driving in what he described as a "suspicious" manner about fifteen minutes prior to the robbery. The car was cruising below the speed limit on the back streets. About fifteen minutes after the robbery Mason again observed this car, this time parked next to a vacant lot, away from other vehicles in the area, and about two blocks from the car Wash. Mason stated that the hood of the car was still warm, although it was very cold outside. Another officer in an unmarked car drove up and stayed to watch this vehicle, while Mason went to check on a pickup, with its engine running, a short distance away. 1 About five minutes later Ybarra, wearing a short-sleeved shirt without a jacket, walked up to the car, entered it and drove away. Mason then returned in his patrol car and pulled Ybarra over. Three unmarked units were also present at this time. The officers, with their guns drawn, ordered Ybarra out of the car and frisked him. When it was determined that he was not armed, he was questioned, primarily by Mason while the other officers receded from the scene. 2

Ybarra, who was not given the Miranda warnings at this time, stated that he had been out with Janie Curiel and that she had just dropped him off. Ybarra also consented to a search of his car trunk and wallet. Nothing incriminating was found; he had $71 in his wallet three $20's, a $10 and a $1. After supplying identification and information as to where he was staying, Ybarra was told that he could leave.

On further investigation, the police found a jacket thought to have been worn by the robber in a back yard a short distance from the car Wash. The owner of the house there told the police that a man had knocked on his door at 3:42 a. m. and asked for "Jerry." The description he gave of that man matched Ybarra. Curiel, Ybarra's alibi witness, stated that she had not been with Ybarra that night, and that she had been in Pocatello with friends.

Later that morning the police went to the house where Ybarra was staying and asked [102 Idaho 575]

Page 437

him to accompany them to the police station for questioning. He agreed to do so. At the station he was taken to an interview room and read his Miranda rights, which he waived. He then repeated the same statement he had made the night before. He was subsequently placed in a lineup. Cole, the attendant, stated that Ybarra most looked like the man who had robbed her and that his voice sounded like the voice of the robber. After the lineup, Ybarra was placed under arrest.

After a preliminary hearing and commitment to district court, Ybarra moved to suppress his statements and the identification by Cole. He also sought a reduction in bail. Both motions were denied. A jury found Ybarra guilty and he was sentenced to a term not to exceed fifteen years. He appeals, setting forth numerous assignments of error.

I.

The first issue raised by Ybarra is whether the trial court erred in not lowering his bond prior to trial, and, as a corollary issue, whether the Idaho statutes on bond violate due process and equal protection by discriminating against indigents.

As to Ybarra's argument that the trial court erred in not lowering his bond, "(e)ven if the conditions of release imposed upon a defendant are unreasonable and excessive, the court is not deprived of jurisdiction nor does it affect the validity of the defendant's conviction." Vigil v. State, 563 P.2d 1344, 1346 n.1 (Wyo.1977). See, e. g., United States v. Marx, 485 F.2d 1179 (10th Cir.), cert. denied 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1973); Balltrip v. People, 401 P.2d 259 (Colo.1965). Moreover, the proper method of challenging a bond as excessive is through a petition for writ of habeas corpus to this Court, provided application has first been made to the trial court to reduce bond. See, e. g., 8 Am.Jur.2d Bail and Recognizance § 58 (1980). Since we affirm Ybarra's conviction, the claim of trial court error in failing to lower Ybarra's bond is moot. See generally State v. Christensen, Idaho, 632 P.2d 676 (1981).

Secondly, as to Ybarra's attack on the constitutionality of Idaho's provisions for bail, Ybarra's basic argument is that "the Idaho statutes governing bail make no mention of indigency ... (and) (u)ntil Idaho courts make proper allowance for indigency status in setting bail, the setting of bail by Idaho courts will be unfairly oppressive to the poor." I.C.R. 46(c) governed admission to bail at the time of Ybarra's trial: 3

"(c) TERMS. If the defendant is admitted to bail, the terms thereof shall be such as in the judgment of the magistrate,[102 Idaho 576]

Page 438

court or justice will insure the presence of the defendant, having regard to the nature of circumstance of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail, the character of the defendant, and the policy against unreasonable detention of defendant's pending trial."

As can be seen, this rule does provide for consideration of a defendant's financial status in setting bail. We find no merit in Ybarra's argument.

II.

The second issue raised by Ybarra is whether the trial court erred in not granting his motion to suppress his exculpatory statements to the police. 4 As to the statements he made at the initial stop, Ybarra argues that that questioning amounted to a custodial interrogation and that therefore the police were required to give him the Miranda warnings.

The test for determining whether questioning is custodial or merely investigative is whether the person is in custody or is deprived of his freedom of action in any significant way. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. McCurdy, 100 Idaho 683, 603 P.2d 1017 (1979); People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967); State v. Costa, 228 Kan. 308, 613 P.2d 1359 (1980); State v. Harge, 606 P.2d 1105 (N.M.App.1979). This test is an objective one based on the surrounding circumstances. See United States v. Hall, 421 F.2d 540 (2d Cir. 1969), cert. denied 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970); State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977); State v. Campbell, 607 P.2d 745 (Or.App.1979); State v. Paz, 572 P.2d 1036 (Or.App.1977). The fact that a gun is initially drawn is not controlling, as the officers are entitled to protect themselves. Pace v. State, 580 S.W.2d 689 (Ark.1979); People v. Glover, 270 Cal.App.2d 255, 75 Cal.Rptr. 629 (1969). 5

In Glover, appellant Glover was pursued from the scene of the robbery by officer Neville. Glover ran to a parked car which appellant Roberson was attempting to start. Neville, gun in hand, stopped both appellants, and asked Roberson why he was parked there. Roberson gave an exculpatory statement, and the court held that the failure to give the Miranda warnings was not error:

"Roberson was not in custody, but only in temporary detention for interrogation as to the reason for his presence there. No probable cause as to him had arisen, when he gave his exculpatory statement.... In this period of temporary detention a warning under the Miranda formula was not required...

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