State v. Lamphere
| Decision Date | 01 July 1997 |
| Docket Number | No. 22456,22456 |
| Citation | 945 P.2d 1,130 Idaho 630 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Tommy LAMPHERE, Defendant-Appellant. . Lewiston, October 1996 Term |
| Court | Idaho Supreme Court |
Henderson & Grow, Lewiston, for appellant. James W. Grow, Jr. argued.
Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. Respondent did not participate in oral argument.
SUBSTITUTE OPINION THE COURT'S PRIOR OPINION DATED JANUARY 21, 1997 IS HEREBY WITHDRAWN.
This is an appeal from a judgment of conviction for possession of a controlled substance (methamphetamine), and a request for reinstatement of the first written verdict of not guilty entered by the jury. We reverse the judgment of conviction and remand the case for a new trial.
In January 1995, appellant Tommy Lamphere's (Lamphere) car ran out of gas and Lewiston Police Officer David Gobbi (Gobbi) stopped and helped him move the car out of traffic. Upon a routine warrant check, Gobbi became aware of an outstanding arrest warrant on Lamphere, so Gobbi arrested him. During a search of Lamphere's person, Gobbi discovered a small glass vial inside Lamphere's coat. The vial was empty except for residue on the sides. Lamphere was charged with one count of possession of a controlled substance pursuant to I.C. § 37-2732(c)(1) and entered a plea of not guilty. Testing of the residue showed that the vial had contained methamphetamine.
At trial, Lamphere's defense was that he did not know what the vial contained. When Gobbi searched Lamphere after his arrest for the outstanding warrant, found the vial and asked Lamphere what was in the vial, Lamphere testified that he told Gobbi, "I thought it might have been methamphetamines or something else." The next question on direct examination was if Lamphere knew what was in the bottle to which he responded, "No, sir, I didn't." Lamphere testified that he had obtained the empty vial from his girlfriend, L.P., who had found the vial in the basement of her former residence. She testified that the vial was empty with dust on the sides, that she placed the bottle in her pocket for about three days, and that when Lamphere came home from a trip, she showed him the vial and asked him to find out what had been in it. L.P. had reason to believe that her daughter was involved in drug activity and was afraid the vial had contained heroin. Lamphere testified that he placed the vial in his coat pocket and then left town for the next three weeks. When his girlfriend inquired about the bottle in December 1994, he told her that he had lost it after feeling his coat pocket and not finding it.
At one point during the trial, counsel for Lamphere sought to ask Gobbi if he remembered making a certain statement in a prior proceeding (preliminary hearing) to the effect that Lamphere might have said, in response to Gobbi's question, "it might be methamphetamine." An objection was made on the basis that the question was an improper impeachment of the witness. The court sustained the objection.
The district court also refused to allow a witness to testify who was disclosed to the State five days before trial. The court ruled that the testimony was irrelevant and that the disclosure was too late. The witness was L.P.'s daughter, W.P. Lamphere's attorney made an offer of proof stating that W.P. could identify the vial as belonging to one of her friends.
The jury returned a written verdict of not guilty. The district judge asked the presiding juror "is that your verdict as read by the clerk," to which the juror responded, "yes it is." However, when asked by the district court if this "is the verdict of all of you," the presiding juror responded "no it is not." The State and Lamphere moved for a mistrial which was denied. The court then polled the jury and the vote totaled five for acquittal and seven for conviction. The court then sent the jury out to deliberate further with the instruction that they try to reach a unanimous verdict. While the jury was out, counsel for Lamphere asked the court to declare a mistrial which the court declined to do. The jury came back in less than two hours with a unanimous verdict of guilty. Counsel for Lamphere again moved for a mistrial which was denied.
Lamphere then moved for an acquittal or in the alternative, a new trial. In support of his motion, Lamphere filed affidavits of the jurors which essentially stated that they still believed Lamphere to be not guilty, but thought the district judge had instructed them to reach a unanimous verdict and that they could not be deadlocked. Lamphere claimed in his motion that the court's instruction to the jury was similar to a dynamite instruction which placed undue hardship and pressure upon the minority to change their verdicts.
Lamphere also argued in his motion that because of a communication between the bailiff and at least one juror, the verdict could The court denied the motion, finding that while it was improper for the bailiff to give any kind of information to the jury as to the potency of a controlled substance, potency was not an issue in this case. The court also found that its instruction to the jury was not a dynamite instruction, that it told the jury that it did not have a unanimous verdict and that in the absence of such an agreement, there is no verdict.
have been affected. The communication concerned a question by a juror as to whether "these amphetamines" were the same thing as speed, to which the bailiff responded in the affirmative, and added that they are a lot stronger.
At his sentencing hearing, Lamphere was sentenced to a unified five year prison term with two years fixed. That sentence was suspended, and Lamphere was placed on probation for a period of five years. As a condition of probation, Lamphere was ordered to serve 90 days in jail. Lamphere appeals the final judgment, conviction, sentence and denial of his motion for a new trial, and seeks reinstatement of the first written verdict entered by the jury.
1. Whether the district court erred in excluding W.P.'s testimony as irrelevant.
2. Whether the district court erred in denying Lamphere the right to call a material witness, W.P., upon the grounds that the witness was disclosed five days prior to trial.
3. Whether the court abused its discretion in denying a mistrial where both the prosecution and the defense moved for a mistrial, and where the jury rendered a written verdict of not guilty, but upon polling, were divided five for acquittal and seven for guilty and then sent back into the jury room to deliberate with the instruction that the verdict be unanimous.
4. Whether the court erred in denying Lamphere the right to ask Gobbi about a prior inconsistent statement made at a prior proceeding where the defense had no transcript of the proceeding in which the statement was made.
5. Whether the cumulation of errors made at trial amount to reversible error.
I.R.E. 402 provides:
All relevant evidence is admissible except as otherwise provided by these rules or by other rules applicable in the courts of this state. Evidence which is not relevant is not admissible.
Because the determination of relevancy is a question of law, this Court's standard of review on issues of relevance is de novo. State v. Raudebaugh, 124 Idaho 758, 766, 864 P.2d 596, 604 (1993).
Lamphere was charged and convicted of possession of a controlled substance, methamphetamine, pursuant to I.C. § 37-2732(c). That section provides:
It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter.
Methamphetamine is specifically listed as a controlled substance under I.C. § 37-2707(d)(2).
Idaho Criminal Jury Instruction 403 concerning possession of a controlled substance provides as follows:
In order for the defendant to be guilty of Possession of a Controlled Substance, the state must prove each of the following:
1. On or about [date]
2. in the state of Idaho
3. the defendant [name] possessed [name of substance], and
4. the defendant knew or should have known it was [name of substance].
If any of the above has not been proven beyond a reasonable doubt, then you must find the defendant not guilty.
(Emphasis added). In the present case, the district court gave this instruction to the jury, stating that in order for Lamphere to be guilty of possession of methamphetamine, the State must prove beyond a reasonable doubt that he knew or should have known that what he possessed was methamphetamine.
In State v. Fox, 124 Idaho 924, 866 P.2d 181 (1993), this Court discussed whether mental state is an element of the offense defined in I.C. § 37-2732(c). The Court concluded that this is a general intent crime, i.e., an offense requiring only the knowledge that one is in possession of the substance. 124 Idaho at 926, 866 P.2d at 183. In Fox, the defendant was charged with possession of ephedrine, a controlled substance. At a hearing during the trial on the admissibility of certain of Fox's exhibits, the district court ruled that the proffered exhibits were not relevant because knowledge that possession of ephedrine was illegal was not an element of the offense. Thereafter, Fox conditionally pled guilty to the charge. Id. at 925, 866 P.2d at 182.
On appeal, Fox argued that the defense of mistake of fact was available to him pursuant to I.C. § 18-201. That section provides:
Persons capable of committing crimes.--All persons are capable of committing crimes, except those belonging to the following classes:
1. Persons who committed the act or made the omission charged, under an...
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