State v. Bainbridge

• Decision Date: 14 March 1985
• Docket Number: No. 14544,14544
• Citation: 108 Idaho 273,698 P.2d 335
• Parties: STATE of Idaho, Plaintiff-respondent, v. Randall W. BAINBRIDGE, Defendant-appellant.
• Court: Idaho Supreme Court

Page 335

698 P.2d 335

108 Idaho 273

STATE of Idaho, Plaintiff-respondent, v. Randall W. BAINBRIDGE, Defendant-appellant.

No. 14544.

Supreme Court of Idaho.

March 14, 1985.

[108 Idaho 274]

Stewart A. Morris, Boise, for defendant-appellant

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

1984 OPINION NO. 65, ISSUED JUNE 21, 1984, IS HEREBY WITHDRAWN, AND THIS OPINION IS SUBSTITUTED THEREFOR.

BAKES, Justice.

Appellant was tried and convicted of first degree murder (felony murder, murder during the commission of a robbery) and robbery and was sentenced to two concurrent fixed life sentences. He appeals both his conviction and his sentence. For the reasons set out below, appellant's conviction must be reversed and the cause remanded for a new trial. Additionally, we address other issues which deal with appellant's conviction and which might arise as issues upon retrial.

I

The facts of the crime committed in this case are the same as those in State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983). Appellant was Sivak's co-defendant. The two were tried at separate trials, before different judges.

On April 6, 1981, a cashier at a local gas station was murdered, and the station was robbed. The victim was shot several times and stabbed numerous times. She was found, still barely alive, by two customers. When she was found, her sweater and bra were pulled up, exposing her breasts.

Several witnesses came forward with information concerning the crime after an appeal for such information was broadcast in the local news media. These witnesses included two, Gary Chilton and Gloria Leyden, who had stopped at the station before the murder and observed two men inside the station. These two witnesses were hypnotized by an investigator to aid their recall of the details of what they observed.

On April 8, 1981, two days after the crime, Sivak was interviewed by police. He admitted that he and appellant had been at the station, but saw nothing. Detectives then contacted appellant. He was asked to sign a waiver of rights form, but refused, and requested a meeting with his parole officer. He was then taken to the law enforcement building where he did sign a rights waiver form. He was then interviewed on tape. At first appellant denied any involvement in the crime, but later told detectives that he and Sivak had stopped by the station to get cigarettes on the way to repair appellant's van and, while there, Sivak alone robbed and murdered the victim.

[108 Idaho 275]

Appellant and Sivak were then arrested and a warrant issued for search of a storage area rented by Sivak. Many incriminating items were found. The following day, on April 9, appellant was again interrogated and made a second statement. Appellant later filed motions to suppress both the first and second statements, and the items seized pursuant to the warrant. The trial court granted the motion to suppress the second statement because appellant had been denied his right to counsel, but denied the other motions

A great deal of publicity surrounded appellant, his co-defendant, and their separate trials. Publicity was especially heavy around the time of Sivak's trial, which took place several weeks before appellant's and resulted in Sivak's being found guilty of first degree murder. Appellant moved for a change of venue, but the motion was denied. The trial court did issue an order stating that in the event an Ada County jury could not be selected in three days, jurors would be selected from Nez Perce County. However, an Ada County jury was finally selected.

At trial, the prosecutor was allowed to pursue a sexual motivation theory, over the strenuous and continuing objections of defense counsel. The prosecution introduced evidence of the fact that the victim's sweater and bra were pulled up, exposing her breasts; that appellant made statements to two others after the murder that the victim "really turned him on"; and also attempted to introduce testimony of appellant's prior sexual misconduct through testimony of illicit relationships with a girlfriend and cohabitation with his wife before marriage. The prosecution was also allowed to introduce evidence of the good character of the victim, and her plain appearance, inferring that she would not have encouraged appellant. The prosecution cross examined appellant's character witnesses concerning the possibility of any sexual misconduct. The prosecution was also allowed to argue this theory to the jury.

Appellant's primary allegation of error is that the testimony of the two witnesses whose memories were hypnotically refreshed should not have been admitted. The parties have extensively briefed and argued the issue of hypnotically refreshed testimony and urge the adoption of a new rule. In our recent case of State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984), this Court did adopt such a rule to be followed by Idaho trial courts in admitting such testimony. On the face of this record, and judging admissibility of the testimony by the standards established in Iwakiri, it appears that at least a portion of the hypnotically refreshed testimony in this case may have been improperly admitted. On this basis, we find it necessary to reverse appellant's conviction, to allow for a new trial using only that testimony which the trial court determines is admissible under the rules established in State v. Iwakiri, supra.

Appellant alleges numerous other errors occurred at trial. We consider these other errors to give the trial court guidance upon retrial of this case. First, he urges that the trial court erred in failing to suppress the first statement made by appellant to authorities on April 8, and the items seized pursuant to a search warrant based upon information obtained in the April 8th interrogation. Appellant asserts two reasons the April 8th statement should have been suppressed. First, he claims that he requested an attorney before the interview, and one was not provided; thus, the statements should be suppressed as taken in violation of his sixth amendment right to counsel. Also, appellant argues that the rights waiver form signed by appellant on April 8th was not effective to waive his constitutional rights because he was not fully cognizant of those rights due to coercive techniques used by the interrogators and appellant's own mental condition. In other words, appellant argues that he did not voluntarily, knowingly and intelligently waive his constitutional rights. ¹

[108 Idaho 276] However, the trial court, after taking testimony, ruled that the April 8th statement was admissible. In a written opinion, the trial court ruled that the defendant did not request an attorney on April 8th, so no violation of the right to counsel occurred. In addition, the trial court stated that:

"After examining the totality of the circumstances surrounding the statements which defendant made at that time, as required by State v. Padilla, 101 Idaho 713, [620 P.2d 286] (1980), it appears that the defendant's statements were voluntarily made."

He also ruled that the waiver was knowingly and intelligently made.

A factual dispute over whether appellant actually requested counsel on April 8th was resolved against appellant by the trial court after hearing all the testimony. The trial court's decision that no right to counsel was asserted is supported by evidence in the record, including testimony of both state investigators who testified that no mention of counsel was made, and by the testimony of appellant's girlfriend (now wife) who never mentioned that appellant requested an attorney, only that he wanted to talk with his parole officer. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (request for probation officer not per se violation of fifth amendment rights). Because the trial court's finding on this issue is supported by substantial evidence, it will not be disturbed.

Appellant also argues that any waiver of his rights was not made voluntarily. He cites what he terms coercive tactics by the investigator and his own low normal intelligence as evidence that a possibility of coercion exists. He also asserts that any waiver was not knowingly or intelligently made, and again cites his own mental capacity in support of this allegation.

We first note that the state has a heavy burden in overcoming a presumption against the waiver of constitutional rights. State v. Mitchell, 104 Idaho 493, 660 P.2d 1336 (1983), cert. den. 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308. However, an express written statement of waiver, although not conclusive, is strong evidence of the voluntariness of the waiver. State v. Mitchell, supra; State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980). In this case, appellant was advised of his rights and signed a written statement of waiver before his interrogation on April 8th. Appellant then talked with officers, but made no incriminating statements until his parole officer arrived. After his parole officer arrived, he made a statement to officers fully indicating his version of the events, and his observations of the robbery and killing. In other words, there was a strong indication in the record that appellant was more than willing to talk as long as his parole officer was present. There was also evidence that appellant had previously been involved with the criminal justice system, and thus had previously been made aware of his rights. We thus conclude that appellant voluntarily waived his constitutional rights, as the trial court correctly ruled. See Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (reviewing court must make independent determination on the voluntariness issue). State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968).

Appellant also argues that the trial court erred in denying a motion for change of venue. He argues that extensive pretrial publicity, especially around the time of the trial of co-defendant...