State v. Cypher

Decision Date20 March 1968
Docket NumberNo. 9749,9749
Citation92 Idaho 159,438 P.2d 904
PartiesSTATE of Idaho, Plaintiff-Respondent, v. David James CYPHER, Robert William Mueller, Defendants-Appellants.
CourtIdaho Supreme Court

James Annest, Burley, Cauley, Birsic & Clarke, Pittsburgh, Pa., for appellants.

Allan G. Shepard, Atty. Gen., and Daniel A. Slavin, Asst. Atty. Gen., Boise, for respondent.

SMITH, Justice.

Appellants (defendants) each were charged by separate informations and were adjudged guilty of the crime of robbery. They appeal on several grounds, principally contending error committed by the trial court in refusing to dismiss the cases upon their plea of having been once in jeopardy, or in the alternative, in refusing to grant a change in venue, and a new trial.

The alleged crime occurred the evening of August 14, 1964, at Parish Motel in Burley, Idaho. During that evening, two men entered the motel premises and, in attempting to rob the motel, shot and wounded Mrs. Norma Newcombe, who was attending the motel in the absence of its owners. The two men took what money was in the cash drawer, approximately $26.00, and disappeared. Mrs. Newcombe's 13-year-old daughter, Ruth Marie Newcombe, witnessed the commission of the crime. Gail Shattuck, who was in another part of the building, arrived shortly thereafter.

Floyd Higens, deputy police sergeant for the city of Burley and Cassia County deputy sheriff Woodall arrived at the motel soon after the crime, and obtained descriptions of the men from Mrs. Newcombe. Higens ascertained that men fitting the descriptions had been seen by several citizens at various places in Burley on the day of the crime. The morning following the robbery, a local farmer provided Higens with the names of two itinerant laborers who had worked for him during the previous week and who met the descriptions provided by Mrs. Newcombe. Upon receiving the names and possible whereabouts of these men, the Burley police called the Pennsylvania State Police Detective Bureau. Five days after the call, the police received a letter from Pennsylvania containing photographs of the two suspects. They were identified as the appellants by Ruth Marie Newcombe, by Mrs. Newcombe, and by Mrs. Teddy Allen, an employee at a restaurant in Burley.

Subsequent to identification of the suspects, warrants were issued for the arrest of appellants, and they were arrested by F.B.I. personnel in Pittsburg, Pennsylvania. Appellants executed waivers of extradition, and Officer Higens and Cassia County Sheriff Warrell traveled to Pittsburg and returned them to Idaho.

At the conclusion of a preliminary hearing held October 9, 1964, appellants were bound over to the district court, and each was duly charged with the crime of robbery.

The cases came on for trial on March 4, 1965, in Cassia County, before Hon. Lloyd J. Webb, a district judge of the then eleventh (now fifth) judicial district, and a jury. The State, as its first witness, called and questioned Mr. Higens. Defense counsel then cross-examined Mr. Higens, with the following exchange taking place:

'Q Did you ask him (Mueller) for a sample of his hair so that you could have it tested?

'A No. I didn't.

'Q You did not do that. Isn't it a fact, fact, Mr. Higens, that Mr. Mueller asked you to test his hair?

'A I don't recall that.

'Q Didn't he ask you to use every scientific test or every available test of science that was available to determine whether or not he was the man who did this job?

'A But he didn't ask me to take any scientific test to determine the hair at all.

'Q Didn't he ask you about a lie detector, Mr. Higens?

'Mr. Smith (prosecuting attorney): Your honor * * *

'The Court: Not only do I sustain the objection, I declare this case a mistrial. Ladies and gentlemen, you are discharged. We will try this case again some other day. That's all, the jury is excused. The defendants are remanded to the custody of the County Sheriff of Cassia County.'

March 28, 1965, following the declaration of mistrial, Judge Webb, deeming himself disqualified in both causes, entered orders of disqualification.

June 28, 1965, the cases came on for trial in Cassia County before Hon. Thomas H. Felton, a district judge of the second judicial district to whom the cases had been duly assigned for trial, and before a jury.

Shortly before the second trial, appellants moved the trial court for dismissal of the cases upon the ground that appellants had been once in jeopardy and further moved the court for rearraignment. At the same time, appellants moved for a change of venue, claiming that the feeling in the community had become so intense against both defense counsel and appellants that an impartial trial could not be had in Cassia County or in the eleventh judicial district, which motions the trial court denied.

Forty-three prospective jurors, all of whom had some knowledge of the cases, were examined on voir dire at the second trial. Appellants used all ten of their peremptory challenges. Of the twelve trial jurors, and alternates selected, two were clients of the prosecutor's firm and one was an employee of the prosecutor's office. Nine jurors had read of the crime in local newspapers, three had heard or discussed the case with someone, and ten were acquaintances of one or more of the State's witnesses.

Appellants were adjudged guilty of the crime of robbery, and their motions for new trial were denied. They have appealed from the judgments of the trial court entered against them in favor of the State upon their pleas of being once in jeopardy; also from the judgments of conviction, and from the orders denying new trial and arrest of judgment.

Appellants, by their assignments, contend that the trial court erred in the first trial in declaring a mistrial in that there was no manifest overriding or extraordinary necessity requiring mistrial; that by such action jeopardy attached to prevent a second trial of appellants for the same charged offense; and that the declaration of mistrial under such circumstances, inasmuch as appellants did not consent thereto, was tantamount to the acquittal of appellants. They base their reasoning on the proposition that no person shall be twice put in jeopardy for the same offense. U. S. Constitution, Amendment 5; Idaho Constitution, Art. I, § 13.

Judge Webb declared a mistrial of the first trial after appellants' counsel had propounded a question on cross-examination to the State's witness Higens as to whether appellant Mueller had asked 'about a lie detector,' ostensibly as a scientific test to determine whether 'he was the man who did the job.' Bearing upon his actions Judge Webb's affidavit dated June 16, 1965, appears in the record, in which he stated:

'At a hearing held the day before trial in the above-entitled matter, which hearing was concerned with additions of witnesses not endorsed upon the Information, this affiant advised counsel for the defendants and counsel for the State that there could be no comment in the trial or questioning in the trial concerning sodium pentothal testing or other forms of lie detector testing without argument in the absence of the jury on this subject; and that affiant did further, in open court, advise counsel, both being present, that if this subject was in any manner brought before the jury in the absence of such foundation and legal argument, that the affiant would declare the case a mistrial. Counsel for the defendants apparently understood the expressed position.

'On the second day of the trial, on about the fourth or fifth question directed on cross-examination to the State's first witness, counsel for the defendant asked a question concerning whether the defendants had asked for lie detector testing, specifically contrary to the instructions of the Court two days previous. Whereupon counsel for the plaintiff objected, and this affiant sustained the objection and declared the case to be a mistrial because of the attempted introduction of material believed to be inadmissible and for which no legal foundation had been laid.

'Affiant has been advised since the mistrial that this was not the intention of counsel for the defendant, but it appeared from the question directed by counsel for the defendants that counsel was directly contravening the order of the Court in this regard.'

The following excerpts are taken from the affidavit of appellants' counsel, dated June 20, 1965, replying to Judge Webb's affidavit:

'4. That on Monday, March 1, 1965, two days before trial, affiant at a hearing upon defendants' motion to suppress certain evidence illegally obtained informed the court that the defendants had received the sodium pentothal examination * * *;

'5. That at said time, the court admonished counsel for defendants that he did not desire any mention made of the sodium pentothal examination unless the matter was first submitted to the court outside the presence of the jury; that he likewise stated that if it were mentioned without having first presented the matter to the court outside the presence of the jury that he would declare a mistrial of the cause; that he also stated at that time that his mind was not closed on the admissibility of the evidence but that he desired counsel for the State and counsel for defendants to submit authorities;

'6. That to the best of affiant's recollection no mention whatsoever was made as to any other form of examination and particularly there was no mention made of the lie detector or polygraph examination made in the court's admonition at the hearing held on March 1st, and affiant did not understand that the court intended to preclude him from examining into any evidence which bore upon the state of mind of the defendants at the time of their apprehension except insofar as evidence surrounding the issuance of a pentothal examination;

'9. That your affiant did in no way violate or intend to violate any order of the court or to disregard any...

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