State v. Daugherty

• Decision Date: 25 June 1971
• Docket Number: No. 10617,10617
• Citation: 486 P.2d 243,94 Idaho 232
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Larry Fred DAUGHERTY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 243

486 P.2d 243

94 Idaho 232

The STATE of Idaho, Plaintiff-Respondent, v. Larry Fred DAUGHERTY, Defendant-Appellant.

No. 10617.

Supreme Court of Idaho.

June 25, 1971.

May, May, Bennett & Sudweeks, Twin Falls, for defendant-appellant.

W. Anthony Park, Atty. Gen., and Martin R. Ward, Deputy Atty. Gen., Boise, for plaintiff-respondent.

SPEAR, Justice.

Appellant, Larry Daugherty, was tried and convicted of the crime of robbery in the district court, Twin Falls County. The trial and conviction, from which this appeal is taken, followed the events described below.

Appellant and the complaining witness, Neal Pastoor, had several drinks together in several Twin Falls bars on March 25, 1969. From the last bar they left with appellant driving Pastoor's pickup. After driving to another part of town, appellant stopped the pickup and removed Pastoor's ring, watch and billfold and then began to remove Pastoor's shoes. At this time the two began to fight. The fight continued outside the pickup and appellant seized a pitchfork, threatening and injuring Pastoor. Pastoor disarmed appellant, ran from the scene, and shortly thereafter stopped a police car to report the robbery. Officer Mildon, the officer in the car, reported the robbery over the radio and the description of the victim's pickup, which the suspect had taken.

Officer Cameron, a second patrolman, saw the pickup after Mildon's radio report and followed it until it stopped. He recognized the driver as Larry Daugherty, appellant, and asked him to go down to the station with him. At the station it was determined that Daugherty had been driving with a suspended license, so he was placed under arrest on this charge and he received the Miranda warnings incident to this arrest.

Captain Lindell assumed the investigation of the robbery. Before actually confronting appellant, he took Pastoor to the room where Daugherty was being held to identify his assailant. Pastoor positively identified appellant as the man who had robbed him and remarked that the suspect was wearing his coat. Lindell testified that he then began questioning appellant about the robbery after having informed him that he was being arrested for robbery and again advising him of his rights. The other officers present when appellant was brought to the station, including Officer Mildon who was present when Lindell was conducting the interrogation, testified that as far as they knew appellant was not informed of the robbery charge or arrested or booked for robbery until the next day.

After Lindell commenced the questioning, he and the other officers searched Daugherty. This search revealed Pastoor's watch, ring, wallet and coat on the suspect's person.

Appellant contends that throughout the entire proceeding at the station the night of his arrest, he was never informed of any felony charges, advised of his rights except as in a misdemeanor case, furnished counsel at his 'show up' identification, or advised that he was in a 'show up.'

A preliminary hearing was held April 25, 1969 before the justice of the peace and an information was returned charging appellant with robbery and assault with intent to commit murder.

On June 27, 1969 a sanity hearing was held pursuant to I.C. § 19-3302, resulting in a jury verdict that appellant was insane and unable to stand trial. In conformity with this verdict, appellant was sent to the State Hospital South and while there he was examined by psychiatrists and a psychologist with the result that he was found sufficiently sane to stand trial. Subsequently, he was returned to Twin Falls County to stand trial.

Trial was held on the charges of robbery and assault with intent to commit murder. After the jury was sworn appellant moved to strike the charge of assault with intent to commit murder, since the information failed to allege that the crime took place within this state, and also to suppress any testimony regarding this count. The district judge granted the motion striking the charge but denied the motion to suppress the testimony regarding assault. The prosecuting attorney requested, in the jury's presence, that the record be supplemented to show that this charge was dropped only because of a technical error in preparing the information. The request was refused. Appellant moved for a mistrial but this motion was denied.

The jury returned a verdict of guilty of robbery on September 25, 1969. On October 10, 1969, after hearing and denying a motion for a new trial, the district court sentenced appellant to not to exceed ten years in the Idaho Penitentiary.

Appellant assigns as error the trial court's failure to grant his motion to suppress all evidence obtained as a result of the alleged illegal search in the police station March 26, 1969. He also contends that the court erred in not granting his motion to be returned to state mental hospital. Appellant alleges that he was prejudiced by the trial court's not granting a mistrial because of the prosecutor's statements regarding the reason why the charge of assault with intent to commit murder was dismissed and also for not instructing the jury to disregard any evidence relative to this charge. Appellant claims prejudice resulting from the prosecuting attorney's offering in evidence the records of the state hospital when he knew them to be inadmissible. Error by the trial court is alleged by not allowing appellant to introduce in evidence certain portions of the same records when Mr. Lake, the superintendent, allegedly testified from them.

Finally, appellant assigns as error the trial court's failure to grant a new trial and failure to order a free transcript of the sanity hearing so that the entire record could be brought to the Supreme Court.

Additionally, appellant argues that he was not afforded the proper protection at the interrogation stage. Even though under suspicion for the commission of a felony, he was arrested for a misdemeanor, interrogated, searched and articles unlawfully seized and later introduced in evidence. Also he argues that he should have been advised of his right to counsel at the time he was identified by Pastoor in the police station since this was in effect a 'show up'-a critical stage in his criminal proceeding.

Appellant contends that his arrest for driving with a suspended license was a sham employed by the police solely for the purpose of discoverying evidence relative to the felony charge and was therefore illegal. Accordingly, any evidence discovered as a result thereof should have been suppressed. We have recently had occasion to review the admissibility of evidence found when officers of the law initially arrest on a charge substantially less serious than that actually under investigation in State v. Barwick, 94 Idaho 139, 483 P.2d 670 (1971). Having reviewed the arguments and record in this case, we find the type of police activity we found reprehensible in that case lacking here.

In Barwick, a substnatial portion of the investigation, including a search and interrogation, was conducted subsequently to an arrest for vagrancy and before the suspect was either arrested for or informed of the felony of which he was suspected. We held there that where the initial arrest on the lesser charge was for the purpose of gathering evidence of the felony, the arrest was illegal as a sham and rendered all evidence disclosed as a result inadmissible. Even though appellant here was arrested on a misdemeanor charge prior to the investigation which revealed the incriminating evidence, that...