State v. Douglas, 12039
| Decision Date | 01 November 1976 |
| Docket Number | No. 12039,12039 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Annette DOUGLAS, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Dennis E. Wheeler, Wallace, for defendant-appellant.
Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, Randy W. Day, Prosecuting Atty., Bonners Ferry, for Boundary County.
This appeal is from a judgment of conviction entered upon a jury verdict finding the defendant appellant Annette Douglas guilty of the crime of embezzlement. She argues by her counsel on appeal (who was not trial counsel) that her conviction should be set aside because: (1) her Miranda rights were violated during testimony at trial of an alleged oral confession which she made of the crime to a sheriff and his deputy; and (2) she was denied the effective assistance of counsel. We reverse Douglas' conviction because we find that she was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States and by Art. 1, § 13, of the Idaho Constitution. Thus, we do not reach the Miranda issue.
The defendant appellant Annette Douglas was accused of embezzlement of $50.00 United States currency belonging to the state of Idaho or Boundary County that had come into her possession and control while she was working as a clerk in the office of Chris Ketner, the sheriff of Boundary County. Douglas was a juvenile at the time of the alleged offense. Ketner, who swore out the criminal complaint against Douglas, was the only witness who testified against her at the preliminary hearing. His testimony was to the following effect:
On July 19, 1974, a bank officer telephoned the sheriff's office to tell him that the sheriff's account at the bank was overdrawn by approximately $300.00. Upon learning this, Ketner contacted deputy Karen Robinson, the bookkeeper for the sheriff's office, to examine the sheriff's office books. She determined that between $700 and $800 was unaccounted for. When the sheriff was unable to locate the missing money, he began to suspect that it might have been taken from the safe in the sheriff's office, which was rarely locked and to which all the employees in the sheriff's office had access. The safe normally contained receipts from the sale of driver's licenses and interstate trucking permits, along with various other funds.
On July 23, Kether instructed Frank Quagliano, the day shift deputy, to mark the currency that was in the office safe each morning and to count the money with Robinson every morning. Quagliano was instructed to tell no one else that he had narked the money. That day Annette Douglas, who was scheduled to work, called in sick and did not appear at the sheriff's office. The following morning, July 24, Quagliano and Robinson again both counted the money before the beginning of the day's business and verified that no money was missing. Annette Douglas came to work that day. Her job, which included the sale of driver's licenses and interstate trip permits, allowed her access to the safe. At 11:45 a. m., shortly after Douglas had left the office to begin her lunch hour, Robinson checked the cash box in the safe and determined that $50.00 was missing. She told Quagliano of the missing money. He in turn immediately phoned Ketner. When Douglas returned from lunch, Robinson asked her to go to Ketner's office where Ketner and Quagliano were waiting to question her about the missing money.
According to Ketner's testimony, when Douglas came into his office Ketner told her that approximately $800.00 was missing from the sheriff's office and that they knew that she had taken it. He testified that she initially denied having taken the money, but later in the interrogation admitted to having taken only $300 or $400. The sheriff then told her to go home and return with the $50 that had been discovered missing that morning. After allowing Douglas to leave, he and Quagliano decided that they should drive to her home to prevent her from destroying the evidence.
Ketner further testified that upon arriving at Douglas' home, Douglas handed them a roll of bills. Ketner did not examine the bills at the time, but when he returned to the office he found that she had given him two ten dollar bills and two five dollar bills, all but one of which bore the mark Quagliano had earlier made upon the bills in the safe.
Annette Douglas, who was the only other witness at the preliminary hearing, testified that she had never taken money from the safe, but on returning from lunch on July 24, 1974, she had been asked to go to the sheriff's office and, once there, Ketner and Quagliano had told her there was money missing from the safe and accused her of having taken it. She testified that Ketner demanded the immediate return of $50.00 and told her that she would have to return some $300.00. She denied having taken any money, but nevertheless was then sent home with instructions to return with $50.00. She testified that shortly after she arrived home, the sheriff arrived and pushed his way into her house and demanded the money. She then gave him all the money in her purse, $30.00, because the sheriff had threatened her and her friends who were at the house.
The attorney who represented Douglas at trial had also represented her at the preliminary hearing. Thus, her trial attorney had been present to hear the sharp conflict in the sheriff's and Douglas' testimony at the preliminary hearing concerning whether Douglas had admitted taking money from the sheriff's office and describing the circumstances under which the sheriff had obtained $30.00 from Douglas at her home. He also heard the sheriff's testimony that he had accused Douglas of taking the money and that Douglas had admitted taking it, but in which the sheriff had not mentioned giving Douglas the Miranda warnings before making the accusation or asking for her answer.
Douglas argues that her trial counsel failed to give her effective assistance of counsel. She cites the following example of his failure to protect her Miranda rights as evidence of his ineffectiveness. The first witness called by the prosecution at trial was Deputy Quagliano. After...
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