State v. Fain

• Citation: 774 P.2d 252,116 Idaho 82
• Decision Date: 04 April 1989
• Docket Number: No. 15414,15414
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Charles I. FAIN, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 252

774 P.2d 252

116 Idaho 82

STATE of Idaho, Plaintiff-Respondent, v. Charles I. FAIN, Defendant-Appellant.

No. 15414.

Supreme Court of Idaho.

April 4, 1989.

Rehearing Denied May 30, 1989.

[116 Idaho 84] Van G. Bishop, Nampa, for appellant.

Jim Jones, Atty. Gen., argued, and Lynn E. Thomas, Sol. Gen., Boise, for respondent.

ON DENIAL OF PETITIONS FOR REHEARING

HUNTLEY, Justice.

This appeal has been protracted and no doubt agonizing to those directly involved. We have heard oral argument on several occasions and have been presented with more than one troubling issue requiring resolution. The pertinent facts are these: Charles I. Fain was convicted of first degree murder, lewd and lascivious conduct with a minor and first degree kidnapping of nine-year-old Daralyn Johnson. He was sentenced to death. Fain's appeal first came before this Court in March of 1985, for automatic review pursuant to I.C. § 19-2827 and upon several claims of error regarding both the conduct of the trial and the imposition of the death sentence. In August of 1985, this Court ordered further briefing on the single issue of whether Fain was denied due process and a fair trial as a result of the state's failure to preserve certain swabs of bodily fluid taken from the victim. After hearing oral argument thereon in November 1985, this Court suspended Fain's appeal to enable a post-conviction proceeding to take place, and to raise and resolve certain factual issues regarding Fain's claim that potentially exculpatory evidence was destroyed by the State by its failure to preserve certain swabs of bodily fluid taken during the autopsy of the victim.

The trial court issued findings on remand in an order on petition for post-conviction relief in March 1987, finding that tests of Fain established conclusively that Fain was a Type A secretor. Therefore, the swabs might have been exculpating had they disclosed semen from other than a Type A secretor. On remand, the trial court also found that Dr. Droulard, a pathologist who performed an autopsy on the victim, inadvertently discarded the swabs while assisting in the preparation of a sex crime kit. Fain argues that his due process right to fair trial was impacted as a result of the State's failure to preserve potentially exculpatory evidence. We respect that argument, particularly in view of the weighty evidence used to convict Fain and affirm the conviction. We discuss each of his assignments of error in turn.

I. THE PRELIMINARY HEARING

Fain argues that the evidence adduced at the preliminary hearing was insufficient to permit the magistrate to bind him over for trial. He claims that while the State presented evidence to establish that a crime had been committed, it totally failed to introduce evidence linking him to the crime. At a preliminary hearing, the state must prove only that a crime was committed and that there is probable or sufficient cause to believe that the defendant committed it. I.C.R. 5.1(b). State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983). This test may be met by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate, and a reviewing court may not substitute its judgment for that of the magistrate as to the weight of the evidence. Rideout v. Superior Court, 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197 (1967).

In reviewing the testimony adduced at the preliminary hearing, we conclude that there was competent evidence, including reasonable inferences therefrom, to

                [116 Idaho 85] show probable or sufficient cause that the crimes charged had been committed and that the defendant was guilty of their commission.  First, an automobile matching the description of Fain's uniquely painted automobile was seen in the vicinity of the abduction prior to the victim's disappearance.  It matched the description of the automobile in which the child was allegedly abducted.  Also, the child's abductor was described as having "long, brown hair and a beard," which description matched that of the defendant.  John Michael Thompson, an acquaintance of Fain, testified that Fain had asked him, "What would you say if I told you I killed someone?"   Thompson also testified that Fain had threatened him.  The magistrate concluded that such a threat indicated a guilty state of mind.  A sample of Fain's pubic hair was found to be similar to pubic hairs found in the victim's panties, and evidence was presented that Fain's shoe tread could have made a footprint found and photographed near where the victim's body was found.  While none of the above factors standing alone would be sufficient to permit the magistrate to hold Fain to answer, the cumulative evidence supports the finding that there was probable cause sufficient to charge Fain with the crimes.  Hence, the magistrate did not err in holding Fain to answer and the district court properly upheld the magistrate's ruling
                

II. ADMISSION OF CELLMATES' TESTIMONY

Fain contends that the trial court erred in admitting the testimony of Bobby Roberson and Ricky Lee Chilton, two inmates who shared a cell with Fain. Fain's assignment of error is based on his contention that Roberson and Chilton had been placed in his cell by the State in order to elicit incriminating information from him. Clearly, admission of statements made by an imprisoned defendant who is represented by counsel would violate the sixth amendment if the statements are deliberately elicited by governmental agents. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); and, State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981). However, the sixth amendment does not forbid admission of an accused's statements to a jailhouse informant who, placed in close proximity to the accused, does not make any effort to stimulate conversations regarding the crime charged. Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986).

In Kuhlmann, a jailhouse informant was placed in close proximity to the defendant and instructed to ask no questions but to listen for information regarding the crime with which defendant was charged. The informant listened and surreptitiously wrote notes detailing what defendant said. The Supreme Court held there was no sixth amendment violation, as "the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630. (Emphasis added.) See also, Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.1987).

Fain was in custody and under indictment at the time Roberson and Chilton were in his cell. He was also represented by counsel. However, at a mid-trial suppression hearing, Roberson and Chilton both testified that they were not informants collecting information for the State, that they were in no way induced by payment or other favorable treatment to elicit information for the State, and that they were not acting on any government instructions to obtain evidence. On the basis of that evidence, the trial court concluded that Roberson's and Chilton's testimony should not be suppressed in that neither man was an informant collecting information for the State. The trial court concluded that any incriminating statements which Fain had made to his cellmates were not the result of any deliberate action by the government or its agents. The court's ruling on the suppression motion was clearly grounded in his belief of Roberson's and Chilton's accounts of the circumstances under which Fain spoke to them in his cell. Because of Fain also contends that the trial court erred in refusing to require Bobby Roberson to take a psychiatric or a polygraph test. Fain claims that Roberson had a history of mental problems and that, since Fain's conviction was obtained almost entirely on the basis of circumstantial evidence, the issue of the admissibility of Roberson's testimony was not a minor matter but a major issue and had the trial court required Roberson to take a psychiatric or polygraph test, Fain would have attempted to introduce the results of the test in order to show that Roberson had a motivation, reason, tendency or predisposition to lie. There is no authority for such a procedure and we find no error in the trial court's denial of the request.

[116 Idaho 86] the trial judge's ruling denying the suppression motion, we may infer that he found Roberson's and Chilton's testimony at the suppression hearing credible. The determination of whether a witness is credible is one of fact, and in the context of a suppression hearing, is to be made by the trial court. Jones v. Superior Court, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241 (1971).

III. TRANSCRIPT OF FAIN'S STATEMENT

At trial, Officer Newton testified as to statements Fain made during a taped police interview. The trial court disallowed the introduction of the tapes and the 58 page transcript thereof. The State did not introduce the transcript, but Officer Newton simply related his recollection of part of the conversation. Fain requested that the entire transcript be admitted into evidence; he did not limit his request to those portions of the transcript which explained, qualified or were relevant to that part of the conversation regarding which Newton testified. Such limited, relevant portions would have been admissible under the then existing Idaho evidentiary practice, which practice is now articulated in Idaho Rule of Evidence 106:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

While we note that the State did not introduce a writing, the rationale of the above rule would seem to apply where, as here, the State...