State v. Fairchild
| Decision Date | 02 March 1992 |
| Docket Number | No. 18520,18520 |
| Citation | 829 P.2d 550,121 Idaho 960 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Roger Kim FAIRCHILD, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Victor J. Rolzitto, Red Bluff, Cal., for defendant-appellant.
Larry J. EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen. (argued), for plaintiff-respondent.
This is an appeal from a judgment of conviction and sentences imposed on two counts of possession of controlled substances. We affirm.
Based on information gathered in an ongoing investigation of drug dealing and from use of confidential informants, a Ketchum police officer obtained a warrant to search the trailer (a mobile home) and two vehicles located at Lot No. 14 of the Red Top Meadows Trailer Court. The ensuing search revealed large quantities of controlled substances, processing equipment, packaging material, records and tally sheets, all consistent with drug trafficking and distribution operations. The occupant of the trailer and the registered owner of the vehicles was Roger Fairchild, who was arrested and charged with possession of cocaine with intent to deliver and possession of marijuana in excess of three ounces. I.C. §§ 37-2732(a)(1)(A), -2732(e).
The case was set for a jury trial to begin on October 31, 1989. The defense filed a number of pre-trial motions, including a motion to return illegally seized evidence and a motion to discover the names of the confidential informants. The motion to return evidence was argued contemporaneously with the motion to suppress evidence obtained in the search, which the defense claimed was not based on probable cause. All of Fairchild's motions were denied. However, the court granted the state's request for a protective order to safeguard the identity of the confidential informants, one of whom had allegedly made a "controlled buy" of cocaine from Fairchild just before the search warrant was issued.
At trial, on November 1, 1989, the prosecutor interrupted defense counsel's opening statement to advise the court of a problem with the evidence alluded to by defense counsel. Specifically, the prosecutor informed the court that the bindle delivered to the defense expert for testing was not in fact the bindle that had been obtained from confidential informant No. 539 (CI No. 539) in the "controlled buy." Bindle No. 539, as this evidence was identified, had been held at the lab in Boise and had therefore never been released to the defense for testing. This disclosure led to a motion by the defense for mistrial, which was granted.
The defense then sought to have the case dismissed on double jeopardy grounds. The district judge denied Fairchild's motion and set a new trial date. The jury found Fairchild guilty on both counts. The court imposed a sentence of twenty-five years, with twelve years fixed, plus a $25,000 fine on the cocaine charge, and a sentence of five years fixed, plus a $10,000 fine on the marijuana charge. The sentences were to run concurrently. Fairchild appeals, contending the district court erred in failing to require disclosure of the identity of the confidential informants, and in denying Fairchild's motion to suppress, his motion to continue the suppression hearing, and his motion to dismiss on double jeopardy grounds. Fairchild also contends that the sentence he was given is cruel and unusually harsh.
The first question presented on appeal is whether the defendant may raise the bar of double jeopardy to a second trial after having succeeded in aborting the first trial on his own motion. The general rule is that a defendant's motion for mistrial removes any bar by the double jeopardy clause of the Fifth and Fourteenth Amendments to retrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). An exception to the bar exists, however, when the defendant's motion is based on prosecutorial misconduct which was intended to provoke the defendant into moving for a mistrial. Id.; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). The court ruling on the motion is to make a finding of fact "inferring the existence or nonexistence of intent from objective facts and circumstances." Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089.
As described by Fairchild, the conduct which precipitated the mistrial was the prosecutor's surprise revelation that bindle No. 539, which the defense had requested for examination for fingerprints and testing, was not the bindle that had been delivered to the defense. According to Fairchild, this constituted a withholding of evidence essential to the defense and further deprived the defense of the effective assistance of counsel. Fairchild asserted that the purpose behind the prosecutor's untimely disclosure was to goad the defense into requesting a mistrial and had the dual purpose of allowing the state more time to muster its case for trial at a later date. Fairchild insisted that, through the last several weeks before trial, the prosecutor continued to mislead the defense into believing that the state had tested bindle No. 539 and had provided all of the evidence which the defense had requested.
Fairchild also contended that the state wanted a mistrial because it feared a failure in its proof due to its loss of certain exhibits prior to trial. These exhibits, numbered five through seventeen, all dealt with Fairchild's residency or with his possession and control of the trailer where the drugs were found, which the state would have to prove as part of its case. Fairchild contended that the unavailability of this evidence was another reason for the prosecution to provoke the defense into asking for a mistrial. See Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824, 831, 54 L.Ed.2d 717 (1978).
The district court heard the motion and limited the testimony to the prosecutor's intent or lack of intent to cause a mistrial when he made his disclosure during the defendant's opening statement at trial. At the time, no evidence had been introduced toward proof of the crimes with which Fairchild was charged. The court found that the mixup in the delivery of the proper bindle was "the result of a simple mistake," which at worst amounted to carelessness on the part of the prosecutor. The court also found, however, that circumstances and conduct of both the prosecutor and the defense counsel contributed to the mistake. The court held that defense counsel should have concluded his discovery, particularly the testing of evidence, long before trial so as to eliminate problems such as those which arose in this case. The court, however, recognized that the disclosure about bindle No. 539 would necessitate a delay in the trial and extra costs for Fairchild, which the court assessed to the state. Finally, the court held that the loss of the state's proof of residency exhibits did not motivate the prosecutor to induce a defense motion for mistrial.
Effectively, the error of which Fairchild complains is the district court's finding of lack of intent on the part of the prosecutor to cause a mistrial. There is evidence supporting the district court's finding that the prosecutor had made repeated efforts to accommodate defense counsel's requests to examine evidence and to have his experts examine the evidence. In spite of short notice from defense counsel, the prosecutor personally tried to locate the evidence when the officer in charge was unavailable. As the time before trial grew short, and because the evidence was being held in Boise and in Ketchum, coordinating all the parties became more complicated and a mistake was made. Defense counsel, however, could not totally absolve himself of any blame.
Therefore, based on what we perceive to be substantial, competent evidence that the prosecutor did not goad the defense into requesting a mistrial, we refuse to disturb the district court's finding. Keller v. Rogstad, 112 Idaho 484, 733 P.2d 705 (1987); Rasmussen v. Martin, 104 Idaho 401, 659 P.2d 155 (Ct.App.1983). We uphold the denial of the motion to dismiss on double jeopardy grounds.
At the preliminary hearing, the magistrate denied Fairchild's motion for production of the identity of the two confidential informants. Officer Jeff Alexander provided the affidavit in support of the search warrant. His affidavit recited that CI No. 539 had told officers that a man named Roger in trailer No. 14 had cocaine in his trailer for sale. Alexander's affidavit also stated that CI No. 539 had entered the trailer under surveillance and made a "controlled buy" of cocaine. Fairchild objected, saying that the affidavit was false and misleading because, although CI No. 539 had exited the trailer with a bindle of cocaine, he had not paid anything in exchange for the bindle. Fairchild attacked the "controlled buy" language, contending that, if proven to be false, the misstatement would dictate that the search warrant be held invalid. Fairchild specifically argued that it was necessary that the identity of CI No. 539 be revealed in order to protect his constitutional rights in pursuing his motion to suppress evidence derived from the search. Fairchild made the same motion for production before the district court, and the state reasserted its right to a protective order keeping confidential the name of the informant.
In particular, Fairchild's disclosure request was construed by the district court as a means to test the truth of the officer's affidavit in support of the search warrant which led to the discovery of illegal drugs and criminal charges against Fairchild. Relying on I.C.R. 16(f)(2), the district judge concurred with the magistrate's reasoning that the identity of the informant need not be disclosed inasmuch as CI No. 539 would not be called as a witness at trial. Moreover, under I.C.R. 16(b)(8), the district...
To continue reading
Request your trial
-
State v. Williams
...that place can be reasonable. State v. O’Keefe , 143 Idaho 278, 287, 141 P.3d 1147, 1156 (Ct. App. 2006) ; State v. Fairchild , 121 Idaho 960, 966, 829 P.2d 550, 556 (Ct. App. 1992). A magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept based on th......
-
State v. Lee
...State v. Iglesias, 374 So.2d 1060 (Fla.App. 3 Dist. 1979); Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997); State v. Fairchild, 121 Idaho 960, 829 P.2d 550 (Idaho App. 1992); People v. Ramirez, 114 Ill.2d 125, 102 Ill.Dec. 392, 500 N.E.2d 14 (Ill. 1986), cert. denied, 481 U.S. 1053, 10......
-
Hopson v. State
...for sale and possession of a small amount of crack cocaine, did not constitute cruel and unusual punishment); State v. Fairchild, 829 P.2d 550 (Idaho App.1992) (sentence for first offense to 25-year sentence, with 12-year mandatory term, for possession of cocaine, a five-year fixed term for......
-
State v. O'Keefe
...not to be found, where the search takes place. United States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990); State v. Fairchild, 121 Idaho 960, 966, 829 P.2d 550, 556 (Ct.App.1992). Probable cause to believe that a person has committed a crime does not necessarily give rise to probable cause t......