State v. Gallatin

• Decision Date: 08 May 1984
• Docket Number: No. 14267,14267
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Richard Eugene GALLATIN, Defendant-Appellant, and Gregory Thomas Smith and Howard Gwin, Defendants.
• Court: Idaho Court of Appeals

Page 105

682 P.2d 105

106 Idaho 564

STATE of Idaho, Plaintiff-Respondent, v. Richard Eugene GALLATIN, Defendant-Appellant, and Gregory Thomas Smith and Howard Gwin, Defendants.

No. 14267.

Court of Appeals of Idaho.

May 8, 1984.

Alan E. Trimming, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Warren Felton, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Richard Gallatin was convicted, following jury trial, of conspiracy to deliver a controlled substance and also of aiding and abetting the delivery of a controlled substance. He received five-year, indeterminate sentences on both convictions, to be served concurrently.

Gallatin appeals, presenting four issues. First, he presents two specific evidentiary issues arising from his trial. They are (a) the propriety of an impeachment of one of the witnesses; and (b) whether it was error for the trial court to allow the use of a writing to refresh the recollection of a witness, when that writing was prepared by someone other than the witness. Next, he contends the evidence adduced at trial was not sufficient to support the verdicts of guilty on either the conspiracy charge or on the charge of aiding and abetting the delivery of a controlled substance. Finally, he claims he received a "double punishment for a single act" in contravention of I.C. § 18-301.

We hold that no error occurred in respect to the impeachment and refreshing recollection issues. We hold that the evidence was sufficient to support the jury's verdict on the conspiracy charge, and we affirm that conviction. However, we hold that, under the evidence presented at trial, Gallatin could not be convicted both of the conspiracy charge and of aiding and abetting the delivery of a controlled substance, and we reverse the conviction on that latter charge.

I

We turn first to the two evidentiary issues. The first involved the impeachment of a witness, Gregory Smith. Smith was a co-defendant. The trial concerned the involvement of the defendants in the sale of cocaine to an undercover agent. When Smith took the stand in his own behalf, he also gave testimony on behalf of Gallatin.

Smith testified that he, Smith, had no involvement of any kind in the transaction. On cross-examination the prosecutor asked if Smith recalled making a statement to the contrary, i.e. that he was involved with the other defendants. When Smith denied making such statements, the prosecutor inquired whether Smith had told a magistrate, during arraignment on the charges and in respect to the bond set for him, that he, Smith, "had not as much involvement as the rest of [the] co-defendants." Smith's response was that he did not recall making such a statement.

After the defense had rested, the prosecutor called, as a witness, the magistrate's court clerk, who identified a tape recording of Smith's arraignment before the magistrate. The tape was offered as evidence by the prosecutor, to show that "Mr. Smith made an incriminating statement after being advised by the [magistrate] Judge, of his rights." Defense counsel ¹ interjected, "I believe this is an impeachment over something that my client hasn't denied." The court ruled that Smith's response to the prosecutor's inquiry concerning his involvement had been equivocal enough to allow the relevant portion of the tape to be played to the jury. After the jury had heard the tape, the prosecutor offered its admission in evidence. The defense attorney stated he had no objection and the tape was admitted in evidence.

Now, on appeal, Gallatin contends the use of the tape was improper impeachment because Smith had not been "adequately confronted with his so-called prior inconsistent statement." Questioning the foundation for the use of the tape, Gallatin relies on I.R.C.P. 43(b)(8), relating to the impeachment of witnesses through prior inconsistent statements. That rule provides that, before a witness may be impeached with such statements,

the statements must be related to him, with the circumstances of times, places and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness....

Gallatin contends this rule was not complied with, arguing that Smith had not been asked whether he had made the alleged inconsistent statement. We disagree. The record shows that the prosecutor specifically asked if he had made the inconsistent statement. It was Smith's equivocal answer concerning his recollection that precipitated the use of the tape. We hold that the use of the tape under these circumstances was not improper. It clarified the ambiguity of whether Smith had in fact made a statement concerning his involvement in the transaction, useful to the jury in determining the credibility of Smith and the weight to be accorded to his testimony.

Next, Gallatin contests the use by a witness of written notes to refresh his recollection although the writing had not been prepared by that witness. This particular witness was a law enforcement officer who, together with other officers, surveilled the places involved in the drug transaction in question. During his testimony he related times, dates, places and persons he had observed during the surveillance. In the course of his testimony, it became apparent he was relating some information from a written report he had brought with him. On cross-examination he disclosed that he had not prepared the report; it had been compiled by another officer from information gleaned from all of the officers involved in the surveillance. Defense counsel then objected on hearsay grounds and moved that all of the witness' testimony be stricken. The court overruled the objection and denied the motion. The court ruled that the use of the report was allowable under an exception to the rule against use of hearsay evidence. Although the court did not disclose the particular exception it had in mind, we are not persuaded that the court erred. In United States v. Conley, 503 F.2d 520, 522 (8th Cir.1974), we find:

Appellant urges that the trial court erred in permitting witness Stewart (informant) to refresh his memory concerning a portion of a conversation he had with appellant by referring to government agent Guilbeaux's report. The propriety of permitting a witness to refresh his memory from a writing prepared by another largely lies within the discretion of the trial court. See United States v. Riccardi, 174 F.2d 883, 888-889 (3rd Cir.1949); McCormick, Law of Evidence, § 9 pp. 17-18 (2d Ed.1972).

Similarly, in State v. Powers, 100 Idaho 614, 615, 603 P.2d 569, 570 (1979) our Supreme Court said:

Appellant next claims that the magistrate erred in allowing the undercover narcotics agent Rohrbach to refresh his memory from a copy of a report dictated by him, to which certain material had been added. We see no clear showing of an abuse of discretion in such a procedure, and therefore do not disturb the magistrate's probable cause conclusion. [Emphasis added.]

Here the witness specifically disclosed that he used the information in the report to assist him in testifying as to activities that he had personally observed. This comports with an announcement made by our Supreme Court many years ago. The court quoted from Wigmore on Evidence § 758 (1904), as follows:

If in truth the memory has been refreshed, and he is enabled in consequence to speak to facts with which he was once familiar, but which afterward escaped him, it cannot signify, in effect, in what manner or by what means these facts were recalled to his recollection. Common experience tells every man that a very slight circumstance, and one not in point to the existing inquiry, will sometimes revive the history of a transaction made up of many circumstances. .... Why, then, if a man may refresh his memory by such means out of court, should he be precluded from doing so when he is under examination in court?

State v. Marren, 17 Idaho 766, 782, 107 P. 993, 998 (1910). Under the circumstances presented in this case, we hold the trial court did not abuse its discretion in allowing the witness to testify after refreshing his memory from the report prepared by another officer.

II

We turn next to the issues concerning Gallatin's convictions for both conspiracy and aiding in the delivery of a controlled substance. It is generally accepted that a conviction and sentence on a count charging conspiracy will not, on the theory of double punishment, prevent conviction and sentence on another count charging the substantive offense. See Annot. 92 L.Ed. 187 (1947); 98 L.Ed. 449 (1953); 16 Am.Jur.2d Conspiracy §§ 3, 5, 7 (rev. 1979). The United States Supreme Court has noted:

Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act. [Citations omitted.] Unlike some crimes that arise in a single transaction [citations omitted], the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act. [Citation omitted.] Thus, it is well recognized that in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end. [Citations omitted.] Indeed, the Court has even held that the conspiracy can be punished more harshly than the accomplishment of its purpose. [Citations omitted.]

Iannelli v. United States, 420 U.S. 770, 777-78, 95 S.Ct. 1284, 1289-1290, 43 L.Ed.2d 616 (1975).

However, our legislature has directed, by enactment of I.C. § 18-301, that

[a]n act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence...