State v. Haggard, No. 10788

• Court: Idaho Supreme Court
• Writing for the Court: DONALDSON; McQUADE; SHEPARD
• Citation: 486 P.2d 260,94 Idaho 249
• Decision Date: 24 June 1971
• Docket Number: No. 10788
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Dillard HAGGARD, Defendant-Appellant.

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486 P.2d 260 94 Idaho 249 STATE of Idaho, Plaintiff-Respondent,
v.
Dillard HAGGARD, Defendant-Appellant. No. 10788. Supreme Court of Idaho. June 24, 1971.

McDermott & McDermott, Pocatello, for defendant-appellant.

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

DONALDSON, Justice.

This is an appeal from judgments convicting Dillard Haggard of burglary, assault with a deadly weapon, and recidivism. The principal issues raised by the appeal concern: (1) improper questioning (on cross-examination) of defendant-appellant by the prosecution; (2) sufficienty of evidence presented at trial to sustain conviction for recidivism; (3) the legality of an [94 Idaho 250]

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identification of the defendant-appellant made at the police station.

The facts involved in this case are as follows. Dillard Haggard (defendant-appellant) was charged by part one of an Information with first degree burglary ¹ and assault with a deadly weapon, and in part two of the Information with being a persistent violator of the law. The testimony elicited at the bifurcated (two part) trial indicated that as John Hall, the burglary victim, was returning home after work at about 5:30 p. m., on January 20, 1970, he noticed two personal items of his (a six pack of beer and a piggy bank) 'setting on the steps' which led to his apartment. As Hall attempted to enter his apartment, he was accosted by Dillard Haggard, defendant-appellant, who had a butcher knife in his hand. ' (H)e told me if I did anything, he was going to slit my throat.' Haggard then questioned Hall regarding valuable items which were contained in his apartment and then picked up the beer and ran. Hall then testified that he went in the house and called the police. Haggard was subsequently arrested after Hall identified him for the police from some photographs. On the day that Haggard was arraigned, Hall, although positive about his identification of Haggard on the basis of the photographs, asked to see him in person.

At trial, Haggard took the stand and presented a defense of alibi. He claims that he was watching television and talking to a Mrs. Frasure at the time of the alleged crimes. Mrs. Frasure corroborated this. During Haggard's testimony the prosecution elicited that he did not testify at the preliminary hearing, thus casting doubts upon the credibility of his story. ² While on the stand the prosecution inquired of Haggard if he had 'ever been convicted of a prior felony?' Haggard replied that he was convicted twice for burglary and once for armed robbery.

The jury first found Haggard guilty of assault with a deadly weapon and burglary in the nighttime. The jury was then read part two of the information which charged [94 Idaho 251]

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Haggard with recidivism. The prosecuting attorney then introduced certain court files which purported to relate to prior felony convictions of Dillard Haggard. The jury was also instructed that they could consider the testimony of Haggard in the first portion of the trial wherein he stated in response to questioning by the prosecuting attorney that he had been convicted of previous felonies. ³ The jury then found Haggard guilty of recidivism and Haggard was sentenced on all three counts as follows: (1) to a term not to exceed five years on the burglary conviction, (2) to a term not to exceed two years for assault with a deadly weapon, and (3) to life imprisonment for recidivism. Dillard Haggard has appealed to the Supreme Court from the adverse verdicts.

The Court will first address itself to the questioning of Haggard with respect to his failure to disclose his alibi at his preliminary hearing. The appellant contends that he was denied due process and deprived of a fair trial because the prosecuting attorney elicited at trial that Haggard did not tell the judge of his alibi at the preliminary hearing. ⁴ Appellant maintains that this information should not have been made available for the jury's consideration and by so doing the lower court deprived him to a fair trial. Counsel for defendant failed to raise an objection to the cross-examination at the time of trial and ordinarily this Court would not consider this assignment of error. However the obligation of the state to see that defendant receive a fair trial is primary and fundamental. Pulver v. State, 93 Idaho 687, 471 P.2d 74 (1970) quoting McIntosh v. Commonwealth, Ky., 368 S.W.2d 331 (Ky.Ct.App.1963). In case of fundamental error in a criminal case the Supreme Court may consider the same even though no objection had been made at time of trial. Shier v. People, 116 Colo. 353, 181 P.2d 366 (1947); State v. Cummings, 49 Haw. 522, 423 P.2d 438 (1967); State v. Bunn, 50 Haw. 351, 440 P.2d 528 (1968); People v. Rodriguez, 58 Cal.App.2d 415, 136 P.2d 626 (1943); State v. Redmond, 75 Wash.2d 62, 448 P.2d 938 (1968). We agree with appellant that the cross-examination of the defendant (appellant) regarding his failure to testify at the preliminary hearing deprived appellant of a fair trial and was a denial of due process. The trial court should not permit the prosecuting attorney to comment on the defendant's failure to testify at his preliminary hearing. Parrott v. Commonwealth, 47 S.W. 452 (Ky.1898); Richardson v. State, 33 Tex.Cr.R. 518, 27 S.W. 139 (1894); Wilson v. State, 54 Tex.Cr.R. 505, 113 S.W. 529 (1908). The main purpose or function of the preliminary hearing is to ascertain whether the crime charged has been committed and whether there is probable cause to believe the accused committed it. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967); I.C. § 19-814; I.C. § 19-815. ⁵ The defendant[94 Idaho 252]

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is under no duty to present any evidence at the preliminary hearing though he may do so, and the state has the burden of proof of meeting the requirements of I.C. §§ 19-814 and 19-815. I.C. § 19-809 states:

'19-809. Examination of witnesses for defendant.-When the examination of witnesses on the part of the people is closed, the defendant may produce any material witnesses, which witnesses must be sworn, examined and cross-examined in the presence of the defendant.' (emphasis added)

If the prosecution is allowed to cross-examine a defendant at trial concerning his failure to testify at a preliminary hearing, it will force a defendant to testify at a preliminary hearing so as to protect himself from an unfavorable inference from his silence. Furthermore, once a defendant waives this privilege and testifies then his testimony can be used against him in a subsequent trial. See cases cited in Anno. 5 A.L.R.2d 1405. This circumvents the privilege granted to an accused person by Article 5 of the United States Constitution and Article 1, Section 13 of the Idaho Constitution which states: 'No person * * * shall be compelled in any criminal case to be a witness against himself.' To implement this mandate the Idaho Legislature has enacted I.C. § 19-3003.

'19-3003. Defendant not obliged to testify.-A defendant in a criminal action or proceeding to which he is a party, is not, without his consent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner prejudice him...