State v. Hoak

• Decision Date: 07 December 1984
• Docket Number: Nos. 14263,14285,s. 14263
• Citation: 107 Idaho 742,692 P.2d 1174
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Arthur A. HOAK, Defendant, and Timothy J. Gawron, Defendant-Appellant. STATE of Idaho, Plaintiff-Respondent, v. Arthur A. HOAK, Defendant-Appellant, and Timothy J. Gawron, Defendant.
• Court: Idaho Supreme Court

Page 1174

692 P.2d 1174

107 Idaho 742

STATE of Idaho, Plaintiff-Respondent, v. Arthur A. HOAK, Defendant and Timothy J. Gawron, Defendant-Appellant STATE of Idaho, Plaintiff-Respondent, v. Arthur A. HOAK, Defendant-Appellant and Timothy J. Gawron, Defendant.

Nos. 14263, 14285.

Supreme Court of Idaho.

Dec. 7, 1984.

Klaus Wiebe, Ada County Public Defender, August H. Cahill, Jr., Boise, for appellants.

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

DONALDSON, Chief Justice.

This case arose on the following facts: Between November 26, 1980 and November 29, 1980, a Boise home was burglarized resulting in a loss of approximately $60,000. The property taken included a 132-piece sterling silver set, a coin collection, a five-piece component stereo system, and miscellaneous items of jewelry. The burglary was discovered on November 29, 1980, by a neighbor who phoned the police. On November 28, 1980, the defendants, Arthur A. Hoak and Timothy J. Gawron, accompanied by two other men, George Jensen and Jack Wells, drove to Reno, Nevada. The four men checked into a Reno hotel and remained there until November 30, 1980. Gawron, Hoak and Jensen then returned to Boise.

During this time, Tanya Wells lived with her husband Jack Wells in Boise, Idaho. On either December 1 or December 2 of 1980, Mrs. Wells had a conversation with Detective Lance Anderson of the Boise Police Department about a component stereo system located at her house and about the November burglary. The exact content of this conversation was not revealed at trial nor at any of the preliminary stages of the case.

On December 2, 1980, Detective Anderson established surveillance of the Wells' home. At approximately 7:00 p.m. on December 2, 1980, George Jensen and the defendants were observed entering the Wells' home. After a brief time, the men left the Wells' home and proceeded to an area behind the home where a shed was located. The men then returned to the Wells' residence, and left about 15 minutes later in defendant Gawron's vehicle.

At 9:00 p.m. on the same evening, defendants Gawron and Hoak were arrested at Gawron's home by Detective Anderson. Anderson knocked on the door, identified himself, entered the house without consent, and placed both defendants under arrest. The arrest was effectuated without an arrest warrant. At that time, a cursory search of the premises was made by Detective Anderson, Detective Wood, and Sergeant Richardson, all of the Boise Police Department.

Detective Anderson transported the defendants to jail. The two remaining officers maintained custody of the premises while Anderson obtained a search warrant for defendant Gawron's residence, the Wells' residence, and a 1966 Chevrolet automobile. The search warrant was signed by the magistrate and executed at approximately 2:00 a.m. on December 3, 1980.

The following items were seized from defendant Gawron's home: a brown sack containing several pieces of ivory and a handwritten list of coins, a yellow piece of paper with a list of dates, a receipt for a bus ticket from Reno to Boise, two 1971 silver dollars, marijuana, a set of scales, a samurai sword, and an ivory seal found in a jewelry box. A brown cassette tape box with tapes was seized from defendant Gawron's car. A five-piece component stereo system was seized from the shed located behind the Wells' residence. The list of coins, ivory pieces, and the cassette tape box and stereo equipment were subsequently identified as items taken in the burglary.

The State filed its complaint on December 3, 1980, and after a preliminary hearing, both defendants were bound over to the district court on charges of Grand Larceny and Burglary II. Both defendants filed pretrial motions to suppress the evidence seized from defendant Gawron's residence, but those motions were denied. At trial, Jack Wells refused to testify even though he was ordered to do so by the trial judge and was granted immunity from prosecution. As a result of his refusal, the court allowed Wells' transcribed statement to be read to the jury under the "statement against interest" exception to the hearsay rule.

The jury found the defendants guilty of Grand Larceny and not guilty of Burglary II. The trial court denied the defendants' motions for judgment of acquittal, and found both defendants guilty as charged. Defendants filed timely notice of appeal.

On appeal defendants assert that the trial court erred in two respects: first, in allowing the transcript of Jack Wells' out-of-court, unsworn statement to be read to the jury, and, second, in denying defendant Gawron's motion to suppress the evidence seized from his home. We will discuss each issue in turn.

I.

Jack Wells was called as a State witness at trial. When asked if he had any contact with defendant Hoak on November 27, 1980, Wells responded that he did not remember and that he refused to make any statement. The jury was then excused and the judge informed Wells that he was required by law to testify. Wells reaffirmed his refusal and was held in contempt of court.

At this point, counsel for the state sought to introduce Wells' out-of-court, unsworn statement made to Detective Lance Anderson on December 9, 1980, at the Boise City Police Department. The trial judge held that portions of the statement were admissible under the "statement against penal interest" exception to the hearsay rule.

A statement against penal interest is defined as a statement which exposes the declarant to substantial criminal liability. McCormick on Evidence § 279, at 825 (3rd ed. 1984). The statement must be such "that a reasonable man in his position [the declarant's] believed it to be true." Fed.R.Evid. 804(b)(3). At common law, the statement against interest exception to the hearsay rule was generally confined to statements against the declarant's pecuniary or proprietary interest. Statements against penal interest were excluded. See Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), and cases cited therein. The inclusion of declarations against penal interest under the Federal Rules of Evidence, Rule 804(b)(3), has given great impetus to broadening the exception to include such statements, however. McCormick, supra, § 278, at 823. Idaho has so extended the exception. State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966).

"The exceptions to the hearsay rule which permit certain types of hearsay to be admitted into evidence are based on the proposition that the evidence is likely to be truthful and may be highly probative. So it is that admissions against a pecuniary or proprietary interest made by a third party who is 'unavailable' as a witness are admissible because it is unlikely that the declarant would make statements which are adverse to his own interest. 5 Wigmore, Evidence §§ 1457-1475 (3rd ed.) We believe the same rationale applies to admissions against a penal interest. It is at least as probable that admissions which may subject oneself to criminal liability are as trustworthy as those which may subject oneself to financial liability." Id. at 49, 415 P.2d at 692.

The defendants assert that the admission of Wells' statement violated their right to confront the witnesses against them guaranteed by the Sixth Amendment to the United States Constitution. "In all criminal cases, the accused shall enjoy the right ... to be confronted by the witnesses against him ...." The Sixth Amendment right of confrontation is a fundamental right made obligatory on the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965).

If read literally, the Amendment would require the exclusion of any statement made by a declarant not present at trial. Thus applied, it would abrogate virtually every hearsay exception. The Supreme Court has stated that such a result was not intended and has rejected it as too extreme. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct 2531, 2537, 65 L.Ed.2d 597 (1980). While the Confrontation Clause reflects a preference for face-to-face confrontation at trial, the Court has recognized that competing interests, such as a jurisdiction's interest in effective law enforcement, may warrant dispensing with confrontation at trial in some instances. See Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934), overruled, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895).

The Court's focus has been to insure that there are sufficient "indicia of reliability" to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2539. The Court has stated the test for admissibility as follows:

"In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Id. at 66, 100 S.Ct. at 2539.

Thus, as this Court stated in State v. Mee, 102 Idaho 474, 479, 632 P.2d 663, 668 (1981), "the Supreme Court mandates an analysis on two fronts: whether the declarant is unavailable and whether the statement bears adequate guarantees of reliability and trustworthiness to allow it placed before the trier of fact."

Unavailability requires a showing that the prosecutor has made a good-faith effort to obtain the witness' presence at trial. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543. Jack Wells was residing at the Oregon City Jail at the...