State v. Hoisington
| Citation | 104 Idaho 153,657 P.2d 17 |
| Decision Date | 07 January 1983 |
| Docket Number | No. 13104,13104 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Monte Craig HOISINGTON, Defendant-Appellant. |
| Court | United States State Supreme Court of Idaho |
Darrel W. Aherin, of Aherin & Rice, Lewiston, for defendant-appellant.
David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Gordon Petrie, Sp. Deputy Atty. Gen., Howard Carsman, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Appellant appeals his convictions for two counts of rape and one count of an infamous crime against nature. One count of rape and the count of an infamous crime against nature were perpetrated against the same victim and occurred as part of one attack. The appellant was tried on both counts in one trial. The second count of rape arose from an attack on a different victim at a different time and place. Judgments on all three convictions, however, were entered at the same time before the same judge and are all the subject of this one appeal. Since the facts surrounding the three convictions are related, we present the facts in combined fashion, but discuss the merits of each case separately.
On June 5, 1977, Linda O'Connor was accosted and raped at approximately 2:30 a.m. in her apartment in Lewiston, Idaho. At the time of the attack, she awoke to find a pillow over her face. She did not see her attacker, but felt a wavy type curly hair that was about collar length. The investigating police officer, Sgt. Saleen, inspected the downstairs bathroom, which contained a sliding window to the outside. Saleen found dust or dirt on the right portion of the toilet seat. He also observed a dirt or scuff mark on top of the small telephone box below the bathroom window. In addition, candle holders which Linda O'Connor had placed on the windowsill were located outside on the patio. Saleen also found two latent fingerprints on the outside of the bathroom window sill.
On July 4, 1977, Tracy Boyd was accosted in her apartment in Lewiston, Idaho, at approximately 6:00 a.m. Boyd testified that there was enough natural light to allow her to see clearly. She testified that the assailant, whom she identified as appellant, had a knife and just stood and stared at her for a few seconds. During this time Boyd said that she saw the appellant's face. Thereafter, he walked around Boyd's bed and stopped just a few inches from it. Boyd then screamed twice and the assailant grabbed her shoulder and ordered her to roll over onto her stomach. He then put a pillow over the back of her head and ordered her to get up without looking at him. The assailant then placed the knifepoint near Boyd's throat and pushed her out of her room and into her roommate's room. Following their entry into the room, the assailant ordered both Boyd and her roommate to place pillows over their heads. The roommate testified, however, that prior to that time she clearly saw the assailant's full face for a few seconds, and that such observation was made with the intent of remembering his appearance. Thereafter, she saw the assailant's face once again when she looked out from under the pillow. It was during this time in the roommate's room that the rape and unnatural act were committed on Boyd. The assailant then left, telling the women to stay in the room for five minutes. Boyd and her roommate assisted the police in making a composite drawing of the assailant; however, no arrest was made in either the Boyd or the O'Connor incidents.
On December 6, 1977, appellant Monte Hoisington was contacted at his place of employment by Lewiston police officer Spears, who said he was investigating a prowling incident. At the suggestion of Spears, Hoisington accompanied the officer to the police station. Within a few minutes of arriving at the police station, Hoisington was recognized as bearing a resemblance to the rape suspect being sought. He was given his Miranda rights, but was not arrested. Detective Spears asked whether appellant understood those rights, and he After questioning, Spears requested permission to take Hoisington's photograph. Spears explained that the photo would be shown to victims of the rapes in question. Thereafter, the photograph was taken. Appellant was also administered a polygraph examination, the results of which were inconclusive. Then, Spears told appellant that latent fingerprints had been taken from one of the rape scenes, and that the police department wished to compare his prints with the latents. Appellant was then fingerprinted. The state and appellant disagree on whether there was consent to the fingerprinting. Appellant asserts that he was not asked about nor did he consent to the fingerprinting. Rather, he argues that he merely acquiesced to asserted authority of the police to take the fingerprints.
[104 Idaho 156] indicated that he did and agreed to talk to Spears. Appellant was told by Spears that appellant fit the description of the suspect of a series of rapes. Spears also informed him that he fit the description of a composite that had been done of the rapist, with the exception of his hair length. (Hoisington's hair was cut short at the time of the questioning; however, the composite had been run in a local newspaper on November 15, 1977.)
On the 8th and 9th of December, 1977, Sharon Fuller, who was Boyd's roommate, and Boyd were separately shown a six-photo lineup containing Hoisington's picture. Both selected Hoisington's picture as resembling the rapist. On the 9th of December, at 6:00 p.m., Detective Spears was notified by the FBI that the latent prints taken from Linda O'Connor's windowsill matched Hoisington's military service prints. On December 10, 1977, the police arrested Hoisington for the alleged rape of Linda O'Connor. Incident to the arrest, Hoisington was refingerprinted. On December 11, 1977, police presented two 8 X 10 photos of Hoisington obtained from the Lewiston Tribune files to Sharon Fuller, who identified the person in the pictures as Tracy Boyd's attacker. The photos showed Hoisington next to a large elk which he had shot. One photo had appeared in the newspaper earlier in the fall, and both showed Hoisington with almost shoulder length wavy hair. On December 12, 1977, police presented the same 8 X 10 photos to Tracy Boyd, again obtaining a positive identification. On December 14, 1977, Hoisington was charged with the rape and crime against nature in the Boyd case. Also, on December 14, 1977, both Fuller and Boyd identified the appellant in a corporeal lineup. Linda O'Connor failed, however, to identify Hoisington's voice in a voice lineup.
On March 22, 1978, a hearing was held before the district court concerning a motion to suppress both the in-court identification of Hoisington by Boyd and Fuller, and to suppress Hoisington's prints obtained on December 6 and 10. In regard to the identification question, the court found that Boyd's and Fuller's identifications of Hoisington were based on their own recollection and were not the result of suggestive identification procedures. In particular, the court noted that a composite drawing was made shortly after the attack on Boyd, and that "there is a striking resemblance to the defendant in that picture." In addition, the court concluded in reference to the six-picture lineup that "there is not real great difference in the general appearance of each of the pictures." As to the fingerprints, the court found that the December 6 fingerprints were taken by consent of Hoisington, and impliedly concluded that the December 10 fingerprints were taken pursuant to Hoisington's arrest. The motion to suppress was therefore denied.
At trial in the Boyd case, the court refused to permit expert testimony as to the reliability of eye witness identification in general. Also, in the trial of the Boyd case, the court permitted a court reporter to testify to an incriminating comment which she heard the defendant make to his counsel during the preliminary hearing. Appellant was convicted in the Boyd case of both rape and an infamous crime against nature. After a separate trial, appellant was also convicted of the rape of Linda O'Connor. All three convictions are the subject of this appeal.
The primary issue which appellant raises in the O'Connor case is with regard to the admission of the fingerprint evidence at trial. The fingerprint evidence admitted at trial consisted of the latent prints obtained at the O'Connor residence, the December 10, 1977 prints taken upon appellant's arrest, and photographic negatives and enlargements of the same. In particular, Hoisington argues that the court erred in admitting the December 10 fingerprints, because they were obtained as a result of the December 6, 1977 fingerprinting which appellant asserts was unlawful, and which therefore constituted "fruit of the poisonous tree." Since we conclude that the December 6 fingerprinting itself was not unlawful, we do not address the "fruit of the poisonous tree" argument.
The state argues, and the trial court found, that the December 6, 1977 fingerprinting of Hoisington was done pursuant to Hoisington's consent. Consent is one of the specifically established exceptions to the search warrant requirement under the Fourth and Fourteenth Amendments. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). In Schneckloth it was held that while the state bears the burden of proving that consent was, in fact, freely and voluntarily given, 412 U.S. at 222, 93 S.Ct. at 2045, the question of "whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." 412 U.S. at 227, 93 S.Ct. at 2047. See United States v. Mendenhall, 446 U.S. 544, 557-58, 100 S.Ct. 1870, 1878-79, 64 L.Ed.2d 497 (1980). We recently recognized and applied the totality of the circumstances test in State v. Christofferson, 101 Idaho...
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