State v. Horn

Decision Date21 April 1980
Docket NumberNo. 12602,12602
Citation101 Idaho 192,610 P.2d 551
PartiesThe STATE of Idaho, Plaintiff-Respondent, v. John HORN, Defendant-Appellant.
CourtIdaho Supreme Court

Laird Stone, Boise, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

SCOGGIN, Justice Pro Tem.

Appellant Horn appeals from a conviction of kidnapping and robbery.

Before midnight on December 6, 1976, Horn left a party with Royer and McGinnis, all three were intoxicated. Shortly after midnight, Cartwright, a cabdriver, responded to a request for service in the vicinity of the party. He picked up three intoxicated men, one of whom he identified as Royer. According to Royer's testimony, McGinnis threatened Cartwright with a 9 mm. automatic pistol and forced him to start driving. Horn then demanded all of the cabdriver's money, which Cartwright gave him. Cartwright was forced to continue driving for several more blocks before he was ordered to stop the cab and the three men left. One of the men fired the pistol at the departing cab.

Cartwright immediately radioed the police. Shortly after their arrival, the police spotted three men within six blocks of where the three assailants had exited the cab. One of these men fled; the other two were arrested and were identified as McGinnis and Royer. Several minutes later, Horn was observed walking toward the police from the direction where the third man had fled. He was also arrested and searched. No incriminating evidence was found at the time of the search. Later, however a friend of Horn's found Cartwright's wallet in the pocket of Horn's jacket.

During a search of the area, the police found a spent 9 mm. shell near the spot where the three men had left the cab. A 9 mm. pistol was found within three to four feet of where the three men were first spotted by the police. Pabst Blue Ribbon beer cans, a brand that was consumed at the party, were found near the spot where the cabdriver picked up the three men. Cartwright testified that the man who had demanded the money was wearing a Levi jacket with fleece lining. Horn was wearing a down-type jacket with fleece lining.

The three men were charged with robbery and kidnapping. Royer's charges were subsequently dropped. McGinnis pled guilty to robbery; his kidnapping charge was dismissed and the State did not appeal. Horn insisted that he was not in the cab during the robbery; McGinnis corroborated his testimony. The jury, however, believed Royer, who had testified that Horn was present, and found Horn guilty of robbery and kidnapping. The judge sentenced Horn to ten years for robbery and imposed no sentence for the kidnapping conviction. Horn appeals. Appellant Horn first argues that the district court unduly limited his discovery motion. In his motion, appellant requested, in part, copies of written, recorded, or oral statements made to peace officers, the prosecutor or his agent or "other representative of the State." Horn also urged the district court as follows:

"Defendant further moves the Court for its Order requiring that the State disclose any and all information which may assist said defendant in preparing for trial as required by State and Federal Constitutions and further that this Honorable Court make available to this defendant and his attorney, copies of all documents filed with the Court which are matters of public record." Rec. at 19-20.

The trial court eliminated the quoted language above and limited the discovery order to language paralleling I.C.R. 16.

The State has a constitutional duty to disclose to defendant exculpatory evidence material to the preparation of his case. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Owens, No. 12272, 100 Idaho ---, --- P.2d ---- (1979); Note, The Prosecutor's Duty to Disclose Exculpatory Evidence, 14 Idaho L.Rev. 223 (1977). The prosecutor's failure to disclose does not violate his constitutional duty unless the omission is of sufficient significance to deny defendant his right to a fair trial. United States v. Agurs, 427 U.S. at 109, 96 S.Ct. at 2400. Furthermore, there is "no constitutional requirement that the prosecutor make a complete and detailed accounting to the defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972). The prosecutor is, therefore, only required to disclose information favorable to defendant and material to either his guilt or punishment. Moore v. Illinois, supra; see State v. Owens, supra. Contrary to appellant's claims the State is not constitutionally compelled to "disclose any and all information which may assist said defendant in preparing for trial . . . ." Nor does the constitution require the court to facilitate defendant's preparation by compiling for him all relevant public documents.

It is unclear what appellant hoped to gain by his discovery motion. Appellant has not shown that he was prejudiced by the court's order; indeed he has not even alleged the existence of favorable evidence. As this Court will not presume errors, appellant must affirmatively show error on appeal. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). As appellant has failed to show how he was injured by the court's order and as the discovery order was well within the limits set by the constitution, we must affirm the court's action.

Appellant also argues that at the preliminary hearing the State failed to show probable cause that the appellant committed the offense. According to the appellant, only his proximity to the scene of the crime linked him with the offense.

The standard of proof required at a preliminary hearing is not as stringent as that required at the trial. At the preliminary hearing, the State need only show that a crime was committed and that there is probable cause to believe that the accused committed it; proving the accused's guilt beyond a reasonable doubt is not required. State v. Owens, No. 12272, 100 Idaho ---, --- P.2d ---- (1979); State v. O'Mealey, 95 Idaho 202, 506 P.2d 99 (1973). Once the magistrate determines that probable cause exists, a clear abuse of discretion must be shown in order to overturn the magistrate's finding. State v. Owens, supra ; State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979).

In this case, sufficient evidence exists to support a determination that appellant probably participated in the kidnapping and robbery. Appellant attended a party in the vicinity of the crime with the two other men implicated in the crime. He left the party with these men, all were intoxicated. The victim testified that his assailants were intoxicated. Beer cans with the same label as those consumed at the party were discovered where the cabdriver first picked up the three men. When called to the scene, police officers spotted three men, one of whom broke away from the other two and ran away. The other two, Royer and McGinnis, were arrested. Appellant was arrested when he walked toward the officers from the general direction where the third individual was last seen. McGinnis was known to have had a 9 mm. automatic pistol at the party; a 9 mm. spent shell was found near the spot where one of the men had fired at the cab; a 9 mm. automatic pistol was found three to four feet from where the police first spotted the three men. This evidence is sufficient for a reasonable person to conclude that probable cause existed to believe that appellant participated in the offense. The magistrate did not abuse his discretion in finding probable cause.

Appellant Horn next asserts that the court's refusal to dismiss the kidnapping charge denied him equal protection of the law. He argues that the State violated the equal protection clause of the Fourteenth Amendment by pursuing the kidnapping charges against appellant Horn but not against Royer and McGinnis.

Prosecuting attorneys are vested with broad discretion in deciding when and whom to prosecute. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973). The exercise of that discretion does not violate the equal protection clause unless the selectivity is based on unjustifiable standards, such as race or religion, see Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), or on improper prosecutorial motives, such as a desire to hinder defendant's first amendment rights, United States v. Falk, 479 F.2d 616 (7th Cir. 1973), see United States v. Kahl, 583 F.2d 1351 (5th Cir. 1978). In Oyler the Supreme Court made clear that "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." 368 U.S. at 456, 82 S.Ct. at 506. According to the Court, because "it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification(,) . . . grounds supporting a finding of a denial of equal protection were not alleged." Id..

In the case at bar, appellant's allegations do not satisfy the above criteria. There is no evidence that the prosecutor based his decision to prosecute them for kidnapping on improper standards or motives. Mere failure to prosecute other offenders is not sufficient by itself to support a finding of a denial of equal protection. Cook v. City of Price, 566 F.2d 699, 701 (10th Cir. 1977).

Appellant also argues that his simultaneous convictions of robbery and kidnapping were constitutionally and statutorily impermissible. As the kidnapping was contemporaneous with the robbery, appellant argues that he is being punished twice for the same act. 1 This arguably violates both the Double Jeopardy Clause of the United States Constitution and the Idaho multiple punishment statute.

The Double Jeopardy Clause of the Fifth Amendment applies to...

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