State v. Horsley

• Decision Date: 26 April 1990
• Docket Number: No. 17605,17605
• Citation: 792 P.2d 945,117 Idaho 920
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Todd HORSLEY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 945

792 P.2d 945

117 Idaho 920

STATE of Idaho, Plaintiff-Respondent, v. Todd HORSLEY, Defendant-Appellant.

No. 17605.

Supreme Court of Idaho.

April 26, 1990.

Bruce H. Greene, Sandpoint, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen. (argued), Boise, for plaintiff-respondent.

JOHNSON, Justice.

This is a criminal case. The issues presented are:

1. Is a minute entry signed by the judge sufficient to dismiss a criminal case?

Under the circumstances of this case, we hold that it is not.

2. Is an order dismissing a criminal case nunc pro tunc effective to dismiss the case as of a prior date, where the judge announced his intention to dismiss the case on the prior date and where an order carrying out this intent was not entered through inadvertence?

We hold that the nunc pro tunc order is effective to dismiss the case.

3. Was any violation of I.C. § 19-3501(2) proved by Horsley?

We hold that no violation of I.C. § 19-3501(2) was proved.

4. Is an affidavit from the director of a private laboratory reporting the results of DNA-based genetic tests on body fluids admissible under I.C.R. 5.1(b) as showing the existence or non-existence of "medical facts or records?"

We hold that the affidavit is not admissible.

5. May hearsay evidence be admitted under I.R.E. 803(24) when there are not specific findings that each of the five requirements of the rule have been fulfilled?

We hold that the hearsay is not admissible.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

In April 1987 a woman was raped in her home in Sandpoint by an intruder. The victim promptly reported the rape and was given an examination to determine the presence of evidence of the perpetrator's identity. Semen was identified in the vaginal secretions that were taken from her. She also gave a sample of her blood.

Todd Horsley had previously lived next door to the victim, but had moved before the rape. Suspecting that Horsley was the perpetrator, police officers went to his home. They told Horsley that he was suspected of raping a woman. They asked him if he was willing to take a blood test in order to exculpate himself. Horsley voluntarily gave the officers a sample of his blood.

The police sent blood samples of the victim and Horsley and vaginal secretions of the victim to Lifecodes Corporation in the state of New York. Lifecodes is a private DNA-based genetic diagnostic and research laboratory that uses the DNA-PRINT identification test to identify and compare body tissues and fluids. The test takes the biological evidence and examines it at its most fundamental level--the deoxyribonucleic acid (DNA) molecule--to uncover the genetic code of the person whose tissue or fluid is being tested.

The director of Lifecodes' clinical laboratory sent an affidavit to the police stating that he oversaw the conduct of the "scientific analysis" of the samples sent to Lifecodes by the police and authored a report attached to the affidavit. The report stated that the DNA-PRINT pattern seen in the vaginal secretions of the victim matched the pattern from Horsley's blood sample. The report concluded: "This pattern would occur in the population in 1:12,678,667."

A criminal complaint was filed charging Horsley with raping the victim. A preliminary hearing was held at which the affidavit of the director of Lifecodes' laboratory was admitted over Horsley's objection. Horsley was bound over for trial. An information was filed on August 26, 1987 (the first case). Trial was set to begin on December 15, 1987.

Horsley moved to suppress the results of the analysis by Lifecodes of the blood samples and vaginal secretions. On December 10, 1987, a hearing was held on the motion. At the conclusion of the hearing, the trial court denied the motion to suppress. An issue also arose in the hearing concerning whether defense counsel had received background materials about Lifecodes. The prosecutor then stated:

I advised [defense counsel] in court today, that I will not know until tomorrow morning because of the delay in time awaiting this motion hearing as to whether or not Dr. Baird and his supervisor are available from Lifecodes. I anticipate they will be but I cannot give that guarantee because I could not make the financial obligation requirements to guarantee the days at trial. Collateral to that if we are going to have a challenge to that or request for continuance for the defense based on [defense counsel's] representation that he has not received Lifecodes material, I think it's something that needs to be addressed today or tomorrow. I don't want to spend a couple thousand dollars of taxpayers money to have the people get here and five-hundred dollars a day.

While they were still in the hearing, the prosecutor delivered the background materials about Lifecodes to Horsley's attorney, who then moved to suppress the materials. The trial court denied the motion and inquired whether there were any other motions. Horsley's attorney declined to move for a continuance. The judge said the trial would begin as scheduled on December 15th.

On December 14, 1987, the prosecutor moved to continue the trial until after January 1, 1988, on the grounds that the two essential witnesses from Lifecodes were not available to testify at the trial. Horsley objected to a continuance, and the trial court denied the motion to continue. The prosecutor then moved to dismiss the case without prejudice to refiling the charge, on the ground that the state could not proceed "because of the unavailability of the witness or witnesses from the State of New York." Horsley's attorney objected on the ground that the motion was "just nothing but a motion to nolle prosequi to suspend prosecution," which he said had been abolished by statute in Idaho.

The trial court orally dismissed the case under I.C.R. 48: "The dismissal is without prejudice and the reason for the dismissal is the basis that the State has indicated that it is not prepared to proceed in the absence of a continuance and in the absence of the two witnesses from

Lifecodes." The trial court directed the prosecutor to prepare an order for his signature. The court minutes of this hearing prepared by the deputy clerk note: "Court grants Prosecutor's Motion to dismiss in re Rule 48C--dismissal is without prejudice. Mr. Robinson [the prosecutor] to prepare Order." The district judge signed the minutes at the bottom of this page, which was the second of two pages of the minutes, opposite the printed words: "APPROVED as to Pages ____ through ____." No order of dismissal appears in the record until one signed by the district judge on April 21, 1988, on which is added in handwriting: "nunc pro tunc Dec. 14, 1987."

On December 17, 1987, the prosecutor signed a new complaint charging Horsley with the same crime as was charged in the first case. The complaint was filed on January 4, 1988, and a summons issued for Horsley to appear on January 19, 1988. Horsley was arraigned on January 19th. A preliminary hearing was held on February 3, 1988.

At the preliminary hearing on this new complaint the prosecutor offered in evidence the same affidavit of the director of Lifecodes' clinical laboratory that was admitted in the preliminary hearing in the first case. Horsley's attorney objected to the admission of the report attached to the affidavit on the ground that the report contained the results of a scientific examination of evidence which was not admissible under I.C.R. 5.1 as an exception to the hearsay rule unless the examination was made by a state or federal agency or official. The magistrate admitted the report under I.C.R. 5.1, as evidence showing "the existence or nonexistence of business or medical facts and records." The magistrate also found the source of the evidence to be credible, based on the testimony of a police officer and exhibits concerning the background of Lifecodes. Based in part on the Lifecodes report, the magistrate found probable cause to believe that Horsley had raped the victim and bound him over for trial.

On February 8, 1988, the prosecutor filed an information charging Horsley with raping the victim in April 1987 (the second case). Trial was set for May 10, 1988.

Horsley filed a motion to dismiss the new information on the ground that the state had denied him his right to trial within six months from the filing of the information as provided in I.C. § 19-3501. In support of the motion Horsley argued that (1) the first case was still pending because no order of dismissal had been signed or filed in the first case and (2) the second case was a duplicate of the first case and should not have been filed. He contended that dismissal of the second case would leave the same charge pending, but would allow him to protect his constitutional rights and remedies. He also argued that the conduct of the prosecution in dismissing the first case coupled with the refiling of identical charges had denied him due process of law and deprived him of speedy trial rights.

The trial court ruled that the first case had been dismissed since December 14, 1987, and directed the prosecutor to prepare an order dismissing the first case without prejudice, effective on December 14, 1987. The trial court denied the motion to dismiss on the ground that Horsley had not presented any evidence that he had been prejudiced by the delay in his ability to present a defense to the charge. The order dismissing the first case "nunc pro tunc Dec. 14, 1987" was signed by the district judge the same day.

Horsley then moved to quash the order binding him over for trial and to dismiss the information in the second case. The basis for this motion was the admission at the preliminary hearing of the report from Lifecodes. The trial court denied the motion on the grounds that the report was admissible at the preliminary hearing under both I.C.R. 5.1 and I.R.E. 803(24).

Horsley entered a conditional plea of guilty under I.C.R. 11(a)(2), reserving...