State v. Kay

• Decision Date: 30 October 1996
• Docket Number: No. 21804,21804
• Citation: 129 Idaho 507,927 P.2d 897
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Herman Clifford KAY, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 897

927 P.2d 897

129 Idaho 507

STATE of Idaho, Plaintiff-Respondent, v. Herman Clifford KAY, Defendant-Appellant.

No. 21804.

Court of Appeals of Idaho.

Oct. 30, 1996.

Petition for Review Denied Dec. 19, 1996.

Michael J. Wood, Twin Falls County Public Defender; John A. Olson, Deputy County Defender (argued), Twin Falls, for defendant-appellant.

Alan G. Lance, Attorney General; Michael A. Henderson, Deputy Attorney General (argued), Boise, for plaintiff-respondent.

LANSING, Judge.

Herman Clifford Kay appeals from his judgment of conviction for first degree kidnapping, I.C. §§ 18-4501, 18-4502, and lewd conduct with a child under sixteen, I.C. § 18-1508. The charges stemmed from the abduction and sexual molestation of N.M., a four-year-old girl. Kay alleges that the district court erred in (1) denying his motion to suppress evidence discovered during a search of Kay's home; (2) admitting testimony that a man driving a pickup registered to Kay had exposed his penis to another child earlier on the day of N.M.'s abduction; (3) admitting N.M.'s hearsay statements made to her mother, a police officer and two physicians; (4) denying Kay's motion to disqualify a juror after trial had begun; and (5) denying his motions for judgments of acquittal. We affirm.

I. FACTUAL BACKGROUND

On the evening of July 25, 1993, the parents of N.M., a four-year-old girl, discovered that N.M. was missing. When they called the police, they were told that a woman had found a lost child at an elementary school near their home. That child turned out to be N.M. After N.M. was brought home, her mother began to question her about where she had been. Eventually, N.M. revealed that a man in a brown truck had taken her to a "long, white house," and she said that the man had "sucked on my belly." N.M. also indicated that the man had touched her "privates" and had removed her swimsuit. N.M.'s parents also realized that their daughter no longer had the blue sandals that she had been wearing. The couple then made a second call to the police and told them of N.M.'s statements. They were instructed to take the child to the emergency room at the hospital for an examination.

When they arrived at the hospital, Officer Brian Krear of the Twin Falls Police Department was awaiting their arrival. N.M. told Officer Krear that she had ridden in a "brown" pickup truck with "something over the back" that was white in color and had a door in the back. In further conversation with N.M., Krear determined that she was referring to a white camper shell.

The next morning, Detective Kenneth Dudley of the Twin Falls Police Department was placed in charge of the investigation. Dudley learned that, prior to the abduction, N.M. had last been seen exiting the front door of the home of a playmate, Jessica. Dudley also became aware of a police investigation of an incident in which a man in a maroon pickup exposed himself to a nine-year-old female, L.E., at approximately 4:30 p.m. on the day of N.M.'s abduction. The license number of the vehicle was observed by L.E.'s father, and Detective Dudley found that the vehicle was registered to Herman Kay. Based on this information, Dudley suspected that Kay may have been the man who abducted N.M. Dudley drove to the Kay residence and observed that Kay lived in a white mobile home and that his vehicle was a maroon pickup truck with a white camper shell.

On July 29, 1993, Dudley prepared an affidavit in support of a warrant to search Kay's residence and pickup for N.M.'s blue sandals. The affidavit and a proposed warrant were presented to District Judge Daniel B. Meehl, who issued the warrant. The search was conducted, but the sandals were not found.

Later that same day, Dudley took N.M. and her mother for a drive past Kay's home to see if N.M. recognized the house. When they arrived at Kay's residence, N.M. sat up and stopped talking. N.M. was asked whether she recognized the pickup parked beside the mobile home. She answered that the pickup was "the one in front of Jessica's house."

A few days later, Dudley prepared an affidavit in support of an application for a second warrant to search Kay's pickup and home for N.M.'s fingerprints. Based upon the affidavit, Magistrate Barry Wood issued a second warrant. The ensuing search revealed N.M.'s fingerprints on the toilet in the bathroom of Kay's mobile home.

Kay was arrested and charged with kidnapping and with lewd and lascivious conduct. He was found guilty of both charges following a jury trial. On appeal Kay complains of numerous trial errors and of the district court's denial of Kay's motion to suppress evidence found in the second search of his home.

II. ANALYSIS

A. Motion to Suppress Evidence

Kay filed a motion seeking to suppress the evidence of N.M.'s fingerprints found in his bathroom during execution of the second search warrant. Kay alleged that the warrant was obtained in violation of the Fourth Amendment to the United States Constitution and Art. I, § 17 of the Idaho Constitution because Detective Dudley's affidavit, upon which the warrant was issued, included intentional or reckless misrepresentations, omitted exculpatory information and included statements for which no source was identified. The district court denied Kay's motion.

Applying the Fourth Amendment, in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ¹, the United States Supreme Court held that a criminal defendant is entitled to an evidentiary hearing to challenge the veracity of an affidavit used by the police to obtain a search warrant if the criminal defendant makes a substantial preliminary showing that the affidavit included an intentionally false statement or a statement made with reckless disregard for the truth, and that those statements were necessary to the finding of probable cause. ² At the hearing, it is the defendant's burden to prove, by a preponderance of the evidence, that intentional or reckless falsehoods were included in the affidavit and that the false information was material to the magistrate's finding of probable cause. State v. Guzman, 122 Idaho 981, 984, 842 P.2d 660, 663 (1992); State v. Lindner, 100 Idaho 37, 41, 592 P.2d 852, 856 (1979); State v. Sorbel, 124 Idaho 275, 279, 858 P.2d 814, 818 (Ct.App.1993). A false statement is deemed material if without it, probable cause would not have been found. Id. If after excluding the false information probable cause is lacking, the search warrant must be voided and the products of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Franks, 438 U.S. at 156, 98 S.Ct. at 2676-77; Lindner, 100 Idaho at 41, 592 P.2d at 856.

The Franks doctrine applies also to a deliberate or reckless omission to disclose exculpatory information to the magistrate. Guzman, 122 Idaho at 983-84, 842 P.2d at 662-63; Sorbel, 124 Idaho at 279-80, 858 P.2d at 818-19; State v. Beaty, 118 Idaho 20, 24-26, 794 P.2d 290, 294-96 (Ct.App.1990); State v. Jardine, 118 Idaho 288, 291-93, 796 P.2d 165, 168-70 (Ct.App.1990). An omission of exculpatory facts is material "if there is a 'substantial probability' that, had the omitted information been presented, it would have altered the magistrate's determination of probable cause." Sorbel, 124 Idaho at 279-80, 858 P.2d at 818-19.

Unlike intentional or reckless falsehoods, negligent or innocent misrepresentations will not invalidate a warrant, and such information may be considered in reviewing the affidavit for probable cause. Lindner, 100 Idaho at 41, 592 P.2d at 856. Therefore, an important distinction must be made between misinformation which is presented negligently and that which is submitted intentionally or with reckless disregard for the We turn now to the affidavit submitted to Magistrate Wood in support of the application for a second warrant to search Kay's residence. The relevant portion of Detective Dudley's affidavit states:

truth. Whether a representation is false and whether a misrepresentation was made knowingly and intentionally or with reckless disregard for the truth are factual determinations that we review under a clearly erroneous standard. State v. Peightal, 122 Idaho 5, 7, 830 P.2d 516, 518 (1992); State v. Rigoulot, 123 Idaho 267, 270-71, 846 P.2d 918, 921-22 (Ct.App.1992). Whether a misrepresentation or omission is "material" is a question of law over which we exercise free review. Sorbel, 124 Idaho at 280, 858 P.2d at 819; Beaty, 118 Idaho at 26-27, 794 P.2d at 296-97.

On Sunday, July 25, 1993, [L.E.] and her younger brother were walking their dog in the City and County of Twin Falls, State of Idaho. While walking in front of her house, she noticed a "purplish-brownish" pickup drive by her. As she walked a block or so the pickup pulled up along side of her and the driver asked her a question. She could not hear him and walked to the passenger side of the truck. As she looked in, she saw a man, described as an old guy with stubble and grey hair, holding his penis in his hand. He asked her if she knew where Johnson's were. She said no and walked away. Her brother and she made it to the alley and this same driver and truck pulled up and blocked her way. Again he asked if she knew where the Johnson's were, the children ran home. The girl told her father ... who then got into his car and followed the man in the truck and got the license plate number 2J8522, maroon or dirty brown in color, 69 or 70 Chevy or GMC with white camper shell. The plate was run through police teletype and came back registered to Herman Clifford Kay.

On Sunday, July 25, 1993, at 350 Elm Street, located in the City and County of Twin Falls, State of Idaho, [N.M.], a 4 year old female, was walking home from a friend's house at approximately 1900 hours, when a man in a maroon pickup with a white camper shell stopped and picked her up and placed her in the pickup. She described the suspect as an older man with glasses and stubble. He took...