State v. LePage

• Decision Date: 25 June 1981
• Docket Number: No. 13010,13010
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robin LePAGE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 674

630 P.2d 674

102 Idaho 387

STATE of Idaho, Plaintiff-Respondent, v. Robin LePAGE, Defendant-Appellant.

No. 13010.

Supreme Court of Idaho.

June 25, 1981.

Michael K. Ferrin of Stufflebeam & Ferrin, Brian R. Goates, Blackfoot, for defendant-appellant.

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

BISTLINE, Justice.

Defendant-appellant Robin LePage was convicted of murder in the first degree and sentenced to life in prison for the murder plus fifteen years for use of a firearm in its commission. In brief, the facts surrounding the crime are these. LePage, together with John Messinese, a juvenile, escaped from State Hospital South in Blackfoot on July 23, 1977. LePage apparently stole a pistol from a parked car soon after this escape. The two then came to a picnic area where several beer parties were underway. LePage became involved in a verbal altercation with the murder victim, Kurt Cornelison, although no violence occurred at that time. LePage and Messinese left the party sometime later. They then stole a pickup truck from the premises of a Blackfoot business, leaving town that night in the stolen pickup.

According to the testimony of Messinese, they saw Cornelison hitchhiking a short distance outside of Blackfoot. LePage yelled "there's that son-of-a-bitch," jumped out of the truck and killed Cornelison with a shot to the head. LePage placed Cornelison's body in the back of the truck and later disposed of it at a more remote location. There was evidence that the body was sexually molested by LePage prior to throwing it out of the pickup.

LePage and Messinese subsequently abandoned the pickup in Idaho Falls and traveled into Montana in other stolen vehicles. LePage stole another handgun in Deer Lodge, Montana, where LePage and Messinese separated when approached by a police officer; LePage gave Messinese one of the handguns before leaving. Messinese immediately turned this handgun over to the police officer.

LePage traveled to Washington, where he worked on a ranch under an assumed name for approximately a week. He was arrested at this ranch and transported to the Whitman County jail in Colfax, Washington. There LePage was given Miranda warnings, waived his rights and was interrogated by an FBI officer who had participated in the arrest. Following this interrogation, LePage was taken to a jail in Spokane, Washington. Several days later, LePage was interrogated in Spokane by two Bingham County detectives, officers Mecham and Summers. Prior to this interrogation he was given Miranda warnings and he signed a written waiver.

Four days later, officers Mecham and Summers transported LePage by car from Spokane to Blackfoot. LePage, after being given Miranda warnings, was again interrogated during this trip. He was arraigned the day after arriving in Blackfoot, and an attorney was appointed. Prior to the preliminary hearing, however, a new attorney, Michael Ferrin, was appointed to represent LePage. Mr. Ferrin represented LePage throughout the trial and is his attorney on appeal. Ten days prior to trial, the state placed a paid informer in the cell next to LePage. Conversations between LePage and the paid informer were overheard by another inmate, Charles Thompson, who was in an adjacent cell. Thompson testified as a witness for the state at the trial about the conversation between LePage and the state agent. Defense counsel did not at this time object to Thompson's testimony. After his conviction, LePage's counsel moved for a judgment of acquittal or a new trial. It was alleged that Thompson and detective Summers had given perjured testimony as to the considerations offered to Thompson in exchange for testifying against LePage, and that the court erred in refusing to allow him to impeach their testimony with a tape recording of a conversation between them. It was also argued that defense counsel had erred in not moving to suppress the testimony of Thompson, that the court erred in admitting the testimony even though there was no objection, and that LePage's right to counsel and right against self-incrimination were thereby violated. The trial court denied the motions for acquittal and for new trial. Sentence was imposed. On appeal, LePage raises essentially the same issues which were presented to the trial court on the motion for judgment of acquittal or new trial.

The first issue presented is whether there has been a violation of LePage's right to the assistance of counsel under Article I § 13 of the Idaho Constitution and the Sixth Amendment of the United States Constitution ¹ and, if so, whether a new trial is required because of those violations.

I.

As a preliminary matter, we note that the failure of LePage's counsel to object at trial to the admission of Thompson's testimony does not preclude our consideration of the merits of LePage's claim.

While ordinarily the failure to move to suppress evidence prior to trial pursuant to I.C.R. 12(b)(3), and the failure to object to its admission at trial, would prevent us from addressing the issue on appeal, see State v. Collinsworth, 96 Idaho 910, 539 P.2d 263 (1975), "where a fundamental error has been committed in a criminal trial, this Court may consider it even though no objection was made in the trial court." State v. Cariaga, 95 Idaho 900, 903, 523 P.2d 32, 35 (1974). See State v. Taylor, 100 Idaho 105, 593 P.2d 1390 (1979); State v. White, 97 Idaho 708, 714 n.8, 551 P.2d 1344, 1350 n.8, cert. denied 429 U.S. 842, 97 S.Ct. 118, 50 L.Ed.2d 111 (1976); State v. Swenor, 96 Idaho 327, 333, 528 P.2d 671, 677 (1974) (Bakes, J., dissenting); State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971).

The state argues that the error here is not fundamental in the sense that admission of the evidence affected the "fairness" of the trial, because the statements which Thompson overheard and testified to were made voluntarily, were reliable, and therefore their admission did not affect the factual accuracy of the verdict. The state argues that since the exclusionary rule was intended to deter police conduct, and does not represent any personal right of defendants, its invocation may be waived. In essence, the state asks us to hold that incriminatory statements obtained in violation of a defendant's Sixth Amendment right to counsel and the rule in Massiah ² are to be treated no differently than inculpatory evidence seized in violation of the Fourth Amendment. See State v. Gerhardt, 97 Idaho 603, 605, 549 P.2d 262, 264 (1976) (trial court properly exercised discretion in holding that motion to suppress wallet was not timely made); United States v. Mauro, 507 F.2d 802 (2d Cir. 1974), cert. denied 420 U.S. 991, 95 S.Ct. 1426, 43 L.Ed.2d 672 (1975) (failure to move to suppress evidence seized in warrantless search prior to trial precluded objection to introduction of evidence at trial); United States v. Grant, 462 F.2d 28 (2d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 234, 34 L.Ed.2d 176 (1972) (objections to legality of electronic surveillance waived when not raised until after trial); United States v. Evans, 320 F.2d 482 (6th Cir. 1963) (failure to object at trial to lack of probable cause for search warrant precluded consideration on appeal); Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965) (defendant waived right to object to introduction of confession by not requesting hearing on voluntariness of confession).

We need not determine whether there is a distinction between Fourth Amendment and Sixth Amendment rights for purposes of the exclusionary rule and waivers thereof. This Court has the inherent power to review alleged errors despite the lack of an objection below. State v. Cariaga, supra; State v. Haggard, supra. We choose to exercise our discretion to review the error presented here for three reasons.

First, we cannot agree with the state that the evidence of LePage's inculpatory statements is necessarily reliable and voluntary. The statements were made after having been incarcerated for some five months and during conversations with, if not interrogation by, an informant whose job it was to elicit such statements. ³ As the Supreme Court noted in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), there are "powerful psychological inducements to reach for aid when a person is in confinement," and "the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover government agents." Id. 100 S.Ct. at 2188. This fact rebuts the state's foundational premise that LePage's statements were unquestionably voluntary and trustworthy, and hence could not have impinged upon his right to "receive a fair trial." State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). This also distinguishes this case from Fourth Amendment waiver cases, where evidence is ordinarily non-testimonial and more inherently reliable. Anytime a Massiah violation occurs, at least in a custodial setting, the validity of the evidence produced will be suspect.

Secondly, if any waiver occurred here, it was on the part of LePage's counsel, not LePage himself. While ordinarily a client is bound by his attorney's actions, see Silver Bowl, Inc. v. Equity Metals, Inc., 93 Idaho 487, 464 P.2d 926 (1970), an attorney may not waive a "fundamental" right of a client without the client's informed consent. See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). In Bement v. State, 91 Idaho 388, 395, 422 P.2d 55, 62 (1966), the Court stated that:

"The right to counsel, 'the most pervasive right of an accused,' has been accorded singular significance by federal courts. So important is the right, and so strong the presumption against its waiver, that a trial judge's clear and recorded statement of the right to an accused felon before...