State v. Linn

• Decision Date: 24 December 1969
• Docket Number: No. 10234,10234
• Citation: 93 Idaho 430,462 P.2d 729
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas Clark LINN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 729

462 P.2d 729

93 Idaho 430

STATE of Idaho, Plaintiff-Respondent, v. Thomas Clark LINN, Defendant-Appellant.

No. 10234.

Supreme Court of Idaho.

Dec. 24, 1969.

Robert F. McLaughlin, Mountain Home, for defendant-appellant.

Robert M. Robson, Atty. Gen., Mack A. Redford, Deputy Atty. Gen., Boise, Fred Kennedy, Pros. Atty. of Elmore County, Mountain Home, for plaintiff-respondent.

DONALDSON, Justice.

Thomas Clark Linn (defendant-appellant) was charged with First Degree Murder of Telesforo Garcia as the result of a shooting which occurred outside the Rendezvous Bar, Mountain Home, Idaho, on June 25, 1967. Garcia's brother had been playing Mexican music on a jukebox at the Rendezvous Bar. Linn turned the volume down and uttered a statement to the effect that he didn't like Mexicans. An argument ensued between Linn and the Garcias and Linn left her bar. Linn attempted to return and Garcia chased Linn out of the bar and around a car, kicking Linn in the seat of his pants with pointed cowboy boots. Linn then drove away from the bar but returned in about 15 minutes. He got out of his car, walked up to the front entrance of the bar and attempted to enter when two beer bottles were flung in his path. Linn then went across the street to his car, got a shotgun from the back seat and again proceeded across the street to the Rendezvous. Linn did not go back to the front door of the bar but walked to the corner. While Linn was standing on the corner Garcia ran out of the front door of the bar, turned right (in the opposite direction from Linn who was standing on the corner) and then broke a beer bottle which he was carrying. Linn then lost track of Garcia and fired a warning shot in the air. Linn then proceeded to walk west on East Jackson towards the El Rancho Diner and as he approached the side door of the Rendezvous which opens onto East Jackson, one Julian Salinas exited and put his hands up upon seeing Linn holding a gun. Linn continued walking past the side door of the Rendezvous, but then turned around. At this point Linn heard and saw someone coming rapidly at him. It was Telesforo Garcia, the deceased victim, who was carrying what Linn assumed to be a broken beer bottle in his hand. Garcia uttered a word in Spanish and Linn brought his gun around and fired striking Garcia in the head, killing him instantly.

The jury found the appellant, Thomas Clark Linn, guilty of Murder in the Second Degree and he was sentenced to the Idaho State Penitentiary for a term of not to exceed 20 years. Linn has appealed to this Court from the verdict and judgment of conviction of Second Degree Murder.

As his first assignment of error, appellant asserts that he was held without bond from June 25, 1967, until December 4, 1967, the date of trial, and was thereby denied a speedy trial as provided for by the Sixth Amendment of the United States Constitution.

Article I, 6 of the Idaho Constitution ¹ explicitly excludes the right to bail in capital offenses where the proof is evident or the presumption of guilt is great. I.C. 19-2903 ² provides essentially the same. Cf., State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966). In this case the shooting took place in daylight around 8:00 P.M. in the center of Mountain Home before several witnesses. The appellant was arrested shortly after the shooting. It is therefore apparent that the proof was evident and the presumption great of guilt and therefore no error was committed in refusing to set bail.

In regard to the appellant's contention that he was denied the right to a speedy trial, it is evident from the record that appellant was charged and tried within the time limits provided by statute. ³ The first term of the District Court of the Fourth Judicial District commenced January 3, 1967, the second term began May 2, 1967, and the third term began September 5, 1967. The appellant was charged June 25, 1967, and brought to trial December 4, 1967. The date of the charge was within the second term of the court and the date of trial in the next term thus conforming to the requirements as set forth in the Idaho Code. Moreover appellant at no time during his incarceration demanded a speedy trial and the authorities are in accord that such demand must be voiced by the accused if he is to avail himself of his constitutional right to a speedy trial. ⁴

Appellant contends that the trial court erred by refusing to admit into evidence certain psychiatrist's clinical records probative of appellant's mental attitude at the time of the crime. These records were results of a sodium amytal (truth serum) test. Thus the issue posed by appellant's assignment of error is whether or not the results of a sodium amytal (popularly known as truth serum) test are admissible in evidence. This question has not heretofore been directly decided in Idaho. The Court in the case of State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968), was faced with the identical question but stated:

'Without considering specifically the issue of admissibility of a psychiastrist's testimony regarding the results of a 'truth serum' examination, we prefer to apply the general rule that the trial court, in passing upon the qualification of a witness offered as an expert, has wide discretion in determining the admissibility of evidence so offered. An appellate court should not disturb the ruling of the trial court in the absence of a manifest abuse of such discretion. See People v. Carter, 48 Cal.2d 737, 752, 312 P.2d 665, 674 (1957); State v. White, supra (60 Wash.2d 551, 374 P.2d 942); People v. Jones, supra (42 Cal.2d 219, 266 P.2d 38).' 92 Idaho 159 at 171, 438 P.2d 904 at 916 (1968).

However the Court in State v. Cypher, supra, agreed that:

'* * * the weight of authority in our American jurisdictions still regards truth serum tests as inadmissible, inasmuch as they have not as yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception. State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962); see Knight v. State, 97 So.2d 115 (Fla.1957); People v. McNichol, 100 Cal.App.2d 554, 224 P.2d 21 (1950); People v. Ford, 304 N.Y. 679, 107 N.E.2d 595 (1952); Lindsey v. United States, 237 F.2d 893, 16 Alaska 268 (9th Cir. 1956); State v. Thomas, 79 Ariz. 158, 285 P.2d 612 (1955), cert. den. 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828; Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, 23 A.L.R.2d 1292 (1951), cert. den. 342 U.S. 898, 72 S.Ct. 234, 96 L.Ed. 673; State v. Levitt, 36 N.J. 266, 176 A.2d 465, 91 A.L.R.2d 1112 (1961). See also Annot. 23 A.L.R.2d 1310, sec. 3. Compare People v. Jones, 42 Cal.2d 219, 225, 266 P.2d 38 (1954); People v. Cartier, 51 Cal.2d 590, 335 P.2d 114 (1959).' 92 Idaho 159 at 171, 438 P.2d 904 at 916 (1968).

We hold that as of today truth serum tests are inadmissible since we still are unconvinced as to the reliability of such evidence. When and if they obtain scientific acceptance as being reliable and accurate, the Court will re-evaluate the admissibility of such evidence.

It is also the State's contention that such evidence should not have been admitted, not on the basis of its unreliable character but rather because appellant failed to submit the clinical records in question into evidence. The State urges that because an offer of proof was not made by appellant regarding this evidence that on appeal he is precluded from a review of such evidence. However the purpose of an offer of proof is to enable the Court to rule on the admissibility of proffered evidence. When the Court has indicated that it will not receive evidence on a particular subject, it is unnecessary to make an offer of proof to preserve for review the question as to the propriety of the ruling. ⁵ State v Brewer, 73 Idaho 191, 249 P.2d 189 (1952). In the case at bar the record reveals numerous pages of testimony indicating that the trial court knew the evidence sought to be admitted was a videotape interview of the defendant conducted under the influence of the truth serum drug. The judge then indicated that such evidence would not be received. Thus the need for making an offer of proof became obviated.

Appellant asserts as error the fact that the committing magistrate was not fair and impartial since he acted in a dual capacity as both coroner and magistrate. Appellant made a motion to quash the information filed against him on the above ground. The trial judge in his written opinion denying appellant's motion to quash the information stated:

'* * * it is clear that there was ample evidence produced at the preliminary hearing to find that the crime of murder was committed and that there was probable cause to believe that defendant committed the same. The transcript of the preliminary hearing does certainly support such a finding in the absence of any possible personal knowledge by the magistrate.

A preliminary hearing is not in any sense a trial and is at most a preliminary investigation. The Idaho cases so hold. (State vs. Bond, 12 Idaho 424, 83 (86) Pac. 43) I do not find any conflict between the function of the magistrate in this case acting as a coroner and his function as a committing magistrate. A defendant is not put in jeopardy in any way under Idaho procedure by a preliminary examination. Further, the transcript of the preliminary hearing shows that defendant was given every opportunity to establish that the magistrate was prejudiced by any information he might have acquired while acting as coroner, but defendant and his counsel failed to avail themselves of this opportunity. Defendant has failed to show where he has been prejudiced by the acts of the committing magistrate.' ⁶

As correctly stated by the trial court, a preliminary hearing is in no sense a trial and therefore it does not require the same formality and precision observed at a trial. State v. Bilboa, 33 Idaho 128, 190 P. 248 (1920). The only issues to be determined at a preliminary hearing are whether or not a crime has been...