State v. Mee, 12879

CourtUnited States State Supreme Court of Idaho
Citation632 P.2d 663,102 Idaho 474
Docket NumberNo. 12879,12879
PartiesThe STATE of Idaho, Plaintiff-Respondent, v. Russell MEE, Defendant-Appellant.
Decision Date21 July 1981

Peter D. McDermott of McDermott & McDermott, Pocatello, for defendant-appellant.

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

McFADDEN, Justice.

This appeal stems from a conviction of second degree burglary entered February 1, 1978 upon a guilty verdict by the jury. Faced here with a single, yet difficult, question concerning the propriety of admission of the prior preliminary hearing testimony of a witness, we reverse.

Appellant was accused of entering the Pocatello residence of Breen and Vaughn and removing Breen's multiple component stereo system on the night of December 3, 1977. Appellant had earlier that day borrowed Vaughn's car, in the process receiving the house keys as well as those to the car.

At the preliminary hearing, a friend of appellant's, Brenda Priest, testified. According to Ms. Priest, appellant met her at a service station that night and asked her if she could store a stereo system for him at her residence, to which she agreed. Later that evening, appellant delivered the equipment and Priest and appellant unloaded the components from the rear seat of Vaughn's car.

Breen returned home around 1:00 a. m., December 4, and found his stereo system missing; there were no signs of forced entry. Several days later Ms. Priest mentioned in a conversation that she was storing stereo equipment for a friend. Following comments concerning the earlier theft of Breen's equipment, Ms. Priest and others inspected the components at her house and found them to be Breen's (he had previously marked the components with his initials and recorded the serial numbers). The police were called and the equipment was impounded. Appellant was subsequently arrested and charged with the theft.

The state's case is admittedly circumstantial and Ms. Priest's testimony is unalterably the primary component of that case. Ms. Priest testified to the above facts at the preliminary hearing held December 14, 1977 following a grant of immunity given to her the preceding day.

The issue presented here stems from the fact that Ms. Priest refused to testify at trial. Ms. Priest steadfastly refused to speak in light of all reasonable effort on the part of the court and counsel to procure her testimony. It appears that Ms. Priest was fully informed of her rights stemming from the granted immunity, as well as of possible consequences should she maintain her stance against testifying before the jury. Counsel was made available to her to aid in her decision. Following failure of these efforts to secure Ms. Priest's testimony, the court ordered preparation of a transcript of her preliminary hearing testimony. Defense counsel at that point registered his objection to such an order, relying specifically on the prohibition of such use set forth in State v. Villarreal, 94 Idaho 246, 486 P.2d 257 (1971).

Upon resumption of the trial the following day, but outside the presence of the jury, Ms. Priest was called to the stand once again and questioned as to her preliminary hearing testimony. She noted that she had "told the truth" at that time, but refused to either reaffirm that testimony or testify anew for the district court. After argument by counsel, the court allowed the preliminary hearing transcript to be read to the jury over defense objection. Appellant was subsequently found guilty of the charge of second degree burglary.

The single issue presented is whether the trial court erred in allowing the use of the preliminary hearing testimony of a witness who was present at trial but refused to testify.

Appellant contends that the use of Ms. Priest's preliminary hearing testimony was foreclosed by State v. Villarreal, supra, and its predecessor case, State v. Potter, 6 Idaho 584, 57 P. 431 (1899), overruling Territory v. Evans, 2 Idaho 651, 23 P. 232 (1890). We agree.

In Evans, the territorial supreme court held that testimony given at a preliminary hearing (at that time called "preliminary examinations") in the presence of the defendant and subject to cross-examination was admissible at later trial upon the absence or death of the testifying witness. The court found such use sanctioned by the common law and not violative of the confrontation clause of the federal constitution.

At trial in Potter, the depositions of two absent witnesses were introduced into evidence. A review of the statements of the court in Potter, as well as of the records on file with this court concerning that case, indicates clearly that the "depositions" involved were actually the transcripts of the testimony given at the defendant's preliminary examination before the committing magistrate. These documents further show that the defendant was present, was represented by counsel, and had the opportunity to cross examine the witnesses at the preliminary examination. 1 Thus under the rule of Territory v. Evans, supra, this testimony was admissible.

The defendant in Potter, however, appealed on the ground that admission of these absent witnesses' depositions, as well as the use of his own preliminary hearing deposition for impeachment, was improper since the presiding magistrate failed to "certify" those documents prior to their use at trial as required under the applicable statute. 2 The trial court allowed the justice of the peace acting as the committing magistrate (who appeared and testified at trial) to add antedated certificates to the depositions with operation nunc pro tunc. The supreme court "questioned" this procedure, yet did not actually rule on the propriety of admission of the depositions in light of the formal defect. 3

Sua sponte, the court raised an additional objection to the use of the preliminary hearing depositions, i. e., whether they were admissible at all. The court, in reviewing the Idaho statutes, found no explicit reference to the use by the state of depositions taken upon the preliminary examination. 4 Finding other statutes addressed to the taking and use of depositions generally, the court determined that the inclusion of those provisions impliedly required the exclusion of any right on the part of the state to use the "depositions" taken at the preliminary hearing. Thus the use of the earlier transcribed testimony at Potter's trial was held to have been error. An alternative ground for the court's ruling in Potter was application of the confrontation clause of the United States Constitution. 5 The court saw use of the preliminary hearing testimony at trial as violative of that constitutional protection. In 1899, however, the clause was not applicable to the states. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (confrontation clause made binding upon the states through the Fourteenth Amendment). A discussion of current constitutional law on this subject appears infra.

We find the conclusion of the Potter court that the statutory law of the state and federal constitutional law required the exclusion of preliminary hearing testimony ("depositions") erroneous.

A review of the statutes in effect in the latter territorial and early statehood years indicates a number of provisions concerned with "depositions." Major areas of legislative pronouncement provided for the taking and use of depositions of parties on behalf of the defendant when it was feared that these witnesses would be unavailable for trial, however there was no provision for similar preservation of testimony by the state. 6 The only other legislative statements concerning "depositions" were entirely unrelated to the concept of deposing witnesses in anticipation of use of that testimony at trial these were the above noted provisions providing for the recordation of preliminary hearing testimony. The underlying belief of the Idaho court that these "depositions" were not only unconstitutional but also impliedly forbidden by the legislature's enactment of other provisions generally concerned with depositions was commented upon by Professor Wigmore.

"In dealing with depositions and former testimony of deceased or absent witnesses, our courts have almost unanimously received them, when offered against the accused in criminal prosecutions, as not being obnoxious to the constitutional provision, if the right of cross-examination had been satisfied.


But nevertheless early doubt as to the constitutional propriety of allowing the prosecution to use depositions against the accused was widespread at the bar, a hundred years ago. The doubt showed itself in the legislature's omission, when providing authority for taking depositions generally, to include statutes authorizing the taking of depositions on behalf of the prosecution. This omission was almost universal in the several states. Hence, regardless of what the courts might have held if such depositions (as distinguished from testimony at a former trial) were sought to be used, there was little or no opportunity to present the question; for in practice they could not be taken, lacking the authority in any officer to take them. 5

__________ These comments reveal the initial error of the Potter court in failing to distinguish between former testimony "depositions" and depositions properly so called. The comments also presage the second error of the court in holding the testimony inadmissible. There was indeed an historical concern that prosecution use of depositions or ex parte affidavits would be constitutionally impermissible, and this apprehension was the subject of considerable debate at our state's constitutional convention. 8 However, the constitutional propriety of using former testimony upon the unavailability of a witness had never been so questioned. As noted in the annotation at 15 A.L.R. 495, "Use in criminal case of testimony given on formal trial, or preliminary...

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