State v. Moore
| Decision Date | 08 May 1969 |
| Docket Number | No. 10182,10182 |
| Citation | 93 Idaho 14,454 P.2d 51 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. Walt MOORE, aka Pete Henry Moore, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Dwight F. Bickel, Boise, for defendant-appellant. Allan G. Shepard, Atty. Gen., and Richard Greener, Asst. Atty. Gen., Boise, for plaintiff-respondent.
On October 23, 1967, appellant Walt Moore pleaded guilty to the charge of obtaining money under false pretenses contrary to I.C. § 18-3101. No question is raised as to the efficacy of that plea. On that same date, appellant moved for a pre-sentence investigation, withheld sentence and an order of probation under I.C. § 19-2601. Pre-sentence was ordered and the case was continued to November 6, 1967, when appellant requested and received time to rebut information contained in letters attached to the pre-sentence report. The case was continued to November 13, 1967, when appellant moved to strike these two letters. One of these letters was written by an attorney for the Securities and Exchange Commission and the other was written by the president of a Seattle insurance company for whom Moore had worked. On this latter date, appellant also presented his wife as a single rebuttal witness.
The case was again continued to December 11, 1967, when there was made available to the court and to the defendant a considerable amount of new material which had been assembled for the pre-sentence report from authorities in Canada, the Washington state insurance commissioner, the Idaho Department of Finance, and the Securities and Exchange Commission. These materials disclosed that appellant was under indictment in Idaho federal district court for mail fraud and had been under injunction of an Idaho district court prohibiting any sale of securities at the time he purported to make the sale which became the basis of his guilty plea.
The remainder of this new material related to appellant's prior conduct in the states of Washington and Idaho. The gist of a number of complaint letters to the Washington insurance commissioner was as follows. Appellant had been a good insurance salesman. However, he apparently began to sell insurance as 'investments' with guaranteed returns of eight per cent. Most of the complaint letters were written by aged persons who parted with relatively large sums of money in the belief that their payments would be refunded upon demand. Later these persons discovered that they in fact had purchased insurance which they could not afford or use. It is not entirely clear how many persons really did purchase insurance which could be cancelled with a refund and how many in effect actually lent their money to appellant personally.
The material collected in a prosecution file by an attorney for the Securities and Exchange Commission related to two other men as well as appellant and their activities in Idaho. The gist of this material was that appellant posed with the other two men as agents of investment companies which may or may not have actually existed. Numerous persons were persuaded to give up good securities or options to purchase securities in exchange for promises that they would be given other more profitable securities. These promises were not honored, and the good securities were resold for cash to other persons. These conclusions are based upon summaries of interviews with the victims.
The case was again continued to December 19, 1967, to give appellant additional time to explain or rebut this information. On that date, appellant presented no other evidence or material but moved that the court reconsider its denial of his motion to strike this material. The court denied this motion and denied appellant's application for probation and withholding of sentence. The court adjudged defendant guilty and sentenced appellant to five years in the penitentiary. Appellant appeals from the sentence portion of the judgment.
The basic issue on this appeal is whether or not the court abused its discretion under I.C. § 19-2601 in denying probation and withheld sentence: more particularly whether or not the court abused that discretion in considering as part of the presentence report the materials contained in the files of Washington state insurance commissioner and the Securities and Exchange Commission. I.C. § 19-2601 (Supp.1967) provides in pertinent part:
'19-2601. Parole-Commutation, suspension, withholding of sentence-Probation.-Whenever any person shall have been convicted, or enter a plea of guilty, in any district court of the state of Idaho, of or to any crime against the laws of the State, except those of treason or murder, the court * in its discretion, may:
Appellant concedes, as the State argues, that an application for withheld sentence and probation necessarily requires the court to inform itself about the defendant's personality and background and that in this process the court may consider more than that type of evidence which would be admissible at a criminal trial under the rules of evidence. Nevertheless, appellant argues that there must be some limitation upon the kind of materials which the court may consider in the exercise of its sound legal discretion if a defendant is to have a full opportunity to rebut or explain adverse matter. This case thus presents a conflict between two somewhat imponderable considerations, namely, the desire to acquire all relevant information about a particular defendant so that probation may be granted or that the punishment will fit the man and the crime and the desire to maintain standards of fairness in sentencing procedures.
Appellant argues that fairness can be maintained only by limiting the court's scope of inquiry to statements of witnesses subject to cross-examination, the report of an impartial probation or parole officer based upon his personal investigation and interviews, official transcripts of judicial or administrative proceedings in which the defendant had notice and an opportunity to be heard, an official arrest records of the Federal Bureau of Investigation. This limitation would exclude ex parte conclusions based upon hearsay statements of numerous private parties like those contained in the files whose use is attacked in this case. The State replies that such a limitation would unduly restrict the sentencing process and that the trial judge is fully able to consider the sources of adverse information and to refrain from giving undue weight to untrustworthy or biased material. Moreover, the State argues that a defendant can rebut adverse evidence by presenting countervailing evidence of a good record and character rather than by specifically impeaching all adverse testimony and writings through cross-examination.
For reasons which follow, we have concluded that the sentencing procedure followed in this case constituted neither an abuse of discretion nor a denial of due process of law. There is a long and consistent line of Idaho authorities which make it clear that probation may be granted or withheld pursuant to a sound, legal exercise of the trial court's judicial discretion and that an exercise of discretion under I.C. § 19-2601 will be upheld if it is based upon reason rather than emotion. 1 The purpose of the statute is to allow, where appropriate, 'the reformation and rehabilitation of a defendant, particularly a first offender, and to give him an opportunity to reform and take his proper place in society.' 2 In a determination of the appropriateness of a grant of probation, the trial court must consider the defendant's 'previous character and actions, * * * (his prospects for) abid(ing) by the terms of his probation and * * * (for) rehabilitat(ion,) and * * * the interests of society.' 3 The primary consideration has been stated to be 'the good order and protection of society.' 4
In the process of determining whether a grant of probation is appropriate in view of the considerations mentioned above, the trial court necessarily must be permitted to evaluate a broad range of information about the defendant's personality. This information may be gathered from many sources. The question whether sentence should be imposed or probation granted must turn upon the individual case. Very little information about a defendant will be irrelevant to the effort of the law to individualize treatment of convicted persons.
On the other hand, however, this Court has insisted that certain procedures be followed in probation proceedings in order to insure the reliability and fairness of the conclusions drawn about the defendant's personality. Thus, in both probation application and probation revocation proceedings it is required: (1) that the defendant be afforded a full opportunity to present favorable evidence; (2) that the defendant be afforded a reasonable opportunity to examine all the materials contained in the pre-sentence investigation report; (3) that the defendant be afforded a full opportunity to explain and rebut adverse evidence. 5 This jurisdiction therefore is in accord with the more enlightened views of probation and sentencing procedure. 6
However, neither the Idaho case law nor the other materials provide an answer to the specific...
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State v. Wolfe
...for probation, and which rebuts any adverse evidence before the court. Id. at 682-83, 518 P.2d at 865-66. Similarly, State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969) addressed the value of a complete set of facts before the sentencing "(N)amely, the desire to acquire all relevant information......
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State v. Tucker
...contained in a pre-sentence report which would otherwise be inadmissible under the rules of evidence at trial. State v. Moore, 93 Idaho 14, 18, 454 P.2d 51, 55 (1969). The record discloses that appellant was accorded the opportunity to examine the pre-sentence report and to explain and rebu......
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Sivak v. State
...Sivak only of felony murder, but acquitted him of first degree premeditated murder. Beginning with a discussion of State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969), the [112 Idaho 218] genesis of the use of presentence report materials, including hearsay, beginning in 1969, was reviewed. It ......
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