State v. Nelson

• Decision Date: 12 March 1998
• Docket Number: No. 22666,22666
• Citation: 131 Idaho 210,953 P.2d 650
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gregory Joseph NELSON, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 650

953 P.2d 650

131 Idaho 210

STATE of Idaho, Plaintiff-Respondent, v. Gregory Joseph NELSON, Defendant-Appellant.

No. 22666.

Court of Appeals of Idaho.

March 12, 1998.

Alan E. Trimming, Ada County Public Defender, August H. Cahill, Jr., Deputy Public Defender, Boise, for defendant-appellant. August H. Cahill, Jr., argued.

Alan G. Lance, Attorney General, L. LaMont Anderson, Deputy Attorney General, Boise, for plaintiff-respondent. L. LaMont Anderson argued.

LANSING, Chief Judge.

This is an appeal from a judgment of conviction for one count of kidnapping in the first degree and one count of lewd conduct with a minor child under sixteen years of age. The appellant challenges numerous pretrial and post-trial rulings of the district court and the admission of certain evidence. He also argues that there was insufficient evidence to support the jury's verdict on the kidnapping charge and challenges his sentences as excessive. We affirm.

FACTS AND PROCEDURAL BACKGROUND

According to the evidence presented at trial, appellant Gregory J. Nelson went to the home of K.M., a ten-year-old girl who lived in his neighborhood. Nelson knew that K.M.'s parents would not be home that morning because her father was in Alaska and her mother was at work. When Nelson arrived, he offered to pay K.M. twenty dollars if she would come and clean the travel trailer in which he lived. After an initial refusal, K.M. ultimately agreed, and Nelson drove her to his trailer. Shortly after they arrived and K.M. began cleaning, Nelson told K.M. that he was a doctor and that he wanted her to remove her shirt. When she refused, he knocked her down on the bed, held a pillow over her face until she agreed to remove her clothing, and then sexually molested her. After the incident, Nelson drove K.M. back to her house. Once there, K.M. immediately told her two brothers that Nelson had hurt her, and they took her to the house of a neighbor. The neighbor telephoned K.M.'s mother, who arrived a few minutes later as did police and paramedics. K.M. was then taken to a hospital where she was examined by a physician.

Initially, Nelson was charged by complaint with kidnapping in the first degree, Idaho Code § 18-4501, and lewd conduct with a minor, I.C. § 18-1508. However, before the scheduled preliminary hearing occurred, Nelson was indicted on the same charges by a grand jury. The complaint was then dismissed and no preliminary hearing was conducted. Nelson filed a motion to dismiss the indictment arguing, inter alia, that it was unconstitutional for the State to initiate grand jury proceedings after it had already initiated charges by filing a complaint. The district court refused to dismiss the indictment, and the case proceeded to a jury trial. On the last day of trial Nelson dismissed his court-appointed attorney, and at his request, he was allowed to proceed with his defense pro se. The jury found him guilty of both charges. Nelson immediately filed a motion for new trial, which the district court denied. The district court then sentenced Nelson to a determinate life term of imprisonment for each offense and ordered that the terms be served concurrently.

Nelson has presented multiple issues for review on appeal. He asserts that: (1) the district court erred in failing to dismiss the indictment as unconstitutional; (2) the prosecutor did not present sufficient evidence to the grand jury to support a finding of probable cause on the kidnapping charge; (3) the prosecutor violated a duty to disclose exculpatory evidence to the grand jury; (4) the district court erred in admitting hearsay testimony about the victim's statements to the neighbor and an emergency room physician; (5) the district court erred in allowing in physical evidence for which an adequate chain of custody had not been established; (6) the district court erred in allowing the testimony of an expert witness; (7) there was insufficient evidence to support a verdict for kidnapping in the first degree; (8) the district court erred in denying Nelson's motion for a new trial; (9) his conviction and sentences violate Idaho's statutory prohibition against double punishment for the same act; and (10) the district court abused its discretion by imposing excessive sentences.

A. Propriety of the Charge By Grand Jury Indictment and Dismissal of Complaint

In his first argument on appeal, Nelson contends that his rights under Art. I, § 8 of the Idaho Constitution were violated when the State decided to drop the complaint initially used to charge Nelson and to instead proceed against him by grand jury indictment. He rests his argument on the Section 8 provision that: "No person shall be held to Nelson misapprehends the guarantee provided by Art. I, § 8. That constitutional provision allows the prosecutor to choose the manner in which to proceed against a criminal defendant. In State v. Edmonson, 113 Idaho 230, 743 P.2d 459 (1987), the Idaho Supreme Court determined that the alternative charging procedures described in Art. I, § 8 were of equal dignity, that the purpose of each is to determine probable cause, and that any advantages which a preliminary hearing might afford a defendant are purely incidental to that purpose. Id. at 233-34, 743 P.2d at 462-63. The Court went on to state, "The independent grand jury's function would be duplicated by requiring a subsequent preliminary hearing." Id.

                answer for any felony ... unless on presentment or indictment of a grand jury or on information of a public prosecutor, after a commitment by a magistrate."   He argues that once he was charged by complaint, which would have led to a preliminary hearing and the filing of an information, the State was constitutionally bound to proceed by that method, and that the State's abandonment of that method deprived Nelson of the opportunity to confront and cross-examine the witnesses presented against him at a preliminary hearing.  Therefore, Nelson asserts, the trial court should have dismissed the indictment or, alternatively, ordered that a preliminary hearing be conducted
                

Nelson argues that his case is distinguishable from Edmonson because he was initially charged by complaint and because he specifically requested a preliminary hearing. However, these same distinctions were asserted in State v. Martinez, 128 Idaho 104, 910 P.2d 776 (Ct.App.1995), where we found the reasoning presented in Edmonson to be dispositive. We stated, "[T]he Idaho Constitution does not, on its face, place any limitation on the prosecutor's choice to proceed by either alternative." Id. at 110, 910 P.2d at 782. Consequently, we find no error in the district court's denial of Nelson's motion to dismiss the indictment and his motion for a preliminary hearing.

B. Alleged Errors in the Grand Jury Proceeding

Nelson next raises alleged defects in the grand jury proceeding that produced his indictment. He contends that the prosecutor violated her duty under Idaho Criminal Rule 6.2(a) ¹ to present allegedly exculpatory evidence to the grand jury and that the evidence presented before the grand jury was insufficient to establish probable cause to believe that he committed kidnapping. The kidnapping charge, he argues, should therefore have been stricken from the indictment.

The State responds that these challenges to the grand jury proceeding may not be reviewed on appeal because such defects must be deemed harmless once the defendant has received a full trial on the merits and has been found guilty beyond a reasonable doubt by a petit jury. The Idaho appellate courts have long followed such a rule of nonreview with respect to certain defects in preliminary hearings. In State v. Maylett, 108 Idaho 671, 701 P.2d 291 (Ct.App.1985), we held, "When a defendant has been convicted following a fair trial, we will not examine, on appeal, the sufficiency of the evidence presented at a preliminary examination upon which a magistrate determined there was probable cause to bind the defendant-appellant over for trial." Id. at 672, 701 P.2d at 292. Subsequently, the Idaho Supreme Court stated in State v. Streeper, 113 Idaho 662, 664-65, 747 P.2d 71, 73-74 (1987), that "where at a fair trial the accused is found guilty upon sufficient evidence to sustain the verdict, the judgment will not be overturned for defects in proof at the preliminary hearing." The Idaho Supreme Court has also held that a magistrate's error in denying the defendant's request for a continuance of his preliminary hearing does not warrant reversal of the conviction if the defendant subsequently Our ruling in Kilby was consistent with decisions from numerous other jurisdictions. In United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), the United States Supreme Court held that a procedural error in the grand jury proceedings was not fatal to a conviction. The Court ruled that the error, which was discovered during course of trial, was rendered harmless by the subsequent petit jury's verdict finding the defendant guilty beyond a reasonable doubt. Id. at 67-72, 106 S.Ct. at 940-43. Likewise, in United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir.1996), the appellate court declined to consider an allegation that the prosecutor presented perjured testimony to the grand jury. The court stated that "any error by the prosecution before the grand jury is harmless because [the defendant] was subsequently convicted by the petit jury." Other cases holding that a guilty verdict by a petit jury after a full trial on the merits rendered harmless an alleged defect during the grand jury proceedings include; United States v. Lopez-Gutierrez, 83 F.3d 1235, 1244-45 (10th Cir.1996); United States v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir.1995); State v. Atwood, 171 Ariz. 576, 832 P.2d 593, 618 (1992); Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316, 321 (1989); State v. Tempest, 660 A.2d 278, 280 (R.I.1995). But see State v. Wright, 207 Conn. 276, 542 A.2d 299 (1988) (holdin...