State v. Pecor, 22800

• Court: Court of Appeals of Idaho
• Writing for the Court: LANSING; SCHWARTZMAN
• Citation: 972 P.2d 737,132 Idaho 359
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Charles A. PECOR, Defendant-Appellant.
• Docket Number: No. 22800,22800
• Decision Date: 30 December 1998

Page 737

972 P.2d 737 132 Idaho 359 STATE of Idaho, Plaintiff-Respondent,
v.
Charles A. PECOR, Defendant-Appellant. No. 22800 Court of Appeals of Idaho. Dec. 30, 1998.

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John J. Rose, Kellogg, for appellant.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

LANSING, Chief Judge

Charles Alan Pecor appeals from a judgment of conviction for delivery of a controlled substance. He makes several challenges to the admission of evidence at trial, the conduct of the prosecutor, and the sufficiency of the evidence to support the conviction. We affirm.

FACTS AND PROCEDURAL HISTORY

According to the State's evidence at trial, Pecor's conviction arose from the following events. On July 11, 1995, Pecor and Linda Singlestar told Rebecca Wilson that they were planning to drive to Coeur d'Alene to buy some methamphetamine. Wilson responded that some of her friends, including Georgia Haddock, were interested in obtaining that drug. About a week later, when Pecor returned with the drugs, Wilson put her friend, Haddock, in contact with Pecor. Pecor and Haddock agreed that the delivery would be made in the parking lot of a park on the night of July 19, 1995. Pecor drove to the park in Singlestar's car with Singlestar and another companion, Scott Cornell, as passengers. Pecor exited the car and walked to Haddock, who was waiting in her automobile. While Cornell and Singlestar stood nearby, Pecor handed Haddock a cigarette pack containing methamphetamine. Pecor explained that the amount was less than Haddock had asked for, and they agreed to go to Haddock's house to determine how much methamphetamine was in the cigarette package. As they left the park, Singlestar rode with Haddock while Pecor drove Singlestar's car, with Cornell as a passenger.

Meanwhile, the police had learned through an informant that a sale of illegal drugs would take place in the park that night. A short time after the cars left the park, the police stopped both vehicles. Haddock was arrested for driving under the influence of intoxicants. After her arrest, the police asked her whether there were drugs or weapons in her car, to which she responded that there was methamphetamine on the front seat. When the police asked her who had given her the drugs, she responded that Pecor and Cornell had brought the methamphetamine to the park and Pecor had handed the package to her. Pecor and Cornell were both arrested at the scene. Singlestar was not arrested or charged with any crime as a result of the transaction.

Pecor was charged with delivery of a controlled substance, I.C. § 37-2732, and was found guilty by a jury. He filed a motion for a new trial or for dismissal of the charge, but the district court denied the motion.

On appeal from the judgment of conviction, Pecor contends that: (1) the district court erred in admitting hearsay statements; (2) the district court erred in admitting a urinalysis showing the presence of methamphetamine in Pecor's urine the day after his arrest; (3) the district court erred in allowing the State's expert to testify that the substance delivered by Pecor was methamphetamine; (4) Pecor's due process rights were violated by the police officers' failure to arrest Singlestar and search her car; (5) the prosecutor violated Pecor's due process rights by entering into plea agreements with witnesses and by abusing the subpoena power; (6) the prosecutor's allegedly improper statements during opening statement and closing argument violated Pecor's right to a fair trial; and (7) there was no evidence corroborating the testimony of Pecor's co-conspirators and, thus, the evidence is insufficient to support the jury's finding of guilt.

ANALYSIS

A. Admission of Hearsay Statements

Pecor asserts that certain statements, which he contends were hearsay, were erroneously admitted at trial. He refers to out-of-court statements made by Cornell and

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Haddock in which they told police officers that Pecor delivered the methamphetamine to Haddock.

The State responds that Pecor may not raise this issue on appeal because he did not object to the testimony he now challenges. The trial transcript reveals, however, that he did object to the testimony of Officer Gunderson regarding Haddock's out-of-court statement. Therefore, we will consider this claim of error. In the challenged testimony, Officer Gunderson related statements that Haddock made after her arrest. According to Gunderson, Haddock said that Pecor "handed her a baggie of crank at the park."

The trial court overruled Pecor's hearsay objection to the testimony without stating any reason for that ruling, and the State does not suggest any applicable hearsay exception in response to Pecor's claim of error. If, as Pecor asserts, the district court admitted the testimony under Idaho Rule of Evidence 801(d)(2)(E) as the statement of a co-conspirator, the ruling was erroneous. That rule provides that statements by a co-conspirator made during the course of and in furtherance of the conspiracy are not hearsay and therefore are not excludable as such. Haddock's statement to Officer Gunderson does not fall within the ambit of this rule because her statement was not made during or in furtherance of the conspiracy. The statement was made after the completion of the crime and after her arrest, and was not made to conceal or perpetuate the conspiracy. Therefore, it was not properly admissible under I.R.E. 801(d)(2)(E). See State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985). ¹ Nor was Haddock's out-of-court statement admissible under I.R.E. 804(b)(3) as a statement against interest, for the portion of her statement implicating Pecor was not against Haddock's penal interest. Moreover, Haddock was not "unavailable as a witness," a prerequisite for the admission of hearsay under I.R.E. 804.

We conclude, however, that the erroneous admission of this testimony does not necessitate reversal of the judgment. An error in the admission of evidence will not warrant a new trial if the appellate court can conclude, beyond a reasonable doubt, that the jury would have reached the same result had the error not occurred. State v. Woodbury, 127 Idaho 757, 761, 905 P.2d 1066, 1070 (Ct.App.1995). Where essentially the same information that was related through inadmissible evidence has also been placed before the jury through other admissible testimony, the error may be deemed harmless. See Woodbury, supra; State v. Gomez, 126 Idaho 700, 705, 889 P.2d 729, 734 (Ct.App.1995). In this case, the hearsay evidence was merely repetitive of Haddock's own testimony at trial. Haddock herself testified that Pecor handed her a cigarette package containing the methamphetamine, and she was subject to full cross-examination. Based upon this independent testimony from the declarant who was the source of the hearsay statement, we conclude that the error in allowing Gunderson to testify to Haddock's out-of-court statement was harmless beyond a reasonable doubt.

B. Admission of Urinalysis Results

Pecor challenges the district court's denial of his motion to suppress the results of a urinalysis showing that, the day after his arrest, Pecor's urine contained methamphetamine. Pecor argues that the urine sample was procured in violation of his Fourth Amendment rights, that its probative value was outweighed by the risk of unfair prejudice, and that the State did not make a timely disclosure of the urinalysis results.

1. Legality of Search

We first address Pecor's challenge to the district court's denial of his motion to suppress on constitutional grounds. Our standard of review is one of deference to factual findings of the trial court unless they are clearly erroneous, while giving free review to the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found.

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State v. Pick, 124 Idaho 601, 603, 861 P.2d 1266, 1268 (Ct.App.1993); State v. Heinen, 114 Idaho 656, 658, 759 P.2d 947, 949 (Ct.App.1988).

According to Pecor's testimony, a jailer informed Pecor that Pecor's probation officer had requested a urinalysis. Pecor then provided a urine sample, which tested positive for the presence of methamphetamine. Pecor acknowledges that he was a probationer at the time of his arrest and that he had consented to warrantless searches as a condition of probation. He nonetheless asserts that the probation officer needed "reasonable suspicion" to request a urine sample. He relies upon State v. Palmer, 110 Idaho 142, 715 P.2d 355 (Ct.App.1985), and State v. Pinson, 104 Idaho 227, 657 P.2d 1095 (Ct.App.1983), where we held that: (a) before conducting a warrantless search of a parolee's person or property, a parole officer must have some reasonable grounds to believe that the individual had violated a condition of his parole, and (b) the search must be reasonably related to disclosure or confirmation of the suspected violation. See also State v. Vega, 110 Idaho 685, 686, 718 P.2d 598, 599 (Ct.App.1986). Palmer and Pinson are inapposite, however, because in those cases the parolee had not consented to warrantless searches as a condition of his parole. Subsequent to the Palmer and Pinson decisions, the Idaho Supreme Court held that the "reasonable grounds" requirement for warrantless searches by probation or parole officers does not apply when the individual who is the subject of the search has entered into a probation or parole agreement that includes a consent to warrantless searches. State v. Gawron, 112 Idaho 841, 843, 736 P.2d 1295, 1297 (1987). See also State v. Peters, 130 Idaho 960, 963, 950 P.2d 1299, 1302 (Ct.App.1997). Therefore, Pecor's argument...