State v. Pontier

• Decision Date: 15 January 1974
• Docket Number: No. 11091,11091
• Parties: The STATE of Idaho, Respondent, v. Sam J. J. PONTIER, Appellant, and David Gonzales, Defendant.
• Court: Idaho Supreme Court

Page 969

518 P.2d 969

95 Idaho 707

The STATE of Idaho, Respondent, v. Sam J. J. PONTIER, Appellant and David Gonzales, Defendant.

No. 11091.

Supreme Court of Idaho.

Jan. 15, 1974.

Eberle, Berlin, Kading, Turnbow & Gillespie, John L. Runft, Michael A. Greene, Boise, for appellant.

W. Anthony Park, Atty. Gen., J. Dennis (J. D.) Williams, Asst. Atty. Gen., Boise, for respondent.

BAKES, Justice.

Defendant-appellant was prosecuted by a felony information for illegal possession of a narcotic drug, to wit, marijuana. The case was tried before a jury which returned a verdict of guilty. The district court accordingly entered a judgment of conviction from which defendant brings this appeal. We modify the judgment of conviction to reflect a conviction for a misdemeanor and remand for sentencing.

On the evening of October 3, 1970, police officers from the Boise City Police Department and the Ada County Sheriff's Department received information from an anonymous female tipster that marijuana was growing in the backyard of a residence in Boise. After determining that appellant was listed as the occupant of the house in the Boise City Directory, the police officers proceeded to the vicinity of the house. Upon arrival, the officers proceeded to the residence of a next door neighbor and requested permission to enter her backyard and observe the backyard of appellant for suspected marijuana plants. After receiving permission, the officers went into the neighboring backyard. Looking over a short picket fence and through some overhanging foliage, the officers observed what they believed to be marijuana plants growing near the garage of appellant's home on the rear of the lot. After a uniformed officer arrived to support the officers, the officers proceeded to the front of the house to arrest the occupants therein for possession of marijuana. A Miss Fullmer responded to their knock at the front door. ¹ The evidence at this point is conflicting concering whether Miss Fullmer gave them permission to enter the house. However, the officers did enter the residence and immediately upon entry arrested Miss Fullmer for illegal possession of narcotics. At the same time the officers inquired of Miss Fullmer concerning the whereabouts of appellant. Miss Fullmer explained that he was hunting but would return at any time. Seeing some guns leaning up against a wall in the house apparently caused the officers to disbelieve Miss Fullmer so they proceeded to conduct a general search of the house and the basement in an attempt to find appellant. They did not locate appellant; however, during this search the officers observed what appeared to be some hashish residue in a partially opened plastic container on the bottom shelf of a bedstand in one of the bedrooms. A water pipe of the type used to smoke marijuana was also observed in a hutch cupboard in the house. Shortly thereafter appellant returned from his hunting trip with co-defendant Gonzales who was at the time living in the home with appellant. The officers arrested Mr. Gonzales and appellant for possession of narcotics. The officers then obtained a search warrant to search the house for marijuana based upon the marijuana plants growing in the backyard, the apparent hashish in the container in the bedstand and the water pipe. In a subsequent search pursuant to this warrant, the officers discovered additional marijuana and drug paraphernalia.

Appellant made various pretrial and trial motions, including motions to suppress evidence, a motion to quash the jury panel on the basis of its disproportionate age representation, and a motion to have the case tried as a misdemeanor instead of a felony. All of the above motions were denied by the trial court.

Appellant first assigns as error the trial court's restriction of his vior dire examination of prospective jurors. Appellant's counsel attempted to read various articles concerning the increased usage of marijuana and recommendations that the use of marijuana be legalized and inquired of the jurors whether or not they could believe such articles. Objection was sustained to these questions. The general rule regarding voir dire examination was stated by this Court in State v. Bitz, 93 Idaho 239, 460 P.2d 374 (1969), quoting with approval from State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967):

"The rule in this jurisdiction is that great latitude is allowed in the examination of veniremen upon their voir dire for the purposes of determining whether there is sufficient ground to challenge the veniremen for statutory cause, I.C. §§ 19-2017 to 19-2022, or whether it is expedient to challenge them peremptorily. I.C. §§ 19-2015 and 19-2016. The scope of voir dire, examination of veniremen in a criminal case, however, is a matter resting in the discretion of the trial court, the exercise of which will not be reversed except in case of abuse." 93 Idaho at 243, 460 P.2d at 897.

We affirm the rule set out above and find that there was not an abuse of discretion in the trial court's action in the instant case. An examination of the trial court's ruling indicates that the court allowed appellant's counsel wide latitude in its inquiry into possible bias or prejudice of prospective jurors regarding marijuana. The court expressly stated that appellant could inquire about whether the 'jury believes that that is a good law or a bad law or something of that kind, and determine your bias on that inference.' The only actual restriction placed on the scope of voir dire was that there could be no questions referring to specific articles and editorial comments on whether marijuana should be legal or not. Such a restriction can hardly be said to have been an undue restriction on the voir dire.

Appellant next assigns as error the trial court's refusal to allow appellant's motion to quash the jury panel and petit jury drawn therefrom because of their disproportional age distribution relative to the defendant and the reasonable cross section of the population from which they were drawn. Appellant contends that since he was 32 years of age on the date of trial, and the average age of the jury panel selected to try appellant was 47 years of age, that he was denied due process of law and the right to be tried by an impartial jury.

The jury panel selected for appellant's trial was drawn under the 'Uniform Jury Selection and Service Act,' I.C. § 2-201 et seq. I.C. § 2-202 provides:

'2-202. Policy of State.-It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this act to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.'

Every reasonable presumption must be indulged in favor of the constitutionality of an enactment of the legislature. Idaho Telephone Co. v. Baire, 91 Idaho 425, 423 P.2d 337 (1967); Caesar v. Williams, 84 Idaho 254, 371 P.2d 241 (1962). Appellant made no argument that the Uniform Jury Selection, and Service Act was unconstitutional, nor has he made any showing that the act was not followed. Additionally, appellant did not avail himself of the procedures set out in the act to challenge the jury panel, nor did he submit a sworn statement in support of his motion as required by statute. I.C. § 2-213. The mere fact that the jury panel selected to hear appellant's case was allegedly older than a cross section of the county is not material where the act was followed and there is nothing in the record to indicate a systematic exclusion of an identifiable class of people. The random selection of jurors as prescribed in the act will not in every instance guarantee a perfect balance of all races, ages, religions, sex, economic status, etc., by virtue of the inherent processes of random selection. However, the random selection delineated in the Uniform Jury Selection and Service Act satisfies constitutional requirements that there be no systematic and arbitrary exclusion of an identifiable class of people. United States v. Gordon, 455 F.2d 398 (1972, 8th Cir.), cert. denied, 406 U.S. 970, 92 S.Ct. 2428, 32 L.Ed.2d 670; State v. McConville, 82 Idaho 47, 349 P.2d 114 (1960).

Appellant next assigns as error the trial court's denial of his motion to suppress the evidence in the case. Appellant argues that there were four situations wherein the police acted improperly in obtaining evidence which was subsequently used against him at trial.

First, appellant contends that the police officer's observation of the marijuana plants in appellant's backyard was an illegal and unconstitutional invasion of appellant's right to privacy. Appellant strenuously argues that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), is controlling in the instant case and that the police observation of appellant's backyard was a search within the purview of the Fourth Amendment. The Katz case, supra, dealt entirely with audible communication and electronic surveillance by the police, though it did espouse a basic principle that the Fourth Amendment protects from invasion by the police those actions and communications which an ordinary person would reasonably expect to be private. The court's statement that the 'Fourth Amendment protects people, not places', Katz, supra, was followed by the statement, 'What a person knowingly exposes to the public, even in his own home, or office, is not a subject of Fourth Amendment protection.' The backyard of appellant's home was enclosed by a waist high picket fence and foliage growing at various locations along the fence. Planting marijuana plants in a backyard enclosed only by a picket fence and intermittent vegetation is not an action reasonably calculated to keep the plants from observation since it is certainly foreseeable that a reasonably curious neighbor, while...