State v. Ricks, 19433

• Decision Date: 28 October 1992
• Docket Number: No. 19433,19433
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Kathy Jo RICKS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 400

840 P.2d 400

122 Idaho 856

STATE of Idaho, Plaintiff-Respondent, v. Kathy Jo RICKS, Defendant-Appellant.

No. 19433.

Court of Appeals of Idaho.

Oct. 28, 1992.

Alan E. Trimming, Ada County Public Defender, Richard D. Toothman, Deputy Public Defender, for appellant. Richard D. Toothman argued.

Larry J. EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., for respondent. Michael A. Henderson argued.

SWANSTROM, Judge.

Kathy Jo Ricks conditionally pled guilty to possession of a controlled substance, cocaine. I.C. § 37-2732. She reserved the right under I.C.R. 11 to appeal the issue of whether the court erred in ruling that the state could introduce, at trial, the preliminary hearing testimony of an unavailable witness. We affirm.

Ricks filed a motion in limine in which she sought to exclude at trial the testimony previously given by the arresting To support her contention that the court erred in denying her motion in limine, Ricks relies on the most recent case from the Supreme Court dealing with this issue, State v. Elisondo, 114 Idaho 412, 757 P.2d 675 (1988), which disallowed the use of preliminary hearing testimony at a later trial.

[122 Idaho 858] officer at the preliminary hearing in the magistrate division. The officer, who was the only witness to testify at the preliminary hearing, was killed in an automobile accident two days after the hearing. Had the state been barred from using the preliminary hearing testimony of the arresting officer, it would have been unable to prove its case at trial before the district court.

The majority opinion in Elisondo makes it clear that the confrontation clause of the United States Constitution is not a barrier to the use of preliminary hearing evidence at trial. The four justices in the majority were of one mind in relying on state "policy considerations" as the primary basis for overruling a previous opinion of the Court of Appeals in Elisondo and its own decision in State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981).

Earlier Supreme Court decisions holding that preliminary hearing testimony could not be used at trial in Idaho had relied on the conspicuous absence of any legislation authorizing the use of such testimony at trial. In Elisondo, the Court announced that there were "policy considerations which may dictate the need to prohibit the admission of preliminary testimony of a witness." 114 Idaho at 413, 757 P.2d at 677. The Court, quoting extensively from Justice Shepard's dissent in Mee, noted that a preliminary hearing is an abbreviated proceeding with a limited function which provides "little reason to cross-examine prosecution witnesses" and operates under time constraints which do not lend themselves to preparation for more in-depth examination. Id. The Court did not adopt any standards or test which might be applied to the facts of each case, allowing the preliminary hearing testimony to be used at trial in some cases. Rather, the "policy considerations" announced by the Court in Elisondo amounted to a per se rule against the use of preliminary hearing testimony in all cases.

The state contends, however, that Elisondo has been effectively overruled by a recent statute, I.C. § 9-336. We can readily agree that we must look beyond Elisondo to answer the questions raised in this appeal. Two events make Elisondo the starting point of our analysis rather than the final destination.

The first event was the adoption by our Supreme Court of the Idaho Rules of Evidence, specifically, Rule 804(b)(1). Although adopted in January, 1985, the rules did not become effective until July 1, 1985. Because the trial in Elisondo occurred in June, 1985, I.R.E. 804(b)(1) was not applicable; indeed, in Elisondo, which was issued June 8, 1988, the majority opinion did not even acknowledge the existence of the rule. However, Rule 804(b)(1) now provides generally that former testimony may qualify as an exception to the hearsay rule if certain requirements are met:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.

Although the rule was not discussed in the majority opinion in Elisondo, in his dissenting opinion Justice Bakes discussed the import of Rule 804(b)(1) and suggested that the majority decision impliedly repealed it. Elisondo, 114 Idaho at 430, 757 P.2d at 693 (Bakes, J., dissenting).

The second event affecting the continued vitality of Elisondo is the quick reaction by the Idaho Legislature to the Elisondo decision, resulting in the enactment of I.C. § 9-336, effective July 1, 1989. The new statute

[122 Idaho 859] appears in 1989 Idaho Sess.Laws, Ch. 51 at 63-64. The lengthy statement of public policy contained in the Act may be more important than the statute itself. We quote the entire Act as follows:

AN ACT

RELATING TO EVIDENCE; TO PROVIDE LEGISLATIVE FINDINGS; AMENDING CHAPTER 3, TITLE 9, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 9-336, IDAHO CODE, TO PROVIDE THAT CERTAIN EVIDENCE ENTERED AT THE PRELIMINARY HEARING CAN ALSO BE USED AT TRIAL IF THE SOURCE OF THE EVIDENCE IS NOT AVAILABLE AT THE TIME OF THE TRIAL.

Be It Enacted by the Legislature of the State of Idaho:

SECTION 1. The legislature is aware of the case of State v. Elisondo, 114 Idaho 412, 757 P.2d 675 (1988), which overrules the earlier case of State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981). In the Elisondo case, the court held that the admission of the preliminary hearing testimony of an unavailable witness in the subsequent criminal trial violates the public policy of the State of Idaho. It is the legislature of the State of Idaho that declares what the public policy of the state shall be. In examining those considerations, it is the opinion of the legislature that the admission of previously recorded testimony of a preliminary hearing should be admissible under the safeguards contained within section 9-336, Idaho Code. The legislature finds that it is against public policy to adopt a per se rule excluding preliminary hearing testimony from a subsequent criminal proceeding. The legislature finds that such an exclusion provides an incentive to a criminal defendant to take steps to prevent a witness from testifying at trial. It is the policy of the state that all relevant and admissible evidence should be usable in criminal proceedings.

SECTION 2. That Chapter 3, Title 9, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 9-336, Idaho Code, and to read as follows:

9-336. EVIDENCE FROM PRELIMINARY HEARING--ADMISSION--REQUIREMENTS. Prior to admitting into evidence recorded testimony from a preliminary hearing, the court must find that the testimony offered is:

1. Offered as evidence of a material fact and that the testimony is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

2. That the witness is, after diligent and good faith attempts to locate, unavailable for the hearing; and

3. That at the preliminary hearing, the party against whom the admission of the testimony is sought had an adequate opportunity to prepare and cross-examine the proffered testimony.

Approved March 27, 1989.

Our Supreme Court has stated that "[t]he public policy of a state is to be found in its constitution and statutes." Boise-Payette Lumber Co. v. Challis Independent School Dist., 46 Idaho 403, 408, 268 P. 26, 27 (1928) (citations omitted). The Court has also stated that although public policy is usually found in the constitution or statutes, "where it is found in neither it is sometimes set forth by judicial decision." Stearns v. Williams, 72 Idaho 276, 287, 240 P.2d 833, 840 (1952) (citations omitted). It follows that, ordinarily, where public policy has been pronounced in a judicial decision, a subsequent statute declaring a different policy position controls. It is clear from the legislative intent that the legislature decided to enact I.C. § 9-336 based upon its own view of what the public policy of this state should be. The statute became effective on July 1, 1989, so it unquestionably applies to the present case. It fills the void of a legislative authorization for the use of the preliminary hearing testimony of an absent witness, a matter of major concern to our Supreme Court for many years. See State v. Potter, 6 Idaho 584, 57 P. 431 (1899); State v. Villarreal, 94 Idaho 246, 486 P.2d 257 (1971).

Ricks contends, however, that I.C. § 9-336 is null and void because it conflicts with I.R.E. 804(b)(1) and because of the mandate of State v. Currington, 108 Idaho 539, 700 P.2d 942 (1985). Ricks relies upon the principle in Currington that, "where conflict exists between statutory criminal provisions and the Idaho Criminal Rules in matters of procedure, the rules will prevail." 108 Idaho at 541, 700 P.2d at 944 (citations omitted). More recently, in State v. Zimmerman, 121 Idaho 971, 974, 829 P.2d 861, 864 (1992), our Supreme Court said:

The trial court should not have considered the admission of the out-of-court statements under I.C. § 19-3024. To the extent that this statute attempts to prescribe the admissibility of hearsay evidence and is in conflict with the Idaho Rules of Evidence, it is of no force or effect. I.R.E. 802 ("Hearsay is not admissible except as provided by these rules or other rules promulgated by the Supreme Court of Idaho."); I.R.E. 1102 ("Statutory provisions and rules governing the admissibility of...