State v. Smith

• Decision Date: 12 July 1989
• Docket Number: No. 17334,17334
• Citation: 777 P.2d 1226,116 Idaho 553
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Wilburn Arthur SMITH, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1226

777 P.2d 1226

116 Idaho 553

STATE of Idaho, Plaintiff-Respondent, v. Wilburn Arthur SMITH, Defendant-Appellant.

No. 17334.

Court of Appeals of Idaho.

July 12, 1989.

Petition for Review Denied Aug. 28, 1989.

John C. Judge, Siebe, Landeck, Westberg & Judge, Moscow, for defendant-appellant.

Jim Jones, Atty. Gen. by Peter C. Erbland, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

This case presents a potpourri of issues relating to a conviction of first degree burglary and to a determination that the defendant is a persistent violator. The convicted defendant, Wilburn Smith, asserts that his trial on the burglary charge was tainted by a denial of due process because (1) the court admitted unreliable identification testimony; (2) an alleged accomplice invoked the Fifth Amendment privilege, frustrating Smith's right of cross-examination; and (3) an accumulation of errors resulted in an unfair trial. With respect to the persistent violator determination, Smith contends (1) that the court erroneously allowed the state to amend its information after it had rested its case on the burglary charge; (2) that the jury who convicted him of the burglary should not also have determined his persistent violator status; (3) that the prior felony convictions supporting the persistent violator determination should have been treated as a single conviction; (4) that the state failed to prove the prior crimes actually were felonies; and (5) that the judge gave burden-shifting instructions to the jury. Although these contentions have been well presented by able counsel, we conclude, for reasons set forth below, that the judgment of conviction should be affirmed.

We preface our analysis with a brief synopsis of the facts. One evening an officer of the Moscow City Police responded to a burglary alarm at a business known as The Bowlerama. As he peered through a window, the officer saw someone opening pinball machines. He then looked through the doorway and came face-to-face with a man he later identified as Smith. The man fled from the building and ran past another policeman, who was off duty and walking home at the time. This officer gave chase but was unable to catch the fleeing suspect. However, the officers did arrest an apparent accomplice, Kenneth Allen, on the premises. When Allen was arrested, the officers found and seized a number of burglary tools.

Approximately two months later, Smith was arrested in Washington and charged with the burglary in Moscow. Both officers identified him in a photo lineup. At trial, the officers identified Smith in court as the man they had seen at the Bowlerama. The apparent accomplice, Allen, also testified as a government witness. The jury found Smith guilty as charged. After a subsequent evidentiary hearing, the jury further found that Smith was a persistent violator of the law. The district judge imposed a ten-year prison term with a seven-year minimum period of confinement. This appeal followed.

I

We first deal with Smith's challenge to his conviction of the burglary. The challenge is predicated upon several asserted denials of due process.

A

Smith contends that the line-up identifications and the in-court identifications by the police officers were unreliable. He notes that each identification was based upon a brief encounter under poor lighting conditions at the Bowlerama. However, this argument would go to the weight, rather than to the admissibility, of the identification testimony. A viable issue of admissibility would exist only if the in-court identification had been tainted by an unnecessarily suggestive pretrial identification. A defendant's due process right may be violated by such tainted evidence. See generally State v. Kay, 108 Idaho 661, 701 P.2d 281 (Ct.App.1985).

In determining whether a defendant's due process right has been abridged in this manner, we conduct a two-tiered inquiry. First, we examine the totality of circumstances to discern whether the pretrial identification procedure was in fact unnecessarily suggestive. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). If we find the procedure was not suggestive, our inquiry ends. However, if the procedure was unnecessarily suggestive, we then inquire whether the resulting pretrial and in-court identifications were so tainted that they should have been excluded. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In this second inquiry we determine whether the suggestiveness of the pretrial procedure was outweighed by independent indicia of reliability. Id. at 114, 97 S.Ct. at 2253; State v. Edwards, 109 Idaho 501, 504, 708 P.2d 906, 909 (Ct.App.1985). The primary evil to be avoided is a "very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972).

Here, we need not go beyond the first inquiry. Smith has offered no evidence that the pretrial photo lineup was suggestive. Each officer was separately shown a lineup photograph depicting eight white males with facial hair. We have examined the photograph and see nothing suggestive about it. Without hesitation, both officers identified Smith from the photo display. Accordingly, we hold that the district court correctly admitted evidence of the lineup identifications and the ensuing in-court identifications.

B

Smith next argues that he was denied due process when his alleged accomplice invoked the Fifth Amendment testimonial privilege while appearing as a witness for the prosecution. The point is a subtle one, for it is not always readily apparent how a defendant can be prejudiced by an alleged accomplice's silence. However, the circumstances surrounding the invocation of privilege may give rise to an inference unfavorable to the defendant, who then is unable to attack the inference through cross-examination. See generally State v. Major, 105 Idaho 4, 665 P.2d 703 (1983).

In such a case, a due process violation may be premised on either of two theories. First, the deprivation may be "based upon a concept of prosecutorial misconduct, when the government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." Namet v. United States, 373 U.S. 179, 186, 83 S.Ct. 1151, 1154, 10 L.Ed.2d 278 (1963). Second, a denial of due process may be grounded upon a "conclusion that, in the circumstances of a given case, inferences from a wit ness" refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant." Id. at 187, 83 S.Ct. at 1155.

Ordinarily, in cases where reversible error is found, both prosecutorial misconduct and unfair prejudice to the defendant are reflected in the record. State v. Major, 105 Idaho at 8, 665 P.2d at 707. However, the United States Supreme Court has not held that both factors are essential. On the contrary, the Court in Namet explicitly addressed prosecutorial misconduct and unfair prejudice as separate grounds for reversal. See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) (analyzing similar issue under confrontation clause of the Sixth Amendment, and reversing judgment of conviction without discussing prosecutorial misconduct).

This approach is consistent with a recent trend in criminal procedure away from focusing on subjective prosecutorial motives and toward an objective determination of whether a defendant has received a fair trial. For example, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court held that the state must disclose evidence which creates a reasonable doubt of the defendant's guilt, even if the defendant has not specifically requested such information. In so holding, the Court observed that this constitutional obligation is not measured by "the moral culpability, or the willfulness, of the prosecutor." Id. at 110, 96 S.Ct. at 2400. Another illustration is provided by decisions holding that a defendant may be granted a new trial if a material witness has committed perjury, regardless of whether the state knowingly elicited the perjury. See, e.g., Sanders v. Sullivan, 863 F.2d 218 (2d Cir.1988). These cases recognize that the fundamental purpose of due process is to give the accused a fair trial, not merely to regulate the conduct of prosecutors.

Consequently, the issue in this case is twofold: whether the prosecutor knew or had reason to know the accomplice would invoke his Fifth Amendment privilege and, even if the prosecutor did not anticipate the event, whether the witness' invocation of privilege added such critical weight to the prosecutor's case that Smith was unfairly prejudiced. The full course of the witness' testimony was as follows:

Q For the record, and for the jurors, your name is Kenneth Lewis Allen; is that correct?

A That is correct.

Q You have pled guilty to the crime of First Degree Burglary in Case No. C-786; is that right?

A That is correct.

Q In fact you burglarized the Bowlerama on June 5th, 1987?

A That's correct.

Q Is that correct?

A That's correct.

Q And you were caught by police officers inside the building; is that also correct?

A That's correct.

Q And you entered the building through the roof; did you not?

A Yes.

Q And someone else was inside that building with you on June 5th, 1987--June 5th, 1987; is that correct?

A That is correct.

Q And that person was also committing the crime of burglary; is that correct?

A That is correct.

Q And that person escaped; is that right?

A That's right.

Q On the evening of the 4th of June, 1987, you and the defendant Wilburn Arthur Smith checked into the Mark IV motel here in Moscow; didn't you?

A I ... [r]efuse to answer.

Q On what grounds, sir?

A The Fifth Amendment.

After this exchange the jury was excused. Allen did not testify again in front of the jury.

Smith has argued...