State v. Smith
| Decision Date | 06 March 1990 |
| Docket Number | No. 17550,17550 |
| Citation | 792 P.2d 916,117 Idaho 891 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Edward Neil SMITH, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Killen, Pittenger & Kerrick, McCall, for defendant-appellant. William M. Killen argued.
Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.
This is a criminal case. It involves convictions and sentences for first degree murder, robbery and third degree arson. The issues presented and our answers to them are:
1. Was the issue of denial of the right to counsel in a detainer hearing in Arizona preserved for review by this Court? Yes.
2. Did denial of appointed counsel in the Arizona detainer hearing deprive Idaho of jurisdiction to try the defendant? No.
3. Did the trial court abuse its discretion in admitting evidence of another shooting in Arizona? No 4. Did the prosecutor's comments during closing argument, to which there was no objection, constitute fundamental error? No.
5. Were the sentences imposed illegal or excessive? No.
We affirm the convictions and the sentences.
THE BACKGROUND AND PRIOR PROCEEDINGS.
On April 7, 1986, Edward Neil Smith (Smith) and his twin brother Donald robbed the residents of a home in Spokane, Washington at gunpoint, stealing a .22 caliber revolver, a shotgun and a 1980 Cadillac (the Cadillac). Mark Patterson left his home in Mountain Home on the evening of April 7th to drive to Lewiston, Idaho in his pickup truck. A mail truck driver observed Patterson's pickup parked behind the Cadillac on Highway 55 in Valley County, Idaho, early on the morning of April 8th. On the morning of April 8, 1986, on Highway 55 in Valley County, Patterson was found dead in the front seat of the Cadillac, which was partially burned. Upon investigation following the discovery of Patterson's body, the fingerprints of the Smith brothers were found on the Cadillac. During an autopsy, .22 and .38 caliber bullets were recovered from Patterson's body. Patterson's pickup was later found abandoned in Las Vegas, Nevada. Edward Smith's fingerprints were found on the pickup.
On April 9, 1986, the Smith brothers rode a bus from Las Vegas, Nevada to Yuma, Arizona. At the Yuma bus station, the brothers had a shoot-out with a Yuma police officer. The officer and Donald were killed. Both .22 and .38 caliber bullets were recovered from the officer's body. Fragments of bullets were also recovered from the ground where the shooting occurred. A flight bag containing clothing was discovered near where Smith had been standing at the bus station. Both the flight bag and the clothing had belonged to Patterson. Four .38 caliber shell casings were found a short distance from the bus station.
Ballistics tests revealed that both the .22 caliber bullets recovered from the body of the officer in Yuma and those recovered from Patterson's body were fired from the .22 caliber revolver stolen by the Smith brothers in Spokane. The tests also showed that the .38 caliber bullet recovered from Patterson's brain, the .38 caliber bullets recovered from the body of the officer in Yuma and a portion of a .38 caliber bullet found on the ground at the bus station were all fired from the same gun. Examination of the firing pin impressions showed that the .38 caliber casing found by the side of the road where Patterson's body was discovered in Idaho came from the same gun as the .38 caliber casings found near the bus station in Yuma. Also, the tests proved that a .22 caliber casing found in Patterson's pickup came from the .22 revolver stolen by the Smith brothers in Spokane.
A witness (Stevens) to the shooting of the officer in Yuma testified that the officer began to frisk Smith before the shooting started. Stevens said that Smith and the officer struggled and that she heard "taps" that sounded like a firecracker coming from the direction where Donald was. Stevens saw Smith standing over the fallen officer firing a gun at him four or five times and stated that Smith then fled from the station. Another witness (Paez) to the shooting of the officer saw two men shooting at the officer, but she could not identify Smith as one of the men.
Smith was convicted in Arizona of the murder of the officer. Pursuant to I.C. § 19-5001, the Interstate Agreement on Detainers (the Agreement), the prosecuting attorney of Valley County, Idaho requested that Smith be transferred to Idaho to be prosecuted for first degree murder, robbery and third degree arson. At the time of the hearing in Arizona concerning his transfer, Smith requested that counsel be appointed for him. This request was denied. Following a hearing in Arizona, Smith was transferred to Idaho for prosecution.
When he appeared before the magistrate in Idaho for arraignment, Smith moved to dismiss the pending charges or to be re-transported to Arizona for further proceedings consistent with the Agreement. The primary ground for the motion was that Smith had been denied the right to counsel in the proceeding for his transfer to Idaho from Arizona. Smith also contended that only the first degree murder charge was pending when the transfer proceeding took place in Arizona, although the Valley County prosecutor represented that he had charged Smith with robbery and third degree arson also. The magistrate denied Smith's motion. Following a preliminary hearing, Smith was bound over for trial before the district judge.
Smith did not renew his motion to dismiss or to be re-transported to Arizona after he was brought before the district judge. He did file a motion in limine in the trial court seeking to exclude from his trial evidence of the robbery in Spokane and the shooting in Yuma. The trial court denied this motion. At trial the state introduced, and the trial court admitted, evidence of the robbery in Spokane and the shooting in Yuma.
During closing argument, without objection from Smith's attorney, the prosecutor told the jury:
There are no witnesses who will come in who survived to tell you exactly how they did it and in what sequence. Mark can't. But the evidence shows that you can for him. And you are the only ones who can for him. And based on the evidence, which is what we base our decision on and not speculation.
If Mark were here and could somehow show us the way, in addition to the way clearly shown now by the evidence, he would do the same. And he would walk to this defendant here and he would say,
The jury found Smith guilty of first degree murder, robbery, and third degree arson. After considering whether it should impose the death penalty for the first degree murder conviction, the trial court sentenced Smith to fixed term life sentences without the possibility of parole on the first degree murder and robbery convictions and for a fixed term three year sentence on the third degree arson conviction. The trial court ordered that the life sentence for robbery run consecutively to the life sentence for first degree murder and that the three-year sentence for third degree arson would run consecutively to the sentence for robbery.
Smith filed a motion under I.C.R. 35 claiming that Smith should be entitled to some credit for "good time" and that the sentences were excessive. The trial court denied the motion but clarified the sentence to provide: "This sentence is not intended to abrogate or deny the defendant's right, if any, to earn good time credits."
Smith then appealed his convictions and sentences.
THE DENIAL OF THE MOTION TO DISMISS OR FOR RE-TRANSFER WAS PRESERVED FOR APPEAL.
Smith asserts that he is entitled to have this Court review the denial of his motion to dismiss or for re-transfer to Arizona. We agree.
Under the circumstances of this case, the magistrate had jurisdiction to consider Smith's motion to dismiss or for re-transfer. Under the Agreement when a request for transfer is made by the "appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending," the appropriate authorities in another state that is party to the agreement shall make the prisoner available for prosecution in the requesting state, if "the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request." I.C. § 19-5001(d)(1) (1987). The magistrate to whom the motion to dismiss or for re-transfer was presented was the judge who certified that the facts recited in the request were correct and who recorded and transmitted the request. This was appropriate since at the time the request was made there was a complaint pending before the magistrate charging Smith with first degree murder. When Smith arrived in Idaho and was arraigned by the magistrate, the jurisdiction of the magistrate was limited to that provided in I.C. § 1-2208 and I.C.R. 2.2. Under this statute and this rule, the only aspects of felony cases that are usually assignable to a magistrate are the first appearance, the setting of bail and the preliminary hearing. I.C. § 1-2208(3)(d) (1979); I.C.R. 2.2(b)(2) (1987). However, the "trial and related hearing ... of felony proceedings" may be assigned to attorney magistrates when approved by the administrative district judge of the district and when approved by order of this Court upon application of the administrative district judge. I.C.R. 2.2(c) (1987).
I.C.R. 2.2(d) provides:
Any irregularity in the method or scope of assignment of a criminal proceeding or action to any magistrate ... and all objections to the propriety of an assignment to a magistrate are waived unless a written objection is filed not later than 7 days after a notice setting the action for ... hearing on a contested motion and before any contested matter has been submitted to the judge for decision.
Not only did the state not object to the consideration...
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