State v. Hoak

692 P.2d 1174, 107 Idaho 742

• Court: Idaho Supreme Court
• Decided: December 7, 1984
• Docket: 14263, 14285
• Status: Published

Opinions

DONALDSON, Chief Justice.

This case arose on the following facts: Between November 26,1980 and November 29, 1980, a Boise home was burglarized resulting in a loss of approximately $60,-000. The property taken included a 132-piece sterling silver set, a coin collection, a five-piece component stereo system, and miscellaneous items of jewelry. The burglary was discovered on November 29, 1980, by a neighbor who phoned the police. On November 28, 1980, the defendants, Arthur A. Hoak and Timothy J. Gawron, accompanied by two other men, George Jensen and Jack Wells, drove to Reno, Nevada. The four men checked into a Reno hotel and remained there until November 30, 1980. Gawron, Hoak and Jensen then returned to Boise.

During this time, Tanya Wells lived with her husband Jack Wells in Boise, Idaho. On either December 1 or December 2 of 1980, Mrs. Wells had a conversation with Detective Lance Anderson of the Boise Police Department about a component stereo system located at her house and about the November burglary. The exact content of this conversation was not revealed at trial nor at any of the preliminary stages of the case.

On December 2, 1980, Detective Anderson established surveillance of the Wells’ home. At approximately 7:00 p.m. on December 2, 1980, George Jensen and the defendants were observed entering the Wells’ home. After a brief time, the men left the Wells’ home and proceeded to an area behind the home where a shed was located. The men then returned to the Wells’ residence, and left about 15 minutes later in defendant Gawron’s vehicle.

At 9:00 p.m. on the same evening, defendants Gawron and Hoak were arrested at Gawron’s home by Detective Anderson. Anderson knocked on the door, identified himself, entered the house without consent, and placed both defendants under arrest. The arrest was effectuated without an arrest warrant. At that time, a cursory search of the premises was made by Detective Anderson, Detective Wood, and Sergeant Richardson, all of the Boise Police Department.

Detective Anderson transported the defendants to jail. The two remaining officers maintained custody of the premises while Anderson obtained a search warrant for defendant Gawron’s residence, the Wells’ residence, and a 1966 Chevrolet automobile. The search warrant was signed by the magistrate and executed at approximately 2:00 a.m. on December 3, 1980.

The following items were seized from defendant Gawron’s home: á brown sack containing several pieces of ivory and a handwritten list of coins, a yellow piece of paper with a list of dates, a receipt for a bus ticket from Reno to Boise, two 1971 silver dollars, marijuana, a set of scales, a samurai sword, and an ivory seal found in a jewelry box. A brown cassette tape box with tapes was seized from defendant Gawron’s car. A five-piece component stereo system was seized from the shed located behind the Wells’ residence. The list of coins, ivory pieces, and the cassette tape box and stereo equipment were subsequently identified as items taken in the burglary.

The State filed its complaint on December 3, 1980, and after a preliminary hearing, both defendants were bound over to the district court on charges of Grand Larceny and Burglary II. Both defendants filed pretrial motions to suppress the evidence seized from defendant Gawron’s residence, but those motions were denied. At trial, Jack Wells refused to testify even though he was ordered to do so by the trial judge and was granted immunity from prosecution. As a result of his refusal, the court allowed Wells’ transcribed statement to be read to the jury under the “statement against interest” exception to the hearsay rule.

The jury found the defendants guilty of Grand Larceny and not guilty of Burglary II. The trial court denied the defendants’ motions for judgment of acquittal, and found both defendants guilty as charged. Defendants filed timely notice of appeal.

On appeal defendants assert that the trial court erred in two respects: first, in allowing the transcript of Jack Wells’ out-of-court, unsworn statement to be read to the jury, and, second, in denying defendant Gawron’s motion to suppress the evidence seized from his home. We will discuss each issue in turn.

I.

Jack Wells was called as a state witness at trial. When asked if he had any contact with defendant Hoak on November 27, 1980, Wells responded that he did not remember and that he refused to make any statement. The jury was then excused and the judge informed Wells that he was required by law to testify. Wells reaffirmed his refusal and was held in contempt of court.

At this point, counsel for the state sought to introduce Wells’ out-of-court, unsworn statement made to Detective Lance Anderson on December 9, 1980, at the Boise City Police Department. The trial judge held that portions of the statement were admissible under the “statement against penal interest” exception to the hearsay rule.

A statement against penal interest is defined as a statement which exposes the declarant to substantial criminal liability. McCormick on Evidence § 279, at 825 (3rd ed. 1984). The statement must be such “that a reasonable man in his position [the declarant’s] believed it to be true.” Fed.R.Evid. 804(b)(3). At common law, the statement against interest exception to the hearsay rule was generally confined to statements against the declarant’s pecuniary or proprietary interest. Statements against penal interest were excluded. See Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), and cases cited therein. The inclusion of declarations against penal interest under the Federal Rules of Evidence, Rule 804(b)(3), has given great impetus to broadening the exception to include such statements, however. McCormick, supra, § 278, at 823. Idaho has so extended the exception. State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966).

“The exceptions to the hearsay rule which permit certain types of hearsay to be admitted into evidence are based on the proposition that the evidence is likely to be truthful and may be highly probative. So it is that admissions against a pecuniary or proprietary interest made by a third party who is ‘unavailable’ as a witness are admissible because it is unlikely that the declarant would make statements which are adverse to his own interest. 5 Wigmore, Evidence §§ 1457-1475 (3rd ed.) We believe the same rationale applies to admissions against a penal interest. It is at least as probable that admissions which may subject oneself to criminal liability are as trustworthy as those which may subject oneself to financial liability.” Id. at 49, 415 P.2d at 692.

The defendants assert that the admission of Wells’ statement violated their right to confront the witnesses against them guaranteed by the sixth amendment to the United States Constitution. “In all criminal cases, the accused shall enjoy the right ... to be confronted by the witnesses against him ____” The sixth amendment right of confrontation is a fundamental right made obligatory on the states by the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965).

If read literally, the amendment would require the exclusion of any statement made by a declarant not present at trial. Thus applied, it would abrogate virtually every hearsay exception. The Supreme Court has stated that such a result was not intended and has rejected it as too extreme. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. , 65 L.Ed.2d 597 (1980). While the Confrontation Clause reflects a preference for face-to-face confrontation at trial, the Court has recognized that competing interests, such as a jurisdiction’s interest in effective law enforcement, may warrant dispensing with confrontation at trial in some instances. See Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934), overruled, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895).

The Court’s focus has been to insure that there are sufficient “indicia of reliability” to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2539. The Court has stated the test for admissibility as follows:

“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id. at 66, 100 S.Ct. at 2539.

Thus, as this Court stated in State v. Mee, 102 Idaho 474, 479, 632 P.2d 663, 668 (1981), “the Supreme Court mandates an analysis on two fronts: whether the declarant is unavailable and whether the statement bears adequate guarantees of reliability and trustworthiness to allow it placed before the trier of fact.”

Unavailability requires a showing that the prosecutor has made a good faith effort to obtain the witness’ presence at trial. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543. Jack Wells was residing at the Oregon City Jail at the time of trial. He was flown to Boise by the Ada County Sheriff’s Office specifically to appear as a witness for the state and was granted immunity from prosecution. Upon his refusal to testify, he was ordered to do so by the trial judge. He maintained his refusal in the face of the judge’s order and was thus held in contempt of court and remanded to the custody of the Ada County Sheriff until such time as he was ready to testify.

This Court has previously found that where a witness maintains his refusal to testify in spite of appropriate judicial pressure and in the face of immunity from prosecution, he is constitutionally unavailable. State v. Mee, 102 Idaho at 480, 632 P.2d at 669. See also, McCormick, supra, § 253, at 754 (great weight of authority holds witnesses’ refusal to testify despite appropriate judicial pressures establishes unavailability for purposes of hearsay exceptions); Fed.R.Evid. 804(a)(2) (declarant unavailable where he persists in refusing to testify despite a court order to do so). Thus, we hold that Wells was unavailable and correspondingly that the first prong of the test for admissibility of his statement was satisfied.

The second prong of the test requires a determination of whether Wells’ statement contained adequate guarantees of reliability and trustworthiness to allow it to be placed before the trier of fact. The statement consisted of a portion of an interview between Wells and Detective Lance Anderson at the Boise City Police Department in regard to Wells’ knowledge of the burglary. The statement was inculpatory in that it tended to tie the defendants to certain items taken in the burglary and to transporting and selling stolen property. An inculpatory statement is one which implicates both the declarant and the defendant in criminal activity and which is admitted against the defendant. Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Calif.L.Rev. 1189, 1190 n. 7 (1978).

Specifically, Wells stated that defendant Hoak showed him a bag containing silverware and coins and that he saw a stereo at defendant Gawron’s home. (Similar items were taken in the burglary.) Wells further stated that he drove the defendants and one George Jensen to Reno where the other three sold the silverware and coins at various pawn shops. Detective Anderson testified that Wells indicated to him that the items were “hot” although he denied all knowledge of the burglary.

Statements which tend to inculpate the accused must be carefully examined. The danger exists, particularly where the declarant is in police custody, that the statement was motivated by a desire to gain favor with the authorities in the hope of receiving a lesser charge or immunity from prosecution. Cross-examination in such instances is particularly important. See US. v. Alvarez, 584 F.2d 694, 701 (5th Cir.1978); J. Weinstein and M. Berger, Evidence 11804(b)(3)[03], at 804-109 (1981). “It has been held that the fact of custody alone, with its attendant likelihood of motivation by a desire to curry favor with the authorities, bars a finding that the statement was against interest and requires exclusion.” McCormick, supra, § 279, at 826 (citing United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir.1980), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 75 (1982). We note that while Wells was not under arrest at the time of making his statement, he was being interviewed by a police officer at a police station. The evidence demonstrates that the police were trying to persuade Wells to testify by dangling the prospect of immunity before him. The fact that Wells’ statement was made under such circumstances suggests that it may have been motivated by a desire for immunity.

The Federal Rules of Evidence codify the exception for statements against interest in the following manner ¹:

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

“(3) Statement against interest. — A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interests, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Fed.R.Evid. 804(b)(3).

The original advisory committee draft of the Federal Rules excluded inculpatory statements: “This example does not include a statement or confession offered against the accused in a criminal trial, made by a co-defendant or other person implicating both himself and the accused.” 46 Fed.Rules Dee. 161, 378 (1969). As passed by Congress, however, the rule contained no specific reference to inculpatory statements.

The current approach under the federal rules, and under state evidence rules analogous to the federal rules, is to apply the corroboration requirement for exculpatory statements to situations involving inculpatory statements. See U.S. v. SarmientoPerez, 633 F.2d 1092; U.S. v. Oliver, 626 F.2d 254 (2nd Cir.1980); U.S. v. Alzarez, 584 F.2d 694; State v. Parris, 98 Wash.2d 140, 654 P.2d 77 (1982). Thus, under the current approach to the federal rules a statement offered to inculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In sum, whether or not an inculpatory statement should be admitted appears to center on its trustworthiness, whether the statement bears sufficient “indicia of reliability.” While Wells’ statement does admit to knowing possession and transportation of stolen goods, and thus, is against his penal interest, it also serves to exclude him from the more serious charges of burglary or larceny. It appears very possible, from the evidence at trial, that Wells was a suspect in the burglary. He was acquainted with the defendants. He was present at defendant Gawron’s home on the night the burglary is thought to have occurred and spent the next day (Thanksgiving) with the defendants. The component stereo system taken in the burglary was found in a shed in his back yard. In addition, he drove the defendants to Reno, in his car, allegedly to pawn some “hot” items, similar to those missing in the burglary.

In light of the above facts, coupled with the fact that Wells’ statement was made to a police officer, in a police station under a promise of immunity, we find that the statement was not sufficiently reliable to come within the statement against penal interest exception to the hearsay rule. Therefore, we hold that the trial court erred in admitting the statement.

The State argues that even if Wells’ statement was improperly admitted, the admission was harmless and did not amount to reversible error. The standard for determining whether an error of constitutional dimension is harmless is “that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” State v. Le-Page, 102 Idaho 387, 393, 630 P.2d 674 (1981) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)).

The effect of Wells’ testimony was to connect the defendants with items matching the description of those taken in the burglary. The trial judge noted in his comments on the Renewed Post-Judgment Motions that:

“I think that the statement by Wells, was exceedingly important in both cases. I remember — and I believe it would be proper to mention for this record, that during our pre-trial conferences on these — on this case, involving these two Defendants, the Prosecutor was very concerned about getting ahold of Jack Lee Wells, and thought maybe he wouldn’t have any case at all, unless he could get ahold of him. I mean, it’s-Wells that actually ties these two Defendants in with this burglary in a way that would give the jury very little choice but to convict them.”

We agree with the trial court that Wells’ statement was extremely important and, thus, we cannot say that its admission was harmless error beyond a reasonable doubt. Therefore, the judgment must be reversed and the case remanded for a new trial. We express no opinion as to the sufficiency of the evidence, without the inadmissible statement, to support a conviction for grand larceny. We do note, however, that the evidence, at the least, would support a charge of possession of stolen property.

II.

The second issue is whether the district court erred in denying Gawron’s motion to suppress evidence seized from his home. Gawron argues that the police unlawfully entered his home and arrested him there in violation of the fourth amendment of the United States Constitution. He claims that the evidence seized pursuant to a warrant which later issued was the “fruit of a poisonous tree” and ought to have been suppressed. The district court denied the motion to suppress on the grounds that exigent circumstances justified the warrant-less entry. We conclude that the trial court erred in excusing the police conduct on the exigent circumstances rationale; however, we uphold its ruling because Gawron failed to show that the evidence seized was in any way tainted by the officers’ unlawful acts.

Under the exigent circumstances exception to the warrant requirement, the need to prevent the destruction of evidence is justification for what would otherwise be illegal police conduct. In this case the officers had probable cause to believe that stolen property would be found in Gawron’s home. However, probable cause to believe that stolen property is present on the premises does not automatically translate into exigent circumstances. The officers must have a reasonable belief that unless they act the evidence will be destroyed.²

There was no evidence to indicate that the stolen property was in any danger of being destroyed. Rather, the testimony reflects that the officers feared the defendants would attempt to remove the property and transport it to Reno. Since the house was under surveillance, it was unreasonable to assume that the defendants could successfully depart the premises or transport the goods without being apprehended. Absent exigent circumstances, there was simply no justification for the officers to “jump the gun” and enter the premises before the arrival, or at least the issuance, of a warrant.

Even though the officers’ entry of Gawron’s home was unlawful, we need not order the suppression of the evidence seized therein. Once the defendant has shown that a search or seizure was illegal, the question to be resolved is whether the evidence seized was “come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) (citation omitted). Evidence is not excluded where the connection between the illegal police conduct and the discovery and seizure of the evidence is “so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). For example, where the police had an “independent source” for the discovery, the evidence seized is admissible. Silvertkorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), overruled, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980).

The United States Supreme Court in Segura v. United States, — U.S.-, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), addressed the precise issue before us today of “whether, because of an earlier illegal entry, the fourth amendment requires suppression of evidence seized later from a private residence pursuant to a valid search warrant which was issued on information obtained by the police before the entry into the residence.”³ The Court held

“that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as ‘fruit’ of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence under Silvertkorne Lumber Co. v. United States, 251 U.S. 385 [40 S.Ct. 182, 64 L.Ed. 319] (1920).”

Segura, 104 S.Ct. at 3383.

Likewise, in the present case, suppression of the evidence is not justified unless the evidence was in some sense the fruit of some illegal governmental activity. The only evidence seized in Gawron’s home which supports the felony charges was a paper bag containing several pieces of ivory and numerous silver coins. This evidence was not discovered until the officers searched the premises pursuant to the warrant. The affidavit in support of the warrant clearly established probable cause to support the magistrate’s conclusion that the evidence sought would be found at Gawron’s home. The information set forth in the affidavit was obtained prior to, and independent of, the arrest, the warrantless entry and the cursory search. No evidence relating to the stolen property was obtained during the cursory search. Therefore, the evidence seized under the warrant was not obtained by exploitation of any illegality. Accordingly, we hold that the trial court did not err in denying Gawron’s motion to suppress the evidence seized from his house.

The judgment of the trial court is reversed and this case is remanded for a new trial in accordance with the views expressed herein.

SHEPARD and HUNTLEY, JJ„ and WALTERS, J. pro tern., concur.

1 . Idaho has not adopted the Federal Rules of Evidence but is presently considering whether to adopt a set of rules substantially similar to the Federal Rules.

2 . Probable cause to believe that contraband is in a hotel room is not sufficient for a warrantless entry where the agents had “little reason to suspect” that any evidence would be destroyed. United States v. Allard, 600 F.2d 1301 (9th Cir.1979). A court has also found no exigent circumstances justifying a warrantless opening of a suitcase where four agents had three suspects at bay in a well lighted motel room. United States v. Montano, 613 F.2d 147 (6th Cir.1980).

See also 1 W. Ringel, Searches and Seizures, Arrest and Confessions, § 10.5(c) (1984).

3 . In Part IV of the Segura opinion, supra, the Chief Justice joined by Justice O'Connor, stated that, under the fourth amendment, securing a dwelling on the basis of probable cause to prevent the destruction or removal of evidence while a search warrant is being obtained is not in itself an unreasonable seizure of either the dwelling or its contents. Because we hold that the evidence seized was admissible under the "independent source” doctrine, we need not decide whether the Idaho Constitution should be interpreted to allow such a seizure.