De-evolution of Federal Exclusionary Rule

Here's a link to an interesting article by Adam Liptak, of the New York Times, analyzing the erosion of the federal exclusionary rule. http://www.nytimes.com/2009/01/31/washington/31scotus.html?hp

As I often mention and am always thankful for, Idaho has no good-faith exception to the exclusionary rule. Our state constitutional exclusionary rule, which pre-dates Mapp v. Ohio (which applied the Fourth Amendment rule to the states), is not co-extensive with the federal rule. State v. Arrequi (1927); State v. Guzman (1992).

At the same time, best wishes for the long life and good health of Justice Kennedy.

Peaceable Resistance to Unlawful Pat-Down is Not Resisting or Obstructing

The Hagerman Police Chief receives a telephone call from the City Supervisor. The Supervisor says that two carnival workers told him that they had been offered methamphetamine by a man later identified as Shane Bishop. The Chief locates Bishop and says he needs to speak to him about methamphetamine. The Chief notices that Bishop appears nervous, is clutching a bag close to him, and that his eyes were dilated, bloodshot and had a "wild look" in them. Concluding that Bishop is high, the Chief tells Bishop that he's going to search Bishop for weapons. Bishop says "no," but turns around and places his hands on the patrol car so the Chief can search. Once the search has started, Bishop says "no" again and is arrested for Resisting and Obstructing. During the search incident to arrest, a bag of meth is found.

The Supreme Court holds that the bag must be suppressed because: 1) there was no basis for the frisk and therefore Bishop had the right to peaceably resist it; and 2) as there was no probable cause to arrest for R&O the search incident to arrest was unlawful.

Another win by the good folks at SAPD. Congratulations in particular to Shannon Romero.

Read the opinion at: http://www.isc.idaho.gov/opinions/bishop35241.pdf

Scope of Admissible 404(b) Evidence No Greater In Sex Crime Cases

In State v. Grist, docket number 33652, the Idaho Supreme Court built on the foundation it created in State v. Field, 144 Idaho 559 (2007), and "clarified" prior case law by holding that "the scope of evidence that may properly be admitted pursuant to I.R.E. 404(b) is no greater in sex crime cases than it is for any other type of case." So, despite protestations to the contrary, there is no sex crime exception to 404(b). Rather, as in other types of cases, the admissibility of 404(b) evidence requires many findings by the trial court.

First, "the trial court must determine whether there is sufficient evidence to establish the other crime or wrong as fact." In vacating the conviction in Grist, the Court noted that the district court had failed to make this finding.

Second, the evidence must be relevant to a material and disputed issue concerning the crime charged. At a minimum, the jury must be reasonably able to conclude "that the act occurred and that the defendant was the actor."

Third, it must be admissible for a proper purpose, including corroboration of the testimony of a witness or to establish a common scheme or plan. However, the evidence must actually serve one of those two purposes, "without reliance on the impermissble theory of the defendant's propensity to engage in such misconduct." (emphasis added). In other words, 404(b) evidence may not be admitted "when its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior." In a further clarification, the Court noted that in order to meet this test, the evidence must be "relevant to prove ... a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, knowledge, identity, or absence of mistake or accident." In other words, the State must actually show a relationship between the 404(b) evidence and the crime charged. The necessary extent of that relationship was previously addressed in Field, where the Court focused on the importance of common ages of the 404(b) witness and complaining witness, actual prior incidents of abuse, and the similarity of the events. In vacating the conviction in Grist, the Court noted that the district court had not articulated what the probative value of the evidence actually was.

Finally, even if the evidence is probative for either corroboration of testimony or to show a common scheme or plan, the district court must still determine that it's probative value outweighs any unfair prejudice to the defendant. In order to properly address this issue, defense counsel should consider for which of the purposes the trial court has found the evidence is probative. If the trial court finds the evidence probative for corroboration of the complaining witness's testimony, it should be noted that in Field, the Supreme Court recognized that a seventeen-year-old "did not need as much corroboration to establish credibility as do younger children...." Thus, the probative value of corroboration evidence will be limited when the complainnig witness is older.

All in all, this opinion gives strong guidance to trial courts on how to properly analyze and scrutinize 404(b) evidence in sex crimes cases.

Here's the link: http://www.isc.idaho.gov/opinions/grist33652.pdf

February Arguments Preview

The Idaho Supreme Court will hear argument in four criminal law cases in February.

February 9: In State v. Doe, No 35699, Tom Sullivan from Wiebe and Fouser will argue that his client, a 12-year-old boy charged with attempted first-degree murder, should not have been waived into adult court.

February 13: State v. Kofoed, No. 34589, involves the application of the knock and announce requirement during the execution of a search warrant. The United States Supreme Court has held that a violation of the Fourth Amendment knock and announce standard does not require suppression of evidence. Hudson v. Michigan, 547 U.S. 586 (2006). However, the Idaho Court of Appeals has held that evidence acquired following a violation of I.C. § 19-4409, and presumably the knock and announce requirement implicit in the Idaho Constitution, does require suppression. State v. Ramos, 142 Idaho 628, 634, 130 P.3d 1166, 1172 (Ct. App. 2005). This case looks like it will give the Idaho Supreme Court to decide the question of whether the state exclusionary rule applies.

February 20: The Court will hear two criminal law cases. The first, State v. Sanchez, No. 35547, is a probation revocation case. The Court of Appeals reversed the order revoking probation because the state did not show that probationer's failure to maintain weekly contact with his probation officer was willful, and because failure to maintain weekly contact did not justify revocation as the probation officer knew the probationer was under close supervision in California halfway house. Sara Thomas, Chief Appellate Deputy for SAPD, is Mr. Sanchez’s attorney. The COA opinion is at 2008 WL 1973662.

The second case, State v. Willoughby, No. 35289, is a state’s appeal from an order granting a motion to suppress. The magistrate judge, the district judge on appeal and the Court of Appeals on further appeal have all held that the defendant, who was in a parked car, was "seized" by the officers when they arrived at the parking lot with their overhead lights flashing and remained so while the officers investigated him for driving under the influence but that the police lacked a reasonable suspicion of criminal activity to justify the seizure of the defendant. Fred Loats is the attorney for Mr. Willoughby. The COA opinion in this case is reported at 2008 WL 1973662.

POETRY CORNER: You Felons on Trial in Courts

YOU felons on trial in courts;
You convicts in prison-cells—you sentenced assassins, chain’d and hand-cuff’d with iron;
Who am I, too, that I am not on trial, or in prison?
Me, ruthless and devilish as any, that my wrists are not chain’d with iron, or my ankles with iron?
You prostitutes flaunting over the trottoirs*, or obscene in your rooms,
Who am I, that I should call you more obscene than myself?
O culpable!
I acknowledge—I exposé!
(O admirers! praise not me! compliment not me! you make me wince,
I see what you do not—I know what you do not.)
Inside these breast-bones I lie smutch’d and choked;
Beneath this face that appears so impassive, hell’s tides continually run;
Lusts and wickedness are acceptable to me;
I walk with delinquents with passionate love;
I feel I am of them—I belong to those convicts and prostitutes myself,
And henceforth I will not deny them—for how can I deny myself?

– Walt Whitman, Leaves of Grass (1900).

* Trottoir: A paved footpath

SCOIDBlog does not necessarily endorse any of Mr. Whitman's poetic sentiments, especially that part about the delinquents and passionate love.

Criminal Law Cert Alert

The U.S. Supreme Court granted certiorari in two criminal cases yesterday.

In McDaniel, Warden, et al., v. Brown (Docket 08-559), the issue is whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia. Two members of a Ninth Circuit panel held that there was not sufficient evidence. The dissenter held that the Nevada state courts had not unreasonably applied Jackson and thus no habeas relief could be granted.

The issue in Maryland v. Shatzer, Sr., (Docket 08-680) is whether Edwards v. Arizona, which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years after the invocation. The Maryland Court of Appeals held that it did because, in part, the defendant was in prison the entire period between the two police contacts.

Terry Pat-Down of Passenger OK Even When There is No Suspicion of Criminal Activity on Passenger's Part

A unanimous U.S. Supreme Court, per Judge Ginsburg, held today that the first prerequisite for a Terry frisk, i.e., a lawful investigative stop, "is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation." The police do not need to have suspicion that any occupant in the vehicle is involved in criminal activity. Thus, if the second Terry requirement of "reasonable suspicion that the person subjected to the frisk is armed and dangerous" is present, a pat-down of that person is permitted, even if the person is only an occupant of the vehicle and not suspected of any wrongdoing.

Arizona v. Johnson, http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf

30 Year Mandatory Minimums for First Time Sex Offenders Proposed

Sen. Gary J. Schroeder (R-Moscow) has proposed legislation which would establish mandatory minimum sentences for certain first time sex offenders. The bill, S1034, would require a 30-year mandatory minimum sentence and lifetime parole for a defendant, who is at least 18 years old, convicted of Lewd Conduct with a minor, when the victim is under 12 years old.

Really? An 18 year old mentally retarded boy with the mental age of 12 briefly touches the genitals of an 11 year old over her clothes on a single occasion and gets sentenced to 30 years fixed? Monsterous. The problem with mandatory minimums is that they're mandatory and there are always individual cases which call for mercy.

In addition, the Bill provides that a fixed life sentence would be required if the defendant had been previously convicted of Lewd Conduct, or an equivalent out-of-state offense, if the defendant was 18 or older and the victim was under 12.

In an amusing bit of understatement, the Statement of Fiscal Impact says "there may be some additional incarceration costs associated with this legislation." (Emphasis mine.) Yes, and I may incur additional beer expense if I bring another six-pack to the check out stand. The only way there wouldn't be increased costs would be if: 1) no one was ever sentenced under the law or 2) everyone eligible for the 30 mandatory sentence would have gotten that sentence even without the law. But if either of those are a possibility, why do we need the law in the first place?

Honestly, we know very well that this bill will increase costs. So, if it passes, it will be interesting to see the Legislature's position on funding the IDOC. I bet the budget gets severely cut, even though we'd save money if the IDOC had sufficient funding for rehabilitative programs. Right now the parole board holds too many inmates past their fixed time because there isn't enough space in the programs. (Of course if we just got rid of the parole board. . . .)

The text of the Bill is available at:
http://www.legislature.idaho.gov/legislation/2009/S1034Bookmark.htm

Rule 16 is not a Valid Basis for Excluding Evidence Intended to Contradict Change of Testimony by State's Witnesses

Yesteday, the Court of Appeals (Gutierrez, Lansing, and Swartzman pro tem) issued its opinion in State v. Karpach. At trial, the State's witness, a Home Depot loss prevention investigator, testified that there was not any camera coverage of an area within the store which the Defendant was accused of removing merchandise. This was contrary to the witness' testimony at the PH in which he claimed there was camera footage of the area which he had reviewed and the Defendant was not recorded on the videotape evidence.

After the State had rested, Karpach's counsel called a previously undisclosed manager of Home Depot to testify that the loss prevention investigator had erroneously testified regarding the location of cameras. In counsel's offer of proof, the court was advised that the manager intended to testify that there was in fact camera coverage of the area where the merchandise was taken.

Judge Neville excluded the testimony of the witness for counsel's failure to comply with Rule 16 and based upon his conclusion that it was irrelevant and immaterial. The Court of Appeals expressly rejected Neville's reliance upon Rule 16 as a basis for exclusion of the evidence. What is more alarming, is that Judge Neville did not require the State to establish any actual prejudice caused by the putative failure to disclose. See State v. Allen 145 Idaho 183 (Ct. App. 2008). This was not much a concern to the Court of Appeals as they did not comment on this ommission.

The Court of Appeals, in dicta, cautiously avoided labeling this type of evidence as rebuttal. Rather, it attempted to limit the distinction to that being offered by the State to contradict the Defendant's case in chief. The Court noted Rule 16 only extends to those witnesses the Defendant intends to call. As there was no indication the witness' testimony would change thereby creating the need to call the manager, counsel could not be sanctioned for failing to comply with Rule 16.

Further, the Court overruled Neville's exclusion based upon the conclusion the evidence was immaterial and irrelevant. Rather, the Court noted the testimony had great exclupatory value and it was error to exclude it.

In a separate issue, the Court evaluated Judge Neville's exclusion of alarm logs on the basis that an insufficient foundation was established under the business records exception. On appeal, the Court of Appeals held that the trial court erred in evaluating admission of the evidence under the business records exception to the hearsay rule. Rather, the Court felt that the logs were properly presented to impeach the testimony of the State's witnesses.

In sum, the Court of Appeals reversed refusing to hold that the exclusion amounted to harmless error. Congrats go to John Meienhofer!!!
http://www.isc.idaho.gov/opinions/karpach33949.pdf

Represented Petitioner Must Object to Preserve Issue of Inadequate Notice

In DeRushe v. State, a post-conviction case, the Supreme Court held that an applicant who is represented must object that the state's motion for summary disposition is not sufficiently specific before that issue may be raised on appeal.


DeRushe filed pro se a post-conviction petition, but was later appointed counsel. The state filed a motion for summary disposition and a memorandum in support. DeRushe responded to the motion with an affidavit. The district court granted the motion.

On appeal, DeRushe argued that the state's motion did not provide adequate notice of the grounds therefore. The Supreme Court held it would not consider the claim because there was no objection below. "In this case, DeRushe was represented by counsel. If the State did not state the grounds of its motion with sufficient particularity, then DeRushe should have raised that issue below. He cannot raise the alleged lack of specificity for the first time on appeal." The Court distinguished DeRushe's case from Brown v. State, a case where the applicant was refused appointed counsel. (The Court also rejected, in dicta, DeRushe's argument about the level of specificity needed.)

The Court also held that the district court did not err by failing to sua sponte take judicial notice of the criminal case. The Court held the district court did not need to take judicial notice because the state's motion to dismiss asserted that DeRushe "had failed to present any admissible evidence showing he was entitled to relief."

Finally, the Court reversed the dismissal of DeRushe's claim that his attorney refused to permit DeRushe to testify at trial. DeRushe supported this claim with facts alleged in the petition and affidavits. The trial court dismissed holding that there was no showing that trial counsel was deficient for failing to have DeRushe testify. The Supreme Court held that the "district court erred in analyzing DeRushe's claim as alleging ineffective assistance of counsel rather than as alleging denial of his constitutional right to testify in his own behalf. A defendant in a criminal proceeding has the right to testify in his own behalf."

Here's a link to the opinion. http://www.isc.idaho.gov/opinions/derushe35116.pdf

Congratulations to Diane Walker of SAPD for the partial remand.

Lessons learned:

1) Object when the state's motion does not meet the specificity requirements, i.e., most of the time;

2) Make sure that the criminal case record is part of the PCP record by submitting via affidavits all portions of the criminal case you want considered and by filing a motion to take judicial notice and by filing a motion for preparation of those portions of the criminal case which were not prepared for the appeal;

3) Plead all facts needed to prevail in the petition, attach affidavits, records or other evidence supporting the allegation when possible or explain why they are not attached.

Supreme Court leaves it to the trial courts to interpret the scope and operation of Idaho's "Self-Defense and defense of others immunity statute."

Yesterday, the Supreme Court issued its opinion in State v. Loomis. Rather than recite the uncontested facts as established by the alleged victim, I urge you to read the statement of facts as recited by the Supreme Court. If anything, they are great bathroom reading material.

Again, our appellate courts have punted at an excellent opportunity to provide interpretation and teeth to our "self-defense and defense of others immunity statute", Idaho Code 19-202A. See State v. McNeil, 141, Idaho 383 (Ct. App. 2005). Rather, the Court noted "the parties have presented only speculation to indicate that the substantive issue in this case may recur." What this means is that we need to keep preserving issues of self-defense to present to the Court to force this issue. In the meantime, we will continue to have disparate approaches by our trial courts to this critical pre-trial issue.

Instead, the Supreme Court exhaustively reaffirmed that State v. Ruiz, 106 Idaho 336 (1984) is the law of the land and refused to recognize that Justice Bakes may have been right when he penned his dissenting opinion 25 years ago...Heck, even Chief Justice Roberts gets things wrong once in awhile.

Lots of Civil Cases

In addition to the Doe opinion, blogged below, the Supreme Court has issued nine opinions in civil cases in the last two days. I don't follow developments in civil law and I haven't read them all. (Actually, I haven't read any.) I did, however, note one case of self-interest to attorneys. In City of McCall v. Buxton, et. al., the Court, per Chief Justice Eismann, found that the statute of limitations on two legal malpractice claims, based upon negligent advice to a client, did not being to run until there was an adverse jury verdict in the case where the malpractice allegedly occurred. You can view the opinion at: http://www.isc.idaho.gov/opinions/mccall34609.pdf.

Juvenile Jurisdiction Ends at Age 21

Today the Supreme Court issued State v. Doe holding that under I.C. 20-507 juvenile court jurisdiction terminates no later than the juvenile's 21st birthday. In this case, Doe was on probation for a battery committed while he was a juvenile. A month before his 21st birthday, he admitted a PV to his probation officer. Nine days later, the state filed a petition. However, the admit/deny hearing was not held until 16 days after Doe's birthday. The Supreme Court determined that by virtue of I.C. 20-507 the juvenile court jurisdiction ended on Doe's 21st birthday and the petition must be dismissed even though that means that Doe's PV will go unpunished.

I guess we can anticipate that the state will soon be lobbying for an amendment to I.C. 20-507 to avoid this sort of outcome in the future.

Two New Criminal Law Opinions from SCOTUS

The U.S. Supreme Court issued five opinions today. Two have to do the with 42 USC 1983 (Pearson v. Callahan, 07-751, a qualified immunity case, and Fitzgerald v. Barnstable School Committee, et al., 07-1125, holding that Title IX is not the exclusive method for seeking a remedy is a sex discrimination case). There was also a case involving whether a public sector union may include in non-members' agency fees costs for litigation outside the bargaining unit. (It can, if certain conditions are present.) Locke v. Karass (07-610).

We split the card in the two criminal cases, with one per curium win and the other a 6-3 loss.


First, the good news. In Spears v. United States (08-5721), a sentencing guidelines case, the Court granted review and reversed the opinion of the Circuit Court under Kimbrough v. U.S., 552 U.S. ___(2008). The Court clarifies that "district courts are entitled to reject and vary categorically from the crack cocaine Guidelines based upon a policy disagreement with those Guidelines." (Emphasis mine.) http://www.supremecourtus.gov/opinions/08pdf/08-5721.pdf

In Waddington v. Sarausad (07-772), a habeas case, the rulings of both the district court and the circuit court granting habeas relief were reversed. The Court held that the Washington Court's ruling that a jury instruction was not ambiguous and correctly stated the law was not an unreasonable application of clearly established federal law. Therefore, habeas relief was not available. http://www.supremecourtus.gov/opinions/08pdf/07-772.pdf

Justice Souter shows how the jury instruction was ambiguous, how the prosecutor used it to argue in closing an erroneous theory of accomplice liability and how even the Washington appellate courts were in conflict about the meaning of the instruction. All, alas, in dissent.

The Ball Really is in Our Court

Your faithful blogger has been informed that the Idaho Association of Prosecuting Attorneys is not interested in co-sponsoring a bill to amend Idaho's "expungement" statutes. So, if we want it done, we'll have to do it ourselves.

SCOTUS Today: Two Defense Losses

After two defense wins yesterday, we get two losses this morning.

In Oregon v. Ice, the Court held 5-4 that it does not violate the Sixth Amendment for a judge to impose consecutive sentences based on facts that were not found by the jury. (Under Oregon law sentences are to be served concurrently unless there is a finding that the offenses did not arise out of the same course of conduct and resulted in separate harms.) Justice Ginsburg states for the majority that Apprendi v. New Jersey and its progeny is limited to sentencing for single crimes. Justice Scalia, who has turned out to be the strongest champion of the proposition that jury must find all facts (other than a prior conviction) which increase a sentence, dissented.

In Herring v. United States, another 5-4 decision, the Court held that the exclusionary rule does not apply when police obtain evidence while relying on erroneous information supplied by another police officer. Here, the defendant was arrested on a report of a warrant which had, in fact, been recalled months earlier. Naturally, the police found guns and drugs during the search incident to arrest. Chief Justice Roberts wrote the majority opinion. Justices Ginsburg and Breyer wrote dissenting opinions.

Herring should be of no consequence in state court practice as Idaho, thankfully, does not have a good-faith exception to its state constitutional exclusionary rule. State v. Guzman.

Two U.S. Supreme Court Opinions Issued Today

The U.S. Supreme Court issued two new opinions this morning. Both cases overturn lower court opinions favorable to the prosecution.

In Jimenez v. Quarterman, a federal habeas case, the Court held that the habeas statute of limitations does not start to run on a reinstated state court appeal until after the appeal is concluded. This would apply in cases where the state court grants the defendant the right to file an out of time appeal. So, for example, if trial counsel fails to file a Notice of Appeal and the defendant files a post-conviction petition which gets the appeal reinstated, the federal one- year limitations period does not begin to run until the reinstated appeal is over. (Thomas, J., writing for the Court, reverses the decision of the Federal District Court of the Northern District of Texas. There is no Fifth Circuit opinion because that Court wouldn't even grant a certificate of appealability!)

The Court held in Chambers v. United States, that a violation of Illinois' failure to report to penal confinement statute is not a "violent felony" for purposes of the Armed Career Criminal Act, which requires a 15-year mandatory minimum sentence on a felon in possession of a firearm if there is a prior conviction for a violent felony. The failure to report for jail, unlike escaping from jail, does not involve conduct which presents a serious risk of physical injury to another. (Breyer, J., writing for the Court, reversing the Seventh Circuit.)

Expungment: The Ball Is In Our Court

For some time now I have been urging Idaho criminal defense lawyers to team up with prosecutors to sponsor model expungment legislation. My premise has been that expungment law in Idaho is a mess and the only solution is legislative intervention. Impossible, you say? That liberal blue state of Utah has come up with a comprehensive scheme: http://www.utcourts.gov/howto/expunge/. (Child molesters never are eligible for expungment). You can get on the Utah State Court website and with a few clicks get the following questions answered:

• Who Can Get Their Adult Record Expunged?
• Who Can Get a Juvenile Record Expungement?
• When is Expungment Allowed?
• How Much Does an Expungment Cost?
• Will my Offenses Remain on My Driving Record?
• Is There a Time Requirement for Dismissal?
• What Must I Bring When I Apply for an Expungment?
• Where Will My Petition be Filed?
• What if I Fail to Appear at the Hearing on my Petition?
• If I Complete my Petition at Home, what are the Requirements?
• What If My Motion of Expungment is Granted?

We can continue to flail with inconsistent expungment triage or work towards a real solution – like Utah’s.

Legislative Session Begins

• The Legislature convenes today. SCOIDBlog will be following legislation of interest to criminal defense lawyers.


• Chief Justice Eismann will not be giving the traditional State of the Judiciary address today due to his illness. The Chief Justice is being treated for non-Hodgkin's lymphoma. According to the AP, court officials say he is taking treatment well and his prognosis is good for a full recovery.


• It is sad to note that the Chief Justice and our own Tom McCabe, both Vietnam vets, have been diagnosed with non-Hodgkin's lymphoma. The VA, after years of denial, now acknowledges the disease as part of a broader Agent Orange syndrome. (Probably not what they had in mind when they volunteered to serve.) Tom is out of treatment and is back to his old loquacious self.


• No new opinions today.

No Contact Orders and Probation

The Court of Appeals decided State v. Brian Cobler on December 23, 2008. In that case, Mr. Cobler plead guilty to sexual battery of a minor child. Factually, he and his wife were involved in sexual relationship with a seventeen year old who was mentally and emotionally vulnerable.

Early in the case a No Contact Order was entered forbidding Mr. Cobler from having contact with all minors including his children. After sentencing, he sought to modify the NCO to allow him to have contact with his children. The court denied that motion.

The Court of Appeals overturned that. They noted that a parent has a fundamental right to parent his own children. The court found that "forbidding all contact with Cobler's children is not reasonably necessary to prevent sexual harm to them in this instance, nor is it reasonably related to rehabilitation." There was no indication in Mr. Cobler's case that he would prey upon his own children nor that communication would be harmful to the children.

I think this case is valuable in the context of dealing with the probation department. If you are placed on the "sex offender" caseload in Ada County a standard term and condition of probation on that caseload is no contact with minors, including your own children. This has become very problematic because the "sex offender" caseload has come to encompass sex offenders as well as anyone the probation departments deems a "sex offender" irregardless of their plea. So quite often it's a surprise to your client when suddenly probation forbids them from contacting their kids.

If this happens, file a motion in District Court seeking to modify the terms and conditions of probation. Ask the judge to order your client be allowed to have contact with his children (when the case is appropriate). If the court wouldn't have the jurisdiction to forbid the contact, then the probation department certainly does not.

JON

Another Dennis Benjamin Appeal

And, this one is not a win, but sort of a half-win. It’s one of those cases where the Court of Appeals says that the district court applied incorrect reasoning, but reached the right result anyway. So, even though Dennis’ reasoning and analysis were correct, and the district court did make a mistake, his client is going to get no relief. State v. Wegner, decided yesterday, is about jurisdiction – both the jurisdiction of a district court to accept a guilty plea from a juvenile waived to adult court for an offense that may have occurred before the juvenile’s 14th birthday (the district court can do that) and the district court’s jurisdiction to hear a motion to withdraw a guilty plea made years after the case has become final but which is based on allegations of lack of subject matter over the original offense. The district court can do that too. Wegner is a case to pay attention to if you either have a juvenile charged with offenses that may have occurred before his/her 14th birthday or you have any client who wants to withdraw a plea no matter how old on the grounds that the district court had no subject matter jurisdiction in the first place.

State v. Gerardo

While it may have taken him two days to do so, Dennis Benjamin scores the first appellate win of the year in State v. Gerardo. This was the attempted armed robbery of the Lotus Garden in Meridan with the 110 mile per hour chase ending in a canal. The Court of Appeals found three different points of evidentary error, unfortunately, all harmless, but vacates a sentence enhancement for use of a firearm because the jury instructions on the issue contructively amended the indictment. A must read in the areas of hearsay and admissions of a party opponent, prosecutorial testifying, and constructive amendments. Good job Dennis.

No New Year's Cheer

I guess I shouldn't be surprised that the first appellate case of the year is a loss for the defense, but since it’s my case I hope it’s not an omen of things to come.

In State v. Herrera and Oernelas-Perez, Nos. 33241 and 33284, the defendants were convicted of conspiracy to traffic in heroin and of delivery of cocaine. The delivery conviction comes about as a lesser-included to the charged count of conspiracy to traffic in cocaine. Issue: Delivery is not a lesser-included offense of conspiracy under either the elements theory or as pleaded in the indictment. Problem: One defendant doesn't object to the "lesser-included" instruction and the other agrees with the court's decision to give it. Solution? Argue that giving the instruction on a crime which was neither charged nor a lesser-included of the charge exceeds the subject-matter jurisdiction of the trial court. Subject-matter jurisdiction, after all, can never be waived, right?

The Court of Appeals says it won't consider the lesser-included argument under the invited error doctrine. "Even if an improper lesser included offense instruction was given, the court's subject matter jurisdiction that was conferred via the indictment remained throughout the trial, for subject matter jurisdiction does not depend upon the correctness of any decision made by the court."

Query: If evidence came out during the trial that the co-defendants committed murder or knowingly used a stolen credit card would the trial court have subject-matter jurisdiction to instruct the jury on those uncharged offenses too?

Blog Fodder

Fod·der (fŏd'ər) noun.
1. Feed for livestock, especially coarsely chopped hay or straw.
2. A consumable, often inferior item or resource that is in usually abundant supply.

• No new opinions today from either the Supreme Court or Court of Appeals.
• The Supreme Court will hear argument in Boise on January 12, 14 and 16.
• There is only one criminal case on the calendar, but it has an interesting issue regarding the elements of felony-murder.
• State v. Fuentes-Pina, No. 34192, will be argued on January 12. In this case, the state claimed that Fuentes-Pina was holding Jesse Naranjo at gun point. Johnny Shores talked Fuentes-Pina into giving him the gun, but ends up shooting and killing Naranjo himself. Fuentes-Pina ends up being charged with felony-murder. He argues that the jury should have been instructed that the felony-murder rule requires that the co-defendants act in concert or in furtherance of a common purpose or object.

-- Dennis

No new cases today.

There were no opinions issued by either the Supreme Court or Court of Appeals today. SCOIDBlog will report on all SCOID opinions and selected COA cases as they are issued.

Dennis

New hearsay exception now in effect

As of yesterday, there is a new subsection to IRE 803, the rule which deals with hearsay exceptions where the availability of declarant is immaterial. The new rule permits the admission of medical, dental and other test results without having a witness lay foundation. The text of the new rule is as follows:

"(23) Medical or dental tests and test results for diagnostic or treatment purposes. A written, graphic, numerical, symbolic or pictorial representation of the results of a medical or dental test performed for purposes of diagnosis or treatment for which foundation has been established pursuant to Rule 904, unless the sources of information or other circumstances indicate lack of trustworthiness. This exception shall not apply to:

(A) psychological tests
(B) reports generated pursuant to I.R.C.P. 35(a)
(C) medical or dental tests performed in anticipation of or for purposes of litigation or
(D) public records specifically excluded from the Rule 803(8) exception to the hearsay rule."

There is also a new rule 904 which sets out the foundational requirements for the Rule 803(23) exception.

In sum, the proposed exhibit must identify the person or entity who conducted or interpreted the test, the name of the patient, and the date when the test was performed. Notice must be given at least 45 days before trial. And, the opposing party may file a written objection within 14 days or the document. Otherwise, the document "shall be deemed authentic and admissible without testimony or further identification."

Remember, this exception only applies to documents made for diagnostic purposes. Tests made for litigation purposes are not included and should be objected to under existing hearsay rules and the confrontation clause as testimonial evidence. Also, if you get a notice and you want the foundational witness at trial, you'd better subpoena the witness yourself.

Dennis