Unexplained Inconsistent and Irreconcilable Testimony Made Under Oath at Different Proceedings Cannot be Deemed Credible.

Nice win for IACDL member (and NevinLaw lawyer) Robyn Fyffe today.

Ever have a case where the officer testifies to one thing at the preliminary hearing and then testifies to something completely different at the motion to suppress? Anyone? Everyone? What happened at the hearing? Did the trial court find one version of the testimony to be credible and deny the motion?

That was the case in State v. Munoz. The "detective's testimony at the two proceedings was materially inconsistent and irreconcilable." Therefore, "[t]he district court's finding that Detective Pietrzak was a credible witness cannot be upheld where the record plainly shows that he was not." After emphasizing that there was no effort made to retract or correct his earlier sworn testimony, the COA states that "[i]n our view, a witness who has testified under oath to patently inconsistent descriptions of events and has not offered any explanation for the inconsistency cannot be deemed 'credible' in either instance." As there was no other evidence about the basis for the car search, the state failed to meet its burden of proving an exception to the warrant requirement.

http://isc.idaho.gov/opinions/Munoz,%20Corey.pdf

Well done, Robyn!

Interesting Ninth Circuit Case from Idaho

Take a look at United States v. Driggers, wherein crack appellate lawyer Greg Silvey (the "Sage of Kuna") makes a worthy attempt to turn harmless error into reversible error per se by the way he framed the issue on appeal.

Greg got a nibble, but couldn't set the hook. The Ninth Circuit ended up finding the error in the jury instructions harmless. The case is the lead story in the excellent Ninth Circuit Blog. http://www.circuit9.blogspot.com/

Here's some advice from Steven Kalar:

"The second interesting side discussion in Driggers is on “constructive amendments.” Id. at *3. Trying to dodge harmless error review, Driggers argued that the defective standard instructions were a constructive amendment from the indictment (which alleged that he caused travel with the intent that murder be committed). Id. (NB: Constructive amendments require per se reversal).The Chief Judge doesn’t bite: he explains that “constructive amendments occur when the prosecutor proves, or the court instructs the jury to convict on, materially different facts or substantially different crimes than those charged in the indictment.” Id. at *3. That didn’t happen in this case. Id. While Driggers' gambit didn’t work, the approach illustrates a solid appellate strategy: to avoid winning the battle and losing the war, choose appellate arguments with the standard of review in mind."

An Idaho example can be found in appealing the denial of new trial motions. Those are reviewed (for some reason) under the deferential "abuse of discretion" standard. However, the underlying argument for the new trial may have a better standard of review on appeal, e.g., the question of whether a jury instruction misstates the law is reviewed de novo, a much better place to be on appeal.

Nice try Greg.

Cop's Foot in Door Kept Truckin' to Illegal Search

Motel security calls cops about the smell of marijuana coming from a room. Cops show up, knock on the room door and notice a strong smell of marijuana when the door is opened. Cop asks for ID and starts to question occupant about smell. Occupant attempts to close door, but is prevented by cop's foot. Cop then pushes door open so he could keep an eye on occupant. Occupant refuses cop's request to enter room (good boy!). Several minutes later backup arrives and occupant relents, allowing cops in and consenting to search (bad boy!). Naturally a roach is discovered and occupant is arrested for misdemeanor marijuana.

Occupant moves to suppress, but neither magistrate judge nor DJ see anything wrong. Theory being, foot in door is illegal entry but consent to second officer was voluntary.

COA reverses and vacates the conviction. First, it confirms that "the first officer unlawfully entered the motel room when he stopped the door from closing with his foot and then pushed the door open so he could continue to observe Hudson." It then stated that, under the attenuation doctrine, the court must determine "whether the police acquired the evidence by exploiting the illegality or by means sufficiently distinguishable to be purged of the primary taint."

In this case, the police were still exploiting the illegal intrusion because the police prevented the occupant from shutting the door. "Therefore, because the unlawful intrusion ws ongoing, the search and subsequent acquisition of incriminating evidence was contemporaneous and irrevocably intertwined with the misconduct." Also, there were no intervening circumstances to independently justify the police intrusion. Thus, the evidence had to be suppressed because the "consent to the second officer to search his room was tainted by the unlawful police instrusion."

State v. Hudson http://www.isc.idaho.gov/opinions/Hudson-opn.pdf

Nice win by IACDL member Bryce Powell. Well done, Bryce.

Happy Anniversary Clarence

Today is the anniversary of Gideon v. Wainwright. A sincere SCOIDBlog thank you to all the public defenders and appointed counsel.


Justice Black wrote: "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

Even though this noble ideal has not been met, you guys make its realization closer. Keep fighting the good fight.

Oops(?)

The Stone opinion, blogged below, has been pulled off the Court's website. Astute readers might have noticed that it was dated as being filed tomorrow. (I didn't.) I assume the same opinion will issue on the 18th. I will provide a working link if that happens.

UPDATE: 3/18 - It's back. Here's the link: http://www.isc.idaho.gov/opinions/Stone,%20Faron.pdf

Motion to Withdraw Guilty Plea Must be Supported by Admissible Evidence

"When the stated grounds for a motion to withdraw a guilty plea require a presentation of evidence, the Idaho Rules of Evidence apply."

In State v. Stone, the defendant pleaded guilty but filed a pro se motion to withdraw his guilty plea prior to sentencing where he presented some twenty factual grounds for withdrawal of his plea, including that his attorney failed to advise him of the elements of the offense and that counsel did not advise him of a potential defenses to the charge.


The trial court denied the motion finding that the plea was knowing, intelligent and voluntary. The use of this standard was error because a motion to withdraw a guilty plea made before sentencing need only be supported by a "just reason." A constitutional defect in the plea need not be shown to meet either the "just reason" standard or the "manifest injustice" standard (used in cases where the motion is made after sentencing).

The COA, nevertheless, affirmed the denial of the motion because Mr. Stone did not present any evidence to support his allegations. "Because Stone did not submit any admissible evidence, by testimony or otherwise, to show any allegation made . . . were true, the motion could not have been properly granted under either a 'just reason' standard or constitutional standard."

"Whether [evidence needs to be presented] depends upon the basis for the motion -- whether it turns on matters that appear in the court's record, or that occurred in open court, or alleged events that occurred outside of the judicial proceedings and that the State has not acknowledged or stipulated to."

Here's the link: http://www.isc.idaho.gov/opinions/Stone,%20Faron.pdf

It seems to be common practice to support a motion to withdraw a guilty plea with simply unsworn assertions by the defendant or with a proffer by defense counsel. That, it is now clear, is not enough. Be prepared to prove up the reasons in support of your motions either by evidence or stipulation.

The 'good news' is that this ruling will presumably apply to other motions, including, for example, motions by the prosecution to continue a trial for witness unavailability. Defense counsel can now demand the state put on admissible evidence to prove its claim, Or we can just argue the absence of admissible evidence at the hearing.

This case has the potential to be a can o' worms (in case you were wondering about the illustration above) because sometimes, as here, the defendant will have to testify about counsel's alleged deficiencies. This will create a conflict of interest between counsel and client. Further, the state might call the defense attorney to challenge the defendant's allegations. All this will necessitate the appointment of conflict counsel.

Judge Perry Announces Retirement

Court of Appeals Judge Darrel Perry has announced his retirement effective September 30, 2009. Judge Perry was appointed to the COA in 1993 after serving eleven years as a magistrate judge in Nez Perce County. He will continue to sit with the COA as a senior judge.
Applications for Judge Perry's position will be accepted by the Idaho Judicial Council.

Wow, I wish I was retiring at 54. Nice planning, Judge. As one of those who contributed (generously) to the multi-trillion dollar decrease in 401K value, my current retirement plan is 'work 'til I drop.' Perhaps, though, if SCOIDBlog accepted paid advertisements . . . .