IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37387
STATE OF IDAHO, ) 2011 Opinion No. 75
)
Plaintiff-Respondent, ) Filed: December 15, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
JUSTIN BRADLEY DAVIS, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Deborah A. Bail, District Judge.
Judgment of conviction for attempted strangulation, affirmed.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GUTIERREZ, Judge
Justin Bradley Davis appeals from his judgment of conviction for attempted strangulation
entered pursuant to his conditional guilty plea. Specifically, Davis contends the district court
erred in denying his motion to dismiss the information upon which he was charged. For the
reasons set forth below, we affirm.
I.
BACKGROUND AND PROCEDURE
The Boise City Police Department received an anonymous tip that Kristy Robinson had
been beaten by her then-boyfriend, Davis. Detective Brechwald, who investigated the tip, first
contacted Robinson to confirm she was the victim of the reported domestic abuse and later
conducted a videotaped interview with Robinson. In the interview, Robinson acknowledged her
previous relationship with Davis, gave a thorough account of his abuse, and detailed events
leading up to and including the attempted strangulation. Detective Brechwald then interviewed
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Davis about the situation. Davis disclosed he had dated Robinson, but initially denied any
physical abuse. As the discussion continued, though, Davis made incriminating statements,
which included an admission that he had grabbed Robinson’s neck and possibly hurt her. Based
on both interviews, the prosecuting attorney filed a criminal complaint against Davis alleging
felony attempted strangulation.
At the preliminary hearing on the complaint, the State called Detective Brechwald to
testify regarding Davis’s confession and then rested. Davis moved to dismiss the complaint
because the only evidence presented was the uncorroborated confession by Davis himself. In
response, the State attempted to introduce additional evidence by questioning Detective
Brechwald about his videotaped interview with Robinson. Davis objected on hearsay grounds,
which the court sustained. Detective Brechwald then testified that shortly after his videotaped
interview with Robinson a drunk driver hit Robinson, and as a result, she had no recollection of
the attempted strangulation incident or the videotaped interview with the police. Robinson was
called to the stand and testified to the same. After recalling Detective Brechwald, the State
attempted to introduce his police report and to revisit questioning regarding the interview, but the
magistrate required the State to produce the actual videotape. The State retrieved the videotape
and played it for the magistrate, who nonetheless declined to admit the videotape into evidence
without Robinson’s medical records showing the memory impairment. However, the magistrate
reconsidered and without formally admitting the tape into evidence, found it did corroborate the
testimony of Detective Brechwald. Together, the videotape and the testimony established
probable cause to sustain the complaint. The magistrate bound Davis over to the district court.
In district court, Davis moved to dismiss the information charging one count of attempted
strangulation, Idaho Code § 18-923, arguing a lack of probable cause at the preliminary hearing.
He asserted that consideration of the videotape violated his Sixth Amendment right to confront
witnesses under Crawford v. Washington, 541 U.S. 36 (2004) because Robinson’s interview was
testimonial, she was “unavailable” as a witness, and Davis did not have a prior opportunity to
cross-examine her. Assuming the videotape was, therefore, improperly considered, the only
evidence on which the information rested was the testimony of Detective Brechwald relating to
Davis’s own incriminating statements. Davis argued the principle of corpus delicti, prohibiting
conviction based solely on a defendant’s own confession, required dismissal of the information
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on the basis of insufficient evidence. The district court denied the motion, finding that although
the videotape was testimonial, Robinson was an available witness.
Davis entered a conditional guilty plea, reserving his right to appeal the district court’s
denial of his motion to dismiss the information. Davis appeals and we now consider whether the
district court’s decision was in error.
II.
DISCUSSION
A. Standard of Review
This Court reviews a district court’s decision on a motion to dismiss a criminal action for
an abuse of discretion. State v. Dixon, 140 Idaho 301, 304, 92 P.3d 551, 554 (Ct. App. 2004);
see Idaho Criminal Rule 48(a). When a trial court’s discretionary decision is reviewed on
appeal, the Court determines whether the lower court: (1) correctly perceived the issue as one of
discretion; (2) acted within the boundaries of such discretion and consistently with any legal
standards applicable to the specific choices before it; and (3) reached its decision by an exercise
of reason. State v. Hedger 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989); State v. Pole, 139
Idaho 370, 372, 79 P.3d 729, 731 (Ct. App. 2003).
This case involves the second step of our inquiry, whether the district court applied the
correct legal standards in regards to a constitutional question. When reviewing the constitutional
issue of whether there was a Sixth Amendment Confrontation Clause violation, we accept the
trial court’s factual findings unless they are clearly erroneous, but freely review whether
constitutional requirements have been satisfied in light of the facts found. State v. Hooper, 145
Idaho 139, 142, 176 P.3d 911, 914 (2007); State v. Bromgard, 139 Idaho 375, 380, 79 P.3d 734,
739 (Ct. App. 2003).
B. Application of Laws to Preliminary Hearings
The question Davis presents to this Court is a narrow one: whether Robinson was
effectively absent from the trial for purposes of his Sixth Amendment right to confrontation.
Answering in the affirmative, however, does not necessarily lead to the dismissal of the
information because this question is layered atop two other premises not answered by Idaho law
or preserved on appeal for this Court to decide. Davis fundamentally advances three arguments.
First, he argues that due to her memory loss, Robinson was effectively not a witness subject to
cross-examination at trial. Second, Davis contends that, because he had no prior opportunity to
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cross-examine her, the State’s use of Robinson’s videotaped, testimonial statements at the
preliminary hearing to corroborate his own confession violated his confrontation rights. Finally,
he argues that without the use of such evidence, the district court erred by not dismissing the
information based on lack of probable cause at the preliminary hearing. For this final argument,
Davis relies on the corpus delicti rule that a defendant may not be convicted based only on his
own confession. Consequently, if this Court concludes that Robinson was not a witness present
and subject to cross-examination, it only leads to dismissal if Davis’s second and third arguments
also prove correct. To elaborate, Robinson’s unavailability would only matter if the
confrontation right and the corpus delicti rule are applicable to a preliminary hearing, yet these
issues remain unanswered.
The Confrontation Clause gives a criminal defendant the right “to be confronted with the
witnesses against him” in both federal and state prosecutions. U.S. CONST. amend. VI;
Crawford, 541 U.S. at 42; Pointer v. Texas, 380 U.S. 400, 404 (1965). Still, the United States
Supreme Court has held “the right to confrontation is primarily a trial right,” providing a
criminal defendant the ability to literally face his accusers and subject them to
cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987); see also Delaware v.
Fensterer, 474 U.S. 15, 18 (1985); California v. Green, 399 U.S. 149, 157 (1970) (Confrontation
is the “literal right to ‘confront’ the witness at the time of trial.” (emphasis added)). Before trial,
the Confrontation Clause does not compel pretrial discovery, which may aid in effective
cross-examination. Ritchie, 480 U.S. at 52-53 (plurality opinion). However, the United States
Supreme Court has not positively decided the issue of whether confrontation rights apply to a
preliminary hearing, and there is a split in state courts on the subject. See State v. Timmerman,
218 P.3d 590, 593 (Utah 2009) (Crawford’s holding does not extend to state preliminary
hearings); cf. State v. Massengill, 657 P.2d 139, 140 (N.M. Ct. App. 1983) (“Sixth Amendment
right to confront witnesses at trial extends to the preliminary examination stage of a criminal
prosecution.”). Idaho courts have not decided the issue. 1
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The fact that Idaho Rule of Criminal Procedure 5.1 guarantees a criminal defendant the
right to cross-examine adverse witnesses at a preliminary hearing does not, contrary to what
Davis argues, change whether that examination is a constitutional right. To the contrary, “All
jurisdictions grant the defense a right to cross-examine . . . witnesses presented by the
prosecution at the preliminary hearing. This right is based on local law; the Supreme Court has
long held that cross-examination at a preliminary hearing is not required by the confrontation
4
Even assuming the confrontation right attached at that early stage in criminal proceedings
and required the exclusion of Robinson’s videotaped statements at the preliminary hearing,
dismissal of the information would only be required if the State has an obligation to corroborate
Davis’s confession at that time. In other words, the corpus delicti rule also needs to apply to a
preliminary hearing.
The rule of corpus delicti, meaning “the body of the crime,” refers to the evidence needed
to establish that the crime charged was actually committed. State v. Suriner, ___ Idaho ___, ___,
___ P.3d ___, ___ (Ct. App. Oct. 14, 2011). The rule prohibits conviction of a criminal
defendant based solely upon the defendant’s own out-of-court confession. Id.; see State v.
Tiffany, 139 Idaho 909, 913, 88 P.3d 728, 732 (2004); State v. Urie, 92 Idaho 71, 73, 437 P.2d
24, 26 (1968). It is, for all intents and purposes, a rule regarding the sufficiency of evidence used
to convict a criminal defendant. See e.g. State v. Owens, 101 Idaho 632, 634, 619 P.2d 787, 789
(1979); State v. Johnson, 96 Idaho 727, 730, 536 P.2d 295, 298 (1975). Although Idaho adheres
to the rule of corpus delicti, albeit a relaxed form, a review of case law demonstrates that our
courts have not decided if it is applicable at the preliminary hearing stage of criminal
proceedings. See Tiffany, 139 Idaho at 912, 88 P.3d at 731 (argued on a motion for judgment of
acquittal made at conclusion of the State’s trial evidence); Johnson, 96 Idaho at 728, 536 P.2d at
296 (found guilty by a jury trial); Urie, 92 Idaho at 73, 437 P.2d at 26 (conviction upon a jury
verdict); Thomas v. State, 145 Idaho 765, 767, 185 P.3d 921, 923 (Ct. App. 2008) (petition for
post-conviction relief); State v. Webb, 144 Idaho 413, 414, 162 P.3d 792, 793 (Ct. App. 2007) (in
the context of a jury trial); State v. Roth, 138 Idaho 820, 822, 69 P.3d 1081, 1083 (Ct. App.
2003) (conviction after a bench trial). Notably, one case from the Idaho Supreme Court suggests
that corpus delicti is only placed in issue by a plea of not guilty, which cannot occur on a felony
charge until after the charge by information or indictment. See State v. Cutler, 94 Idaho 295,
clause of the Sixth Amendment.” 4 WAYNE R. LAFAVE, ET. AL., CRIMINAL PROCEDURE § 14.4(c)
(3d ed. 2007). LaFave’s conclusion that the Confrontation Clause does not apply to preliminary
hearings is based on his reading of a statement in Goldsby v. United States, 160 U.S. 70, 73
(1895): “The contention at bar, that, because there had been no preliminary examination of the
accused, he was thereby deprived of his constitutional guaranty to be confronted by the
witnesses, by mere statement, demonstrates its error.”
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296, 486 P.2d 1008, 1009 (1971) (“One of the material allegations placed in issue by a plea of
not guilty is that of the corpus delicti of the crime.”). 2
So, though we decide the issue properly before this Court, whether Robinson was an
available witness for purposes of the confrontation right, we do not purport to answer the
questions of whether the Confrontation Clause or the rule of corpus delicti apply to preliminary
hearings in Idaho.
C. Availability of a Witness
As stated, the Confrontation Clause gives a criminal defendant the right to be confronted
with the witnesses against him. U.S. CONST. amend. VI; Crawford, 541 U.S. at 42. Within this
context, “confrontation” is construed as requiring an adequate opportunity to cross-examine an
adverse witness. United States v. Owens, 484 U.S. 554, 557 (1988). The effect of this right is
that the prosecution may not use testimonial statements of an unavailable witness at trial unless
the defendant has had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at
53-54. To use such statements under Crawford, therefore, requires a threshold finding that the
statements are testimonial. Id. at 51. Testimonial statements are statements of a witness made to
a government officer, including not only prior sworn testimony, but also statements taken by
police through interrogation where such information is reasonably expected to be used in a
prosecution. Id. at 51-52. It is clear that Robinson’s statements in this case are testimonial and
meet the threshold.
To use testimonial statements of a witness absent from trial, the prosecution must
demonstrate that (1) the witness is unavailable for trial and (2) the defendant had a prior
opportunity to cross-examine the witness. Id. at 59. Here, Robinson was present and testified at
the preliminary hearing, but Davis argues her memory loss made her presence ineffective for
2
Furthermore, other jurisdictions are divided on the question of whether to apply corpus
delicti to a preliminary hearing. See Rayyis v. Superior Court, 35 Cal. Rptr. 3d 12, 23 (Cal. Ct.
App. 2005) (corpus delicti rule as it relates to sufficiency of the evidence does apply to
preliminary hearings); Commonwealth v. Meder, 611 A.2d 213, 215 (Pa. 1992) (prosecution was
required to prove the corpus delicti at the preliminary hearing). But see State v. Jones ex rel.
County of Maricopa, 6 P.3d 323, 328 (Ariz. Ct. App. 2000) (corpus delicti rule is for the trial
court, making application during a preliminary hearing premature); State ex rel. Peterson v.
Ward, 707 P.2d 1217, 1219 (Okla. Crim. App. 1985) (“[C]orroboration of a confession by
independent evidence of the corpus delicti is not required in order for the State to prevail at
preliminary hearing.”).
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purposes of cross-examination and that he had no earlier opportunity to cross-examine her.
Davis contends that because Robinson had no memory of the facts of this case even at the time
of the preliminary hearing, he had no prior adequate opportunity to cross-examine her. His
argument rests on an asserted right to cross-examine the witness at a time when she could recall
at least some events to which she spoke, otherwise the use of the videotaped statements violated
his confrontation rights. Thus, we look to cases that discuss how memory loss can affect a
defendant’s opportunity to cross-examine an adverse witness at trial.
In Green, the United States Supreme Court decided whether a witness’s prior,
out-of-court statement could be used at trial. Though not directly dealing with that witness’s
memory, the Supreme Court, in its consideration of what confrontation requires, stated, “[W]here
the declarant is not absent, but is present to testify and to submit to cross-examination, our cases,
if anything, support the conclusion that the admission of his out-of-court statements does not
create a confrontation problem.” Green, 399 U.S. at 162. The Supreme Court maintained that
when the State has made every effort to introduce its evidence through live testimony, produces
the witness at trial, and tenders that witness for cross-examination, nothing in the Confrontation
Clause bars the State from also relying on that witness’s prior testimony to prove its
case--whether the witness’s testimony is consistent or inconsistent, or whether the witness claims
memory loss, claims the privilege against self-incrimination, or simply refuses to answer. Id. at
167-68. 3 In terms of “full and effective” cross-examination, the Supreme Court reasoned that
effective confrontation is possible only if the witness affirmed the statement as his, but went on
to say that the Confrontation Clause “does not require excluding from evidence the prior
statements of a witness who concedes making the statements, and who may be asked to defend
or otherwise explain” the statements. Id. at 164. Regarding the ability to defend or explain such
3
This case dealt with both the witness’s prior testimony at a preliminary hearing and his
out-of-court statements to a police officer. The Supreme Court, however, said:
[W]e find little reason to distinguish among prior inconsistent statements on the
basis of the circumstances under which the prior statements were given. The
subsequent opportunity for cross-examination at trial with respect to both present
and past versions of the event, is adequate to make equally admissible, as far as
the Confrontation Clause is concerned, both the casual, off-hand remark to a
stranger, and the carefully recorded testimony at a prior hearing.
California v. Green, 399 U.S. 149, 168 (1970).
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a statement, the Green Court left open the question of whether an apparent lapse in memory
could so affect the right to cross-examine as to a make a critical difference in the application of
the Confrontation Clause. Id. at 168-69.
In Fensterer, the United States Supreme Court only partially answered the question of
whether a Confrontation Clause violation could be founded upon a witness’s loss of memory.
Fensterer, 474 U.S. at 15. The Fensterer Court held the Confrontation Clause was not violated
when an expert was allowed to testify as to the opinion he had formed even though he could not
recall why he had formed it. The Supreme Court explained that an opportunity to cross-examine
is not the equivalent of a “guarantee that every witness called by the prosecution will refrain
from giving testimony that is marred by forgetfulness, confusion, or evasion.” Id. at 21-22.
Rather, where a witness’s memory is faulty, a jury may be persuaded that the opinion is just as
unreliable as his memory. Id. at 19. The Fensterer Court distinguished its holding from the
question that remained unanswered by Green, on the basis that the latter involved the
introduction of a prior, out-of court statement and not in-court testimony. Id. at 18; see Owens,
484 U.S. at 558.
The United States Supreme Court directly answered the question from Green in Owens,
where it held that a defendant’s confrontation rights were not violated by the State’s use of a
witness’s prior, out-of-court identification even though the witness admitted at trial he could not
remember the basis for that identification. Owens, 484 U.S. at 559, 564. As stated therein,
confrontation is simply the opportunity to expose a witness’s infirmities through
cross-examination and persuade a fact-finder to give the adverse testimony less weight:
[Confrontation] is not denied when a witness testifies as to his current belief but is
unable to recollect the reason for that belief. It is sufficient that the defendant has
the opportunity to bring out . . . (what is often a prime objective of
cross-examination) the very fact that he has a bad memory. If the ability to
inquire into these matters suffices to establish the constitutionally requisite
opportunity for cross-examination when a witness testifies as to his current belief,
the basis for which he cannot recall, we see no reason why it should not suffice
when the witness’ past belief is introduced and he is unable to recollect the reason
for that past belief.
Id. at 559 (citations omitted). The right to confrontation “guarantees only an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Id. Even though the out-of-court identification is
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classified as hearsay, where the declarant is present to testify and subjected to cross-examination,
constitutional requirements are satisfied. Id. at 560. The Supreme Court refused to draw a
constitutional line between a witness’s past belief, as in Fensterer, and a witness’s current belief,
as in Owens, for neither of which the basis could be recalled.
From these cases, we discern the following: where a declarant is present to testify and to
submit to cross-examination, the admission of her out-of-court statements does not create a
confrontation problem; the right to confrontation is not a guarantee of eliciting witness testimony
that is free from a fallible memory; and memory loss is insufficient as a sole basis to argue a
Confrontation Clause violation--as, often, the very point of cross-examination is to expose the
testimony’s unreliability due to the loss of memory, and confrontation with a present declarant
and cross-examination provides that opportunity. Though these cases predate Crawford, the
reasoning in Crawford does not undermine the precedential value of their holdings.
Davis nevertheless argues, in the wake of these cases, that Robinson is unavailable
because her memory loss so affected his opportunity to cross-examine her that it became futile,
as she could neither defend nor explain at all the statements she made to Detective Brechwald.
He argues not only that this case is distinguishable from Owens, but also that finding Robinson
“absent” from the trial would comport with the definition in Idaho Rule of Evidence 804(a)
regarding the “Unavailability as a Witness.” The State counters that Davis’s argument confuses
unavailability in Idaho Rule of Evidence 804 with Crawford unavailability. Quoting Crawford,
541 U.S. at 59 n.9, the State asserts, “The footnote nine in Crawford is very, very specific, and it
says that ‘When a declarant appears for cross-examination at trial, the confrontation clause
places no restraints at all on the use of his prior testimonial statements.’” The State argues
Robinson is not absent for purposes of Davis’s right to confrontation.
Davis’s argument is primarily the question presented by Green and answered in Owens.
It is true that in Owens, the witness could recall the attack and remembered identifying the
perpetrator. However, for purposes of the identification, the precise reason why his testimony
was introduced, he could not recall details which led him to believe the defendant was his
attacker. This case is akin to such a circumstance generically described in Owens, where the
witness’s past belief is introduced, yet she is unable to recollect the reason for that past belief.
For purposes of corroborating Davis’s incriminating statements, the precise reason Robinson’s
statements were introduced, she is unable to recall the basis for why she made such statements.
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Though it may impede Davis’s ability to cross-examine, the confrontation right does not
guarantee effective confrontation in the way a defendant desires. Effective confrontation is
possible where the witness is present, affirms the statement as her own, and the defendant has the
opportunity to expose the infirmities of that witness. Based on the above cases and the facts of
this case, Davis has not established that Robinson was unavailable for purposes of the right to
confrontation.
Furthermore, whether or not a witness is unavailable for purposes of a hearsay exception
is not equivalent to whether that witness is present for purposes of analyzing a defendant’s
confrontation rights. Instead, the Owens Court declared, “Our constitutional analysis is not
altered by the fact that the testimony here involved an out-of-court identification that would
traditionally be categorized as hearsay.” Owens, 484 U.S. at 560. Hearsay exceptions are
generally tested for some “indicia of reliability,” but such an inquiry is unnecessary under the
confrontation right where the hearsay declarant is present at trial and subject to
cross-examination. Id. Similarly, in Crawford, the Supreme Court declined to examine a
confrontation issue based on the measures of reliability found in hearsay rules. Crawford, 541
U.S. at 61-62. The confrontation right is a procedural right, testing reliability in a particular
manner, and the rationales and justifications behind the hearsay rules of evidence test reliability
in an entirely different manner--based on the subject and context upon which the statements were
given. Id. For under the Confrontation Clause, where the declarant is present at trial, a
defendant’s confrontation right is not placed in issue by the use of that witness’s prior
testimonial statements. Id. at 59. The inquiry of whether such prior testimonial statements
violate a different substantive right is left to the hearsay rules.
III.
CONCLUSION
We conclude the district court did not abuse its discretion is denying the motion to
dismiss the information because Robinson was present at the preliminary hearing, subject to
cross-examination, and available for purposes of Davis’s right to confrontation. Accordingly,
Davis’s judgment of conviction for attempted strangulation is affirmed.
Chief Judge GRATTON and Judge LANSING CONCUR.
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