Walters, Chief Judge. Swanstrom, J., concurs. Burnett, Judge, Dissenting.
A jury found Wayne Byerly guilty of second degree burglary and grand theft.
On appeal he raises two issues: (1) the district court should have dismissed the criminal information because the magistrate relied on inadmissible evidence in holding that there was probable cause that Byerly had committed the offense; and (2) after the jury indicated it was having difficulty reaching a verdict, the district Judge's extemporaneous remarks to the jury resulted in a coerced verdict. We affirm the conviction.
Byerly first argues that he was improperly bound over to the district court and the district court should have dismissed the criminal information because the magistrate relied on inadmissible hearsay in finding probable cause that Byerly committed the offense. The assertedly inadmissible evidence was a letter from the FBI reciting the results of a comparison of Byerly's fingerprint with fingerprints found at the scene of the crime. Byerly objected to the introduction of the letter at his preliminary hearing because the letter was not in the form of an affidavit or testimony as required by Idaho Criminal Rule 5.1(b). The magistrate overruled Byerly's objection and admitted the letter in evidence. Rule 5.1(b) requires in pertinent part that:
[P]robable cause shall be based upon substantial evidence upon every material element of the offense charged; provided that hearsay in the form of testimony, or affidavits, may be admitted to show the existence or nonexistence of . . . reports of scientific examinations of evidence by state or federal agencies or officials, provided the magistrate determines the source of said evidence to be credible. Provided, nothing in this rule shall prevent the admission of evidence under any recognized exception to the hearsay rule of evidence.
At the preliminary hearing and upon hearing Byerly's motion to dismiss the information, both the magistrate and the district Judge acknowledged that the letter was neither testimony nor in the form of an affidavit. However, both Judges found the evidence to be credible. The district court noted that the "reputation and regularity with which the Federal Bureau of Investigation makes these reports, I think, is of a reliable nature for probable cause."
We recently have held that, if an accused receives a fair trial, errors related solely to the preliminary hearing will afford no basis for disturbing the judgment of conviction. State v. Garza, 109 Idaho 40, 704 P.2d 944 (Ct.App.1985). See also, State v. Maylett, 108 Idaho 671, 701 P.2d 291 (Ct.App.1985). The only issue Byerly raises concerning a fair trial involves comments made by the district Judge to the jury, after the case had been submitted to the jury for decision. As we will next explain, we find no reversible error resulting from the district Judge's comments. Therefore, upon concluding that Byerly received a fair trial, we need not determine whether the magistrate erred in admitting the FBI letter in evidence at the preliminary hearing.
Byerly next maintains that he did not receive a fair trial because of the district Judge's extemporaneous remarks to the jury when the jury indicated it may be deadlocked. After the jury had deliberated for over five hours, the jury foreman delivered a handwritten note to the Judge, stating: "We feel we my [sic] have a hung jury so what do we do now?" The Judge so informed both the prosecutor and defense counsel and sought their recommendations. The prosecutor suggested giving the jury a Bailey instruction. See State v. Bailey, 94 Idaho 285, 291 n. 4, 486 P.2d 998, 1004 n. 4 (1971). However, the court reminded the prosecutor that such an instruction had already been given to the jury.[Footnote 1] The Judge
decided to inquire whether the jury had reviewed instruction No. 21 and whether recess for the evening and continued deliberation on the next day would resolve the deadlock.
The district Judge made the following remarks to the jury at 11:48 p.m.:
COURT: I have a note which I've put on the record that you feel that possibly you have a hung jury. Obviously, this doesn't happen every day. It's the first time it's happened to me, anyway.
Instruction number 21, which comes right from Supreme Court decisions concerning compromising, reviewing the evidence, discussing it, everyone rendering their opinions, and, of course, trying to reach a verdict, do you feel as foreman that that has been fully complied with, that everybody really has expressed their opinions and attempted to reach a verdict?
JUROR [FOREMAN] BURTLOW: Yes, I do, Your Honor.
COURT: Do you feel that at this point, you have a hopeless impasse?
JUROR BURTLOW: It might not be hopeless, but it's going to take a long time.
COURT: Okay. I would ask you this, then. In helping me to make a decision, do you feel that if I excuse the jury at this time and reconvene the jury at nine o'clock in the morning, that it would be -- that would facilitate it in any way? Sometimes it's tiredness and the hour and the fact that you've been grinding away for seven hours that, you know -- I don't know whether that's it or not.
JUROR BURTLOW: I don't know.
COURT: Okay. Anyone else on the jury have any ideas or any opinions as to whether or not that would -- I think I know how Mrs. White might feel. I think she's -- her vacation is about to start in ten minutes, God willing. Some vacation, huh?
Does anyone feel that a rest would facilitate anything?
JUROR ALLEN: Your Honor, it might be that if we had maybe another half hour or forty-five minutes tonight, that we could probably maybe come ...