Opinion No. 123
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Jason D. Scott, District
court judgment of conviction and sentencing, affirmed.
Fredericksen, Interim State Appellate Public Defender, Boise,
for appellant. Brian R. Dickson, argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
respondent. Theodore S. Tollefson, Deputy Attorney General
Antonio Sepulveda appeals from the Ada County District
Court's judgment after a jury found him guilty of felony
intimidating a witness, misdemeanor domestic battery, injury
to a child, and two counts of attempted violation of a no
contact order. Sepulveda contends that his right to confront
witnesses, his right to present a defense, and his right to
be free from double jeopardy were violated and that his
convictions should be vacated. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
December 27, 2013, officers responded to a 911 call placed by
Connie Grainger. In the call, Grainger reported that she had
heard a loud bang and yelling from Sepulveda's apartment,
which shares a wall with Grainger's. When the officers
arrived, they found a pipe and some methamphetamine in
Sepulveda's pants pocket. Sepulveda told the officers
that the pipe and methamphetamine belonged to his girlfriend,
L.M., and that she had attacked him after he confronted her
about her drug use. L.M. told officers that she had
confronted Sepulveda about feeding the children, that she and
Sepulveda then got into an argument, and that during the
argument Sepulveda attempted to strangle her. Sepulveda was
arrested and ultimately charged with attempted strangulation
and misdemeanor injury to a child. A no contact order was also
entered prohibiting Sepulveda from contacting L.M.
in custody, Sepulveda called L.M.'s sister and was
recorded asking her to contact L.M. and tell L.M., among
other things, not to appear in court. Sepulveda was also
recorded contacting Lisa Cameron, a cellmate's wife, and
asking her to contact L.M. and tell L.M. that if L.M. did not
show up at the preliminary hearing the charges would be
dropped. These calls resulted in Sepulveda being charged with
felony intimidating a witness and two counts of attempted
violations of a no contact order.
testified during a preliminary hearing that Sepulveda took
her by the neck, got on top of her, and choked her with two
hands. On cross-examination, L.M. was asked whether she had
ever harmed herself and whether she had used methamphetamine
a few days prior to the day of the incident. Both of these
lines of questioning were objected to for relevance and the
court sustained both objections.
months after the December 27, 2013, incident but prior to
trial, L.M. committed suicide by overdosing on
methamphetamine and two other drugs for which she had
prescriptions. As a result, the State filed a pretrial motion
to admit L.M.'s preliminary hearing testimony at trial.
Sepulveda objected, contending that he had not had an
adequate opportunity to cross-examine L.M. during the
preliminary hearing regarding issues that impacted her
credibility, namely, her history of drug use and her history
of self-abuse. The district court, finding that Sepulveda had
an adequate opportunity to cross-examine L.M., granted the
State's motion. The State also moved to exclude any
reference to the cause of L.M.'s death during the trial.
Sepulveda objected, contending that the cause of death was
relevant to his theory of defense. The State argued that
L.M.'s suicide was irrelevant to the trial. Agreeing with
the State, the district court granted the State's motion.
jury found Sepulveda guilty of domestic battery, injury to a
child, intimidating, impeding, influencing, or preventing the
attendance of a witness, and two counts of attempted
violation of a no contact order. Sepulveda timely appeals.
STANDARD OF REVIEW
claims are constitutionally based. "The requirements of
the Idaho and U.S. Constitutions are questions of law, over
which this Court has free review." State v.
Draper, 151 Idaho 576, 598, 261 P.3d 853, 875 (2011).
contends his constitutional rights to confront witnesses
against him, to present a defense, and to be free from double
jeopardy were violated in the lower court proceedings. We
address each claim in turn.
Sepulveda's right to confront the witnesses against him
was not violated.
Sixth Amendment to the United States Constitution provides
that a criminal defendant has "the right . . . to be
confronted with the witnesses against him." U.S. Const.
amend. VI. " 'This provision bars admission of
testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.'
" State v. Richardson, 156 Idaho 524, 528, 328
P.3d 504, 508 (2014) (quoting Davis v. Washington,
547 U.S. 813, 821 (2006)). Testimonial statements include
"at a minimum . . . prior testimony at a preliminary
hearing, before a grand jury, or at a former trial . . .
." Crawford v. Washington, 541 U.S. 36, 68
(2004). The Confrontation Clause "is made obligatory on
the States by the Fourteenth Amendment." Pointer v.
Texas, 380 U.S. 400, 403 (1965).
is no dispute that L.M.'s statements at the preliminary
hearing were testimonial or that L.M. was unavailable to
testify at the trial. As such, the only issue is whether
Sepulveda had a prior adequate opportunity to cross-examine
Richardson, we stated:
Crawford did not specifically address what
constitutes an 'adequate' opportunity for
cross-examination, but the cases the [U.S. Supreme] Court
cited, Pointer, Green, and
Mancusi, do provide some guidance in assessing
whether an adequate opportunity has been afforded. There are
three indicators of an adequate opportunity for
cross-examination based on U.S. Supreme Court case law. The
first indication of an adequate opportunity to cross-examine
is representation by counsel. A second indication is no
significant limitation in any way in the scope or nature of
counsel's cross-examination. The third indication is
counsel's failure to show any new and significantly
material line of cross-examination that was not at least
touched upon in the preliminary hearing. These three factors
are illustrative and not meant to be exhaustive or exclusive
in the determination of the adequacy of cross-examination
under the Confrontation Clause. Whether a party had an
adequate opportunity to cross-examine is determined on a
Richardson, 156 Idaho at 528-29, 328 P.3d at 508-09
(alteration in original) (citations and internal quotation
marks omitted). Additionally, we have stated that "
'the exposure of a witness' motivation in testifying
is a proper and important function of the constitutionally
protected right of cross-examination.' " State
v. White, 97 Idaho 708, 713, 551 P.2d 1344, 1349 (1976)
(quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).
contends that his right to confront the witnesses against him
was violated because he was limited in his cross-examination
of L.M. during the preliminary hearing and was "not
afforded the opportunity to question L.M. about potential
sources of bias or motives to testify falsely."
Specifically, Sepulveda argues that he was restricted in his
cross-examination of L.M. when the trial court sustained a
relevance objection to his question regarding whether L.M.
had used methamphetamine a few days prior to the day of the
alleged incident. Sepulveda contends that by sustaining the
objection the court prevented him from cross-examining L.M.
about her methamphetamine use and cut off his ability to
question L.M. about "this source of bias and motive to
testify falsely against him." The full exchange was as
Q: Now, you said that you hadn't used
any methamphetamine that day. Had you a few days prior ...