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State v. Smith

Supreme Court of Idaho

February 2, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
LAURA L. SMITH, Defendant-Appellant.

         2017 Opinion No. 10

         Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Bonner County. Hon. Barbara A. Buchanan, District Judge.

         The judgment of the district court is affirmed.

          Sally J. Cooley, Deputy State Appellate Public Defender, Boise, argued for appellant.

          Jessica Lorello, Deputy Attorney General, Boise, argued for respondent.

          EISMANN, Justice.

         This is an appeal out of Bonner County from a conviction for aiding and abetting the delivery of psilocybin mushrooms to an undercover detective. The appeal contends that the district court erred in overruling an objection to an out-of-court statement made by the person from whom they purchased the mushrooms about his supplier on the grounds that it was hearsay and violated the Defendant's right to cross-examine the declarant. The appeal also challenges the sufficiency of the evidence to sustain the conviction. We affirm.

         I.

         Factual Background.

         In early 2012, two detectives had been working undercover investigating the sale of illegal drugs out of a particular bar in Bonner County. During the course of that investigation, they met and talked with a man named Shawn Kendle several times. During those conversations, Mr. Kendle had made it very apparent that he was involved in the drug trade, particularly in mushrooms and marijuana. One of the detectives who kept in contact with Mr. Kendle had arranged to meet at the bar on May 16, 2012, to purchase marijuana and psilocybin mushrooms. The officers were hoping to learn who his suppliers were.

         One of the detectives was wearing a video camera on his person, which was designed not to be noticeable. The camera's microphone was not directional, so it picked up traffic noise on the highway in front of the bar when the detective was outside and crowd noise from the bar patrons when he was inside the bar. As a result, there was no intelligible record of most of the conversations with or in the presence of the detective.

         At the trial, the detective was first asked to recount what had occurred on May 16, 2012. The detectives arrived at the bar at about 5:35 p.m. and, after parking their motorcycles, met with Mr. Kendle next to his pickup, which was parked next to the front door of the bar. Before going to the bar, the detectives had agreed that one of them would negotiate the purchase of marijuana and the other would negotiate the purchase of mushrooms. One detective negotiated with Mr. Kendle regarding purchasing marijuana, but Mr. Kendle had not secured it from his supplier, who lived in Washington. When it became apparent that the detectives would not go into Washington to purchase the marijuana or give Mr. Kendle the purchase money for him to do so, the first detective to testify during the trial stated that Mr. Kendle asked if they still wanted to purchase mushrooms. After receiving a positive response, the detective testified, without objection, that Mr. Kendle stated, "I've got her in the bar right now, the person to talk to." The detective testified that an agreement was reached to purchase an ounce of mushrooms for $150.00.

         At that point, the prosecution played the video and asked the detective what it showed. He testified that the video showed the detectives and Mr. Kendle walking back into the bar. He was asked what they were seeing "in this shot right here?" and he answered: "The gentleman standing with his back in the green t-shirt to us is Mr. Kendle. He is standing at the bar talking to what he said was his person that could supply him with mushrooms." Defense counsel objected on the grounds of hearsay and the Confrontation Clause, and the district court overruled the objections.

         The woman at the bar had red hair. The video showed Mr. Kendle talking with her and pointing toward his pickup parked in front of the bar, which could be seen through the bar's windows. She gathered her possessions and left the bar. The detective with the video camera left the bar after she did, and video-taped her driving away. Mr. Kendle had previously told the detectives where she lived, so the detective estimated that the trip would not take long. The detective then went back into the bar. Over the next ten minutes, he went back outside a few times purporting to make a cell phone call and went back inside the bar.

         On the last time the detective was outside the bar pretending to make a cell phone call, he saw the red-haired woman drive back to the bar and park in the parking space she had left. She was alone, and when she got out of her car she was carrying a brown paper bag. She walked over to the driver's side of Mr. Kendle's pickup, and the detective heard the pickup door open and close. She then walked around the front of the pickup and entered the bar. When she did so, she was not carrying the paper sack.

         The detective walked back into the bar and joined the other detective at a table. Mr. Kendle walked over to the table, sat down, and suggested that they go outside to look at the detective's motorcycles, which were parked at the end of the building. They walked out the door, and the detectives turned left to walk to their motorcycles. Mr. Kendle turned right, walked to his pickup, and drove it over to where the motorcycles were parked. Mr. Kendle opened the driver's door, and the brown paper bag was on the driver's floorboard. The detective who had stayed inside the bar while the red-headed woman was gone reached into the pickup, grabbed the paper bag, and paid Mr. Kendle $150.00. The detective did not observe any other brown paper bags in the cab of the pickup. The paper bag contained about one ounce of psilocybin mushrooms.

         The red-haired woman turned out to be Laura Smith, the Defendant. She was charged with aiding and abetting Mr. Kendle in delivering psilocybin mushrooms to the detective who had grabbed the paper bag. She pled not guilty, and the case was tried to a jury, who found her guilty. After she was sentenced, she timely appealed.

         The appeal was initially heard by the Idaho Court of Appeals, which vacated Ms. Smith's conviction and remanded the case. We then granted the State's petition for review. In cases that come before this Court on a petition for review of a decision of the Court of Appeals, we do not review the decision of the Court of Appeals. We hear the case anew as if the appeal had initially come directly to this Court. State v. Suriner, 154 Idaho 81, 83, 294 P.3d 1093, 1095 (2013).

         Ms. Smith raises three issues on appeal: (a) that the district court erred in overruling the Confrontation Clause objection to the detective's statement that the video showed Mr. Kendle standing at the bar "talking to what he said was his person that could supply him with mushrooms"; (b) that the district court erred in overruling the hearsay objection to the same statement; and (c) that there was insufficient evidence to convict Ms. Smith. "[T]his Court will not address constitutional issues when a case can be decided upon other grounds." State v. Lee, 153 Idaho 559, 563, 286 P.3d 537, 541 (2012). Therefore, we will address the hearsay objection first, then, if necessary, the Confrontation Clause issue, and then, if necessary, the sufficiency of the evidence to support the jury verdict.

         II. Did the District Court Err in Overruling the Hearsay Objection?

         While the detective was narrating what the video showed, he was asked what a scene showed. He responded:

This is after we've come back. Both of us have-all three of us have come back into the bar. The gentleman standing with his back in the green t-shirt to us is Mr. Kendle. He is standing at the bar talking to what he said was his person that could supply him with mushrooms.

         The person to whom Mr. Kendle was talking at that time was Ms. Smith. She objected on the ground that the statement was hearsay, and the court overruled the objection before the State could respond.

         Prior to the above testimony, the detective had testified that he and Mr. Kendle had come to an agreement to purchase the mushrooms. The prosecutor asked what the detective did at that point, and the detective answered, "At that point I-Mr. Kendle says I've got her in the bar right now, the person to talk to." Thus, the detective's testimony to which there was a hearsay objection was recounting what Mr. Kendle had earlier stated about his source of mushrooms.

         A statement is not hearsay if it is "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." I.R.E. 801(d)(2)(E). "Idaho law does not require contemporaneous independent proof of a conspiracy. Idaho law simply requires that there be some evidence of conspiracy or promise of its production, before the court can admit evidence of statements made in furtherance of the conspiracy under I.R.E. 801(d)(2)(E)." State v. Jones, 125 Idaho 477, 485, 873 P.2d 122, 130 (1994). In this case, the court overruled the objection before the State could respond.

         However, in a hearing prior to the commencement of the trial regarding the admissibility of the video, the State recounted to the district judge what the evidence would show.

PROSECUTOR: They're talking about the mushrooms and he says he's got her in the bar ...

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