State v. Mitchell ( 1983 )

BAKES, Justice.

Defendant appeals from a conviction of first degree murder.

Betty Jane Mitchell, the defendant appellant, arrived at her home on the evening of January 23, 1978, and found her husband, “Mitch”, dead. Initial investigation indicated that Mitch had been murdered by strangulation during a burglary of their home, but police attention subsequently focused upon Mrs. Mitchell and the possibility that- she had arranged to have her husband killed.

On January 31,1978, Mrs. Mitchell was in Boise, Idaho, and registered at The Boisean Motel. At approximately 12:45 p.m. Lt. Tom Taylor of the Ada County Sheriff’s Office, accompanied by two detectives, contacted Mrs. Mitchell at her motel room and advised Mrs. Mitchell that he wanted to talk to her. Lt. Taylor handed Mrs. Mitchell a printed form that contained Miranda, rights and an express waiver and requested her to read and complete the form. Mrs. Mitchell then substantially completed the form and signed the waiver, which will be discussed infra, and Lt. Taylor began his tape recorded interview. Lt. Taylor did not inform Mrs. Mitchell that he possessed a warrant for her arrest when she was given the Miranda rights, nor did he readvise Mrs. Mitchell of her Miranda rights when he specifically informed her that she was under arrest.

Additional facts relevant to this appeal are that Mrs. Mitchell had ingested alcohol and prescribed medication prior to and during the interrogation. Before going to her motel room, Lt. Taylor had been advised that Mrs. Mitchell was observed at a bar that morning. Lt. Taylor had also been informed that Mrs. Mitchell took prescribed medication daily. Additionally, Mrs. Mitchell consumed one can of beer and part of another can during the interview. At the completion of the interrogation, during which Mrs. Mitchell made several incriminating statements, Mrs. Mitchell was taken to the sheriff’s office and charged with first degree murder.

Although the crime was committed on January 23, 1978, trial was not held until May 19, 1980. In the intervening period, defendant appellant requested and received psychiatric evaluations. Additionally; defendant made several motions to suppress the recorded interrogation or any reference thereto on the grounds that she was incapable of knowingly and voluntarily waiving her Miranda rights or of knowingly and intelligently making a voluntary statement. On December 22,1978, the trial court determined that the question of voluntariness was an issue of fact for the jury. Pursuant to defendant’s appeal by certification under I.A.R. 12, this Court, on April 8, 1980, held that the question of voluntariness is controlled by State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971), which established the rule that voluntariness is, in the first instance, a question of law for the trial court.¹ State v. Mitchell, 101 Idaho 108, 109, 609 P.2d 175 (1980).

Upon remand, the district court suppressed the entire tape recording and transcription thereof. However, the trial court determined that Mrs. Mitchell’s statements did not become involuntary until a point referred to by the parties as approximately one-third of the way into the interview, and the court permitted Officer Taylor to testify concerning the interrogation up to that point. The court suppressed any reference to the interrogation past that point. At the conclusion of trial, the jury returned a verdict of guilty of murder in the first degree, and the court sentenced the defendant to an indeterminate life term. Defendant appeals her conviction.

Defendant appellant presents three principal issues for our review on appeal, none of which involve any claims regarding the sufficiency of the evidence. The issues raised are: (1) Whether the trial court erred by refusing to suppress all reference to the interview with the appellant; (2) whether the trial court erred in denying appellant’s motion to dismiss on the ground that the trial court’s suppression of the last two-thirds of the interview rendered the showing of probable cause at the preliminary hearing insufficient to bind the appellant over for trial; and (3) whether the trial court erred in denying defendant’s motion to dismiss the jury panel as a whole. The alleged errors will be discussed in the order raised by the appellant.

I

On appeal, appellant argues that there are several reasons why the trial court erred in refusing to suppress the entire interrogation. Appellant first argues that the Miranda warnings given to her were inadequate and that she did not effectively waive those rights. A review of the circumstances surrounding the interrogation at this juncture will facilitate a determination of these arguments.

Testimony elicited at both the preliminary and pretrial hearings, transcripts of which are contained in the record, establish that Lt. Taylor, upon gaining admittance to appellant’s motel room, advised appellant that he wanted to talk to her. Lt. Taylor did not inform appellant of the arrest warrant in his possession at that time, but handed her a copy of the rights and waiver form used by the Ada County Sheriff’s Office.² He requested appellant to read the form and place her initials at the end of each delineated right to indicate that she understood her rights. Lt. Taylor testified that he advised appellant to tell him if she did not understand anything and that he would explain it to her. Lt. Taylor further testified that appellant put on her glasses, read the form and placed her initials after all but one of the rights. The failure to initial the statement regarding her rights to a public defender was brought to appellant’s attention, whereupon she responded by placing her signature at the bottom of the form.³ Lt. Taylor then turned on the tape recorder and began his interrogation. Appellant was not informed of the arrest warrant against her or that she was under arrest until several minutes later in the interview.⁴

The warnings contained in the form given to appellant are not challenged as insufficient under the standards prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant’s challenge is instead directed to the timing of those warnings. In a somewhat novel approach to the Miranda question, appellant argues essentially that the warnings were given too early, as opposed to too late or not at all, the usual arguments concerning the timing of giving Miranda rights. See, e.g., State v. McCurdy, 100 Idaho 683, 603 P.2d 1017 (1979); State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971); State v. Sanchez, 94 Idaho 125, 483 P.2d 173 (1971); State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970). Appellant argues that, when viewed under an objective test, the interrogation did not become custodial until she was specifically informed of her arrest.⁵ She further contends that since the warnings were not repeated when the interrogation became custodial, the warnings given immediately prior to the commencement of the interview did not effectively protect the defendant’s rights against self incrimination, nor comply with the safeguards established in Miranda v. Arizona, supra. We disagree.

In Miranda, the United States Supreme Court held that in the absence of other fully effective means, the following measures are required procedural safeguards in the event of a custodial interrogation outside the presence of counsel: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706-07. The instructive phrase in determining the effectiveness of the warnings given to appellant prior to the point in time at which she claims the interrogation became custodial is “[p]rior to any questioning .... ” Lt. Taylor, in attempting to discharge his responsibilities, gave appellant the Miranda statement immediately after entering her motel room and prior to any questioning and thereby satisfied the Miranda requirements. The fact that appellant was not explicitly informed that the officers had an arrest warrant at the time that she received the warnings does not invalidate their effectiveness. It is not essential that a suspect be informed of the charges against her before being interrogated. See United States v. Washington, 431 U.S. 181, 186, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238, 244 (1977); State v. Lucero, 151 Mont. 531, 445 P.2d 731, 736 (1968).

The Miranda warnings given to appellant were substantively sufficient and effectively informed appellant of her rights. It was not necessary that the rights be repeated at the moment in time asserted by appellant to be the point at which the interrogation is alleged to have become custodial, particularly where appellant had been given her rights just five to ten minutes earlier. See United States v. Paulton, 540 F.2d 886, 890-91 (8th Cir.1976) (warnings did not have to be repeated where defendant had essentially received the warnings and advice required by Miranda a short time earlier).

Appellant also argues that she did not effectively waive her Miranda rights. The state, in attempting to introduce statements made by a suspect during a custodial interrogation and outside the presence of an attorney, must establish a voluntary, knowing and intelligent waiver of the suspect’s rights. State v. Ybarra, 102 Idaho 573, 577, 634 P.2d 435 (1981). The state has a heavy burden and must overcome the presumption against waiver. See State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968); Abercrombie v. State, 91 Idaho 586, 428 P.2d 505 (1967). Although not conclusive, an express written statement of waiver of Miranda rights is usually strong proof of voluntary waiver. State v. Padilla, 101 Idaho 713, 719, 620 P.2d 286, 292 (1980); see North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979).

Appellant executed a written waiver. She alleges, however, that the written waiver was ineffective because she failed to completely fill out the form and initial every right listed, as instructed by Lt. Taylor. In reviewing the waiver of rights form, it is apparent that appellant failed to indicate, by checking or circling “I do/do not,” whether she wanted to talk to a police officer at that time. She did, however, place her initials at the end of that sentence. It also appears that appellant did not place her initials after the following delineated right: “I have (read the above) (had the above read to me) and fully understand my right to the services of the public defender at this or any future time.” Lt. Taylor testified that he noted appellant’s failure to initial the public defender right, that he brought the omission to her attention, and that she then placed her signature at the bottom of the form. He stated that “when she went ahead and signed the bottom, that indicated to me that she fully understood it.” Lt. Taylor also testified that he discussed appellant’s right to have a public defender or lawyer while she was signing the form. Nevertheless, appellant alleges that the above mentioned deficiencies render the waiver ineffective.

The Miranda Court, however, did not intend that such mechanical or formalistic approaches be used to evaluate the procedural safeguards given. The safeguards suggested in Miranda were intended to create a “practical reinforcement for the right against compulsory self incrimination.” See Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182, 192 (1974). The question is not one of form, but whether the appellant, in light of the totality of circumstances surrounding her statements, knowingly and intelligently waived her Miranda rights. See North Carolina v. Butler, supra 441 U.S. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292; United States v. Carra, 604 F.2d 1271, 1274 (10th Cir.1979), cert. denied 444 U.S. 994, 100 5.Ct. 529, 62 L.Ed.2d 425 (1979); State v. Ybarra, supra; State v. Padilla, supra. Miranda itself does not require a written or express waiver. See North Carolina v. Butler, supra (defendant refused to sign waiver form but willingly made inculpatory statements). Thus, any minor deficiency in the execution of the waiver of rights form will not, in and of itself, invalidate the appellant’s express waiver. We must look to the totality of the circumstances to determine whether the trial court correctly determined that appellant knowingly and voluntarily waived her Miranda rights.

After completing the waiver of rights form, appellant conversed with and responded to the questions asked of her by Lt. Taylor over a period of approximately two hours. At no time did appellant request the interview to stop, attempt to revoke her written waiver, or invoke her privilege to remain silent, even upon learning that she was under arrest.

Lt. Taylor knew that appellant had been drinking and that she had taken prescription medication. Additionally, he drank a beer with her during the interview. However, he testified, in effect, that defendant was alert and in full possession of her faculties during the interview. On the other hand, two expert witnesses who filed affidavits and later appeared on behalf of the appellant initially expressed opinions in their affidavits that the amount of alcohol and drugs allegedly consumed by the appellant would have affected her ability to competently waive her rights.⁶

The trial court, in an order denying appellant’s motion to suppress, dated December 12, 1978, determined that “at the time the waiver was signed by defendant she was in possession of her faculties and that the signing of said waiver was made knowingly and intelligently.” The trial court reaffirmed this finding in its order of May 13, 1980, wherein it stated that:

“This Court previously held in its Memorandum of 22 December 1978, that at that time the waiver was signed by defendant, that she was, in fact, in possession of her faculties and that the signing of said waiver was made knowingly and intelligently. No part of the proof at the present [pretrial] hearing has convinced this Court otherwise.”

The trial court’s conclusions that appellant made a knowing and voluntary waiver of her rights is supported by substantial and competent evidence. Being unpersuaded that the findings were erroneous, we uphold the trial court’s conclusions. See State v. Ybarra, supra 102 Idaho at 577, 634 P.2d at 439; State v. Wyman, 97 Idaho 486, 491, 547 P.2d 531, 536 (1976), overruled on other grounds, State v. McCurdy, 100 Idaho 683, 603 P.2d 1017 (1979); State v. Dillon, 93 Idaho 698, 707-08, 471 P.2d 553, 562-63 (1970), cert. denied 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971); State v. Fisk, 92 Idaho 675, 679, 448 P.2d 768, 772 (1967).

Appellant next argues that the admission of statements made during the first one-third of the interview constitutes reversible error because she was incapable of knowingly and voluntarily making such statements. We discuss this question separately from the question of waiver because “issues of voluntariness and compliance with Miranda are separate constitutional defenses,” and “even though a statement may be obtained before Miranda warnings are required, or after they are given, the statement may be inadmissible because it was involuntarily given.” United States v. Curtis, 568 F.2d 648, 647 (9th Cir.1978), citing Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); People v. Parada, 188 Colo. 230, 533 P.2d 1121, 1123 (1975); State v. Gallegos, 92 N.M. 336, 587 P.2d 1347, 1351 (N.M.App.1978). The question of the voluntariness of the defendant’s statements must be resolved by examining the totality of circumstances surrounding the statements to determine whether it is the product of a rational intellect and a free will. State v. Powers, 96 Idaho 833, 840, 537 P.2d 1369, 1376 (1975), cert. denied 423 U.S. 1089, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976); see also, United States v. Dufur, 648 F.2d 512 (9th Cir.1980), cert. denied 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355 (1981).

Appellant alleges that as a result of her ingestion of prescription drugs and alcohol prior to and during the interrogation her statements were not the product of a voluntary exercise of free will and should have been suppressed in their entirety. “However, [c]ustodial statements are not per se involuntary because of intoxication,” United States v. Brown, 535 F.2d 424, 427 (8th Cir.1976), and, in accordance with the above stated rule, the totality of circumstances must be examined to determine whether appellant’s statements were voluntarily made.

It will be recalled that the trial court, at the behest of this Court, see State v. Mitchell, 101 Idaho 108, 609 P.2d 175 (1980), determined the question of voluntariness as a matter of law. Evidence before the trial court established that appellant consumed alcoholic beverages prior to the interview and drank one beer and part of another during the interview. Additionally, appellant took prescription medication on the day of the interview. The trial court considered evidence given by psychiatrists and psychologists, appearing on behalf of both the defendant and the state at the pretrial hearing, that appellant’s mental condition deteriorated to a point where she was no longer in control of her faculties. Lt. Taylor, on the other hand, testified to the effect that the defendant was alert and in full possession of her faculties during the entire interview. In its order dated May 13, 1980, the trial court concluded that the state had met its burden of proof that at least the first portion of appellant’s statements were voluntarily, knowingly and intelligently made, and that the statements made prior to the time her mental condition deteriorated were admissible. However, the trial court concluded that appellant’s condition regressed to a point “that at the time the alleged admissions were made to Captain [Lt.] Taylor, the defendant was not mentally competent and therefore that portion of her statement must be suppressed.” The trial court determined the line of demarcation between the statements that were made voluntarily and those that were made involuntarily to be approximately one-third of the way into the interview. Although the tape recording and transcription of the interrogation were suppressed in their entirety, Lt. Taylor was allowed to testify to statements made by the appellant during the first one-third of the interview. Some of appellant’s statements contained in the first third of the interrogation linked her to the death of her husband, but did not constitute admissions or a confession.

The question of voluntariness of defendant’s statements is, in the first instance, a matter of law to be decided by the trial court for purposes of admission. State v. Mitchell, supra, 101 Idaho at 109, 609 P.2d at 176; State v. Dillon, supra, 93 Idaho at 709-10, 471 P.2d at 564-65. We find that the trial court’s conclusion ■ that approximately the first one-third of the appellant’s statements were voluntarily made is sound and we will not disturb that conclusion on appeal.⁷

II

The second question presented by appellant is whether, after the trial court’s suppression of the last two-thirds of the interrogation, there was sufficient probable cause to proceed to trial. Appellant alleges that the magistrate court relied exclusively on the tape recorded interview in determining the existence of probable cause and that the trial court’s suppression of all but the first one-third of the interrogation, which allegedly contained nothing to establish probable cause, invalidated the determination of probable cause.

The duty of a magistrate at a preliminary hearing is to “determine whether or not a public offense has been committed and whether or not there is or is not probable or sufficient cause to believe that the defendant committed such public offense.” I.C. § 19-804. A magistrate’s decision that probable cause exists to bind a defendant over to the district court for trial on the charges against him or her should be overturned only upon a showing that the magistrate abused his discretion. State v. Owens, 101 Idaho 632, 636, 619 P.2d 787, 791 (1980); State v. Horn, 101 Idaho 192, 195, 610 P.2d 551, 554 (1980).

Stripped to its essentials, appellant’s argument is that the district court’s ultimate determination that some of the evidence relied on by the magistrate court was inadmissible, invalidated the magistrate’s determination that probable cause existed at the preliminary hearing stage. I.C.R. 5.1, identical in relevant part to Rule of Criminal Practice & Procedure 5.1 in effect at the time of appellant’s trial, provides:

“The finding of probable cause shall be based upon substantial evidence upon every material element of the offense charged; ... [with the exception of certain forms of hearsay evidence].... [I]f at the preliminary hearing the evidence shows facts which would ultimately require the suppression of evidence sought to be used against the defendant,- such evidence shall be excluded and shall not be considered by a magistrate in his determination of probable cause.”

Nevertheless, in State v. Watson, 99 Idaho 694, 587 P.2d 835 (1978), we held that “[w]here an arrest warrant has been issued without a magistrate’s finding of probable cause, the illegality of such an arrest ... does not invalidate a conviction which results from a fair trial of the issue of guilt.” Id. at 697, 587 P.2d at 838. See also State v. Alger, 100 Idaho 675, 603 P.2d 1009 (1979); State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979). Similarly, we hold that even if the magistrate erred in relying on evidence at the preliminary hearing that is ultimately determined to be inadmissible, the error is not a ground for vacating a conviction where the appellant received a fair trial and was convicted, and there is sufficient evidence to sustain the conviction. See also Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (conviction will not be vacated on the ground that defendant was detained without probable cause determination).

Ill

Appellant’s final assignment of error is that the trial court erred in denying her motion to dismiss the jury panel as a whole. In her brief on appeal, appellant Mitchell argues that since “several prospective jurors brought prejudicial information to light in front of all the members of the jury panel,” the motion to dismiss the jury panel, made orally during voir dire, should have been granted.⁸ Appellant argues that the grounds and means for objecting to an entire jury panel, found in the provisions of I.C. §§ 19-2005 and -2006,⁹ are drawn too narrowly and violate various state and federal constitutional provisions relating to appellant’s right to trial by an impartial jury.¹⁰

A challenge to the jury panel as a whole, however, was not the only opportunity available to appellant to excise objectionable jurors from the jury panel. Appellant was entitled to voir dire the prospective jurors and challenge individual jurors for cause, see I.C. §§ 19-2013 and -2017, or exercise peremptory challenges against individual jurors, see I.C. §§ 19-2013 and -2015. Even though apparently dissatisfied with the jury panel, appellant did not challenge any juror for cause nor exercise all of her peremptory challenges. Having failed to exhaust the means available to her to exclude unacceptable jurors, appellant cannot now claim error in the trial court’s denial of her motion to dismiss the entire jury panel. Cf. State v. Bitz, 93 Idaho 239, 460 P.2d 374 (1969) (failure to challenge juror for cause indicates satisfaction with jury as finally constituted); State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970) (defendant cannot claim as error trial court’s refusal to grant additional peremptory challenges when failed to exercise all challenges available); State v. McMahon, 37 Idaho 737, 219 P. 603 (1923) (where defendant exercises only some of his peremptory challenges, it will be inferred jury is satisfactory); State v. Fondren, 24 Idaho 663, 135 P. 265 (1913) (defendant cannot urge as error court’s refusal to allow challenge for cause when he does not exercise all peremptory challenges).

Finding no reversible error, we affirm.

DONALDSON, C.J., SHEPARD, J., and McFADDEN, J. (Ret.), concur.

APPENDIX I

ADA COUNTY SHERIFF'S DEPARTMENT BOISE POLICE DEPARTMENT

NOTIFICATION OF THE RIGHT TO THE SERVICES_0F_ THE PUBLIP DEFENDER

NOTIFICATION OF RIGHTS

Before we ask you any questions, you must understand that you have certain rights under both the Idaho and United States Constitutions. You do not have to talk with us. You have the absolute right to remain silent. Anything you say can and will be used against you in court. You have the right ot talk with a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have the right to the advice of a lawyer even if you cannot afford to hire one. You have the right to request the services of the Public Oefender at any time if you cannot afford to hire a lawyer. If you want a lawyer present or if you wish to consult a lawyer, you have the absolute right to remain silent until he is present or has been consulted, whether he be the Public Oefender or counsel of your own choosing. If you wish to answer questions now, without a lawyer present, you have the right to stop answering questions at any time and remain silent.

WAIVER

(Place initials at the end the each statement below only after you completely understand what such statement means.)

I have read the above statement of my rights (I have had the above statement of my rights read to me) and understand that:

1. I have the absolute right to remain silent

Anything I say can and will be used against me in court.

quest I have the right to the advice of a lawyer before answering any question

4. I have the right to have a lawyer present during any questioning.,

5. I have the right to a lawyer even if I cannot afford one, jtróUf I cannot afford one, I may use the service of a Public Defender at any tim

6. if I choose .to answer any questions without the advice of a lawyer or without a lawyer being pregmt,/!; Jjaytthe right to stop answering questions at any time and remain silent. // L

Having ttisp'Tij now. £~) Ü Í/ ¡jn mind, I (do) (do not) wish to talk to Law Enforcement Officers

NOTIFICATION OF THE RIGHT TO THE SERVICES OF A PUBLIC DEFENDER

You have the right to be represented by a lawyer at any time. If you cannot afford a lawyer of your own choosings, you have the right, at public expense, to use the services to the Public Defender. This right may be exercised at any time.

WAIVER

(Place initials at the end of the acknowledgement statement only after you completely understand what the statementmeans.)

I have (read the above) (had the above read to me) and fully understand my right to the services of the

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1 . In State v. Dillon, supra, we adopted the so-called “Massachusetts rule” wherein we held that “the trial court in the absence of the jury resolves the issue of voluntariness and then determines the admissibility of a criminal defendant’s statements. The trial court must find them to have been shown to be admissible by a preponderance of the evidence.” Supra at 709-710, 471 P.2d at 564-65.

2 . See Appendix I (Miranda form).

3 . Appellant’s failure to indicate whether she did or did not wish to talk to the officers at that time, in right No. 7, is discussed infra.

4 . The point in the interrogation at which Mrs. Mitchell learned that she was under arrest is disputed. For some unknown reason the tape recorder stopped at a point approximately five minutes into the interview, and Lt. Taylor later interjected his statement that he informed Mrs. Mitchell of the arrest warrant during this unrecorded period. The state asserts that Mrs. Mitchell learned of the arrest warrant issued against her at this point. Mrs. Mitchell argues that she was not advised of her arrest until a few minutes later. This factual issue was not resolved at trial.

5 .We reach no decision concerning when the interrogation became custodial under an objective test. We merely point out the existence of other facts that would be considered in such a determination, including: that Lt. Taylor was accompanied by two other detectives who were introduced as such to appellant but took no active part in the interview; and that appellant was given a Miranda rights and waiver form when the officers entered the room.

We note also that appellant ignores the apparent contradiction in her argument that the entire interrogation should be suppressed, but that the interrogation was not custodial, and therefore no Miranda warnings were even required until she was expressly informed of her arrest.

6 . The affidavits of both Dr. McDonald and Dr. Reichman were not entirely consistent with the testimony regarding appellant’s state of mind elicited from them at the pretrial hearing. See n. 9, infra.

7 . The trial court’s determination that approximately the first one-third of defendant’s statements in the interrogation were made voluntarily is supported by the expert testimony elicited at the pretrial hearing, which places the point that appellant “lost control” well beyond the point determined by the trial court.

8 . Several prospective jurors expressed concern \ that appellant’s alleged accomplices had been released on technicalities. '•

9 . “19-2005. CHALLENGE TO PANEL-GROUNDS.—A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one (1) or more of the jurors drawn.”

“19-2006. CHALLENGE TO PANEL— WHEN AND HOW TAKEN.—A challenge to the panel must be taken before a juror is sworn, and must be in writing, and must plainly and distinctly state the facts constituting the ground of challenge.”

The provisions of I.C. § 19-2006 are mandatory. See State v. Scoble, 28 Idaho 721, 155 P. 969 (1916) (construing then effective R.C. § 7820).

10 . Appellant argues that the Idaho statutes violate the sixth and fourteenth amendments of the United States Constitution, and Art. 1, § 7, and Art. 5, § 13, of the Idaho Constitution.