State v. Griffin , 122 Idaho 733 ( 1992 )

BAKES, Chief Justice,

concurring as to Parts I, II, IV, V and VI; and dissenting as to Part III:

In Part III the majority, relying upon our case of State v. Badgley, 116 Idaho 236, 775 P.2d 128 (1989), concludes that the trial court may have improperly sentenced Griffin because he refused to disclose his sources when the reason he refused to disclose them was out of fear, and therefore the trial judge erred in not considering the reasonableness of Griffin’s claim of fear. However, that issue has not been preserved since none of Griffin’s several Rule 35 motions ever mentioned that as an issue in the case. Therefore, under our recent decision in State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991), that issue is not properly before us.

This case had a long history in the trial court. Griffin was charged with three counts of Delivery of a Controlled Substance. He went to trial in November of 1987, and the trial ended when Griffin, after testifying at length, changed his plea to guilty on all three counts and the matter was continued for sentencing. After a presentence investigation report was obtained, Griffin was sentenced on March 11, 1988, to ten years on each count with a minimum period of confinement of five years, each count to run concurrently. Griffin filed a notice of appeal from that judgement and sentence on March 29, 1988.

Subsequently, on July 1, 1988, while the direct appeal was pending, Griffin filed the first of a series of I.C.R. 35 motions for reduction of sentence.¹ Thereafter, on August 29, 1988, Griffin filed another Rule 35 request for reduction. On September 12, 1988, Griffin filed still another amended motion for reduction under Rule 35. The trial court ordered a hearing on these three motions which was delayed because of discovery and other matters. The Rule 35 motions were finally set for hearing on January 30, 1989, on which day Griffin’s attorney filed yet another motion to amend the Rule 35 motion for reduction of sentence, along with a memorandum brief in support of that amended motion for sentence reduction.

None of the Rule 35 motions or amended motions, nor the memorandum brief, raises as an issue the claim that the trial court erroneously considered Griffin’s failure to disclose his sources when imposing the sentence nine months earlier, consequently, it is understandable that the trial court failed to address the reasonableness of Griffin’s claim of fear. That was not an issue raised in any of the Rule 35 motions or the brief in support of the motions and therefore it is waived.² State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991).

The majority asserts that the fear issue was raised based upon references to two documents which were augmented into the record. The first is Griffin’s original sentencing memorandum filed on March 2, 1988, nine days prior to the imposition of the original sentence on March 11, 1988, and three months before the first Rule 35 motion for reduction was filed on July 1, 1988. In that sentencing memorandum, Griffin’s counsel stated:

Mr. Griffin’s biggest connections were with the confidential informants, Jeff Clark and Mike Whiting, until they were busted. Mr. Griffin further wishes to advise the court that his refusal to identify his drug sources is not because he has “chosen to remain protective and loyal to his drug ‘associates’ ” as asserted by the Presentence Investigator but rather is a product of his upbringing to accept responsibility for your own actions but not to “snitch” on others. Secondly, identification of his sources presents a danger to Mr. Griffin and would amount to a sentence of exile from his community. Whatever his sentence, Mr. Griffin wishes and plans to return to this area to live and if he were to “snitch” he would be unable to do so.

The other reference cited by the majority is to a handwritten, unsworn letter by Griffin which his counsel attached to his January 30,1989 memorandum brief filed in support of the Rule 35 motions for reduction of sentence which were all heard on January 30, 1989. In that handwritten letter, Griffin stated:

I feel that I was sentenced more stiffly than usual because I refused to reveal my drug sources and customers. I did not refuse to reveal my drug sources and customers because of allegiance, but because I felt that if I did reveal them, I would never be able to live in the community that I have grown up in and my entire family and friends live in without being in fear of my life. It would have alienated me from the people and country that I love. I also believe that I should take responsibility for my actions and not try to get out of punishment by “snitching” on other people____ My biggest suppliers were in fact Jeff Clark and Mike Whiting who I testified to being my connections from 1984 to 1985. The people I received the drugs from, that I delivered to [Mike] Whiting and [Jeff] Clark are not big main suppliers.

However, nothing raised in any of the Rule 35 pleadings, and nothing raised in the memorandum brief in support of the motion for reduction filed on January 30, 1989, raises fear as an issue. Merely attaching an unsworn handwritten letter to the January 30, 1989, memorandum brief does not amend the Rule 35 pleadings or alter the issues which the brief specifically identifies. Under State v. Martin we should not consider it. The unsworn, undated letter attached to his counsel’s brief is not any basis for this Court to now conclude that the defendant has raised an issue that he was more severely sentenced because he refused to disclose his sources which he feared.

The defendant has raised, in his direct appeal from the March 11, 1988, sentence, the issue that the trial court erred in considering the defendant’s refusal to reveal his drug sources “where the defendant advised the court that his refusal was based on his fear of recrimination and reprisal.” As to that, there is nothing in the evidence or in the record on appeal, except the defendant’s counsel’s sentencing memorandum filed on March 2,1988, to support that claim. However, the defendant’s testimony at trial, upon which the trial court based its original sentencing decision, did not raise the issue of fear.³ There is no evidence in the record before the Court in Case No. 17446, the direct appeal from the judgment of conviction and sentence, which supports the claim in defense counsel’s sentencing memorandum that the defendant was in danger of being exiled from his community.

Accordingly, we should affirm the direct appeal on the ground that there is no evidence in the record in Case No. 17446, the direct appeal, to support the statement of defense counsel in the March 2, 1988, sentencing memorandum that the defendant refused to disclose his sources out of fear. As a matter of fact, that very same sentencing memorandum specifically identifies Clark and Whiting, the two primary sources, negating any thought that the defendant was claiming fear at that time.

We should also affirm the appeal from the Court’s order denying the Rule 35 motions because the issue of fear was never raised in those motions or in the January 30, 1989, memorandum brief filed in support of those motions.

1 . On July 29, 1988, the trial court, sua sponte, entered an order correcting, nunc pro tunc, its sentence in Count I, which the trial court felt had been illegally imposed.

2 . The memorandum brief filed by Griffin’s counsel on January 30, 1989, the day the Rule 35 motions were heard, states the issues to be as follows:

1. Whether or not the amendment of the Judgement of Conviction in Defendant’s absence was imposed in an illegal manner and compels re-sentencing in this case?

2. Whether the sentence imposed was illegally based on hearsay information of unadjudicated other offenses depriving the defendant of his constitutional right to confrontation and cross-examination?

3. Whether the sentence imposed was unduly harsh and excessive at the time it was imposed?

4. Whether the sentence imposed was unduly harsh and excessive under the facts and circumstances now existing?

5. Whether the sentence of defendant as compared with the sentences of other persons similarly convicted and sentenced by the trial court was so different in treatment and in kind as to have violated defendant’s right to Equal Protection as guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 1 of the Idaho Constitution?

3 . At trial, the defendant testified on direct examination that he was indeed afraid of his two main suppliers, Mike Whiting and Jeff Clark; that his fear of them arose from conversations and statements made by Clark and Whiting. He testified that he told Clark and Whiting that he no longer wanted to be involved, and that if he said no he was scared of what could be the recourse from Clark and Whiting. The fear which the defendant testified that he had of Jeff Clark and Mike Whiting was not of his disclosure of them, because they had become state's informants and were the persons to whom Griffin had sold the drugs which resulted in the three charges involved in this appeal. The fear about which he testified was an earlier fear of refusing to deal with them, not fear of their disclosure to the authorities, because by the time of the transaction involved in these charges Clark and Whiting were already working for the police. Their names were testified to openly at the trial and disclosed in the original sentencing memorandum.

It was the persons who supplied Griffin with the drugs which he sold to Jeff Clark and Mike Whiting that he refused to disclose, not out of fear, but out of loyalty. As to those suppliers, Griffin testified at his tried;

Q. You have customers right now that you're afraid to have their names released.

A [t]hese people are confidential ... and I cannot tell you their names.

Q. You’ve got a source of cocaine that you’re afraid to tell their name?

A. No I don’t.

Q. And that wasn’t because you were afraid in dealing control substances that he might be a law enforcement officer?

A. I was afraid the trouble that he’d ([Jeff] Clark) been in and like I stated it previously on my business, I was afraid of losing my business and the fear in me and the distrust in them at the time I felt I had to ask them.

Q. Is that why you won’t release any of these names to the ladies and gentlemen of the jury that we’ve asked about — about where you got cocaine, where you got methamphetamine, where you saw crack being made, is that you’re afraid of those people?

A. I feel that I am the one that’s on trial and there is — my sense of honor is no sense in bringing anybody else into it. Tr.Vol. 1, p. 159— 169.