State v. Hauser

¶1specially concurring.

¶2I concur in the opinion of this Court, but write separately to address and amplify two of the issues covered in the main opinion.

¶3A. Sufficiency of Evidence: I.C. § 18-205(1)

¶4Whether a deliberate falsehood to a peace officer may violate the accessory statute is a new question in Idaho.7 In People v. Duty, 269 Cal.App.2d 97, 74 Cal.Rptr. 606 (1969), the court therein found the key to answering the question by distinguishing between “affirmative” falsehoods and “passive” nondisclosure. The decision noted that, on the one hand, some “American deeisionfs]” do not criminalize the “passive failure to reveal a known felony ... refusal to give information to the authorities, or ... denial of knowledge motivated by self-interest.” Id. at 609. By contrast, an “affirmative falsehood to the public investigator, when made with the intent to shield the perpetrator of the crime, may form the aid or concealment, denounced by the statute.” Id. The “gist” of the California accessory statute, stated the court, was that “the accused ‘harbors, conceals or aids’ the principal with the requisite knowledge an[d] intent.” Id. Following from this, it determined:

Any kind of overt or affirmative assistance to a known felon may fall within these terms. A person may be charged under [the accessory statute] when he aids the principal in concealing the latter’s crime. *614“The test of an accessory after the fact is that, he renders his principal some personal help to elude punishment, — the kind of help being unimportant.” (1 Bishop’s Criminal Law 500, § 695.)

¶5Id. The court concluded that Duty’s act of providing Jenner, the perpetrator, a false alibi satisfied the “conceals or aids” categories of the accessory statute because his act was more than mere “passive nondisclosure”:

The jury could reasonably find that defendant had actively concealed or aided Mrs. Jenner by supplying an affirmative and deliberate falsehood to the public authorities, a false alibi which removed the principal from the scene of her crime and placed her on the highway enroute to San Francisco at the time when the fire must have been set.

¶6Id.

¶7Similarly, in the ease at bar, Hauser actively concealed her knowledge of the felony by supplying an affirmative and deliberate falsehood to Detective White — a false alibi which removed Clapper from the scene of the crime. A notable difference, however, is in the wording of Idaho’s accessory statute as compared to California’s. Section 18-205(1) criminalizes “[wjilfully withholding] or concealing] it from a peace officer,” whatever “it” may be; the statute does not criminalize “concealing] or aiding] a principal” as does California’s statute. Nevertheless, Duty’s distinction between passive nondisclosure and affirmative falsehood is perhaps useful in identifying the type of conduct that qualifies as willful concealment under I.C. § 18-205(1). The gist of Hauser’s offense, however, lies in the providing of false information to the police investigator for the purpose of hindering the true felon’s apprehension and prosecution. See generally, 2 Wayne R. LaFave, Substantive Criminal Law, § 13.6, 400-410 (2d ed.2003).

¶8Of abiding concern to this writer, though not an issue raised on appeal, is whether Hauser could still be liable as an accessory had she simply refused to provide any information to Detective White. Although the Dutydecision implied that under California’s statute passive nondisclosure to the police would not be criminal, one might argue that I.C. § 18-205(1)’s use of the word “withhold” means that even passive conduct can lead to culpability as an accessory. In other words, Hauser could arguably be an accessory if she had merely declined to speak with the detective, i.e., if she had simply “-withheld her knowledge.”

¶9However, the Fifth Amendment implications where a person withholds information for fear of self-incrimination are abundantly manifest. It must be remembered that Hauser was originally charged as a principal to the actual crimes of malicious injury to property. Even the state, at oral argument, recognized her right to remain silent. Furthermore, the mere failure to report a crime, known as the offense of misprision of felony, has never gained currency in this country. See 2 LaFave, supra, § 13.6 at 409-410. Finally, the withholding of knowledge from a “judge, magistrate, grand jury or trial jury” — also part and parcel of I.C. § 18-205(1)’s definition of accessory — would all arise in a venue of record replete with due process protections.

¶10Also, consider the following not-so-hypothetical hypothetical. An Idaho college lacrosse team hires an exotic dancer to attend an after-game party. The dancer alleges that three of the forty men present at the house assaulted her in the bathroom. Are the remaining thirty-seven liable as accessories if they refuse to talk to police until or after consulting with an attorney, their coach, athletic director, parents, etc? These Fifth Amendment implications need not be further addressed here, however, because Hauser did not merely refuse to talk — she lied with intent to shield the perpetrator from prosecution.

¶11B. Biased Juror

¶12The “actual bias” evaluation and determination of Juror 31 presents a close question for this Court. While deference should be given to the trial judge, there are limits. For me, the lynchpin of this case swings on the testimony of the detective, the actual “victim” of the crime in question. In addition, this witness, whom Juror 31 would al*615ways tend to believe anyway because of his status as a police officer, blurts out his personal opinion that the defendant was not being truthful with him. See footnote 3 of main opinion. I have little faith in Juror 31’s assertion that he would “try” and be fair in these circumstances. Excusing Juror 31 for cause would be a further safeguard against such unpredictable evidentiary miscues.