# State v. Brown

> Idaho Supreme Court · March 4, 1977 · 98 Idaho 209

URL: https://www.frixlaw.com/law-library/cases/9567150

## Case

- **Full name:** The STATE of Idaho, Plaintiff-Respondent, v. Dennis L. BROWN, Defendant-Appellant
- **Court:** Idaho Supreme Court
- **Decided:** March 4, 1977
- **Citations:** 98 Idaho 209; 560 P.2d 880; 1977 Ida. LEXIS 350
- **Precedential status:** Published
- **Opinion:** Concurring in part by Shepard
- **Judges:** Bakes, Bistline, Donaldson, McFADDEN, Shepard
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9567150

## Opinion text

SHEPARD, Justice,
concurring in part and dissenting in part.
I concur in that portion of the majority decision holding that the trial court erred in sentencing the defendant in the absence of *214 counsel and that therefore the sentence must be vacated and the cause remanded for a sentencing proceeding at which defendant is represented by counsel.
I do not read Brady v. Maryland and U. S. v. Agurs as requiring the result obtained in which the majority holds that the trial court erred in failing to require the prosecution to present a statement for at least the scrutiny of the court.
It will be remembered that what the prosecution had in its file in the instant ease was the non-judicial statement of a person then out of the jurisdiction of the court. It is not indicated whether it was a sworn statement, but it was presumably taken by a prosecution investigator following the assertion of the defendant that he had been in the company of that person at the time the crime had been committed. I can perceive no basis whatsoever that such a hearsay statement, albeit in writing, could be considered “evidence”, exculpatory, material or otherwise.
Likewise, I can see no basis for the “discovery” of what that person may have said to the prosecution investigator. Defendant clearly knew of the existence of that person. He not only claimed to have been with her at the time of his alleged participation in the crime, but the record reveals that he twice travelled to Montana in attempts to contact her. The court in Agurs stated:
“And this court recently noted that there is ‘no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.’ Moore v. Illinois, 408 U.S. 786, 795 , 92 S.Ct. 2562, 2568 , 33 L.Ed.2d 706 . The mere possibility that an item of undisclosed information might have helped the defense, or might have effected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”
The petitioner in Brady was convicted of first degree murder which he was alleged to have committed with a companion. The prosecution had suppressed the confession of the actual murder by the companion. Even there, the circuit court decision was affirmed which had affirmed the determination of guilt, but reversed only on the question of punishment.
In Agurs the defendant had been convicted of manslaughter and asserted that the prosecutor’s failure to tender the victim’s criminal record deprived her of a fair trial. Her contention was rejected and the conviction affirmed. The court in Agurs summarized by saying:
“Unless every non-disclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.
“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
“Since the arrest record was not requested and did not even arguably give rise to any inference of perjury, since after considering it in the entire context of the entire record, the trial judge remained convinced of respondent’s guilt beyond a reasonable doubt, and since we are satisfied that his firsthand appraisal of the record was thorough and entirely reasonable, we hold that the prosecutor’s failure to tender Sewell’s record to the defense did not deprive respondent of a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment.” (Emphasis supplied.)
Therefore in the case at bar I would not hold that Brady and Agurs require the dis *215 closure of prosecutorial investigation results where those results do not rise to the level of “evidence.”
DONALDSON, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9567150. Public record. Not legal advice.