                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 40507


 STATE OF IDAHO,                                      )
                                                      )   Coeur d’Alene, April 2014 Term
      Plaintiff-Appellant,                            )
                                                      )   2014 Opinion No. 63
 v.                                                   )
                                                      )   Filed: June 24, 2014
 KYLE ALAN RICHARDSON,                                )
                                                      )   Stephen W. Kenyon, Clerk
     Defendant-Respondent.                            )
 _____________________________________                )


        Appeal from the district court of the Second Judicial District of the State of
        Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge.

        The order of the district court is reversed and the case is remanded for proceedings
        consistent with this Opinion.

        Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
        appellant. Kenneth K. Jorgensen argued.

        Danny J. Radakovich, Lewiston, attorney for respondent.
                          _________________________________

W. JONES, Justice
                                     I. NATURE OF THE CASE
        The State charged Kyle A. Richardson with three counts of delivery of a controlled
substance in violation of I.C. § 37-2732(a)(1)(A). After a preliminary hearing in which a
confidential informant testified for the State, the State filed a motion requesting that the district
court allow the State to admit into evidence at trial a transcript of the confidential informant’s
preliminary hearing testimony. The State sought admission of the confidential informant’s
testimony because the confidential informant had died and thus was unavailable as a witness for
trial. The district court issued an opinion and order denying the State’s motion. The State filed a
motion for a permissive appeal of the district court’s order. This Court granted the State’s motion
and the State appealed. We reverse the district court.
                         II. FACTUAL AND PROCEDURAL BACKGROUND


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        On January 4, 2012, the State filed a criminal complaint charging Richardson with three
counts of delivery of a controlled substance in violation of I.C. § 37-2732(a)(1)(A). The State
alleged that on or about September 7, September 9, and September 14, 2011, Richardson
unlawfully delivered methamphetamine, a schedule II controlled substance, to “CI11-L02.” 1
        On February 22, 2012, the magistrate court held a preliminary hearing. The State called
Detective Brett Dammon of the Lewiston Police Department (LPD) and Robert Bauer, a
confidential informant for LPD, to testify. Dammon explained that LPD had Bauer arrange and
conduct three controlled deliveries in which Bauer purchased methamphetamine from
Richardson with prerecorded money under LPD’s surveillance.
        Bauer testified that he participated in a LPD investigation targeting Richardson. He
explained that he purchased methamphetamine from Richardson three times in early September
as a confidential informant for LPD. Bauer also testified that he had contact with Richardson
after the three controlled deliveries. According to Bauer, Richardson came by Bauer’s house
because “[h]e wanted to talk to me about this.” Bauer then testified that he told Richardson he
was the confidential informant and that he was “really surprised” that Richardson “didn’t seem
real surprised.” Bauer had known Richardson for about twenty years, first from working together
and then from “drug[s].”
        Richardson’s attorney then cross-examined Bauer. Bauer admitted that he was addicted to
methamphetamine around the time of the deliveries, but claimed that he did not consume any
methamphetamine on the day of each purchase. He agreed that he began working as a
confidential informant “to work off some criminal charges they [‘the drug detectives’] were
going to bring against” him. He testified that he did not know how many charges he might have
been facing, but he thought that they were “just possession and maybe intent to deliver”
methamphetamine. Bauer was asked about his ability to remember the three controlled deliveries
and some specifics about them. He was also asked if he had any felony convictions and Bauer
admitted to one prior felony conviction for possession of methamphetamine in 2001. He also
admitted to selling methamphetamine to Richardson prior to the three controlled deliveries.


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  On January 10, 2012, Richardson filed a request for discovery. According to Richardson, the State responded to his
request for discovery on January 12, 2012. He claims that the State’s response listed “CI11-L02” as a witness and
that the State did not provide him with the name, address, or contact information of “CI11-L02.” The State’s
response is not in the record. Richardson moved to augment the record with the State’s discovery response, but the
Court denied Richardson’s motion to augment the record without prejudice. Richardson did not renew his motion.


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        Based on the testimony of Dammon and Bauer, the magistrate court found substantial
proof that Richardson committed the crimes charged in the complaint and bound him over to
district court. On February 22, 2012, the State filed an information. On March 2, 2012, the
district court set a jury trial for June 4, 2012. On May 1, 2012, the State moved for a continuance
of the jury trial “based on a key witness being unavailable from June 4, 2012, through June 8,
2012.” The district court granted the State’s motion and rescheduled the jury trial for August 20,
2012.
        On July 31, 2012, the State moved to admit a transcript of the preliminary hearing
testimony of Bauer because Bauer was now deceased. The State requested that the district court
enter an order allowing the introduction of a transcript of his preliminary hearing testimony at
trial. Richardson objected to the State’s motion.
        On October 23, 2012, the district court entered an opinion and order denying the State’s
motion. The State filed a motion for a permissive appeal of the district court’s order on
November 5, 2012. The district court granted the State’s motion and the State appealed. This
Court granted the State’s permissive appeal.
                                      III. ISSUE ON APPEAL
1.      Whether the district court erred by denying the State’s motion to admit a transcript of the
        preliminary hearing testimony of a witness unavailable to testify at trial.
                                   IV. STANDARD OF REVIEW
        “Trial courts have broad discretion when ruling on a motion in limine so we review the
district court’s decision to grant or deny a motion in limine for abuse of discretion.” Cramer v.
Slater, 146 Idaho 868, 878, 204 P.3d 508, 518 (2009) (quoting Puckett v. Verska, 144 Idaho 161,
167, 158 P.3d 937, 943 (2007)). “A trial court does not abuse its discretion if it (1) recognizes the
issue as one of discretion, (2) acts within the boundaries of its discretion and applies the
applicable legal standards, and (3) reaches the decision through an exercise of reason.” State v.
Guess, 154 Idaho 521, 528, 300 P.3d 53, 60 (2013) (quoting Johannsen v. Utterbeck, 146 Idaho
423, 429, 196 P.3d 341, 347 (2008)). The Court freely reviews questions of law. State v. Meister,
148 Idaho 236, 239, 220 P.3d 1055, 1058 (2009).
                                           V. ANALYSIS
A.      Richardson’s Rights Under The Confrontation Clause Are Not Violated By The
        Admission Of A Transcript Of Bauer’s Preliminary Hearing Testimony At Trial.




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       “The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.’” Crawford v. Washington, 541 U.S. 36, 42 (2004) (alternation in original) (quoting U.S.
CONST. amend. VI). “[T]his provision bars ‘admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting
Crawford, 541 U.S. at 53–54). The Confrontation Clause’s reach is limited to “testimonial
statements” and “in order for testimonial evidence to be admissible, the Sixth Amendment
‘demands what the common law required: unavailability and a prior opportunity for cross-
examination.’” Michigan v. Bryant, 131 S. Ct. 1143, 1153 (2011) (quoting Crawford, 541 U.S. at
68). The term “testimonial . . . . applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations.” Crawford, 541 U.S. at 68.
The Confrontation Clause “is made obligatory on the States by the Fourteenth Amendment.”
Pointer v. Texas, 380 U.S. 400, 403 (1965).
       There is no dispute in this case that Bauer’s statements at the preliminary hearing were
testimonial. There also is no dispute that Bauer is unavailable to testify at trial. As such, the only
issue is whether Richardson had a prior opportunity for cross-examination of Bauer.
       The defendant must have had “a prior opportunity for cross-examination” to admit the
preliminary hearing testimony of an unavailable witness without violating the defendant’s
constitutional right to confrontation. Crawford, 541 U.S. at 53–54. The U.S. Supreme Court in
Crawford did not define this phrase, but the U.S. Supreme Court recognized that its prior cases
held that “preliminary hearing testimony is admissible only if the defendant had an adequate
opportunity to cross-examine.” 541 U.S. at 57 (emphasis added) (citing Mancusi v. Stubbs, 408
U.S. 204, 213–16 (1972); California v. Green, 399 U.S. 149, 165–68 (1970); Pointer, 380 U.S.
at 406–08).
       The district court concluded that Richardson did not have an adequate opportunity for
cross-examination of Bauer pursuant to the Confrontation Clause. The district court found that
Richardson was not informed of the name of the confidential informant until the confidential
informant testified at the preliminary hearing and that any claim by the State that Richardson
knew the identity of the confidential informant prior to the preliminary hearing was speculative.
The district court also noted that the audio recordings of the controlled deliveries did not identify



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the confidential informant. Based on these reasons, the district court concluded that Richardson’s
attorney used his cross-examination of Bauer as an investigatory tool. Due to Richardson’s
apparent inability to investigate Bauer prior to the preliminary hearing, the district court
determined that Richardson did not have an adequate opportunity for cross-examination. We
hold that the district court erred in concluding that Richardson was denied an adequate
opportunity to cross-examine Bauer at the preliminary hearing.
        “Crawford did not specifically address what constitutes an ‘adequate’ opportunity for
cross-examination, but the cases the [U.S. Supreme] Court cited, Pointer, Green, and Mancusi,
do provide some guidance in assessing whether an adequate opportunity has been afforded.”
State v. Mantz, 148 Idaho 303, 306, 222 P.3d 471, 474 (Ct. App. 2009). There are three
indicators of an adequate opportunity for cross-examination based on U.S. Supreme Court case
law. “The first indication of an adequate opportunity to cross-examine is representation by
counsel.” Id. (citing Pointer, 380 U.S. at 401–02, 407.) A second indication is no significant
limitation “in any way in the scope or nature” of counsel’s cross-examination. Id. (quoting
Green, 399 U.S. at 166). The third indication is counsel’s failure to “show any new and
significantly material line of cross-examination that was not at least touched upon” in the
preliminary hearing. Id. at 307, 222 P.3d at 475 (quoting Mancusi, 408 U.S. at 215). These three
factors are “illustrative and not meant to be exhaustive or exclusive in the determination of the
adequacy of cross-examination under the Confrontation Clause.” Id. Whether a party had an
adequate opportunity to cross-examine is determined on a case-by-case basis. Id. at 309, 222
P.3d at 477.
       In this case there is no evidence to suggest that Richardson would have introduced any
new and material line of cross-examination at trial. Richardson claimed in his objection to the
State’s motion that it was “not yet known” if Bauer had any criminal convictions in other states.
He also claimed that he would have “checked around” for information to contradict Bauer’s
claim that he was not under the influence of drugs during the controlled deliveries and for
information on the benefit Bauer received from the State for his testimony. These claims are
nothing more than speculation and conjecture. Richardson presented no evidence, such as an
affidavit, to substantiate his claims. Moreover, if any of Richardson’s claims come to fruition,
Richardson can present those claims as evidence at trial through means other than cross-
examination of Bauer. Pursuant to Idaho Rule of Evidence (I.R.E.) 806, Richardson may attack



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Bauer’s credibility at trial “by any evidence which would be admissible for those purposes if
declarant had testified as a witness.” I.R.E. 806. “This rule provides that when a hearsay
statement has been admitted in evidence, ‘the credibility of the declarant may be attacked.’”
State v. Bingham, 116 Idaho 415, 420, 776 P.2d 424, 429 (1989) (quoting I.R.E. 806). Thus,
upon the admission of Bauer’s preliminary hearing testimony at trial, Richardson can impeach
Bauer within the confines of the rules of evidence.
       Further, the magistrate court imposed no limitation in any way in the scope or nature of
Richardson’s cross-examination of Bauer. Richardson questioned Bauer on all relevant issues for
cross-examination at trial: Bauer’s recollection of the events in question, his agreement with the
State to be a confidential informant in exchange for non-prosecution, his prior felony conviction,
his drug addiction, and his relationship with Richardson. With these questions, Richardson
inquired into Bauer’s potential bias, his motive to testify falsely, the reliability and accuracy of
his recollection of the controlled deliveries, and his credibility. There is no claim or finding that
Bauer was untruthful or evasive during his testimony and thus his behavior in some way
restricted Richardson’s ability to impeach Bauer. “Where the defendant has had the opportunity
to cross-examine a witness at a preliminary hearing, probing into areas such as bias and testing
the veracity of the testimony, cross-examination, and thus confrontation, within the meaning of
the Sixth Amendment has been accomplished.” Commonwealth v. Wholaver, 989 A.2d 883, 904
(Pa. 2010). Based on a review of the preliminary hearing transcript, this Court concludes that
Richardson had an adequate opportunity to cross-examine Bauer at the preliminary hearing.
       Richardson may have preferred to be more aggressive or thorough with his cross-
examination at the preliminary hearing had he known that Bauer would become unavailable, but
the Confrontation Clause requires only an adequate opportunity for cross-examination of a
witness, not a perfect one. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“Generally
speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent, the defense
might wish.”); Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (“[T]he right to confront and
to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal process.”).
       In summary, Richardson’s failure to offer any evidence of new and material information
that he would have confronted Bauer with at trial together with the absence of any other reason



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to believe that his cross-examination of Bauer at the preliminary hearing was deficient precludes
a finding that Richardson was denied an adequate opportunity to cross-examine Bauer. Based on
these reasons, the district court erred by concluding that Richardson’s Sixth Amendment right to
confrontation would be violated by admission of a transcript of Bauer’s preliminary hearing
testimony at trial.
B.      Idaho Law Governing The Admission Of Preliminary Hearing Transcripts Permits
        The Admission Of A Transcript Of Bauer’s Preliminary Hearing Testimony At
        Trial.
        In addition to the Confrontation Clause’s requirement of an “adequate” opportunity for
cross-examination, I.R.E. 804 imposes requirements to admit preliminary hearing testimony of
an unavailable witness at trial. As an exception to the hearsay rule, I.R.E. 804(b)(1) allows the
admission of former testimony of an unavailable witness “if the party against whom the
testimony is now offered . . . had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.” I.R.E. 804(b)(1). “‘[S]imilar motive’ does not mean
‘identical motive’ . . . [T]he similar-motive inquiry . . . is inherently a factual inquiry depending
in part on the similarity of the underlying issues and on the context of the . . . questioning.”
United States v. Salerno, 505 U.S. 317, 326 (1992) (Blackmun, J., concurring).
        While this Court’s opinion in State v. Elisondo, 114 Idaho 412, 757 P.2d 675 (1988), may
have supported the conclusion that the defendant generally would not have a similar motive at
the preliminary hearing to develop the testimony as he would at trial, any such conclusion from
Elisondo has been overridden by the Legislature’s enactment of I.C. § 9-336 in 1989. Ch. 51, §
2, 1989 Idaho Sess. Laws 63, 64; see Elisondo, 114 Idaho at 414–15, 757 P.2d at 677–78
(discussing the defense’s motive at the preliminary hearing). That statute permits the admission
of preliminary hearing testimony of an unavailable witness at trial subject to three findings by
the district court. It states in its entirety:
        Prior to admitting into evidence recorded testimony from a preliminary hearing,
        the court must find that the testimony is:
                 1. Offered as evidence of a material fact and that the testimony is more
                 probative on the point for which it is offered than any other evidence
                 which the proponent can procure through reasonable efforts; and
                 2. That the witness is, after diligent and good faith attempts to locate,
                 unavailable for the hearing; and




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               3. That at the preliminary hearing, the party against whom the admission
               of the testimony is sought had an adequate opportunity to prepare and
               cross-examine the proffered testimony.
I.C. § 9-336. In enacting this legislation, the Legislature stated, “[I]t is the opinion of the
legislature that the admission of previously recorded preliminary hearing testimony should be
admitted under the safeguards contained within [I.C. § 9-336]. . . . It is the policy of this state
that all relevant and admissible evidence should be usable in criminal proceedings.” Ch. 51, § 1,
1989 Idaho Sess. Laws at 64.
       In this case there are two issues regarding Idaho’s rules pertaining to admission of
preliminary hearing testimony. First, the parties contest whether Richardson had an adequate
opportunity to prepare pursuant to I.C. § 9-336. Second, the parties contest whether Richardson
had a similar motive to develop the testimony pursuant to I.R.E. 804(b)(1). The similar motive
issue is examined first.
       The district court concluded that Richardson did not have the same motive to develop
Bauer’s testimony at the preliminary hearing as he would have had at trial by reasoning that
Richardson had to use his cross-examination of Bauer “as an investigatory tool.” This Court
notes that the district court seemed to require that Richardson have the same motive at the
preliminary hearing and trial to satisfy I.R.E. 804(b)(1), but this requirement of the same motive
is incorrect. The motives must only be similar, not the same or identical. Salerno, 505 U.S. at
326 (Blackmun, J., concurring).
       Even though Richardson may have used his cross-examination of Bauer for investigatory
purposes, Richardson’s motive to develop Bauer’s testimony would have been similar to his
motive to develop Bauer’s testimony at trial. The distinction between the fact that Richardson
was gathering unknown information at the preliminary hearing and, in contrast, he would be
eliciting known information at trial has little significance when examining Richardson’s motive.
At the preliminary hearing and at trial, Richardson would possess a similar motive of challenging
the State’s evidence against him and discrediting Bauer’s testimony. Mantz, 148 Idaho at 311,
222 P.3d at 479 (similar motive at preliminary hearing and trial to prove the defendant’s
innocence of the charges by discrediting the witness’s testimony); see also State v. Lopez, 258
P.3d 458, 462 (N.M. 2011) (similar motive at preliminary hearing and trial to discredit the
State’s case and to argue that the evidence did not establish the defendant’s guilt); State v. Stano,
159 P.3d 931, 945 (Kan. 2007) (defendant’s motive at the preliminary hearing and at his trial


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were similar: to prove his innocence by discrediting the witness); State v. Mohamed, 130 P.3d
401, 405–06 (Wash. Ct. App. 2006) (defendant had similar motive in regard to witness’s
credibility and reliability and defendant’s claim that he would have questioned witness further on
bias had he known the witness would be unavailable is speculation and “in hindsight”); People v.
Zapien, 846 P.2d 704, 729 (Cal. 1993) (similar motive at preliminary hearing and trial to
discredit the witness’s testimony that established defendant’s guilt). Richardson’s questions at
the preliminary hearing pertained to Bauer’s ability to recall the events in question, his
agreement with the State, his prior felony conviction, his drug addiction, and his relationship
with Richardson. By asking these kinds of questions, Richardson’s motive was to display Bauer
as unreliable, dishonest, and biased, and also to weaken the State’s case. Richardson would have
had a similar motive when questioning Bauer at trial. Richardson would seek to probe into
Bauer’s motive to lie, his reliability, and his credibility as well as challenge the State’s evidence
against him. Although Richardson’s motives at trial and at the preliminary hearing are not
necessarily identical, they are similar and thus satisfy I.R.E. 804(b)(1).
       The second and final issue is whether Richardson’s cross-examination satisfies the
requirement for “an adequate opportunity to prepare” in I.C. § 9-336. This issue turns on whether
Richardson knew Bauer was the confidential informant prior to the preliminary hearing.
Richardson submits that his lack of knowledge that Bauer was the confidential informant prior to
the preliminary hearing denied him an adequate opportunity to prepare. The district court agreed
with Richardson, finding that any claim by the State that Richardson knew Bauer was the
confidential informant prior to the preliminary hearing was speculative. The State challenges the
district court’s finding on appeal.
       The district court’s factual finding must be supported by substantial and competent
evidence. See State v. Almaraz, 154 Idaho 584, 593, 301 P.3d 242, 251 (2013) (requiring
substantial evidence to support trial court’s factual findings for ruling on motion to suppress).
Here the evidence in the record does not support the district court’s finding that Richardson did
not know Bauer was the confidential informant. Richardson provided no evidence to support his
claim that he did not know who was “CI11-L02.” Upon seeing Bauer called to the witness stand
to testify for the State at the preliminary hearing, Richardson did not ask the district court for
more time to prepare or otherwise object for lack of discovery. Richardson did not offer a sworn
statement, testimony, or other admissible evidence claiming that he did not know Bauer’s



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identity. The statements and oral argument submitted by Richardson’s counsel after the
preliminary hearing do not constitute evidence. See Barcamerica Int’l USA Trust v. Tyfield
Imps., Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002). Thus, there is simply no evidence in the record
showing that Richardson did not know Bauer’s identity as the confidential informant.
       The only evidence in the record supports the opposite conclusion. Bauer testified that he
told Richardson he was the confidential informant and that Richardson was not surprised to learn
this information. Richardson provided no evidence to refute Bauer’s testimony, such as an
affidavit stating that he did not anticipate that Bauer was the confidential informant. In addition,
Richardson was provided with the audio recordings of the controlled deliveries. Although the
district court determined that “access to the recordings . . . does not identify the confidential
informant” or provide Richardson with “enough information to investigate th[e] witness for
purposes of cross-examination,” there is no reason to believe that Richardson was unable to
listen to those recordings and recall the other individual in the conversation with him.
Richardson had several previous dealings with Bauer and knew him for twenty years. Hence, the
evidence in the record shows that Richardson knew Bauer was the confidential informant or had
the means to determine Bauer’s identity as the confidential informant. This Court concludes that
the district court’s finding that Richardson did not know Bauer was the confidential informant
was not supported by substantial and competent evidence.
       This Court finds it necessary to clarify that these statutory protections in I.C. § 9-336 are
for the defendant. The same goes for the constitutional right to confront witnesses: the
defendant—not his attorney—has the right to be confronted with the witnesses against him. The
attorney merely exercises the right of the defendant through his legal representation. In this case
the evidence shows that Richardson knew or had the ability to know prior to the preliminary
hearing that Bauer was the confidential informant. If Richardson failed to inform his attorney of
this fact, Richardson cannot later claim that he was unable to adequately prepare simply because
he failed to communicate with his counsel.
       Without this factual finding, Richardson’s claim that he was unable to adequately prepare
for the cross-examination of Bauer falls apart. Richardson offers no basis for his cross-
examination’s insufficiency other than his assertion that he was unprepared to cross-examine
Bauer at the preliminary hearing because he did not know Bauer would be a witness. We hold




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that the district court erred in concluding that either I.R.E. 804(b)(1) or I.C. § 9-336 precluded
the admission of a transcript of Bauer’s preliminary hearing testimony into evidence at trial.
       Based on the above reasons, this Court concludes that the district court erred by
determining that a transcript of Bauer’s preliminary hearing testimony was inadmissible. If
Richardson finds additional information that would be relevant, he can bring a motion in limine
before trial to exclude this evidence based on that additional information.
                                        VI. CONCLUSION
       The district court’s order on the State’s motion in limine is reversed and the case is
remanded for further proceedings consistent with this Opinion.
       Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON CONCUR.




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