               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 33053

STATE OF IDAHO,                                 )
                                                )      2009 Opinion No. 11
       Plaintiff-Respondent,                    )
                                                )      Filed: February 19, 2009
v.                                              )
                                                )      Stephen W. Kenyon, Clerk
MARIO A. RUIZ, JR.,                             )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge.

       Judgment of conviction for trafficking in methamphetamine, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
       Attorney General, Boise, for respondent.
                  ______________________________________________

LANSING, Chief Judge
       The question presented by this appeal is whether the rights of an accused under the
Confrontation Clause are violated when a court prohibits the defendant from cross-examining a
State’s witness about a mandatory minimum prison term that the witness avoided through a
cooperation agreement with the State where such cross-examination would also disclose to the
jury the mandatory minimum sentence that the defendant will receive if convicted.
                                               I.
                                       BACKGROUND
       On August 11, 2005, Megan Larsen, acting as a confidential informant for the Ada
County Sheriff’s Department, arranged to purchase approximately two ounces of
methamphetamine from Josh Morrison. After meeting, Larsen and Morrison drove to get the
drugs from Morrison’s supplier, whom they met in a parking lot.          Officers observing the
transaction saw Larsen exit the car and a dark-complexioned man enter, then a few minutes later

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saw the dark-complexioned man exit the car and Larsen get back in. Police were unable to
identify the dark-complexioned man during their surveillance, but when they arrested Morrison
on August 23, he identified the supplier as Mario Ruiz, appellant here.
       Morrison and Ruiz were both charged with trafficking in twenty-eight or more grams of
methamphetamine, Idaho Code § 37-2732B(a)(4), but Morrison agreed to testify for the state in
exchange for the state reducing his charge to delivery of methamphetamine, I.C. § 37-
2732(a)(1)(A). Both the trafficking and delivery charges carry a maximum possible punishment
of life in prison, but trafficking in twenty-eight or more grams of methamphetamine also carries
a mandatory minimum sentence of three years’ imprisonment, which may not be suspended, I.C.
§ 37-2732B(a)(4), while delivery of the substance is not subject to a mandatory minimum
sentence. I.C. § 37-2732(a)(1)(A).
       At trial, Morrison testified against Ruiz in accordance with his plea agreement. On cross-
examination, the court allowed Ruiz to establish that Morrison had a cooperation agreement with
the State under which he agreed to testify against Ruiz and, in return, the State reduced his
charge from trafficking to delivery of methamphetamine and agreed to recommend that Morrison
be placed on probation, subject to some period in county jail, thereby allowing Morrison to avoid
incarceration in the state prison. The court also allowed cross-examination of Morrison to
inform the jury that the maximum possible sentence for Morrison’s original trafficking charge
was life imprisonment. The court precluded Ruiz from inquiring, however, about the mandatory
three-year term of imprisonment that Morrison would have faced on the original trafficking
charge. The district court was concerned that learning of the mandatory minimum sentence for
the trafficking charge could influence the jury because Morrison’s original charge was the same
as the trafficking charge for which Ruiz was on trial. Although the precise nature of this concern
was not articulated by the district court, the court apparently feared that knowing the magnitude
of the sentence that Ruiz was facing might influence the jury for or against him. Ruiz was found
guilty of trafficking in twenty-eight or more grams of methamphetamine.
       On appeal, Ruiz argues that the prohibition against his cross-examination of Morrison
about the mandatory minimum sentence that Morrison avoided under his agreement to testify for
the State constitutes a violation of Ruiz’s rights under the Confrontation Clause of the United
States Constitution.



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                                               II.
                                          ANALYSIS
       The right of an accused to confront adverse witnesses is safeguarded by the Sixth
Amendment. Its “main and essential purpose” is to secure the opportunity of cross-examination.
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). This includes the right to expose a
prosecution witness’s possible bias and motive for testifying so the jury can make an informed
judgment as to the weight to be given the witness’s testimony. Davis v. Alaska, 415 U.S. 308,
316-17 (1974); State v. Gomez, 137 Idaho 671, 674-75, 52 P.3d 315, 318-19 (2002); State v.
Harshbarger, 139 Idaho 287, 293, 77 P.3d 976, 982 (Ct. App. 2003); State v. Green, 136 Idaho
553, 556-57, 38 P.3d 132, 135-36 (Ct. App. 2001). That is not to say, however, that a defendant
is entitled to conduct a cross-examination that “is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Rather, trial
judges have wide latitude to “impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at
679. See also State v. Hensley, 145 Idaho 852, 858, 187 P.3d 1227, 1233 (2008); State v. Pierce,
107 Idaho 96, 104, 685 P.2d 837, 845 (Ct. App. 1984).
       No Idaho appellate decision has considered whether the constitutional right of
confrontation is violated by the exclusion of impeachment evidence where that evidence would
also inform the jury of the minimum punishment that can be imposed on the defendant if he is
found guilty. A somewhat similar issue was raised in Pierce, 107 Idaho 96, 685 P.2d 837.
There, this Court found no error where a defendant was allowed to extensively cross-examine a
prosecution witness concerning the witness’s plea agreement with the State that reduced a
pending charge against him, but was not allowed to disclose the maximum sentence that the
witness avoided, for fear the jury would be prejudiced by learning the maximum sentence the
defendant faced on the same charge.         Id. at 104-05, 685 P.2d at 845-46.          Pierce is
distinguishable, however, because no Confrontation Clause challenge was presented by the
appellant. Rather, the issue was considered under Idaho’s common law rules of evidence before
the Idaho Rules of Evidence were adopted.
       More relevant to our inquiry is the United States Supreme Court’s decision in Davis, 415
U.S. 308. There, a burglary defendant was not permitted to cross-examine a prosecution witness

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about the witness’s juvenile record and the fact that he was on probation for burglary. The
defendant argued that such information was relevant to show bias because the witness was
generally vulnerable as a probationer and because it was to the witness’s advantage to implicate
the defendant in the burglary in order to divert suspicion from himself. The Supreme Court held
that this restriction on cross-examination violated the Confrontation Clause. The Court said that,
subject to the trial judge’s broad discretion to exclude repetitive and unduly harassing questions,
“the cross-examiner is not only permitted to delve into the witness’ story to test the witness’
perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e.,
discredit, the witness.” Id. at 316. The Court further stated, “We have recognized that the
exposure of a witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Id. at 316-17. Ultimately, the Court’s
concern was that “[w]hile counsel was permitted to ask [the witness] whether he was biased,
counsel was unable to make a record from which to argue why [the witness] might have been
biased . . . .” Id. at 318 (emphasis in original). Noting that Davis’s cross-examination was so
constrained that the jury might have suspected Davis’s questions concerning the witness’s bias
were only baseless speculation, the Court concluded that “to make any such inquiry effective,
defense counsel should have been permitted to expose to the jury the facts from which jurors, as
the sole triers of fact and credibility, could appropriately draw inferences relating to the
reliability of the witness.” Id.
        Another United States Supreme Court decision, Van Arsdall, 475 U.S. 673, is also
instructive.   There, a defendant on trial for murder was barred from cross-examining a
prosecution witness about a public drunkenness charge against him that was dropped in
exchange for his talking with the prosecutor about the murder. The Supreme Court noted that
trial judges have wide latitude to impose reasonable limits on cross-examination, but
nevertheless held that the defendant’s Confrontation Clause rights were violated when the trial
court prohibited all inquiry into the possibility that the witness would be biased as a result of the
State’s dismissal of his pending charge. Id. at 679. The Court said that the jury reasonably could
have found that the dismissal gave the witness a motive for favoring the State in his testimony.
Id. The Court then concluded:
        [A] criminal defendant states a violation of the Confrontation Clause by showing
        that he was prohibited from engaging in otherwise appropriate cross-examination
        designed to show a prototypical form of bias on the part of the witness, and

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       thereby to “expose to the jury the facts from which jurors . . . could appropriately
       draw inferences relating to the reliability of witnesses.”
Id. at 680 (quoting Davis, 415 U.S. at 318). The defendant had demonstrated a violation, the
Court said, because “[a] reasonable jury might have received a significantly different impression
of [the witness’s] credibility had [defense counsel] been permitted to pursue his proposed line of
cross-examination.” Id.
       Neither Davis nor Van Arsdall examined the narrow question presented here--whether the
Confrontation Clause requires that an accused be allowed to cross-examine on a mandatory
minimum sentence the witness avoided by testifying for the State where the evidence will also
reveal the accused’s punishment if he is convicted. Lower federal courts have addressed this
issue, however, and have generally held that a concern that jury sympathy for the defendant may
be aroused from disclosure of the punishment does not ipso facto justify exclusion of the
impeachment evidence. Some circuit court decisions hold that cross-examination on the benefits
a State’s witness has received from the prosecution in exchange for the witness’s testimony must
be allowed in all but the most compelling circumstances. For example, in Hoover v. Maryland,
714 F.2d 301 (4th Cir. 1983), the Court said:
       The trial judge may limit such cross-examination only to preserve the witness’
       constitutional immunity from self-incrimination, to prevent attempts to harass,
       humiliate or annoy him, or where the information sought might endanger the
       witness’ personal safety. When such factors are not present, substantial
       limitations on the attempts of a defendant to undermine as biased a witness’
       testimony constitute constitutional error.
Id. at 305 (citations omitted). At the other end of the spectrum are cases that give considerable
weight to the State’s interest in excluding such evidence, including United States v. Luciano-
Mosquera, 63 F.3d 1142 (1st Cir. 1995), where the Court said that “any probative value of
information about the precise number of years” that a witness may have faced absent his
cooperation with the government was slight and “was outweighed by the potential for prejudice
by having the jury learn what penalties the defendants were facing.” Id. at 1153.
       Other circuits take a flexible approach, balancing competing interests. Among these is
the Ninth Circuit Court of Appeals. In United States v. Larson, 495 F.3d 1094 (9th Cir. 2007),
the Ninth Circuit identified three factors it would consider in determining whether a defendant’s
Confrontation Clause right was violated through limited cross-examination: “(1) [whether] the
excluded evidence was relevant; (2) [whether] there were other legitimate interests outweighing


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the defendant’s interest in presenting the evidence; and (3) [whether] the exclusion of evidence
left the jury with sufficient information to assess the credibility of the witness.” Id. at 1103
(quoting United States v. Beardslee, 197 F.3d 378, 383 (9th Cir. 1999) (brackets in Larson)).
The court then weighed the probative value of the omitted mandatory minimum sentence
information against other legitimate governmental interests, such as a desire to prevent the jury
from inferring the potential sentence faced by the defendant. Id. at 1104-05. It held that the
Confrontation Clause was violated by a limitation on the cross-examination of a witness who had
been facing a mandatory sentence of life imprisonment until agreeing to cooperate with the
government. Even though the defense had elicited testimony that this witness was a drug addict
and dealer, had been convicted of seven felonies, and was cooperating with the State in the hope
that the prosecutor would reduce his sentence, the Ninth Circuit concluded that this admitted
evidence alone “did not reveal the magnitude of his incentive to testify to the Government’s
satisfaction.” Id. at 1105.
       The Third Circuit employs a similar standard where the trial court has barred inquiry into
an avoided mandatory sentence, asking whether the jury might have received a “significantly
different impression of [the witnesses’] credibility” had it been apprised of the magnitude of the
witnesses’ stake in testifying against a defendant. United States v. Chandler, 326 F.3d 210, 222
(3rd Cir. 2003) (quoting Van Arsdall, 475 U.S. at 680). The Chandler court answered that query
affirmatively, concluding that the excluded evidence “would have borne directly on the jury’s
consideration of the weight, if not the fact, of [the witnesses’] motive to testify as they did--facts,
that is, which would have underscored dramatically their interest in satisfying the government’s
expectations of their testimony.” Id. at 222. The Chandler court then turned to the question
whether the exclusion of this testimony nevertheless fell within the trial court’s discretion to
impose “reasonable limits” on a defendant’s right of cross-examination. In that context, the
Third Circuit considered the government’s interest in withholding information from which the
jury might infer the defendant’s prospective sentence, and which could provoke jury
“nullification.”   The court held that such a government interest was outweighed by the
defendant’s constitutional right to confront adverse witnesses. Id. at 223. The government’s
interest, the court said, “had to yield” to the defendant’s constitutional right to probe possible
biases, prejudices, or ulterior motives of government witnesses. Id.



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       The Eighth Circuit also considered this issue. In United States v. Caldwell, 88 F.3d 522
(8th Cir. 1996), a defendant was barred from cross-examining a co-conspirator as to the
mandatory ten-year sentence the witness had avoided through a plea agreement. Id. at 524-25.
The trial court allowed the defendant to establish that the penalty cap for the witness’s lesser
charge was one year and that the avoided felony charge would have called for “time in the
penitentiary,” but barred further questioning on the ground that the witness’s potential sentence
before becoming a State witness was a collateral matter that couldn’t be precisely determined.
Id. The Eighth Circuit held the trial court’s ruling to be an abuse of discretion, noting that a
mandatory minimum sentence was not speculative and this evidence raised no concerns that
would justify a court in limiting the cross-examination. Id. at 525.
       We conclude that neither a rule categorically mandating the admission of evidence on the
particular sentence that a State’s witness has avoided through cooperation nor a rule giving great
deference to the State’s interest in excluding such evidence is desirable. Instead we will engage
in a case-specific examination like those employed by the Ninth and Third Circuits, assessing
whether the jury might have received a significantly different impression of the witness’s
credibility if it had been apprised of the mandatory prison sentence that was avoided by
cooperation with the State.
       In the present case, we conclude that the jury’s ability to evaluate Morrison’s credibility
would not have been significantly different if the jurors had learned of the mandatory minimum
sentence that he averted by cooperating with the State. The jury was apprised that Morrison
benefited significantly from his agreement to testify against Ruiz by a reduction of his charge
from one that carried a potential life term in the penitentiary to a lesser offense, with a sentence
of probation that enabled him to avoid going to prison. The mandatory prison sentence averted
by Morrison, three years, is not particularly harsh. Although the threat of such a sentence
certainly gave Morrison motivation to cooperate with the State, the magnitude of that motivation
is hardly comparable to the much greater mandatory sentences that the federal courts in the
foregoing cases held to have been improperly concealed from the jury. Moreover, while the
excluded evidence would have more completely revealed Morrison’s incentive to please the
State, the record here suggests no reason why Morrison would have believed that pleasing the
State required fingering Ruiz if Ruiz was not, in fact, the dark-complexioned man who delivered
the drugs. That is, nothing in the record indicates that the police were already targeting Ruiz

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before Morrison identified him as Morrison’s drug source. Thus, Morrison’s incentive to help
the State identify and apprehend the drug supplier does not appear to include an incentive to
falsely identify that drug supplier as Ruiz, and disclosure of the avoided minimum sentence
would not change that. On these facts, it is unlikely that omitting the magnitude of the avoided
sentence left the jury with insufficient information to assess Morrison’s credibility.
       Our analysis could end here, but we take a moment to also address the State’s claimed
interest in excluding evidence of the mandatory sentence that Morrison avoided. Although the
State may sometimes have a legitimate interest in preventing jury concern about the sentence that
will be imposed upon the defendant if he or she is found guilty, in our view it will be a rare
circumstance where that interest can trump a defendant’s Confrontation Clause right to full
disclosure of an adverse witness’s possible biases and motives. This case exemplifies the
situation where such asserted State interest bears little weight. For the charge against Ruiz,
trafficking in methamphetamine, an average juror would hardly be surprised to learn that a
serious penalty attaches. Neither the nature of Ruiz’s offense nor the circumstances under which
it was committed, are such as would be expected to engender much sympathy upon the jury
learning that the offense carried a three-year mandatory minimum sentence. Further, we note
that this State interest can generally be fully protected without infringing on the defendant’s
confrontation rights, by simply ensuring that the jury is not informed of the precise offense with
which the State’s witness was originally charged before the charge was reduced or dismissed.
That is, the jury could be informed that the witness had been facing a criminal charge that carried
a specific mandatory minimum sentence without also being informed that the charge was for
precisely the same offense for which the defendant is on trial. An order in limine precluding
either party from disclosing the witness’s original charge would entirely circumvent the clash of
interests that is presented here, while allowing full exercise of the defendant’s constitutional right
to confrontation.
       Because Ruiz has not shown that his right to confront adverse witnesses was violated, the
judgment of conviction is affirmed.
       Judge PERRY and Judge GUTIERREZ CONCUR.




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