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State v. Thomas11/16/1999
1999 OPINION NO. 69
FREDERICK C. LYON, CLERK
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon.Roger S. Burdick, District Judge.
Judgment of conviction and forty-year determinate sentence for second degree kidnapping, with sentence enhancement for use of a firearm, affirmed.
On this appeal from a kidnapping conviction, Jimmie V. Thomas challenges the district court's exclusion of the testimony of a defense witness who was not disclosed prior to trial. Thomas also contends that his sentence is excessive.
FACTS AND PROCEDURAL HISTORY
According to trial testimony, at about 11:00 p.m. on October 13, 1996, Thomas went to the home of Michael Phillips and knocked on the door. When Phillips answered the knock, Thomas was aiming a handgun at him. Thomas identified himself as the husband of Anna Marie Thomas, a woman known to Phillips. Thomas entered Phillips' house and complained that Phillips was ruining Thomas' life through Phillips' relationship with Ms. Thomas. Thomas directed Phillips to write a letter to Ms. Thomas stating that he would never see her again, and Phillips complied. Thomas then insisted that Phillips give him a ride back to his car, which Thomas said was parked at a truck stop on a highway approximately five miles from Phillips' home. Again, Phillips complied. When they arrived at the truck stop, Phillips could see no car in the area where Thomas said he had parked. Phillips then noticed Thomas was again pulling out his gun. Frightened as to Thomas' intent, Phillips made a sudden hard turn while accelerating his truck, and as this maneuver threw Thomas against the passenger door, Phillips grabbed the gun and scrambled out of the vehicle. Phillips then ordered Thomas to exit the vehicle. As Thomas walked away from the truck, he reached down to pick up a roll of duct tape that was rolling on the ground. Phillips testified that it was not his duct tape. It was the prosecution's theory that the tape had fallen from Thomas' pocket.
Phillips immediately contacted the police, and Thomas was arrested nine days later. He was charged with second degree kidnapping, Idaho Code §§ 18-4501, -4503, and the information alleged that he was subject to a sentence enhancement under I.C. § 19-2520 for the use of a firearm in the perpetration of a kidnapping.
At the end of the first day of trial, after Thomas had testified, defense counsel announced that he had "no other evidence." However, when the trial resumed the next morning, the defense attorney moved to reopen his case to present additional testimony from Thomas and testimony of Thomas' ex-wife, Anna Marie Thomas. Counsel explained the purpose of Ms. Thomas' testimony as follows:
The nature of Ms. Anna Marie's testimony would be to impeach statements made by Mr. Phillips concerning what occurred and didn't occur, to discuss contacts that she had with Mr. Phillips following the 13th of October, to discuss the circumstances of Mr. Thomas's arrest, to identify the clothing that Mr. Thomas was wearing on the night in question and testimony along those lines.
The prosecutor did not oppose Thomas' request to reopen in order to allow Thomas to present further testimony, but he did object to the defense's effort to call Ms. Thomas because she had not been identified as a potential witness. According to the prosecutor, the defense attorney had specifically represented that Ms. Thomas would not be called and, in reliance upon this representation, the prosecutor had not secured the attendance of three witnesses who would be needed, he anticipated, to rebut Ms. Thomas' testimony. One of these
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