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Hall v. State3/17/2004
e discovery, the State is required to show "by clear and convincing evidence, that illegally obtained evidence would have been discovered through predictable investigative processes[.]" Although the State presented evidence relevant to this claim at the hearing, the evidence was brief and conclusory and does not appear to meet this standard. Furthermore, Judge Brown did not enter explicit findings addressing whether the State presented clear and convincing evidence that Hall's identity would have been discovered inevitably through predictable investigative processes. Therefore, we direct Judge Brown to enter findings addressing this issue.
Should the court have amended the presentence report?
Hall argues that the superior court abused its discretion by denying his request to strike a statement that Hall claimed is inaccurate from the presentence report. Hall claims that the probation officer incorrectly wrote in the report that " n the day of the current offense, [Hall] was taking the gun to [Hall's sister] at her request because she was going to have a party at her house."
Hall claimed that he told the probation officer that he was not aware that the gun was in the car.
Both Hall and his sister, Patricia Stevens, testified at the sentencing hearing that while driving the same car Hall drove later that night, Stevens had placed the gun in the car in order to take it to her house, but that she had forgotten to take it out of the car once she arrived at her house. Stevens testified that she felt she needed the gun for protection at her house that night because she was having a party there for her grandson, and she did not know his friends.
The probation officer testified that she had taken notes while interviewing Hall and that Hall told her that he was taking the gun to his sister. The State admitted a copy of the probation officer's interview notes, which supported the probation officer's testimony.
Judge Brown ruled that he would not strike the challenged portion of the presentence report because he disbelieved the testimony of Hall and Stevens that the gun was accidentally left under the driver's seat of the car. Judge Brown credited Boor's testimony that he had found the gun on Hall's person. Further, Judge Brown rejected Hall's claim that Boor had lied about where he had found the gun.
Having found that the challenged statement was accurate, Judge Brown did not abuse his discretion by refusing to strike the statement from Hall's presentence report.
Finally, Hall claims, without citation to authority, that he should be resentenced before a different judge because Judge Brown said at sentencing that he thought Hall had lied. Hall argues that the judge's belief that he had committed perjury likely affected the sentencing decision. But a judge sentencing a defendant is entitled to consider a defendant's perjury when evaluating the defendant's prospects for rehabilitation. We reject Hall's claim that he should be resentenced by a different judge.
Conclusion
We REMAND the case to the superior court for findings on whether Boor engaged in the functional equivalent of questioning and findings on whether Hall's identity would have been discovered inevitably. The superior court shall transmit its findings to this court within 75 days. When those findings are received by this court, the parties will have 30 days to submit simultaneous supplemental memoranda addressing those findings. We retain jurisdiction.
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