Appeal from the District Court of the Seventh Judicial District of the State of Idaho, in and for Bonneville County. The Hon. Jon J. Shindurling, District Judge.
The opinion of the court was delivered by: Eismann, Chief Justice.
The judgment of the district court is vacated.
Defendant was tried and convicted of lewd conduct. He contends that he was denied a speedy trial, that the trial court infringed upon his right of self-representation, and that it erred in instructing the jury. We vacate the judgment and remand this case for further proceedings consistent with this opinion.
On December 25, 2007, at about 5:30 p.m., the mother of three minor children (Mother) arrived home after running an errand and went into the kitchen to help her grandmother finish preparing Christmas dinner. As she was walking to the kitchen, Jonathan Folk (Defendant) was in the living room. He had come over to pick up a house guest. After about ten to fifteen minutes, Mother walked into the living room and asked her husband where their five-year-old son (Child) was. He said that he thought Child was in his bedroom. Mother walked to Child's room, and as she was nearing the open door to the room she heard Child say, "That's gross." As she walked into the room, she saw Child lying on his back on the bed and Defendant kneeling down in front of Child with Child's legs around Defendant and his hands on Child's hips. The bed was a small child's bed, about ten inches off the floor. Mother asked what they were doing, and both Child and Defendant said they were just playing. Both Defendant and Child were fully clothed, and it did not appear that either of them had just pulled or zipped their pants up. Mother did not see any signs of any type of sexual act by Defendant. Defendant stood up and walked out of Child's room, and then returned and sat on the floor while Child picked up his toys pursuant to Mother's instructions. Defendant and the guest left about one and one-half hours later. At about 4:00 a.m. that night, Child awakened Mother and stated that he had just had a nightmare. Mother asked what it was about, and Child responded that it was about what that guy did to Child last night. Mother asked what guy, but Child would not answer. Later that morning, Mother telephoned the police and then asked Child what had happened last night. Child answered that Defendant had placed his mouth on Child's penis.
On January 9, 2008, the State filed a complaint charging Defendant with lewd conduct by committing oral-to-genital contact with Child. The magistrate issued a warrant for Defendant's arrest and set bail at $100,000. Defendant was arrested, and when he appeared in court on January 14, 2008, he requested and was appointed a public defender. Defendant remained in jail throughout these proceedings.
The preliminary hearing was held on January 23, 2008. Prior to that date, Defendant retained counsel to represent him. Based upon the evidence at the hearing, the magistrate found that there was probable cause to believe that Defendant committed the crime of lewd conduct, and he bound the Defendant over to answer in district court. Prior to the first trial setting, Defendant's retained counsel was permitted to withdraw because Defendant was not paying him according to their fee agreement. The court reappointed the public defender to represent Defendant, but he later exercised his right to represent himself. The district court had the public defender remain as standby counsel to assist Defendant. Defendant was tried by a jury and found guilty of lewd conduct, and the district court sentenced him to life in prison without parole. Defendant then timely appealed.
II. Did the State Violate Defendant's Statutory Right to a Speedy Trial?
Defendant contends that the State violated his statutory right to a speedy trial. Absent a showing of good cause to the contrary, Idaho Code § 19-3501(2) requires the district court to dismiss a felony case "[i]f a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the information is filed with the court." On January 28, 2008, the State filed an information in the district court charging Defendant with lewd conduct by oral-to-genital contact. The trial in this case did not commence until January 5, 2009, almost one year after the information was filed. Defendant contends that there was no good cause for failing to bring him to trial within the six-month period. Because the trial was postponed upon Defendant's application prior to the running of the six-month period, we need not address whether there was good cause under the statute.
Defendant was arraigned in district court on February 6, 2008, and he entered a plea of not guilty to the charge. A jury trial was set to commence on March 24, 2008. On February 26, 2008, Defendant's retained counsel filed a motion to withdraw on the ground that Defendant had not met the terms of their financial agreement. That motion was heard on March 12, 2008, and the court granted the motion. Because Defendant could not afford counsel, the court then reappointed the public defender, who was present in court. The court asked the public defender if he would be ready to proceed to trial on March 24, 2008, and when he answered that he would not, the court rescheduled the jury trial to May 27, 2008.
We have not previously addressed whether postponement of the trial at a defendant's request waives the protection of the statute even if the trial is then rescheduled within the six-month period. State v. Young, 136 Idaho 113, 116, 29 P.3d 949, 952 n.2 (2001). We now answer that question and hold that it does.
The statute's wording does not indicate that a defendant loses the statute's protection only if the postponement requested by the defendant causes the trial to be scheduled beyond the six-month period. The statute requires dismissal "[i]f a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the information is filed with the court." I.C. § 19-3501(2) (emphasis added). To hold that the postponement upon defendant's application waives the protection of the statute only if such postponement causes the trial to be rescheduled beyond the six-month period would require rewriting the statute. Because the initial trial setting was postponed upon Defendant's application, he waived the protection of the statute. Therefore, Idaho Code section 19-3501(2) did not require dismissal of this action once Defendant was not tried within six months after the information was filed.
III. Did the State Violate Defendant's Constitutional Right to a Speedy Trial?
Defendant contends that he was denied his right to a speedy trial under the State and Federal Constitutions. Article 1, section 13, of the Idaho Constitution provides, "In all criminal prosecutions, the party accused shall have the right to a speedy and public trial . . . ." In determining whether a defendant has been deprived of the right to a speedy trial under our State constitution, we have adopted the four-part balancing test used by the United States Supreme Court to determine whether a defendant has been deprived of the right to a speedy trial under the Sixth Amendment to the Constitution of the United States. State v. Young, 136 Idaho 113, 117, 29 P.3d 949, 953 (2001). "Under the Idaho Constitution, the period of delay is measured from the date formal charges are filed or the defendant is arrested, whichever occurs first." Id.*fn1 "The four factors to be balanced are (1) the length of the delay, (2) the reason for the delay, (3) the assertion of accused's right to a speedy trial, and (4) the prejudice to the accused." Id.
The length of the delay is a triggering mechanism. "Until there is some delay which is presumptively prejudicial, it is unnecessary to inquire into the other three factors." Id. "[T]he length of delay that will provoke such an inquiry is necessarily dependent upon the circumstances of the case." State v. Holtslander, 102 Idaho 306, 309, 629 P.2d 702, 705 (1981) (quoting Barker v. Wingo, 407 U.S. 514, 530-31 (1972)). "The courts consider the complexity of the crime in making the determination as to whether the delay . . . is uncommonly long . . . ." 21A Am. Jur. 2d Criminal Law § 948 (2008). In this case, formal charges were filed on January 9, 2008, and the trial began on January 5, 2009, almost one year later. Considering the crime charged, a delay of almost one year is sufficient to trigger our inquiry into whether Defendant has been denied a speedy trial.
The next factor is the reason for the delay. The first trial date was set within about two and one-half months after the information was filed. During that period,
Defendant was arrested, had a preliminary hearing in the magistrate court, and was bound over to the district court where he entered a plea of not guilty. The case was then set for trial, giving counsel time within which to prepare. Defendant does not contend that there was any unnecessary delay during this period.
The trial was then continued for three months at the request of Defendant, from March 24, 2008, to May 27, 2008, and then to June 23, 2008. The first continuance resulted from the withdrawal of Defendant's retained counsel and the appointment of a public defender on March 12, 2008, who was understandably unable to be prepared for the trial scheduled twelve days later.*fn2 On May 14, 2008, Defendant elected to represent himself, and the following day he requested a continuance in order to have time for him to prepare to respond to motions filed by the State. He agreed that the trial be rescheduled to June 23, 2008.*fn3
The State then requested and was granted a two-week continuance of the trial from June 23 to July 7, 2008, so that the prosecuting attorney assigned to the case could attend a previously scheduled conference in San Francisco. On July 2, 2008, the district court heard three motions presented by the State. They were a motion filed on May 15, 2008, to admit as excited utterances the statements made by Child to Mother during the night immediately following the alleged incident; a motion filed on May 15, 2008, to admit into evidence a video-taped interview of Child; and a motion filed on June 10, 2008, to prevent Defendant from personally cross- examining Child. The court took those motions under advisement and stated that the trial would have to be postponed two months in order to have time to rule, especially on the motion to prevent Defendant from personally cross-examining Child. The court rescheduled the trial to September 8, 2008.
On August 28, 2008, the court issued an opinion granting the motion preventing Defendant from cross-examining Child and ordering that Defendant's standby counsel conduct the cross examination by reading questions prepared by Defendant. The record on appeal does not indicate that the court issued decisions on the other two motions prior to the trial.
There is nothing in the record indicating why it would take two months for the court to decide the motion to prohibit Defendant from cross-examining Child. The State had submitted a memorandum in support of that motion on June 10, 2008, three weeks in advance of the July 2 hearing. Defendant did not submit a memorandum in opposition. At the hearing, the prosecutor did not present any additional argument. He simply stated that the preferable manner of handling the situation would be to have Child testify over closed-circuit television, and if that could not be done then there was case law supporting having standby counsel ask questions prepared by a pro se defendant. In response, Defendant stated that he had no objection to his identity being concealed from Child either by altering his voice or not showing him to Child, but he did object to not being able to ask the questions. He stated that it would inhibit his ability to cross-examine Child because he would have to be writing questions while standby counsel was asking a question, and he would be losing track of what Child was saying and would not be able to watch his body language. The court ultimately ordered that Child would testify by closed-circuit television and that Defendant would not be able to speak during Child's testimony. There is simply nothing in the record indicating why the court could not have made that decision prior to the July 7 trial date.
On August 18, 2008, the State filed a motion to postpone the trial to a date between December 13, 2008, and January 11, 2009, on the ground that witnesses from Illinois and Minnesota would not be available until after December 13, 2008. Those witnesses were expected to testify about Defendant's conduct that resulted in his two child sexual abuse convictions in Illinois. One witness would testify that in 1992 when he was five years of age Defendant sexually molested him, and the other would testify that in 1999 she caught Defendant sexually molesting her four-year-old son. The State also intended to produce evidence that in 1986 Defendant sexually molested a five-year-old boy in Bonneville County, Idaho.*fn4 The prosecutor stated that considering Child's age the State could not go forward without those witnesses. In support of the motion, the prosecutor also asserted:
Your Honor, these people, neither are sophisticated. I've had to convince them that they could fly in an airplane and that Idaho Falls was a safe location. And the 20-year-old's mother is extremely worried. And I have been on the phone numerous times convincing them that we would take care of her son. And so like I said, this isn't a--these aren't sophisticated ...