Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Joel E. Tingey, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
2012 Unpublished Opinion No. 559
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment of conviction and unified sentence of fifteen years, with a minimum period of confinement of five years, for robbery, affirmed.
Brandon Leigh Day appeals from the district court's judgment of conviction and sentence for the crime of robbery, Idaho Code § 18-6501.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 2010, a masked man entered an insurance office, pulled out a large knife, and demanded money. The owner of the insurance company, Russell Johnson, complied by giving the man $290.00, which consisted of two one-hundred-dollar bills, a fifty-dollar bill, and two twenty-dollar bills. The man then fled on foot. Johnson attempted to call 9-1-1 on a cordless phone as he followed the man outside. Johnson's phone would not connect, so Johnson stopped Charles Hooker, who was in a nearby car, and asked him to call 9-1-1. Hooker did so and both Hooker and Johnson followed the individual Johnson had identified as the suspect; they both watched as the man ran into an apartment building. Neither Johnson nor Hooker saw anyone else on the street during the time they followed the suspect into the apartment building. Law enforcement arrived within minutes of the suspect entering the apartment building and officers proceeded to set up a perimeter around the building. Some officers entered to look for the suspect, and a few minutes later one of the officers saw a man, later identified as Day, coming down from the second floor. Day was perspiring heavily and had a shirt wrapped around his head; he was wearing jeans, but no shirt. On the basement floor of the building, another officer found, stuffed behind an electrical box, a pair of dark blue gym shorts, a gray T-shirt, a pair of white tennis shoes, and "a sleeve off of another gray T-shirt that had two slits cut in it and a knot tied in the top of it." These items matched those worn by the robber at the time of the robbery. The officer reported that the T-shirt and mask were visibly damp, "like they had been sweated in," and the clothes smelled like "they had recently been worn and sweated in." When the officers brought Day outside to where Johnson and Hooker were, Johnson indicated that Day looked "bigger" or "more built" than the man who robbed him, but that Day was the same "body height." Johnson also noted that Day was dressed differently than the robber. Hooker noted at trial that the man he followed down the street was of average size and weight and that Day, who he saw at the apartment building, was also of average size and weight. While the police were still on-scene, Johnson went to a rock wall that the suspect had ran past while fleeing because Johnson noticed that after the suspect had left that area, the suspect was no longer carrying items he had possessed earlier while he was running away. There, Johnson found a garbage can with part of a gray T-shirt and a sheath holding the knife used in the crime. Johnson took the garbage can back to law enforcement, who recovered the knife and a T-shirt with a sleeve cut off.
The State charged Day with robbery and a deadly weapon enhancement. At his arraignment, Day advised the court he wished to proceed pro se; an attorney from the public defender's office was appointed to act as standby counsel. Prior to trial, the defense moved for a psychological evaluation pursuant to I.C. §§ 18-210, 18-211, and 18-212. The district court granted the motion; however, Day refused to participate in the evaluation. The court advised Day that his case could not proceed without the evaluation, assured him that the evaluation would not be used as evidence against him, and then asked Day how he wished to proceed. Day initially responded that he did not "want to talk to any private-interest State person," but later indicated he would be willing to participate in an evaluation. The court entered another order for an evaluation. The second evaluator determined that Day was competent to stand trial. After the evaluation, Day sent a document to the court which the court construed as an objection to the evaluator's report. During a hearing, the court asked Day if he wanted to present testimony on the nature of his disagreement, or have the court appoint a different evaluator. Day answered: "Well, I won't agree to be evaluated by anybody. . . . Whatever you see fit I'll go with." Day also informed the court that he wanted someone to assist him with his case. The court agreed to appoint the public defender who was acting as standby counsel to represent Day, with the understanding that Day could later elect to proceed pro se. When asked for his position on the competency evaluation, defense counsel advised the court that he had read the evaluation and had some concerns, but did not "particularly disagree with the report as a whole."
Therefore, he stated he would be "willing to abide by the recommendations" that Day was competent to stand trial. The district court then ruled that Day was competent to stand trial. At the pretrial conference, Day's counsel told the court that he had an opportunity to discuss the competency evaluation with Day and indicated that Day was concerned that the prior evaluation was not prepared in accordance with the statute. As a result, Day's counsel informed the court that Day was interested in participating in another evaluation. Day disagreed with his counsel, but nevertheless said that he would be "just fine with talking" to the "state hospital." In response, the district court told Day he would order another evaluation by a different evaluator if Day so desired. The district court asked Day multiple times if he wanted another evaluation and Day responded that he did not want another evaluation in the Bonneville County Jail, that the court did not need to request a second evaluation, and then told the court, "[L]et's go to trial." The court then scheduled the case for trial.
At trial, the jury found Day guilty of robbery and the State dismissed the weapon enhancement. The district court imposed a unified fifteen-year sentence with five years determinate. Day timely appeals.
On appeal, Day contends that: (1) the district court abused its discretion by failing to order an additional competency evaluation, (2) the prosecutor made statements during closing argument that rise to the level of fundamental error, and (3) his sentence is excessive. The State contends that the district court did not abuse its discretion by declining to order another competency evaluation. The State further contends that Day has failed to show fundamental error in regard to the prosecutor's comments ...