Appeal from the District Court of the Fourth Judicial District, State of Idaho, Elmore County. Hon. Michael Wetherell; Hon. Richard D. Greenwood, District Judges.
The opinion of the court was delivered by: Perry, Judge Pro Tem
Judgment of conviction and determinate life sentence for first degree murder and concurrent fifteen-year determinate term for second degree murder, affirmed.
Albert A. Ciccone appeals from the judgment of conviction and sentence entered upon the jury verdict finding him guilty of one count of first degree murder and one count of second degree murder. Ciccone presents three issues on appeal: (1) whether his constitutional and statutory rights to a speedy trial were violated; (2) whether the prosecutor engaged in misconduct during his rebuttal closing arguments; and (3) whether his determinate life sentence is excessive.
On October 16, 2003, Ciccone struck his pregnant wife with his car, killing her and the unborn fetus. Ciccone was charged with two counts of first degree murder--one count for his wife and one count for the unborn fetus. On January 27, 2004, the district court entered an order holding defendant to answer, and on the same day, the State filed its information.
Trial was initially set for July 2004; however, a week before trial the State filed a motion to continue. The State's motion asserted that several witnesses were military personnel assigned to temporary duty (TDY) outside the state and were unavailable for trial. Ciccone opposed the motion, arguing that the prosecutor negligently waited for the Air Force investigation to conclude before attempting to contact witnesses. The district court granted the motion to continue and the trial was delayed until January 4, 2005. The jury ultimately found Ciccone guilty of first degree murder of his wife and second degree murder of the unborn fetus. The district court entered judgment on the jury's verdict and imposed a determinate life sentence upon Ciccone's conviction for first degree murder and a concurrent determinate fifteen-year sentence upon his conviction for second degree murder. Ciccone appealed and after the case was briefed and argued before this Court and the Idaho Supreme Court, his appeal was dismissed because it was not timely. See State v. Ciccone, 150 Idaho 305, 246 P.3d 958 (2010). Pursuant to a stipulation and order entered in post-conviction proceedings, the district court vacated its original judgment and conviction and reentered it as of April 19, 2011. Ciccone timely appeals from that judgment of conviction.
A. Right to a Speedy Trial
Ciccone argues on appeal that his constitutional and statutory rights to a speedy trial were violated when the district court allowed him "to be tried almost fifteen months after his arrest and almost a full year after the filing of the Information ." Whether there was an infringement of a defendant's right to a speedy trial presents a mixed question of law and fact. State v. Clark, 135 Idaho 255, 257, 16 P.3d 931, 933 (2000). We will defer to the trial court's findings of fact if supported by substantial and competent evidence; however, we will exercise free review of the trial court's conclusions of law. Id.
In Idaho, criminal defendants enjoy both constitutional and statutory entitlements to a speedy trial. The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Idaho Constitution. These constitutional protections are supplemented by Idaho Code § 19-3501, which sets specific time limits within which a criminal defendant must be brought to trial. Idaho Code § 19-3501 provides as follows:
The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:
(2) If 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). Under this statute, the State bears the burden to demonstrate good cause for a failure to bring a defendant to trial within the six-month limit. Clark, 135 Idaho at 258, 16 P.3d at 934; State v. Livas, 147 Idaho 547, 549, 211 P.3d 792, 794 (Ct. App. 2009).
In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court addressed application of the speedy trial right guaranteed by the Sixth Amendment and chose a flexible approach for assessing whether a speedy trial has been unconstitutionally denied. The Court adopted a balancing test in which the conduct of the defendant and the prosecution are to be considered, and the Court identified four primary factors to be weighed in determining whether a particular defendant has been deprived of his Sixth Amendment speedy trial right: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) the prejudice to the defendant. See Barker, 407 U.S. at 530. This same balancing test was adopted by the Idaho Supreme Court for determining whether the speedy trial guarantee of the Idaho Constitution has been violated. See State v. Lindsay, 96 Idaho 474, 476, 531 P.2d 236, 238 (1975).
In Clark, the Idaho Supreme Court reexamined "what 'good cause' means in the context of I.C. § 19-3501." Clark, 135 Idaho at 259, 16 P.3d at 935. The Court thereupon abandoned the previous approach of wholesale incorporation of the Barker balancing test when enforcing the speedy trial rights conferred by I.C. § 19-3501. The Court stated that to evaluate the justification for bringing a defendant to trial after the statutory six-month time limit,
[W]e believe that a thorough analysis of the reasons for the delay represents the soundest method for determining what constitutes good cause. We therefore conclude that good cause means that there is a substantial reason that rises to the level of a legal excuse for the delay. See State v. Johnson, 119 Idaho 56, 58, 803 P.2d 557, 559 (Ct. App. 1990); State v. Stuart, 113 Idaho 494, 496, 745 P.2d 1115, 1117 (Ct. App. 1987). Because there is not a fixed rule for determining good cause for the delay of a trial, the matter is initially left to the discretion of the trial court. See Johnson, 119 Idaho at 58, 803 P.2d at 559; Naccarato, 126 Idaho at 13, 878 P.2d at 187; see also People v. Johnson, 26 Cal. 3d 557, 162 Cal. Rptr. 431, 606 P.2d 738, 746 (1980); Gallimore v. State, 944 P.2d 939, 943 (Okla. Crim. App. 1997).
But as the Iowa Supreme Court noted in State v. Petersen, the reason for the delay "cannot be evaluated entirely in a vacuum." 288 N.W.2d 332, 335 (Iowa 1980). The good cause determination may take into account the factors listed in Barker. The Barker factors, however, "considered only as surrounding circumstances . . . are important, if at all, only insofar as they bear on the sufficiency of the reason itself. The shortness of the period, the failure of the defendant to demand a speedy trial, and the absence of prejudice are legitimate considerations only insofar as they affect the strength of the reason for delay. This means that, to whatever extent the delay has been a short one, or the defendant has not demanded a speedy trial, or is not prejudiced, a weaker reason will constitute good cause. On the other hand, if the delay has been a long one, or if the defendant has demanded a speedy trial, or is prejudiced, a stronger reason is necessary to constitute good cause." Id.
Clark, 135 Idaho at 260, 16 P.3d at 936.
This Court recently commented in State v. Jacobson, 153 Idaho 377, 283 P.3d 124 (Ct. App. 2012) that:
Our Supreme Court's non-application of the Barker factors, other than the reason for the delay, in Clark and Young is significant. We take this to mean that where the reason for the delay is well defined, and that reason on its face clearly does, or clearly does not, constitute good cause, there is no occasion to consider the other Barker factors in assessing a claimed violation of Idaho Code § 19-3501. This comports with the Supreme Court's statement in Clark that "if the reason for the delay is sufficient the other [Barker ] factors are not needed. If the reason for the delay is insufficient the other factors will not avail to avoid dismissal." Clark, 135 Idaho at 260, 16 P.3d at 936 (quoting State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999)). We conclude that resort to the other Barker factors will be appropriate primarily in close cases as where, for example, there are multiple reasons for the delay attributable to both the State and the defendant or the sufficiency of the reason to constitute "good cause" is genuinely subject to disagreement.
Id. at 380, 283 P.3d at 127.
In evaluating the reason for the delay, different weights are assigned to different reasons. United States v. Loud Hawk, 474 U.S. 302, 315 (1986); State v. Davis, 141 Idaho 828, 837, 118 P.3d 160, 169 (Ct. App. 2005). Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. Doggett v. United States, 505 U.S. 647, 656 (1992); Davis, 141 Idaho at 837, 118 P.3d at 169. We attach great weight to considerations such as the State's need for time to collect witnesses, oppose pretrial motions, or locate the defendant in the event that he or she goes into hiding. Doggett, 505 U.S. at 656; Davis, 141 Idaho at 837, 118 P.3d at 169. A valid reason, such as a missing witness, should serve to justify appropriate delay. Barker, 407 U.S. at 531. However, there is an enormous difference between being inconvenienced and being unavailable. Clark, 135 Idaho at 260, 16 P.3d at 936; Davis, 141 Idaho at 837, 118 P.3d at 169. True unavailability suggests an unqualified inability to attend, while inconvenience merely implies that attendance at trial would be burdensome. Clark, 135 Idaho at 260, 16 P.3d at 936; Davis, 141 Idaho at 837, 118 P.3d at 169.
A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Barker, 407 U.S. at 531; Davis, 141 Idaho at 837, 118 P.3d at 169. A more neutral reason, such as negligence or overcrowded courts, should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the State rather than with the defendant. Barker, 407 U.S. at 531; Davis, 141 Idaho at 837, 118 P.3d at 169; State v. Wavrick, 123 Idaho 83, 89, 844 P.2d 712, 718 (Ct. App. 1992). While not compelling relief in every case where a bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him or her. Doggett, 505 U.S. at 657; Davis, 141 Idaho at 837-38, 118 P.3d at 169-70. Although negligence is weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution. Doggett, 505 U.S. at 657; Davis, 141 Idaho at 837-38, 118 P.3d at 169-70.
In its oral ruling granting the State's motion to continue, the district court identified what it believed to be the causes of the delay:
However, the court in reviewing the affidavits and statements of the State and with considering those matters which I must consider with regard to the granting of any continuance in this particular case the length of the delay would have to be until December. That is the first available date when two weeks would be available on the court's calendar. Pardon me, January, when two weeks would be available on the court's calendar, which the parties are advising me is the amount of time that they feel would be taken.
The court had in fact advised both parties at the time that trial was set in this matter that it would not be able to be here the first week of August. As a result of that, other commitments have been made with the court's time. While a congested calendar is not enough for a continuance, the fact that other calendar items have been scheduled because of the fact that the parties felt the matter could be completed by July 30th and now do not feel that that is the case, I think is a little bit different matter.
And the court feels that continuing a matter and having half your trial in July and the other half in August creates other problems that could potentially prejudice the defendant, as well.
The reason for the request the court feels is in fact reasonable. The court notes that a jury trial for a murder case in Elmore County has not gone to trial for nearly twenty years. Somehow I seem to have had the luck of ...