Opinion No. 35
from the District Court of the Sixth Judicial District of the
State of Idaho, Power County. Hon. Stephen S. Dunn, District
Judge. The judgment of conviction is vacated.
D. Fredericksen, State Appellate Public Defender, Boise, for
Appellant. Justin M. Curtis argued.
Lawrence G. Wasden, Attorney General, Boise, for Respondent.
Mark Olsen argued.
Perez Vasquez ("Vasquez") appeals from a judgment
of conviction following a trial by the court where she was
found guilty of one count of intimidating a witness, in
violation of Idaho Code section 18-2604(3). Vasquez argues
that she was deprived of her state and federal constitutional
right to a jury trial because, although her counsel waived
her right to a jury trial, Vasquez never personally waived
such right, either orally or in writing. Vasquez subsequently
appealed and this case was originally heard and decided by
the Court of Appeals; however, we granted the State of
Idaho's petition for review. We now vacate Vasquez's
conviction and remand this case to the district court.
I. FACTS AND PROCEDURE
2009, D.P. made allegations of sexual abuse against her
paternal uncle, but later recanted those allegations. The
paternal uncle and Vasquez are siblings. In 2012, D.P.
disclosed additional acts of sexual abuse by the same uncle.
Because of the new allegations, police officers again
investigated the 2009 allegations. During the course of the
2012 investigation, the officers obtained evidence that
Vasquez coached D.P. in 2009 regarding what to say during her
recantation. As a result, Vasquez was charged with
intimidating a witness.
initially pleaded not guilty and the case was set for jury
trial on September 24, 2014. After a failed attempt at
mediation, trial was reset to December 2, 2014. The day
before trial, Vasquez's counsel and the prosecutor
informed the district court that they intended to waive
Vasquez's right to a jury trial and stipulate to a trial
by the court. On the day of trial, the following exchange
Court: Yesterday I was advised by the counsel for parties,
both the state and the defendant, that they had stipulated to
waive a jury and try this case to the court. Is that right,
Mr. Peterson: Yes, [y]our Honor.
Court: Mr. Souza [counsel for Ms. Vasquez]?
Mr. Souza: Yes, sir.
Court: All right. So the record will reflect that agreement.
was present, but the district court never inquired of her
whether or not she personally agreed with this stipulation.
the court trial, Vasquez was found guilty of felony
intimidating a witness. The district court imposed a unified
sentence of four years, with two years determinate, and
placed Vasquez on probation. Vasquez timely appealed.
Vasquez's appeal was initially heard by the Court of
Appeals, which vacated and remanded the case on the ground
that the district court erred when it conducted a bench trial
without first obtaining Vasquez's personal, express
waiver of her right to a jury trial.
State petitioned this Court for review of the Court of
Appeals' ruling, arguing that Vasquez failed to meet her
burden of showing fundamental error. This Court granted
review on September 8, 2017.
thereafter, on September 12, 2017, the Idaho Department of
Correction (IDOC) filed a request to terminate Vasquez's
probation in the district court. On September 13, 2017,
before any remittitur from this Court, the trial court
granted the Board's request, terminated Ms.
Vasquez's probation and "set aside the guilty plea
and dismissed the case." While Vasquez never pled guilty
in this case, the order nevertheless had the effect of
dismissing the matter pursuant to I.C. §19-2604 while
Vasquez's appeal was pending before this Court.
Court was notified of the trial court's order and the
Clerk of the Supreme Court entered an order on December 7,
2017 conditionally dismissing this appeal because it appeared
to be moot. The State of Idaho formally objected to that
proposed dismissal, and this Court therefore left the matter
pending and heard argument on January 12, 2018. Based
thereon, we now vacate Vasquez's Judgment of Conviction.