STATE of Idaho, Plaintiff-Respondent, v. William Roger RUSSELL, Defendant-Appellant.
No. 15209.
Supreme Court of Idaho.
March 5, 1985.
696 P.2d 909
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., P. Mark Thompson, Myrna A.I. Stahman, Deputy Attys. Gen., Boise, for plaintiff-respondent.
SHEPARD, Justice.
This is an appeal from a conviction of three counts of robbery and three counts of possession of a firearm during the commission of a robbery. The conviction was entered 23 months after the complaint was filed. The sole issue on appeal is whether defendant-appellant William Russell was denied his right to a speedy trial. The trial court found that he was not. We affirm.
In a complaint filed August 25, 1981, Russell was charged with three separate armed robberies of a Citizens National Bank in Boise. At the time of the complaint, Russell was being held in the Ada County jail on a different but similar felony complaint. After a preliminary hearing, Russell was arraigned on September 18, 1981, at which time he requested that a trial date be set sometime after January 1, 1982. The court at that time advised Russell that such a continuance could present speedy trial problems and inquired if Russell would be willing to waive speedy trial rights conferred upon him by
In November 1981, Russell was sentenced to a 12-year indeterminate sentence, together with a 5-year indeterminate consecutive sentence upon conviction of the earlier, similar felony complaint. On December 1, 1981, Russell was extradited to Arizona to face federal charges, and on January 15, 1982, defense counsel requested a 60-day continuance, whereupon the case was continued until March 12, 1982, at
Russell‘s counsel filed a motion to dismiss, alleging denial of his right to a speedy trial under
Trial was scheduled for October 14, 1982, but Russell was absent because, due to an error, he had not been transported from the Idaho State Correctional Institution. Over the objection of defense counsel, the case was continued to October 29, 1982, at which time a trial date was set for April 4, 1983.
On the day set for trial, the district court, on its own motion, vacated the trial because of an overloaded criminal docket. On May 17, 1983, Russell filed a motion to dismiss based on
We view the issue presented as being in two parts: (1) whether Russell was denied his constitutional right to a speedy trial; and (2) whether he was denied his statutory right to a speedy trial under
Defendants to criminal charges are constitutionally guaranteed a right to a speedy public trial.
The right to speedy trial is also guaranteed in the Idaho Constitution,
Idaho‘s legislature has also addressed the issue of speedy trial.
“The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:
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“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 indictment or information is filed with the court.”
Prior to 1980,
“The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed in the following cases:
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“(2) If a defendant, whose trial has not been postponed upon his application, is
not brought to trial at the next term of the court in which the indictment is triable, after it is found.” (Emphasis added.)
Subsection (2) was amended in 1980 to its present form.
Insofar as the statutory guarantee of a speedy trial is concerned, Russell relies upon State v. Hobson, 99 Idaho 200, 579 P.2d 697 (1978), for his assertion that the nine month delay violated his right to a speedy trial under the provisions of
We hold that the limitations of
We further note that in the instant case, as distinguished from Hobson that it was not the prosecution who delayed the trial of the defendant; rather, the trial court upon its own motion vacated a trial setting because of a congested and overloaded criminal trial docket. The court stated:
“On October 28, 1982, trial was set for April 4, 1983. On April 4, 1983, this court on its own motion vacated that trial and reset it for July 25, 1983, because this court had several trials going on and had to make a decision on which trial to hold. Since the defendant had previously waived his right to a speedy trial his trial was reset. This court has reviewed all the court proceedings since October 12, 1982. The defendant from October 12, 1982 until April 8, 1983 has never given notice to the court that he was demanding his right to a speedy trial. On April 8, 1983, the defendant through his counsel stated to this court that he was not waiving his right to a speedy trial. The court, having previously vacated the scheduled trial date, was not in a position to immediately try the defendant. When this court vacated the April 4, 1983 trial date it was under the belief that the defendant had waived his right to a speedy trial and would not be prejudiced since he was already serving time in the Idaho State Penitentiary for a prior offense.”
Here, the vacation of the trial setting for April 4, 1983 cannot be charged to the prosecution. Neither can it be charged to the defendant. Rather, it is neutral.
[7] Since Hobson did not consider the issue of justifiable or “good cause,” we deem it appropriate to consider the same factors weighed by the United States Supreme Court in cases claiming a deprivation of the constitutional right to a speedy trial, i.e., those factors set out in Barker v. Wingo, supra, being specifically the length of the delay, the reasons for the delay, the accused‘s assertion of his speedy trial right, and the prejudice occasioned by the delay.
Here the time between the filing of the complaint and the date of the trial would appear inordinate on its face. However, all of that delay, with the exception of the final nine months, is chargeable, for one reason or another, to the defendant. This Court has held that delays in excess of nine months did not amount to constitutional violations. State v. Lindsay, 96 Idaho 474, 531 P.2d 236 (1975) (delay of 14 months). See also State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Idaho App.1983) (delay of 12 months).
The cognizable delay here was nine months. We do not deem that amount of time to be inordinate, particularly in view of defendant‘s express waiver of his rights to a speedy trial and of the 14 month period of delay attributable to defendant. As to the causes of the nine month delay between the remittitur and trial, as we have said, such can be attributable to neither the prosecution nor the defense, but rather are neutral.
We turn to the next factor considered in Barker v. Wingo, supra, i.e., the accused‘s assertion of his right. Following the October 12, 1982 remittitur from this Court, it was not until April 8, 1983, and again on May 17, 1983, that Russell asserted his right to a speedy trial.
The final and perhaps most compelling consideration of the Barker v. Wingo factors is the issue of prejudice to the defendant caused by the delay. In Barker v. Wingo, supra, the court identified three interests involved in a consideration of prejudice, those being (1) the prevention of oppressive pretrial incarceration, (2) minimization of anxiety and concern of the accused, and (3) limiting of the possibility that the defense will be impaired. In the instant case there has been no oppressive pretrial incarceration, since defendant was already serving approximately 17 years in an Idaho penal institution and facing a total of 45 years incarceration on federal charges in Arizona. Those facts also make doubtful any existence or prolonging of defendant‘s anxiety and concern over the instant charges. There is a total lack of any information presented to this Court or to the court below tending to indicate that the defense of this action was in any way hindered by the delay.
In short, a review of the Barker v. Wingo factors used to determine whether good cause did in fact exist under the language of
Russell also asserts that the 23 month delay between the commencement of criminal proceedings and his trial violated his constitutional rights to a speedy trial. The time for computing the delay begins on August 25, 1981, the date the complaint was filed. See U.S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Lindsay, 96 Idaho 474, 531 P.2d 236 (1975).
While the state constitutional right to a speedy trial is not necessarily identical to the federal constitutional right, the Barker balancing test issue is utilized for determining whether the Idaho Constitution speedy trial right has been violated. State v. Lindsay, supra. A 23-month delay is sufficient to trigger judicial scrutiny of the right to a speedy trial. See Barker v. Wingo, supra; State v. Holtslander, 102 Idaho 306, 629 P.2d 702 (1981). The greater part of that delay is, however, attributable to the appellant and will not be
As noted above in our consideration of the statutorily guaranteed right to a speedy trial, the Barker v. Wingo balancing test does not militate in favor of the defendant, no prejudice has been shown, and the defendant‘s rights to a speedy trial guaranteed under both the Idaho and federal constitutions have not been violated.
The judgment of the trial court is affirmed. No costs or attorney‘s fees on appeal.
DONALDSON, C.J., and BAKES and HUNTLEY, JJ., concur.
BISTLINE, Justice, dissenting.
The facts of this case are not in dispute. Based upon controlling statutory authority and case precedent defendant‘s conviction should be set aside and the charges against him dismissed.
The controlling statutory authority is
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 indictment or information is filed with the court.
(Emphasis added.)
The controlling precedent is State v. Hobson, 99 Idaho 200, 579 P.2d 697 (1978), wherein this Court held:
When a criminal defendant makes a prima facie showing that his right to a speedy trial is violated under
I.C. § 19-3501 , the district court must determine whether “good cause” for the delay is shown by the state under our statute. In such cases the burden is on the state to show “good cause” for the delay, just as the primary responsibility for bringing a case to trial is upon the state. Barker v. Wingo, supra 407 U.S. at 529, 92 S.Ct. 2182; United States v. MacDonald, 531 F.2d 196, 207 (4th Cir.1976); United States v. Macino, 486 F.2d 750, 753 (7th Cir.1973).
In this case, defendant Russell was not brought to trial within
The majority opinion attempts to distinguish Hobson by arguing that in Hobson the delay was caused by the prosecution while here the delay was solely caused by the district court. Such a distinction is without a difference and amounts to a rewriting of Hobson. Furthermore, it flies in the face of the reasons behind
The right to a speedy trial is designed to protect three interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972). These three reasons have been adopted by this Court in State v. Holtstander, 102 Idaho 306, 312, 629 P.2d 702, 708 (1981). None of these reasons are in any way logically related or dependent upon who causes the delay, provided only that it was not the defendant. It does not matter whether the prosecution, a court, or the Board of Corrections causes the delay;
It is the ultimate in legal sophistry to declare that good cause is shown by the “state” for a trial delay totaling nine and one-half months when it is caused solely by a court of the state. Nothing in
In Hobson, Justice Shepard, the author of today‘s opinion, was the lone dissenter. He based much of his dissent upon the argument that the delay in that case was in the most part caused by the courts. Hobson, supra, at 204, 579 P.2d at 701 (Shepard, J., dissenting). That argument persuaded no one then, and it is not persuasive today.
The majority‘s blithe suggestion that a state court of Idaho is not part of the “state” is astounding. The entire state court system has been established under Idaho‘s constitution. At the risk of saying the obvious, but of which the majority seems oblivious, the judicial branch of government in Idaho is as much a part of the “state” as the executive and legislative branches are. Accordingly, constitutional and statutory mandates and rights which this Court requires the other branches of government to abide by ought to be followed by this Court, too. It has been forever recognized in this Republic that we have established a government of laws, not a government of men. The Judicial Department is a branch of that government, and the Supreme Court of that Judicial Department should be a court of law-giving, law-applying, and precedent-following judges—not a court of men cloaked in robes. Appropriately to this occasion is language, not my own, which the trial bench and bar may see as befitting:
The most intolerable evil, however, under which we have lived for the past twenty-five years, has been the changing and shifting character of our judicial decisions, by which we have been deprived of the inestimable benefit of judicial precedents as a safeguard to our rights of person and property.
Hobson, supra, may have been wrongly decided. If so, then those who comprise today‘s majority of the Court, should overrule it. The trial bench and bar may well stand in bewilderment at the tacit overruling of the Hobson case, which received this Court‘s extremely close consideration from oral argument on January 7, 1977, until our opinion was issued on June 1, 1978. Especially is this so where the legislature in 1980, full well knowing of the Hobson decision, amended
In 1984 the legislature again amended
Moreover, under our Idaho constitutional system of government, a factor apparently not in the minds of those who join the opinion of Justice Shepard, the prosecuting attorney is of the Judicial Department.
Beatrice M. HEACOCK, Plaintiff-Respondent, v. Ronald E. MADSEN and Kathryn Elizabeth Madsen, Defendants-Appellants.
No. 15047.
Court of Appeals of Idaho.
Feb. 11, 1985.
Rehearing Denied March 29, 1985.
Petition for Review Denied April 30, 1985.
696 P.2d 916
William M. Killen, McCall, for plaintiff-respondent.
WALTERS, Chief Judge.
Beatrice Heacock initiated this action in 1982 to quiet title to realty located in Val-