State v. Talmage

658 P.2d 920, 104 Idaho 249, 1983 Ida. LEXIS 395

• Court: Idaho Supreme Court
• Decided: January 31, 1983
• Docket: 13344
• Status: Published

Opinions

BAKES, Justice.

This is an appeal from a judgment of conviction for first degree burglary, in violation of I.C. § 18-1401.

The defendant appellant was apprehended inside a drug store in Cottonwood, Idaho. The State of Idaho filed a criminal complaint against the defendant appellant on June 26, 1978, charging him with the crime of burglary in the first degree. The defendant testified in his own behalf at his first trial on September 14, 1978, to the effect that a person whom he refused to identify had informed him of a store owner in Cottonwood, Idaho, and that upon contacting the store owner he was hired to break into the store and “make it appear that someone had been searching, you know, mess the place up, go through things.” On cross examination, however, the defendant, relying on the fifth amendment, refused to identify who had initially informed him of the job. The court ruled that the defendant had opened the subject on direct examination, that he had waived his right to remain silent and ordered the defendant to answer. When the defendant remained adamant in his refusal, the court proceeded with the trial, stating that the problem would be dealt with at the trial’s conclusion. The case was submitted to the jury, which returned to the courtroom after several hours of deliberation and reported that it was unable to reach a verdict. The court instructed the jury to deliberate further, but the jury again returned and the foreman reported that the jury was deadlocked and that further deliberations would be of no use. The court, on its own motion, declared a mistrial and subsequently set a second trial for October 16, 1978.

Before the second trial, on September 25, 1978, the court held a contempt hearing during which the defendant was given another opportunity to answer the questions asked of him during cross examination. The trial court warned the defendant that failure to answer the questions would subject him to a contempt charge and incarceration until he chose to answer. When defendant again refused to answer, the court, by its order filed October 16, 1978, but dated September 25, 1978, found him in contempt of court and sentenced him to the custody of the sheriff until he “indicate[d] a willingness to answer under oath the questions which the court directs him to answer, or until further order of this court.”

Upon motion by the defendant, the court, finding that the defendant “had an ongoing duty to answer certain questions ...,” but that “it is apparent that defendant ha[d] no intention of complying with the order of the Court ...,” entered its Order Terminating Contempt Order on April 6, 1979. Defendant filed various motions on April 13, 1979, including motions to dismiss based on allegations that he had been denied a speedy trial and placed in double jeopardy. The trial court denied these motions and a second trial was held on April 30, 1979, at which time the defendant was found guilty of first degree burglary. The defendant appeals his conviction, alleging that he was denied a speedy trial and that the second trial subjected him to double jeopardy, both in violation of his constitutionally guaranteed rights. Finding no such violations, we affirm.

I

Relying specifically on Art. 1, § 13, of the Idaho Constitution, defendant appellant argues that he was denied a speedy trial in conjunction with the second trial held. Idaho Constitution Art. 1, § 13, guarantees criminal defendants the right to a speedy trial as follows:

“In all criminal prosecutions, the party accused shall have the right to a speedy and public trial ....”¹

The defendant claims that he was deprived of a constitutionally guaranteed speedy trial by the trial court’s failure to retry him on October 16,1978, the date originally set for the second trial, allowing approximately 7 Vs: months to elapse before holding the second trial on April 30, 1979.

The state, in its brief on appeal, argues that under the provisions of I.C. § 19-3501 good cause existed for the delay, and defendant was not denied a speedy trial. Prior to the time period relevant to this action, Idaho Constitution Art. 1, § 13, was supplemented by I.C. § 19-3501 which provided definition of the concept of “speedy trial.” See State v. Hobson, 99 Idaho 200, 579 P.2d 697 (1978); Jacobson v. Winter, 91 Idaho 11, 415 P.2d 297 (1966). I.C. § 19-3501 required that a criminal action be dismissed if the defendant was not tried during the next term of court after the information was triable, unless good cause to the contrary was shown. State v. Hobson, supra at 202, 579 P.2d at 699 (1978); see State v. Lindsay, 96 Idaho 474, 531 P.2d 236 (1975).² Effective March 1, 1975, however, the Idaho legislature repealed I.C. § 1-706 which required at least two court terms per year in each county. 1975 Idaho Sess.Laws ch. 242, § 1, in response to this Court’s promulgation of I.R. C.P. 77(a), effective January 1, 1975, which abolished terms of court. While I.R.C.P. 77(a) did not expressly apply to criminal cases, the action of the legislature in repealing I.C. § 1-706 was general and applied to both civil and criminal actions. Therefore, the action of the legislature in repealing I.C. § 1-706, and the action of this Court in promulgating I.R.C.P. 77(a) precludes the determination of the right to a speedy trial by reference to the terms of court for cases filed after the effective date of the repeal of I.C. § 1-706. State v. Carter, 103 Idaho 917, 655 P.2d 434 (1981).

This Court, in State v. Lindsay, 96 Idaho 474, 475, 531 P.2d 236, 237 (1975), noted the following in regard to the Idaho constitutional guarantee of speedy trial:

“The right of speedy trial as guaranteed by a state constitution or statute cannot be said to be necessarily identical to that right to speedy trial guaranteed in the Constitution of the United States. We find, however, that the ‘balancing test’ laid down in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is consistent with decisions of this court stating that whether one has been deprived of his right to a speedy trial must be decided by reference to considerations in addition to the mere passage of time. Hadlock v. State, 93 Idaho 915, 478 P.2d 295 (1970); Eilenwood v. Cramer, 75 Idaho 338, 272 P.2d 702 (1954).”

Accord, State v. Holtslander, 102 Idaho 306, 308-09, 629 P.2d 702, 704-05 (1981). The “balancing test” enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), referred to above, is a four-fold balancing test determinative of whether an accused has been denied a speedy trial. The factors to be considered are: (1) the length of delay; (2) the reason(s) for delay; (3)the defendant’s assertion of his right; and (4) prejudice to the defendant occasioned by the delay. State v. Holtslander, supra at 309, 629 P.2d at 705; State v. Lindsay, supra at 476, 531 P.2d at 238; see Barker v. Wingo, supra.

The interval between the first and second trials in this action, the delay of which defendant complains, was approximately seven and one-half months. A delay of this length is sufficient to trigger our inquiry into whether a defendant has been denied a speedy trial. See State v. Holtslander, supra. Compared to the delays alleged to have constituted a denial of speedy trial in other actions before this Court, however, this seven and one-half month period intervening between the trials is not in itself so excessive as to outweigh the other balancing factors. See, e.g., State v. Holtslander, supra (elapse of nine months between date original complaint was filed and arrest not inordinate); State v. Lindsay, supra (fourteen month interval between filing complaint and trial, when balanced against other factors, did not constitute denial of speedy trial).

Turning to the reason for the delay, it is apparent that the prosecution did not deliberately attempt to defeat the defendant’s right to speedy trial; indeed, counsel for the defendant acknowledges in his brief on appeal that the prosecution was prepared to go to trial on October 16, 1978, the date originally scheduled for the second trial. On the other hand, more than six months of the seven and one-half month period between the defendant’s trials can be attributed to the defendant’s refusal to answer the questions asked of him on cross examination relating to his testimony on direct during the first trial and the ensuing contempt and commitment proceeding and order issued against the defendant. The trial court’s Order and Commitment was to be effective only until the defendant indicated a willingness to answer, at which time defendant was to be returned to open court. Therefore, the defendant held the key to his own speedy retrial and the reason for the greatest portion of the delay between the first and second trials, the defendant’s willful disobedience of the trial court’s order to answer certain questions, should not be weighed against the state.³

Furthermore, the defendant did not assert his right to speedy trial until he filed his Motion to Dismiss on that ground on April 13, 1979, just two and one-half weeks prior to his second trial. At the contempt hearing held on September 25, 1978, the defendant’s counsel stated that the defendant did not waive his right to speedy trial; nevertheless, defendant waited some six months to assert his right.

Finally, the defendant has not alleged or shown that he was prejudiced by the delay between the first and second trials, nor does the record reflect that his ability to present his defense was impeded in any way. Although this Court has previously stated that “[i]f [a] defendant can show an unreasonable delay in prosecution, prejudice is presumed,” Olson v. State, 92 Idaho 873, 874, 452 P.2d 764, 765 (1969), citing Richerson v. State, 91 Idaho 555, 428 P.2d 61 (1967), we have more recently adopted the view that “prejudice is a central factor in analyzing thé right to speedy trial.” State v. Holtslander, supra at 313, 629 P.2d at 709. In Holtslander, we held that “where a defendant does not even attempt to make a showing of reasonable possibility of prejudice, then this factor should be given very little weight, if any, for the defendant. Supra at 313, 629 P.2d at 709.

In applying the facts of this case to the balancing test, the four factors, particularly the reason for the delay, weigh against the defendant. On the basis of this record, the scale being demonstrably tipped in favor of the state, we hold that the defendant was not deprived of a speedy trial.

Even if the record established that the seven and one-half month delay constituted a denial of speedy trial,. delays in bringing a defendant to trial caused or consented to by the defendant are considered to constitute waiver of the right to be tried within the time affixed by statute or required by constitution. Accord, State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973); Hadlock v. State, 93 Idaho 915, 478 P.2d 295 (1970); Olson v. State, 92 Idaho 873, 452 P.2d 764 (1969); Ellenwood v. Cramer, 75 Idaho 338, 272 P.2d 702 (1954): see also Balla v. State, 97 Idaho 378, 544 P.2d 1148 (1976). As discussed above, the greatest portion of the delay between the two trials was caused by defendant’s refusal to answer the questions asked of him on cross examination and the resulting contempt order. Therefore, the delay in this case was attributable to the defendant and he thereby waived any right to complain of the lack of a speedy trial as it related to the second trial.

II

The double jeopardy clauses of the fifth amendment of the United States Constitution, applicable to the states through the due process clause of the fourteenth amendment, and Art. 1, § 13, of the Idaho Constitution, protect a criminal defendant from repeated prosecutions for the same offense. Defendant claims that he was placed in double jeopardy when the trial court retried him for the same charges at issue in the first trial. The defendant claims that “the trial Court did not make sufficient inquiry of the jury, through its foreman to establish a manifest necessity to discharge the jury ...,” and thereby overcome the constitutional objection of double jeopardy upon retrial.

In this action, the jury retired to deliberate at approximately 7:30 p.m. on September 15, 1978. At the jury’s request, it returned tp the courtroom at approximately 11:19 p.m., and the court gave an additional instruction and encouraged the jury to deliberate further in an attempt to reach a verdict. The jury was excused to resume deliberations but returned approximately forty minutes later, at 12:05 a.m. on September 16, 1978, and the following colloquy ensued:

“THE COURT: All right. The record will show all members of the jury are present. Mr. Fitting, are you still unable to reach a verdict in this case?

“JURY FOREMAN: Yes.

“THE COURT: I take it then that the problem that you have is not one of a question about the law or the instructions that I have given the jury. If it is a question about that, if there is any additional instruction or clarification of the instruction, I would be prepared to do that. If it’s not a case of that, I would like to know.

“JURY FOREMAN: We are in doubt of the charges against the Defendant.

“THE COURT: All right. Then it is a question that you cannot agree upon the facts?

“JURY FOREMAN: That’s right.

“THE COURT: Of the evidence — the evidence establishes? All right. Well, the hour is very late. You have been deliberating a long time and I know you have given this a lot of consideration. Now, I just for the record to determine if in your opinion it would do no use to deliberate any further in this case; is that the situation?

“JURY FOREMAN: That is it.

“THE COURT: All right. The Court has no choice then but to declare the jury deadlocked, unable to reach the verdict and therefore I will on that ground declare a mistrial.....”

In the recent case of Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the United States Supreme Court stated that “the classical test for lifting the double jeopardy bar to a second trial is the ‘manifest necessity’ standard ...” and that “the most common form of ‘manifest necessity’ [is] a mistrial declared by the judge following the jury’s declaration that it was unable to reach a verdict.” Oregon v. Kennedy, 102 S.Ct. at 2087. The court further stated that “the hung jury remains the prototypical example” of meeting the manifest necessity standard, citing Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978), and Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973). Id. See also United States v. Larry, 536 F.2d 1149 (6th Cir.1976), cert. denied, 429 U.S. 984, 97 S.Ct. 502, 50 L.Ed.2d 595 (1976).

We adhere to the view that it is within the sound discretion of the trial court to declare a mistrial in the interests of justice. Accord Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Lewis v. Anderson, 94 Idaho 254, 486 P.2d 265 (1971); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968): see State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979); State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979). A trial court’s exercise of its discretion will not be reversed on appeal “unless it clearly appears that the trial court abused its discretion, and a party’s rights were thereby prejudiced.” State v. Cypher, supra 92 Idaho at 165, 438 P.2d at 910. In this action the jury deliberated for a total of more than four hours. Returning to court for the second time, the jury foreman indicated that it would be useless to deliberate further. At that late hour, the trial court, in its discretion, determined that the jury was hopelessly deadlocked and declared a mistrial. This is not a case of “overworking jurors at the expense of those jurors ... with [a] resultant unfair trial,” State v. Silcox, 103 Idaho 483 at 492, 650 P.2d 625 (Idaho 1982) (Bistline, J., dissenting). The trial court did not abuse its discretion in declaring mistrial and the retrial violated no constitutional guarantee. See United States v. Larry, supra.

Finding that neither of defendant’s rights to speedy trial or against double jeopardy were violated, we affirm the conviction entered in the second trial.

DONALDSON and SHEPARD, JJ., and McFADDEN, J. (Ret.), concur.

1 . The sixth amendment to the United States Constitution provides the following similar protection: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, .... ”

2 . The legislature amended I.C. § 19-3501 in 1980 to read:

“19-3501. WHEN ACTION MAY BE DISMISSED.—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.” 1980 Idaho Sess.Laws, ch. 102, § 1.

3 . The defendant asserts that the trial court’s contempt and commitment order violates the standard established in Yates v. United States, 227 F.2d 844 (9th Cir.1955), cert. granted, 350 U.S. 947, 76 S.Ct. 322, 100 L.Ed. 825 (1956), and was therefore an invalid justification for the delay between trials. The court in Yates held that imprisonment cannot be used to coerce evidence after the trial has terminated. See also Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). Litigation, however, is not completed under the Yates standard when a trial court declares a mistrial on the ground that the jury is deadlocked, and the case before us is distinguishable from Yates on that basis. This action was not ended, as the declaration of mistrial necessitated a retrial at which the same issues would be litigated.

Since the action had to be retried, the trial court had authority to hold the contempt hearing subsequent to the mistrial and give the defendant another opportunity to purge himself of his refusal to comply with the court’s order. When the defendant remained steadfast in his refusal, the court had authority to punish his contempt by way of commitment. Whether the court should have penalized defendant by incarcerating him for a fixed term rather than “until he indicated a willingness to answer,” is a question that could and should have been raised in a habeas corpus, not collaterally in this proceeding. Disobedience of the trial court’s order was contemptuous, regardless of the correctness of that order. Cf. Barnett v. Reed, 93 Idaho 319, 460 P.2d 744 (1969) (disobedience of court order constitutes contempt regardless of correctness of order); Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1956).