52 P.3d 857 (Idaho 2002), 26874, State v. Nath

Docket Nº:26874.
Citation:52 P.3d 857, 137 Idaho 712
Opinion Judge:SCHROEDER, Justice.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Arvind NATH, Defendant-Appellant.
Attorney:[137 Idaho 713] Nevin, Herzfeld, Benjamin & McKay, Boise, for appellant. Dennis A. Benjamin argued. Alan G. Lance, Attorney General, Boise, for respondent. T. Paul Krueger II argued.
Judge Panel:SCHROEDER,
Case Date:July 05, 2002
Court:Supreme Court of Idaho
 
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Page 857

52 P.3d 857 (Idaho 2002)

137 Idaho 712

STATE of Idaho, Plaintiff-Respondent,

v.

Arvind NATH, Defendant-Appellant.

No. 26874.

Supreme Court of Idaho, Boise.

July 5, 2002.

Rehearing Denied Aug. 28, 2002.

Page 858

[137 Idaho 713] Nevin, Herzfeld, Benjamin & McKay, Boise, for appellant. Dennis A. Benjamin argued.

Alan G. Lance, Attorney General, Boise, for respondent. T. Paul Krueger II argued.

SCHROEDER, Justice.

Arvid Nath (Nath) appeals the judgment of conviction for second degree attempted kidnapping entered against him following jury trial. He also appeals from the district court post-trial orders denying his motions for renewed judgment of acquittal, to dismiss and for new trial.

I.

FACTUAL BACKGROUND

Nath and his wife, Paige Nath (Paige) have a daughter. Almost since her birth, she has been cared for by her grandparents (Paige's parents), or by Paige's sister Virginia Yost

Page 859

(Ginger) and her husband Christopher Yost (Yost).

Nath's daughter lived with the Yosts in Maryland from 1993 to 1995. In 1995 the family moved to Idaho. That same year, the Yosts obtained legal custody of the child through a Maryland court order. The order provided for visitation by Nath and Paige. The order provided that Nath's visits would be supervised by an individual approved by the Yosts or by the Idaho entity responsible for child welfare.

The Naths visited their daughter on occasion for the next couple of years. Nath had a visit scheduled on April 27, 1996. Nath did not show up for that visit. On May 3, 1996, Nath flew into Salt Lake City, rented a van and drove to Boise. The Yosts had moved since Nath's last visit, but Nath followed his daughter's bus home from school and wrote down the address. Nath called Paige and asked her to call the Yosts to ask whether he could see his daughter the following day. Ginger refused.

The next day Nath drove to the house where he saw his daughter in the front yard across the street playing. He went to her, picked her up and put her in the rented van. A neighbor went around the other side and tried to pull her back out, with Nath tugging on the other arm. Nath said he was there for visitation. After a few minutes, his daughter was let go, and she ran to the neighbors' where she hid in a car under a blanket. The neighbor had taken Nath's keys. He gave them back and Nath drove away.

Shortly thereafter, Nath flagged down a police officer. He explained the incident, stating that his intention was to take his daughter to the pool at the Holiday Inn because she liked to swim. A detective interviewed Nath as well. He advised Nath of his Miranda rights, which Nath waived. Nath indicated again that he was trying to exercise visitation rights. Both of those conversations were taped and introduced as exhibits. Nath was subsequently charged with one count of kidnapping in the Second Degree.

II.

PROCEDURAL BACKGROUND

On March 13, 1997, a jury convicted Nath of the lesser offense of Attempted Kidnapping. Sentencing was set for April 25, 1997, for which Nath did not appear. The court issued a bench warrant but did not forfeit the previously posted cash bond of $15,000. It set the bond on the bench warrant at $20,000. An attorney appeared at Nath's May 19 alternative sentencing date, stating that Nath was ill. The attorney's request for a continuance was denied, and the court did not discharge the public defender from the case. On June 20 of that year, the court ordered that $5,862.50 be taken from the $15,000 cash bond to pay for the court-ordered psychological evaluation and to reimburse the Ada County Public Defender's Office.

Nath was arrested in June of 2000. Upon return to Idaho, he retained counsel, who filed a Motion to Exonerate Cash Bond, a Motion to Dismiss (ICR 48), a Renewed Motion for Judgment of Acquittal, and a Motion for New Trial. All motions were denied. The district court sentenced Nath to a unified ten-year sentence with one year fixed and retained jurisdiction. The court eventually relinquished jurisdiction and released $8,737.09 of the $20,000 bond. Nath appealed to this Court.

III.

THE DISTRICT COURT SHOULD HAVE CONDUCTED AN INQUIRY OF NATH'S PRO SE MOTION TO DISCHARGE COUNSEL

Several days before trial, Nath submitted a pro se motion for substitute counsel to the court and to the prosecutor. In the motion he named four witnesses that his court-appointed attorney had not interviewed and also mentioned...

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