State v. Talmage

• Decision Date: 31 January 1983
• Docket Number: No. 13344,13344
• Citation: 658 P.2d 920,104 Idaho 249
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Syd TALMAGE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 920

658 P.2d 920

104 Idaho 249

STATE of Idaho, Plaintiff-Respondent, v. Syd TALMAGE, Defendant-Appellant.

No. 13344.

Supreme Court of Idaho.

Jan. 31, 1983.

William B. Taylor, Jr., Grangeville, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Lance D. Churchill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Chief 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 1/2 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 (Idaho 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); Ellenwood 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. Althoug...