State v. Averett
| Decision Date | 03 March 2006 |
| Docket Number | No. 30261.,30261. |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Scott AVERETT, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
James W. Grow, Jr., Lewiston, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.
Scott Averett appeals from the judgment entered by the district court upon jury verdicts finding him guilty of attempted manufacture of methamphetamine, possession of methamphetamine and conspiracy to manufacture methamphetamine. We affirm.
Idaho State Police conducted an investigation of Averett and Kamela Johnston, whom they suspected of manufacturing methamphetamine, between December 2000 and February 2001. During the investigation, officers conducted surveillance on Averett's residence and vehicle. On December 20, 2000, an officer followed Averett to Orofino Building Supply, where a sales clerk witnessed him purchase muriatic acid and plastic tubing. Officers witnessed Averett return to his residence with the items and take them inside the house. On December 27, officers observed Averett and Johnston together at Averett's residence and in his vehicle, which Johnston was driving. Johnston subsequently drove Averett's vehicle to an IGA Foodliner where an officer observed her select five boxes of ephedrine tablets. The officer later witnessed her walk out of the store with an opaque plastic bag that appeared to contain boxes of similar shape and size to those containing the cold tablets and two bottles that resembled gas line Heet. Both products are used in the manufacturing of methamphetamine. On January 2, 2001, officers observed Johnston drive Averett's vehicle to a grocery store and a pharmacy. Johnston purchased another box of cold medicine and a 28-count package of syringes and needles. Officers then observed Johnston return to Averett's residence and take these items inside the house.
Based upon their investigation, law enforcement officers believed that a search of Averett's residence would produce items associated with the manufacture of methamphetamine. Law enforcement officers executed a search warrant on Averett's residence. During the search, officers found a substance that appeared to be a two-stage liquid, bottles of Heet, a large syringe with a clear plastic tube attached and containers of pseudoephedrine tablets, as well as other paraphernalia, believed to be associated with methamphetamine manufacturing.
Averett was arrested and initially charged by criminal complaint with attempted manufacture of a controlled substance in Clearwater County case number CR-01-00012 (case number 012). A preliminary hearing was held on January 24, 2001 and Averett was bound over to the district court.
Prior to Averett's release on bail, officers obtained a warrant for a second search of Averett's home. The search warrant was granted, in part, upon letters between Averett and Johnston that were intercepted by jail personnel and which implied that additional evidence might be present at Averett's residence. During the search, conducted on February 6, 2001, officers found more evidence including methamphetamine. Averett filed a motion to suppress the evidence seized from his residence during both searches, which was denied.
The district court subsequently dismissed case number 012 on October 16, 2001, upon the state's motion, noting the state's intention to re-file charges. A second criminal complaint was filed on October 24, alleging aiding and abetting in the manufacture of a controlled substance, under Clearwater County case number CR-01-00525 (case number 525). The preliminary hearing was originally scheduled for December 12, 2001. On that date, the magistrate addressed at length the relationship between Averett and Johnston and their advisory counsel.1 Johnston asked numerous questions relating to this relationship and the magistrate warned both Averett and Johnston that advisory counsel would simply be available to answer questions. The magistrate also warned Averett and Johnston of the dangers of self-representation and clearly advised them to request appointed counsel. In addition, both Averett and the state moved for a continuance at the December 12 hearing, Averett's reasoning being that he needed more time to conduct discovery and prepare for the hearing. While Johnston objected to a continuance, the magistrate ultimately granted the motions for a continuance with respect to the preliminary hearing for both Averett and Johnston. Their preliminary hearing was conducted jointly over the course of two days, on February 26 and 27, 2002.
At the February hearing, the state offered substantial evidence and then moved to amend the complaint to conform to the evidence thus presented. Specifically, the state requested that the charge of aiding and abetting be dropped, and the following three charges be added: (1) attempted manufacturing of a controlled substance, (2) possession of a controlled substance, and (3) conspiracy with Johnston to manufacture methamphetamine. Averett and Johnston had not presented witnesses at this point, although their witnesses were apparently available to testify. The magistrate granted the state's motion, ruling that the amended complaint conformed to the evidence presented by the state at the preliminary hearing. Both defendants were advised of the nature of the new charges and were granted the opportunity to confer with advisory counsel. After a recess, Averett and Johnston declined the opportunity to proceed with the preliminary hearing and call witnesses. Averett did not object to the amended complaint or request a continuance at any time during the preliminary hearing. The magistrate bound Averett over to stand trial on the new charges.
Averett was thereafter arraigned by the district court on these charges. At a hearing in March of 2002, Averett's advisory counsel informed the court that Averett still wished to represent himself. Averett requested that advisory counsel be present to assist him whenever he felt it was necessary. The district court informed Averett that he would appoint counsel to represent Averett or that Averett could represent himself, but that the court would not appoint counsel to a lesser status. The district court also informed Averett that self-representation was inadvisable and that counsel could be appointed at a later date at Averett's request. Against the district court's advice, Averett elected to represent himself.
In August 2002, Averett requested, and the district court appointed, counsel to fully represent him. The court extended the pretrial motion deadlines to give appointed counsel the opportunity to file and argue such motions. Averett's appointed counsel informed the district court at a subsequent hearing that Averett would sign a waiver of his right to a speedy trial but a waiver was never filed. Appointed counsel also moved for an order of remand to the magistrate division for a preliminary hearing on the new charges, which the court denied, in part, because Averett had failed to object to the amendments at the time of that hearing. Appointed counsel also renewed Averett's motion to suppress, which was also denied.
On the first day of trial, January 6, 2003, Averett's counsel moved for a continuance. The district court denied the motion and the case proceeded to trial. The jury found Averett guilty on all counts. Averett received two concurrent sentences, each of ten years with two years determinate, for attempted manufacture of a controlled substance and conspiracy to manufacture a controlled substance. The sentence for possession of a controlled substance was limited to time already served. Averett appeals.
On appeal, Averett raises eight issues: (1) that the district court failed to state its reasons for the dismissal of the original charges against him and that the state acted in bad faith by pursuing the dismissal; (2) that the district court deprived Averett of his right to the assistance of counsel at a critical stage of the proceedings; (3) that the district court erred in denying his motion for remand for preliminary hearing on the three new charges; (4) that the district court erred in failing to suppress evidence seized from the execution of the second search warrant upon his residence; (5) that he was denied his right to a speedy trial; (6) that the district court abused its discretion by denying Averett's motion for a continuance; (7) that the district court erred by admitting the hearsay declarations of Johnston as statements against penal interest; and (8) that there was insufficient evidence presented to prove beyond a reasonable doubt that Averett and/or Johnston performed an overt act in furtherance of a conspiracy to manufacture methamphetamine.
Averett asserts that the district court's order dismissing the initial charge against him in case number 012 was improper because the state sought such dismissal for the sole purpose of delaying the trial. Averett argues the state has the burden on appeal of proving that such motion was not made in bad faith.
Idaho Code § 19-3506 provides: "An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony." The filing of a subsequent criminal action following dismissal of the original criminal action after preliminary proceedings is not a per se violation of due process. Stockwell v. State, 98 Idaho 797, 805, 573 P.2d 116, 124 (1977). However, the dismissal and refiling of a criminal complaint by the prosecutor, when done for the purpose of harassment, delay, or forum-shopping, can violate a defendant's right to due...
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