State v. Campbell

• Citation: 104 Idaho 705,662 P.2d 1149
• Decision Date: 26 April 1983
• Docket Number: No. 13318,13318
• Parties: STATE of Idaho, Plaintiff-Respondent, v. William Douglas CAMPBELL, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 1149

662 P.2d 1149

104 Idaho 705

STATE of Idaho, Plaintiff-Respondent, v. William Douglas CAMPBELL, Defendant-Appellant.

No. 13318.

Court of Appeals of Idaho.

April 26, 1983.

Eric T. Nordlof, Coeur d'Alene, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

William Campbell was convicted of the robbery of a Coeur d'Alene, Idaho, convenience store. He appeals, seeking review of several decisions made by the trial court in the proceedings leading up to, and including, the jury trial where he was found guilty. We affirm the conviction.

The issues raised on appeal are: (1) Was Campbell denied his right to a speedy trial? (2) Should evidence, seized following a warrantless arrest, have been suppressed at trial? (3) Did the trial court err by admitting two pairs of shoes in evidence at trial, in the absence of proof of a complete "chain of custody"? (4) Was the testimony of a police officer, concerning Campbell's traffic record, sufficiently prejudicial to require a new trial? (5) Is Campbell entitled to a new trial because of improper references to facts not in evidence, made by the prosecuting attorney in closing argument? (6) Was there sufficient evidence admitted at trial to uphold the conviction? (7) Did the admission of the shoes in evidence, the testimony about traffic violations, and the prosecutor's remarks in summation, cumulatively represent reversible error? The facts and procedural context of each issue will be more fully addressed in the respective parts of this opinion.

I. SPEEDY TRIAL

Campbell contends the trial court erred by refusing to dismiss the Information against him, under I.C. § 19-3501. At the time Campbell was tried, I.C. § 19-3501 provided in pertinent part:

The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed ... [i]f 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. ¹

The Information, charging Campbell with robbery, was filed on December 9, 1977, and trial was held on November 27, 1978. Campbell filed his motion to dismiss on November 1, 1978, contending that, by local rule of the district court, two terms of court were held each year--one in the spring and one in the fall--and that his right to speedy trial under the statute was violated because his trial did not occur during the spring, 1978, term. The trial judge denied the motion to dismiss, holding--in essence--that "good cause to the contrary" had been shown because Campbell had acquiesced in delay occasioned by pretrial motions filed by a co-defendant.

While this appeal was pending, our Supreme Court issued two opinions which affect the application of I.C. § 19-3501, as it appeared during the time of Campbell's prosecution. In State v. Carter, 103 Idaho 917, 655 P.2d 434 (1981), and in State v. Talmage, 104 Idaho 249, 658 P.2d 920 (1983), the Court explained that, in 1975, I.C. § 1-706--which had provided for "terms of court"--was repealed by the Legislature in response to the promulgation of I.R.C.P. 77(a). The Court held that, in cases filed after the effective date of the repeal of I.C. § 1-706, the right to speedy trial could not be determined by reference to terms of court. Instead, the court ruled that a four-fold 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), is to be applied. The factors to be considered under the Barker test are: (1) the length of the 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.

In both Carter and Talmage, our Supreme Court then proceeded to apply the Barker balancing test in determining those appeals. Likewise, we will review Campbell's contention concerning speedy trial under the Barker approach, rather than under the "term of court" concept.

A. Length of Delay

The interval between the filing of the complaint against Campbell and the date of trial was approximately twelve months. A delay of this length is sufficient to trigger an inquiry into whether speedy trial has been denied. State v. Talmage, supra, 104 Idaho at 252, 658 P.2d at 923. However, when compared to delays which have been alleged to have constituted denial of speedy trial in other actions decided by our Supreme Court, we conclude that the twelve-month period here is not in itself so excessive as to outweigh the other balancing factors. See e.g., State v. Lindsay, 96 Idaho 474, 531 P.2d 236 (1975) (fourteen month interval between date of filing of complaint and date of trial held not to constitute denial of speedy trial, when balanced against the other factors in the Barker test).

B. Reasons for the Delay

Turning to the next balancing factor, the record discloses that both Campbell and a co-defendant named Sadriana were charged with robbery, by separate Informations filed on December 9, 1977. Each defendant was scheduled to appear before District Judge Watt E. Prather for arraignment on December 15, 1977. On that date, the co-defendant Sadriana appeared, entered a plea of not guilty, and his case was scheduled for a two-day trial commencing on February 23, 1978, before District Judge James Towles. At Sadriana's arraignment, the state indicated its desire that the case be consolidated with Campbell's for trial. Campbell did not appear for the scheduled arraignment on December 15, but instead filed a motion to disqualify Judge Prather from presiding over his case. About the same time, Sadriana also filed for disqualification of Judge Towles. Both cases were then assigned to District Judge Dar Cogswell, who rescheduled the trial to commence April 27, even though Campbell had not yet been arraigned.

On January 26, 1978, Campbell appeared before Judge Cogswell for arraignment. A plea of not guilty was entered. There was no objection to consolidation of the two cases; a formal order of consolidation was entered, and the time alloted for trial was increased from two days to four days.

On March 17, co-defendant Sadriana filed a motion to dismiss his Information and noticed the motion for hearing on March 24. On March 20, however, upon discovering that no prosecutor would be available to argue the motion on the scheduled date, counsel for Sadriana prepared an order vacating the March 24 hearing. The order also rescheduled all pretrial motions to April 27, and vacated the April 27 trial date, leaving the trial date "to be rescheduled after the hearing on the motions in the above entitled action." This order was signed by Judge Cogswell on March 20. Believing that he also had a motion pending--a motion to suppress evidence--counsel for Campbell ² prepared an order identical to the one furnished by Sadriana's attorney and submitted it to Judge Cogswell, who signed that order on March 28.

Counsel for Sadriana then filed on April 20, motions to sever the trials and to suppress evidence, and noticed these motions for hearing on April 27. On April 27, because Judge Cogswell was unavoidably detained in a trial in another county, the hearing was vacated and rescheduled for May 16.

On May 16 counsel appeared before the court. Following argument, Sadriana's motions were taken under advisement pending further briefing and to afford Judge Cogswell time to read the transcript of the preliminary hearing. Also, it was discovered that counsel for Campbell had not, in fact, filed his motion to suppress. That motion was then filed the next day, to be considered by the court at the expiration of the briefing schedule. Following completion of the briefing schedule, Sadriana's counsel filed notice of request for a speedy trial.

On September 29, Judge Cogswell entered a written order denying all motions under advisement, including Campbell's motion to suppress. By separate order dated the same day, Judge Cogswell rescheduled the cases for trial commencing in late January, 1979. In that order, after reciting that he was mindful of the "defendants' previous request for a speedy trial," the judge specified several reasons why an earlier trial date was not available, viz., the defendants were not in custody, the matter had been delayed because of the pretrial motions; Judge Cogswell was the only district judge remaining in the First Judicial District, who had not been disqualified and who could preside over the trial; there were other criminal cases of greater or equal priority already scheduled before Judge Cogswell; the January, 1979, date was the first available time for a five-day trial; and that there was "good cause" for the delay in establishing the trial dates.

However, on October 16, 1978, the Supreme Court of Idaho expedited the trial by entering an administrative order appointing District Judge Roy E. Mosman, of the Second Judicial District, to preside at the trial of Campbell and Sadriana. The trial was rescheduled, to commence on November 27, 1978; and it actually was held at that time.

While it appears from this record that some of the delay might be attributable to the state--such as the unavailability of a prosecutor for the motion hearing on March 24 and of Judge Cogswell for the rescheduled hearing on April 27--both of those occasions were precipitated by the filing of a pretrial motion by the co-defendant Sadriana. Otherwise there is no indication in the record that any delays were caused by the state; rather the passage of time resulted from the active pursuit of the pretrial motions by both defendants who were being jointly held for trial. Under the circumstances of this case, the pursuit of these motions was not inconsistent with normal procedures to be expected in the defense of the case. Delays which are appropriate under...