State v. Carter

Decision Date10 September 1981
Docket NumberNo. 13040,13040
Citation655 P.2d 434,103 Idaho 917
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Joseph Alexander CARTER, Defendant-Appellant.
CourtIdaho Supreme Court

Michael E. Donnelly of Skinner, Donnelly, Fawcett & Mauk, Boise, for defendant-appellant.

David H. Leroy, Atty. Gen., John Michael Brassey, Deputy Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

BAKES, Chief Judge.

The defendant, Joseph Carter, appeals his conviction for voluntary manslaughter. On September 4, 1977, the defendant was arrested for the shooting death of Larry Tolley. Although there is some conflict in the evidence, the events leading up to the arrest of Carter appear to be substantially as follows. For some time prior to the death of Larry Tolley, the defendant and Larry Tolley's wife had developed an intense dislike for each other. Every time Mrs. Tolley would pass by the defendant, regardless of where it might be, she would make a particular rude gesture to him. The night before the killing, the defendant and Mrs. Tolley exchanged some angry words, the defendant calling Mrs. Tolley several offensive names. Larry Tolley, who was present, remained quiet. The defendant and Larry Tolley appear to have been good friends, despite the animosity existing between Mrs. Tolley and defendant.

The next evening, the date of the shooting, Larry Tolley drove up to the residence of the defendant. Tolley had been drinking heavily, his blood alcohol level later being measured at .20%. Tolley was visibly upset about the proceedings of the previous night, and the defendant's derogatory remarks concerning Mrs. Tolley. After exchanging heated words while standing in the yard, the defendant walked away from Tolley and went up to the porch. The defendant's wife told Tolley to get off the property, and Tolley said, "I will get you." He went to his truck and pulled out a handgun. At that point, the defendant's son, age 1 1/2 years, ran out into the yard, and the defendant's wife ran after him. The defendant went into the house and got an antique shotgun. By then the defendant's wife had caught the little boy, and she was running back toward the house. Tolley was aiming the gun in her direction, saying "I am going to get you." At that point, the defendant shot Tolley with the shotgun. Tolley retreated and jumped inside the pickup. The defendant testified that Tolley raised up with his gun a second time after he got in the pickup, and the defendant shot him again.

The defendant went back in the house, obtained more shotgun shells, and returned to the scene. The door to the pickup truck was now shut, and the defendant approached the truck. He testified that he was going to get Tolley's gun and see how badly he was hurt. The record discloses that the defendant stuck his shotgun through the window and shot Tolley again at close range. The defendant testified that he thought Tolley was raising up again with his gun; however, there was evidence from which the jury could have found that Tolley dropped his gun before entering the truck. Tolley died as a result of the inflicted injuries.

On appeal, the defendant raises several issues, each of which will be discussed in turn.

I

The defendant first challenges the sufficiency of the evidence supporting his conviction for voluntary manslaughter. His contention is that the evidence clearly reveals a case of justifiable homicide.

Although a person has the right to use deadly force to defend his spouse and children as well as himself from the infliction of great bodily injury, the exercise of that right must be grounded upon a reasonable apprehension of imminent harm, and a reasonable belief that the killing is necessary to protect against such injury. I.C. § 18-4009; People v. Pierson, 2 Idaho 76, 3 P. 688 (1884). Once the victim has retreated and the danger is abated, the privilege of self defense expires. People v. Pierson, supra; see also State v. Powers, 117 Ariz. 220, 571 P.2d 1016 (1977); Peterson v. State, 86 Okl.Cr. 302, 192 P.2d 286 (1948). However, whether a retreat by the victim is sufficient to abate the danger, reasonable apprehension, and necessity supporting the privilege of self defense is a question properly left to the jury. See People v. Pierson, supra. In the present case, we find that there was substantial and competent evidence to support the jury's conclusion that the defendant was guilty of voluntary manslaughter. Under such circumstances, the verdict of the jury will not be disturbed on appeal. State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980); State v. Clayton, 101 Idaho 15, 607 P.2d 1069 (1980).

The next issue raised concerns whether an instruction on self defense impermissibly shifted the burden of proof to the defendant. However, the defendant did not object to the instruction at trial and is therefore deemed to have waived any objection to it. I.C.R. 30 (effective July 1, 1980); State v. Owens, 101 Idaho 632, 619 P.2d 787, 795 (1980). Therefore, we do not decide that issue. State v. Owens, supra; Hankerson v. North Carolina, 432 U.S. 233, 244 n. 8, 97 S.Ct. 2339, 2346, 53 L.Ed.2d 306 (1977).

II

The defendant also asserts that he was denied his right to a speedy trial based on I.C. § 19-3501, I.C. § 19-106, Idaho Constitution Art. 1, § 13, and the sixth and fourteenth amendments to the United States Constitution. 1 On September 6, 1977, a criminal complaint was issued charging Carter with voluntary manslaughter. An information setting forth the same charge was filed on October 7, 1977. Various pretrial matters were then raised by both parties. Trial was set for mid-March, 1978, although the record is not specific as to the date. The defendant indicates March 16, 1978, was the date for trial, and this date does not appear to be disputed by the state. On March 6, 1978, the defendant moved to quash the information, claiming that the jury panel had not been selected according to proper procedure. Although the judge's order in response to the motion is not contained in the record, it appears undisputed that the judge agreed that the jury panel had not been selected in conformance with state law. Instead of dismissing the information, however, he rescheduled the trial for April 18, 1978. On April 7, 1978, the defendant moved for dismissal on the ground that he had been denied his right to a speedy trial. The motion was denied on April 10, 1978, and trial was held from April 18, 1978, to April 20, 1978.

On October 7, 1977, when the information was filed, I.C. § 19-3501 required that a criminal action be dismissed if the defendant is not tried during the next term of court after the information is triable, unless good cause to the contrary is shown. 2 State v. Hobson, 99 Idaho 200, 202, 579 P.2d 697, 699 (1978). However, effective March 31, 1975, the Idaho legislature repealed I.C. § 1-706 which required at least two court terms per year in each county. This repeal was 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 § 1-706 was general, and applied to both civil and criminal actions. Therefore, we conclude that 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 determining the right to a speedy trial by reference to terms of court for cases filed after the effective date of the repeal of I.C. § 1-706. 3

That is not to say, however, that there was no provision in the Idaho law for a speedy trial after the repeal of I.C. § 1-706. The right to speedy trial is guaranteed by Idaho Const. Art. 1, § 13, and I.C. § 19-106 which merely restates the protection granted by Idaho Const. Art. 1, § 13. Both are comparable to that protection provided by the sixth and fourteenth amendments to the United States Constitution. In State v. Lindsay, 96 Idaho 474, 531 P.2d 236 (1975), we held that the "balancing test" laid down in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for interpreting the federal guarantee of speedy trial, is consistent with the protection afforded by our own state constitution and statutes.

The factors to be considered in the balancing test are as follows: (1) length of delay, (2) reasons for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. The length of delay in this case as measured from the date the criminal complaint was issued to the date of trial was seven and one-half months. There is no contention that the prosecution engaged in dilatory tactics. In fact, although the defendant had a legitimate right to complain about the jury panel selection procedure, nevertheless delay past the March 16, 1978, trial date followed from the defendant's motion to dismiss. The defendant lodged no objection to the March 16, 1978, trial date, and objection to the later trial date was not raised until just eleven days before trial. Finally, the defendant admits in his brief that "[t]he last criteria actual prejudice, cannot be demonstrably asserted by the record." The facts of this case are certainly no more compelling than those in State v. Lindsay, supra, where we found no violation of a right to speedy trial after a delay of fourteen months. Consequently, we find no violation of the defendant's right to speedy trial.

III

Error is also claimed in the admission of the defendant's "mug shot" as evidence, over the objection of defense counsel. The photograph in question was taken at the police station following the defendant's arrest and showed him with long hair, beard, and generally unkempt appearance. The numbers and language at the bottom of the photograph, indicating it was a "mug shot," were removed prior to the photo's admission into evidence. The defendant argues that there...

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