State v. Ciccone
Decision Date | 11 December 2012 |
Docket Number | No. 38817.,38817. |
Court | Idaho Court of Appeals |
Parties | STATE Of Idaho, Plaintiff–Respondent, v. Albert A. CICCONE, Defendant–Appellant. |
Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Chief, Appellate Unit, Boise, for appellant. Erik R. Lehtinen argued.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori. A. Fleming argued.
Albert A. Ciccone appeals from the judgment of conviction and sentence entered upon the jury verdict finding him guilty of one count of first degree murder and one count of second degree murder. Ciccone presents three issues on appeal: (1) whether his constitutional and statutory rights to a speedy trial were violated; (2) whether the prosecutor engaged in misconduct during his rebuttal closing arguments; and (3) whether his determinate life sentence is excessive.
On October 16, 2003, Ciccone struck his pregnant wife with his car, killing her and the unborn fetus. Ciccone was charged with two counts of first degree murder—one count for his wife and one count for the unborn fetus. On January 27, 2004, the district court entered an order holding defendant to answer, and on the same day, the State filed its information.
Trial was initially set for July 2004; however, a week before trial the State filed a motion to continue. The State's motion asserted that several witnesses were military personnel assigned to temporary duty (TDY) outside the state and were unavailable for trial. Ciccone opposed the motion, arguing that the prosecutor negligently waited for the Air Force investigation to conclude before attempting to contact witnesses. The district court granted the motion to continue and the trial was delayed until January 4, 2005. The jury ultimately found Ciccone guilty of first degree murder of his wife and second degree murder of the unborn fetus. The district court entered judgment on the jury's verdict and imposed a determinate life sentence upon Ciccone's conviction for first degree murder and a concurrent determinate fifteen-year sentence upon his conviction for second degree murder. Ciccone appealed and after the case was briefed and argued before this Court and the Idaho Supreme Court, his appeal was dismissed because it was not timely. See State v. Ciccone, 150 Idaho 305, 246 P.3d 958 (2010). Pursuant to a stipulation and order entered in post-conviction proceedings, the district court vacated its original judgment and conviction and reentered it as of April 19, 2011. Ciccone timely appeals from that judgment of conviction.
Ciccone argues on appeal that his constitutional and statutory rights to a speedy trial were violated when the district court allowed him "to be tried almost fifteen months after his arrest and almost a full year after the filing of the Information...." Whether there was an infringement of a defendant's right to a speedy trial presents a mixed question of law and fact. State v. Clark, 135 Idaho 255, 257, 16 P.3d 931, 933 (2000). We will defer to the trial court's findings of fact if supported by substantial and competent evidence; however, we will exercise free review of the trial court's conclusions of law. Id.
In Idaho, criminal defendants enjoy both constitutional and statutory entitlements to a speedy trial. The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Idaho Constitution. These constitutional protections are supplemented by Idaho Code § 19–3501, which sets specific time limits within which a criminal defendant must be brought to trial. Idaho Code § 19–3501 provides as follows:
I.C. § 19–3501(2). Under this statute, the State bears the burden to demonstrate good cause for a failure to bring a defendant to trial within the six-month limit. Clark, 135 Idaho at 258, 16 P.3d at 934; State v. Livas, 147 Idaho 547, 549, 211 P.3d 792, 794 (Ct.App.2009).
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court addressed application of the speedy trial right guaranteed by the Sixth Amendment and chose a flexible approach for assessing whether a speedy trial has been unconstitutionally denied. The Court adopted a balancing test in which the conduct of the defendant and the prosecution are to be considered, and the Court identified four primary factors to be weighed in determining whether a particular defendant has been deprived of his Sixth Amendment speedy trial right: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) the prejudice to the defendant. See Barker, 407 U.S. at 530, 92 S.Ct. at 2191–92, 33 L.Ed.2d at 116–17. This same balancing test was adopted by the Idaho Supreme Court for determining whether the speedy trial guarantee of the Idaho Constitution has been violated. See State v. Lindsay, 96 Idaho 474, 476, 531 P.2d 236, 238 (1975).
Clark, 135 Idaho at 260, 16 P.3d at 936.
This Court recently commented in State v. Jacobson, 153 Idaho 377, 283 P.3d 124 (Ct.App.2012) that:
Our Supreme Court's non-application of the Barker factors, other than the reason for the delay, in Clark and Young is significant. We take this to mean that where the reason for the delay is well defined, and that reason on its face clearly does, or clearly does not, constitute good cause, there is no occasion to consider the other Barker factors in assessing a claimed violation of Idaho Code § 19–3501. This comports with the Supreme Court's statement in Clark that Clark, 135 Idaho at 260, 16 P.3d at 936 (quoting State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999) ). We conclude that resort to the other Barker factors will be appropriate primarily in close cases as where, for example, there are multiple reasons for the delay attributable to both the State and the defendant or the sufficiency of the reason to constitute "good cause" is genuinely subject to disagreement.
In evaluating the reason for the delay, different weights are assigned to different reasons. United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640, 654 (1986) ; State v. Davis, 141 Idaho 828, 837, 118 P.3d 160, 169 (Ct.App.2005). Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. Doggett v. United States, 505 U.S. 647, 656, 112 S.Ct. 2686, 2693, 120 L.Ed.2d 520, 531 (1992) ; Davis, 141 Idaho at 837, 118 P.3d at 169. We attach great weight to considerations such as the State's need for time to collect witnesses, oppose pretrial motions, or locate the defendant in the event that he or she goes into hiding. Doggett, 505 U.S. at 656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531; Davis, 141 Idaho at 837, 118 P.3d at 169. A valid reason, such as a missing witness, should serve to justify appropriate delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. However, there is an enormous difference between being inconvenienced and being unavailable. Clark, 135...
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...allowing Ciccone to appeal. Ciccone filed a timely appeal, and this Court affirmed his conviction and sentences. State v. Ciccone, 154 Idaho 330, 297 P.3d 1147 (Ct.App.2012).Ciccone then filed a successive petition for post-conviction relief alleging various claims of ineffective assistance......