State v. Dalrymple

• Decision Date: 02 July 2007
• Docket Number: No. 33447.,33447.
• Citation: 144 Idaho 628,167 P.3d 765
• Parties: STATE of Idaho, Plaintiff-Respondent, v. David Allen DALRYMPLE, Defendant-Appellant.
• Court: Idaho Supreme Court

167 P.3d 765

144 Idaho 628

STATE of Idaho, Plaintiff-Respondent, v. David Allen DALRYMPLE, Defendant-Appellant.

No. 33447.

Supreme Court of Idaho, Boise, January 2007 Term.

July 2, 2007.

Rehearing Denied September 13, 2007.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Diane M. Walker argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Ralph R. Blount argued.

AMENDED OPINION

THE COURT'S PRIOR OPINION DATED FEBRUARY 21, 2007 IS HEREBY WITHDRAWN.

JONES, Justice.

David Allen Dalrymple was convicted on felony counts of lewd conduct with a child sexual abuse of a child, second-degree kidnapping, and several misdemeanors. The Court of Appeals vacated Dalrymple's conviction, holding that the district court erred in failing to provide Faretta warnings contemporaneously to his waiver of the right to counsel. The State petitioned for review. We affirm Dalrymple's conviction.

I.

Dalrymple appeals from felony convictions on two counts of lewd conduct with a child under sixteen, I.C. § 18-1508, one count of sexual abuse of a child under sixteen, I.C. § 18-1506, two counts of second-degree kidnapping, I.C. § 18-4503, and several misdemeanors.¹ On October 5, 2003, Dalrymple got into an argument with his girlfriend, Shelley, at her house where they both lived. The argument soon escalated into an altercation — Dalrymple handcuffed Shelley, pinched her breasts, and drug her into a bathroom in the house. When Shelley's daughter, K.B., tried to escape to get help, Dalrymple put her into a headlock, drug her through the house, and hit her head on the bathroom door. He would not allow either Shelley or K.B. to leave. Later on that evening, he pulled a telephone cord out of the wall after K.B. called 911.

Additional allegations soon arose. K.B. told her mother after the October 5 incident that she was "tired of hiding it." Beginning in the spring of 2000 through October 2003 — while she was between 8 and 11 years old — K.B. alleged that Dalrymple would show her pornographic magazines and videos, would pose her in sexually suggestive positions, and would touch her over her body with his hands, tongue, and penis. At times, Dalrymple would also handcuff and tie up K.B. with rope, all while imploring her not to tell her mother.

In February and March 2004, Dalrymple filed several motions to disqualify his public defender and on April 7, 2004 — approximately six weeks before trial — the district court heard the motions. Dalrymple expressed dissatisfaction with his attorney on a number of grounds, including a belief that his attorney was not looking for exonerating evidence. The district court found that Dalrymple's attorney met professional standards and denied the motions to disqualify. Dalrymple then inquired about representing himself. The district court warned him of both the potential consequences of representing himself and the benefits of retaining counsel. Dalrymple indicated he understood the pitfalls of proceeding pro se, stating that it would be "foolish" to represent himself, and chose to keep his attorney for trial.

After close of the evidentiary phase of the trial, Dalrymple sought the court's permission to present an additional defense that his attorney had not presented. He wished to argue that he used hypnotherapy on K.B. to convince her that he had molested her, when in fact no molestation had occurred. His attorney claimed to lack the proper foundation to raise this hypnosis defense, even after an investigation, and that it would be "tantamount to just asking the jury to come back with a guilty verdict." According to his attorney, Dalrymple had no training or education in hypnosis. Moreover, in the course of the investigation, one of Dalrymple's brothers told the defense investigator that he never heard him discuss hypnosis. Another brother was vague, stating that he may have heard about Dalrymple performing hypnosis at a barbecue but provided no further details to substantiate Dalrymple's claim.

The district court allowed Dalrymple two options: either to proceed to closing arguments without presenting his defense or to reopen the case, discharge his attorney, and present his hypnosis defense pro se. At that time, the district court alerted Dalrymple that he would be subject to cross-examination and would make his own closing argument, but offered no other warnings about the risks of representing himself. Dalrymple chose to discharge his attorney, who remained as standby counsel, and the case was reopened. Later, after closing arguments, the district court made findings on the record that Dalrymple had received full warnings about representing himself at the April 7 pretrial hearing.

Dalrymple testified first. When he began to explain hypnosis to the jury, the prosecutor objected, citing a lack of foundation. In sustaining the objection, the district court told him that he would need to establish his qualifications before testifying further on the practice of hypnosis. The district court permitted him to testify about what actions he took to hypnotize K.B. After his testimony, Dalrymple recalled Shelley to testify. He then sought to recall K.B. but the district court refused, stating that she was released from her subpoena and was at school. The district court allowed Dalrymple to make an offer of proof as to how he believed K.B. would testify, namely that he had gone through hypnotherapy with her over the past three years. The jury convicted Dalrymple on all charges. On the felony counts, the district court sentenced Dalrymple to two unified terms of twenty years fixed with an indeterminate life sentence for each count of lewd conduct, fifteen years fixed for the count of sexual abuse, and ten years fixed for each count of kidnapping.

II.

We address four issues in this opinion: 1) whether Dalrymple knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel; 2) whether the district court abridged Dalrymple's Sixth Amendment right to compulsory process; 3) whether the district court made prejudicial comments; and 4) whether the district court imposed excessive sentences.

A.

"When considering a case on review from the Court of Appeals, this Court does not merely review the correctness of the decision of the Court of Appeals. This Court acts as though it is hearing the matter on direct appeal from the decision of the trial court. However, this Court does give serious consideration to the decision of the Court of Appeals. When this Court grants a petition to review a Court of Appeals decision, it will ordinarily hear all the issues presented to the Court of Appeals." State v. Cope, 142 Idaho 492, 495, 129 P.3d 1241, 1244 (2006) (quoting Garza v. State, 139 Idaho 533, 535, 82 P.3d 445, 447 (2003)).

B.

The Sixth Amendment guarantees a criminal defendant the right "to have the assistance of counsel for his defense." Accord Idaho Const. Art. I, § 13. The Sixth Amendment also affords a defendant the right to forego the assistance of counsel and to defend himself. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562, 572 (1975); accord Idaho Const. Art. I, § 13. "To be valid, a waiver of the right to counsel must have been effected knowingly, voluntarily, and intelligently." State v. Lovelace, 140 Idaho 53, 64, 90 P.3d 278, 289 (2003). This Court will "examine the totality of the circumstances in determining whether . . . [a] waiver is valid." Id. The State bears the burden to prove that the defendant voluntarily waived his Sixth Amendment rights. State v. Hunnel, 125 Idaho 623, 625, 873 P.2d 877, 879 (1994).

At the outset, Dalrymple argues that the district court impermissibly coerced him to choose between his right to testify on his own behalf and his right to counsel when he asked the district court to reopen the case after the close of the evidentiary phase. The decision to reopen a case lies within the district court's discretion. State v. Cutler, 94 Idaho 295, 298, 486 P.2d 1008, 1011 (1971). Under the Sixth Amendment, the right to present evidence is subject to reasonable limitations, "so long as they are not `arbitrary' or `disproportionate to the purposes they serve.'" State v. Perry, 139 Idaho 520, 523, 81 P.3d 1230, 1233 (2003) (quoting United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264, 140 L.Ed.2d 413, 418 (1998)). Here, the district court permitted Dalrymple to take the witness stand again on the hypnosis defense subject to the reasonable limitation that his lawyer could not proceed because of ethical qualms about the proposed testimony. The record shows that his lawyer had legitimate concerns about presenting the hypnosis defense because, after his investigation of it, he did not believe he could lay a proper foundation. Having concluded that the district court did not present an impermissible choice to Dalrymple, we turn to the question of whether his waiver met constitutional standards.

To determine if Dalrymple's waiver was constitutionally valid, we view the record as a whole, not just at the particular moment of waiver. The Faretta Court stated the defendant must "be made aware of the dangers and disadvantages of self-representation." 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582. Faretta warnings, however, do not need to be given contemporaneously to the defendant's waiver. Instead, such warnings must be given "so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Id. (quoting Adams v. United States ex. rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942)). Therefore, the district court at a minimum must be satisfied that Dalrymple understood the inherent risks involved in waiving the right to counsel. Hunnel, 125 Idaho at 626, 873 P.2d at 880. While contemporaneous Faretta warnings are perhaps the most prudent means to ensure the defendant's grasp of the disadvantages of...