State v. Fairchild

• Decision Date: 28 March 1985
• Docket Number: No. 13893,13893
• Citation: 108 Idaho 225,697 P.2d 1239
• Parties: STATE of Idaho, Plaintiff and Respondent, v. Roger Kim FAIRCHILD, Defendant and Appellant.
• Court: Idaho Court of Appeals

Page 1239

697 P.2d 1239

108 Idaho 225

STATE of Idaho, Plaintiff and Respondent, v. Roger Kim FAIRCHILD, Defendant and Appellant.

No. 13893.

Court of Appeals of Idaho.

March 28, 1985.

Victor J. Rolzitto, Ketchum, for defendant and appellant.

Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., Lance D. Churchill, Steven W. Berenter (argued), Deputy Attys. Gen., Boise, for plaintiff and respondent.

BURNETT, Judge.

Roger Kim Fairchild stands convicted of possessing cocaine with intent to deliver. On appeal he raises a host of issues concerning denial of a speedy trial, failure to suppress illegally seized evidence, and prosecutorial misconduct during his trial. For reasons explained below, we deem the speedy trial issue to be dispositive and we reverse the judgment of conviction.

This unusual case presents a convoluted procedural history. Fairchild was arrested on February 27, 1978. For reasons undisclosed by the record, a criminal complaint was not filed until April 14. Fairchild promptly filed a "Plea of Not Guilty and Demand for Speedy Jury Trial." A preliminary hearing was conducted on May 15-16, 1978. During the hearing Fairchild urged that much of the state's evidence was suppressible and, therefore, should not be considered in determining whether probable cause existed. The prosecutor argued that any suppression issue should be reserved for the district court. The magistrate, noting that support for both arguments could be found in the then-existing Rules of Criminal Practice and Procedure, agreed to consider the suppression question. ¹ On July 5, 1978, following the preliminary hearing, the magistrate dismissed all charges against Fairchild. In a subsequent memorandum opinion, dated August 4, 1978, the magistrate held, in essence, that critical evidence against Fairchild was suppressible and that probable cause did not exist without it.

The prosecutor appealed the dismissal order to the district court. However, the record reflects no action on the appeal until June, 1979, when the prosecutor apparently requested a hearing and filed a memorandum in support of the state's position. At approximately the same time, Fairchild moved to dismiss the appeal for undue delay. The district court heard argument on July 20, 1979, and later issued a memorandum opinion, dated August 24, 1979, holding that the evidence in question was not suppressible. The district judge remanded the case to the magistrate for a redetermination of probable cause. On October 17, 1979, the magistrate, taking note of the district judge's decision, made a determination of probable cause. On October 24, 1979, the prosecutor filed an information in the district court. Fairchild was tried and found guilty on June 30, 1980, some twenty-eight months after his arrest. He was sentenced to an indeterminate period not exceeding five years in the custody of the Board of Correction. However, he was allowed to remain free on bond pending appeal. ²

A person accused of crime is entitled to a reasonably prompt determination of whether he is, in fact, guilty as charged. The fourteenth amendment to the United States Constitution protects against unfairness caused by delay. This protection is augmented by the right to a speedy trial afforded by the sixth amendment. Similar, but not necessarily identical, provisions concerning due process and the right to a speedy trial are contained in article 1, § 13, of the Idaho Constitution.

The United States Supreme Court has identified a fundamental distinction between the right to a speedy trial and the due process right to a fair trial:

Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.

United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). This distinction recently has been reemphasized:

The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982). Consequently, although prejudice is relevant to a speedy trial issue, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), it is not the controlling factor. The primary focus is upon undue delay.

The speedy trial provision of the Idaho Constitution is further distinguished by its close nexus to other Idaho laws establishing specific time frames for criminal proceedings. For example, the Idaho Supreme Court has held that article 1, § 13, is deemed to be supplemented by I.C. § 19-3501, a statute which at various times in its history has required criminal cases to be tried within six months, or within the next full term of court, after the prosecutor's information has been filed. E.g., State v. Hobson, 99 Idaho 200, 579 P.2d 697 (1978). Another specific time frame, no longer in existence but extant at times pertinent to the instant case, is found in Rule 11 of the Idaho Criminal Appellate Rules. This rule governed criminal appeals from the magistrate division to the district court until it was rescinded on July 1, 1980. It provided that all such appeals "must be heard and determined not later than the first term of the district court after the record is filed unless continued on motion of or with the consent of the defendant." Our attention is invited to Rule 11 because the largest single component in the twenty-eight month delay from Fairchild's arrest to his trial was the period of approximately thirteen months consumed by the prosecutor's appeal of the magistrate's initial order dismissing the charges.

Neither party has cited authority dealing specifically with the question whether time absorbed by a prosecutor's appeal from a magistrate's dismissal of charges is germane to a speedy trial claim. However, we believe it is. When charges in this case were dismissed, the prosecutor had, so far as he knew, a choice between appealing the decision and refiling the charges. We now know, of course, that this choice was illusory because our Supreme Court subsequently held such an appeal to be improper. State v. Ruiz, 106 Idaho 336, 678 P.2d 1109 (1984). However, the prosecutor's belief at the time was reasonable. We do not deem the time consumed by the appeal to be cognizable in a speedy trial inquiry simply because the appeal turned out to be improper. Cf. Olson v. State, 92 Idaho 873, 452 P.2d 764 (1969) (reasonable assumption by prosecutor, though later found to be in error, not counted against the state in measuring delay). Rather, the appeal is cognizable because we believe that the prosecutor, having made his choice, was obliged to pursue the appeal diligently.

Our view of the prosecutor's duty takes account of an important difference between a delay in adjudicating guilt on charges initially filed and a delay in refiling after the original charges have been dismissed. The latter type of delay does not infringe upon speedy trial rights. As the United States Supreme Court noted in United States v. MacDonald, supra:

Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life.... But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending.

456 U.S. at 8-9, 102 S.Ct. at 1502-1503. Accord State v. Ruiz, supra; State v. Goodmiller, 86 Idaho 233, 386 P.2d 365 (1963). In contrast, when a dismissal is appealed, it extends the time for adjudicating the original charges. The defendant is still in court. He faces an unremitting burden of responding to public charges of criminal conduct. The values protected by the speedy trial guarantee remain at risk. Accordingly, in this case, we hold that the time absorbed by the prosecutor's appeal is cognizable in evaluating Fairchild's speedy trial claim.

The remaining question is whether the time from accusation to trial was impermissibly prolonged by delay during the prosecutor's appeal. To answer this question we return to Rule 11, I.C.A.R. As mentioned above, this rule, when in effect, required an appeal from the magistrate division to the district court to be heard and decided not later than the first term of court after the record was filed. Here, the transcript of proceedings in the magistrate division was filed in the district court on December 21, 1978. It appears undisputed that the terms of the district court commenced on January 7 and July 6 of each year. Consequently, Rule 11 required the prosecutor's appeal to be heard and decided prior to July 6, 1979. However, as we have seen, the prosecutor neither filed a brief nor requested a hearing on his appeal until June 22, 1979. Thereafter, the district court, acting...