State v. Ish

• Docket Number: Docket No. 49412
• Decision Date: 28 June 2024
• Citation: 551 P.3d 746
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Martin Edmo ISH, Defendant-Appellant.
• Court: Idaho Supreme Court

551 P.3d 746

STATE of Idaho, Plaintiff-Respondent,

v.Martin Edmo ISH, Defendant-Appellant.

Docket No. 49412

Supreme Court of Idaho, Boise, February 2024 Term.

Opinion Filed: June 28, 2024

Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Bannock County.Rick Carnaroli, District Judge.

The judgment of conviction and sentence are affirmed.

Erik R. Lehtinen, State Appellate Public Defender, Boise, for Appellant.Sally Cooley argued.

Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent.Kenneth Jorgensen argued.

MOELLER, Justice.

AppellantMartin Edmo Ish was convicted of voluntary manslaughter in 2017 and sentenced to a unified sentence of 15 years with 10 years fixed and five years indeterminate.However, Ish’s original conviction was later vacated by this Court in State v. Ish,166 Idaho 492, 461 P.3d 774(2020).After this Court’s opinion became final on May 5, 2020, the district court reinstated Ish’s bail.When he was unable to post a bond, he was returned to the Bannock County jail to await his retrial.

While Ish was awaiting his second trial, the Idaho Supreme Court issued a series of orders addressing public safety at jury trials during the COVID-19 pandemic, which postponed the commencement of Ish’s second trial several times.Citing speedy trial concerns, Ish repeatedly moved for dismissal of his case, but his requests were denied by the district court.Ish also moved for a change of venue, which had been granted in his first trial.Although the motion was joined by the State, the motion to change venue was denied by the district court.

Ish’s second trial commenced on July 27, 2021.During voir dire, and again during the evidentiary phase of the trial, Ish moved to strike JurorNo. 3, a Bannock County probation officer, for cause.The district court denied both requests to strike the juror.

At the conclusion of his second trial, a jury again convicted Ish of voluntary manslaughter.Ish was sentenced to a fifteen-year unified sentence, the same overall sentence he received before; however, this time the district court ordered that the first 14 years would be fixed with one year indeterminate.This resulted in a fixed sentence four years longer than his original sentence.After the sentence was pronounced, Ish filed a motion to vacate his judgment or, in the alternative, for relief under Idaho Criminal Rule 35.The district court denied Ish’s motions.

Ish timely appealed to this Court, asserting seven points of error.For the reasons set forth herein, we affirm Ish’s judgment of conviction and sentence.

I.Factualand Procedural Background

This case concerns the second trial of Martin Edmo Ish, who was originally convicted of voluntary manslaughter in 2017 for the 2009 death of Eugene Lome Red Elk.Ish’s first conviction was vacated in 2020 in State v. Ish, 166 Idaho 492, 461 P.3d 774(2020)[hereinafter "IshI"], after this Court concluded that the district court erred in its ruling on Ish’s challenge to the jury panel under Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).The facts related to the death of Red Elk were previously articulated in Ish I, where this Court explained:

On the evening of June 14, 2009, Ish and some friends were barhopping in Pocatello, Idaho.At one point, the group patronized the Bourbon Barrel until the staff ordered Ish to leave after a confrontation with bar staff.Ish’s friends took him a few blocks down the road to Duffy’s Tavern.Ish’s friends returned to the Bourbon Barrel.When Bourbon Barrel staff learned of Ish’s whereabouts, they phoned Duffy’s Tavern to inform them of Ish’s actions earlier that evening.Upon receiving the call, Red Elk, who was working as a bouncer that night, asked Ish to leave the bar and he complied.A short time later, Red Elk left the bar to visit his girlfriend.

A patron[,][Narcissus "Narci" Kimball,] drove up to Duffy’s Tavern and found Red Elk lying in the parking lot gurgling blood.She alerted the bar, the police were called, and an investigation followed.Red Elk was taken to the local emergency room where it was determined that he had suffered a brain injury from blunt force trauma to the head.He was life-flighted to a medical center in Idaho Falls for surgery.He died three days later.

Ish I,166 Idaho at 497, 461 P.3d at 779(alteration added).This Court’s opinion in Ish I was filed on April 13, 2020.Thereafter, the remittitur was issued on May 5, 2020.

The remittitur was issued during the early days of the COVID-19 pandemic.In March of 2020, Idaho was under a statewide emergency declaration issued by Governor Brad Little.While the courts of this state remained open throughout the pandemic, restrictions were imposed through a series of emergency orders issued by this Court.These orders were issued in response to the state of emergency, the rising number of COVID-19cases throughout the state, and mounting concerns for public safety.Under the order in force in May of 2020, the district court was temporarily unable to call jury panels"during the pendency of this Amended Order."In Re Idaho Supreme Court Response toCOVID-19 Emergency, Amended Order (Mar. 23, 2020).This Court explained that "[t]his order prohibiting the calling of juries shall be deemed good cause to deny a motion to dismiss a criminal case based upon the time requirements set forth in section 19-3501, Idaho Code."Id.The order was extended and remained in effect until September 14, 2020.A later order permitted jury trials to resume provided they met certain safety standards established by the Supreme Court.However, this order authorized the administrative district judge in each judicial district to further suspend jury trials after considering the local rates of outbreak.Accordingly, the suspension of jury trials was extended in Bannock County through September 18, 2020, after which trials in Bannock County briefly resumed until November 9, 2020.

During this first suspension of jury trials, on July 14, 2020, Ish moved the district court for a change of venue.Although the motion was joined by the State, it was later denied by the district court in a written order.

At a hearing on August 12, 2020, in preparation for the resumption of jury trials in Bannock County, there was a discussion between the district court and counsel regarding potential trial dates.In that exchange, counsel for Ish requested the trial be scheduled "as soon as we can have it."The district court ultimately scheduled the trial for December 7, 2020.This trial setting was later vacated by the Idaho Supreme Court’s second suspension of jury trials on November 9, 2020, due to a surging wave of CO- VID-19cases in Idaho.This Court explained in its order that "data shows that the weekly moving average incidence rate of COVID-19cases in the state[had] increased from September 13, 2020 to November 8, 2020 by 335%, with an average week over week increase of 21%."Order Re.Commencement of Jury Trials(Nov. 9, 2020).We again temporarily suspended all jury trials effective November 9, 2020, and later extended that suspension on December 7, 2020.The suspension of jury trials was finally lifted on March 1, 2021, and jury trials were recommenced throughout the state.

The district court scheduled Ish’s trial for April 6, 2021.On March 12, 2021, the State moved to appoint conflict counsel for Ish after a lead prosecutor left the Bannock County Prosecuting Attorney’s Office to take a job at the Bannock County Public Defender’s Office.Two weeks later, on March 26, 2021, the State moved to vacate the April 6 trial setting.The State explained that Dr. Dennis Minister, the "primary emergency room physician who treated Red Elk," was "‘absolutely unavailable’ to attend trial the week of April 6, 2021," due to his surgical schedule and his own health concerns.The State also explained that another witness, Dr. Robert Cach,¹ the neurosurgeon who treated Red Elk at Eastern Idaho Regional Medical Center in Idaho Falls was the only available, on-call trauma surgeon at his medical facility during the period scheduled for trial and "if he were unavailable to treat a patient due to being in court, the patient would have to be diverted to another medical facility and delay emergency treatment."In seeking to postpone the trial, the State added:

While the [S]tate is sensitive to the fact the defendant’s retrial has been substantially delayed due to COVID, the [S]tate would be unable to present its case without the participation of [these] two key medical witnesses, and requests the court consider resetting the matter sometime in June 2021.Doing so will give the [S]tate ample time to secure the attendance of necessary witnesses.

(Emphasis added).Importantly, both State’s witnesses were frontline medical doctors and Idaho was still under a statewide emergency declaration due to COVID-19.

The same day the State’s motion to vacate was filed, Ish filed an objection to the motion to appoint conflict counsel.Three days later, on March 29, 2021, at a hearing on both matters, the district court denied the request for appointment of conflict counsel but approved the State’s motion to vacate the trial date.Ish’s trial was rescheduled for June 2, 2021.However, without an initial explanation, the district court later vacated the June 2, 2021, setting and rescheduled the trial for July 27, 2021.

On July 20, 2021, Ish again moved for dismissal, asserting a violation of his constitutional right to a speedy trial.Importantly, the district court recognized that Ish asserted his right to a speedy trial:

I will note for the record that Mr. Andrew has insisted upon Mr. Ish’s right to speedy trial from the very beginning at almost every, if not every, juncture when we were talking about trial dates.So it’s not an issue of not asking for the speedy trial.I think that’s been sought consistently since the beginning.

Two days later, the State again moved to...