State v. Lundquist

• Decision Date: 28 August 2000
• Docket Number: No. 23948.,23948.
• Citation: 134 Idaho 831,11 P.3d 27
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas LUNDQUIST, Defendant-Appellant.
• Court: Idaho Supreme Court

11 P.3d 27

134 Idaho 831

STATE of Idaho, Plaintiff-Respondent, v. Thomas LUNDQUIST, Defendant-Appellant.

No. 23948.

Supreme Court of Idaho, Twin Falls, March 2000 Term.

August 28, 2000.

Rehearing Denied October 23, 2000.

Nevin, Herzfeld & Benjamin, Boise, for appellant. Dennis A. Benjamin argued.

Hon. Alan G. Lance, Attorney General; Alison A. Stieglitz, Deputy Attorney General, Boise, for respondent. Alison A. Stieglitz argued.

WALTERS, Justice.

Thomas Lundquist has appealed from a first-degree murder conviction for his participation in the murder of Fidela Tomchak. We affirm.

BACKGROUND AND PRIOR PROCEEDINGS

Lundquist, Christopher Shanahan, and Benjamin Jenkins decided to run away to Las Vegas. The three teenagers planned to rob a local convenience store to get money for the trip and because Shanahan believed that shooting someone could help him become a member of a gang. After obtaining guns from Jenkins' house and ammunition from Lundquist's, the three drove to the Grant Store. Shanahan and Jenkins went into the store. Lundquist remained in the car with a shotgun to act as a lookout and "shoot anyone if they come." Jenkins' job was to distract the clerk so that Shanahan could shoot her. When they entered the store, Fidela Tomchak was stocking a cooler. Shanahan walked up and shot her in the back of the head with his rifle. Jenkins grabbed beer from the cooler. Shanahan took cigarettes and about $200 in cash from the register. The three divided the items they had stolen and continued on their way to Las Vegas. They were eventually apprehended in Utah and brought back to Idaho.

Shanahan pled guilty to first-degree murder and robbery and Jenkins pled guilty to second-degree murder and robbery. Both agreed to testify against Lundquist. Lundquist was found guilty by a jury of first-degree felony-murder. On appeal, Lundquist argues that his rights to a speedy trial were violated, that the indictment was insufficient to give the court jurisdiction over the felony-murder charge, and that the verdict form did not contain essential elements of a felony-murder charge. Lundquist also argues that the court abused its discretion by imposing a life sentence with a minimum term of confinement of twenty years.

DISCUSSION

I. Speedy Trial.

Lundquist initially argues that the case must be dismissed pursuant to I.C. § 19-3501(2). We disagree. Although it is clear that Lundquist was not tried within six months as required by § 19-3501, Lundquist's rights under § 19-3501 were not violated because he waived them. See State v. Wavrick, 123 Idaho 83, 844 P.2d 712 (Ct.App. 1992).

Lundquist was arraigned on January 4, 1996. His trial date was set for July 9, 1996, within the six-month period allowed under § 19-3501. On April 18, 1996, Lundquist made a motion to separate his trial from that of Shanahan and Jenkins. The court granted Lundquist's motion on May 31, 1996 because Shanahan and Jenkins had requested continuances and Lundquist was still asserting his right to a speedy trial. On June 14, 1996, Lundquist made a motion to substitute a new attorney for one of his two defense attorneys. With approximately three weeks until the trial, the court was concerned that Lundquist's new attorney would not have time to prepare. The court decided that it would allow Lundquist to substitute counsel if Lundquist agreed to a continuance for counsel's preparation and if Lundquist waived his speedy trial rights. Lundquist and his counsel were concerned that by waiving the right to a speedy trial, Lundquist was at risk of being tried together with Shanahan and Jenkins. However, the court indicated that Lundquist's trial could be set for mid-August or early September and that Shanahan and Jenkins were not ready for trial and had requested a January 1997 trial date. Lundquist agreed to the continuance and waived his right to a speedy trial. The court granted Lundquist's motion to substitute counsel. Lundquist's trial was set for September 5, 1996.

On August 5, 1996, the state moved to continue the trial because it had just received a report from a defense psychologist and had not had time to prepare a response. Lundquist objected to a continuance. He argued that the state had sufficient time to prepare. He also indicated that he would not call the psychologist if it meant that there would be a continuance. The court granted the state's motion for a continuance and set the trial for January 8, 1997. On August 9, 1996, the state moved to consolidate the three trials. This motion was granted. Jury selection in Lundquist's trial began on January 29, 1997, one year and 25 days after his arraignment.

Lundquist has not challenged the continuance from July until September. He argues instead that the subsequently granted continuance from September until late January was impermissible because his waiver was limited to the first continuance.

Section 19-3501 does not allow for such a limited waiver. State v. Wavrick, supra. Once the trial has been postponed, the six-month statutory period no longer applies. Id. Furthermore, Lundquist knew when he agreed to the continuance of his July trial that a trial in August or September was not guaranteed:

THE DEFENDANT: I just have one question, Your Honor. If I waive my right, am I going to be back with the other two Defendants?

THE COURT: Not necessarily. But I'm not going to have you back me into a corner and say, Judge, I've caused this problem and now to waive my rights, I'm going to say I've got to have a separate trial. Likely that's what's going to happen and I'm not going to be bound to that just to get you to waive a trial, a speedy trial. I mean, I think that the way this thing's come up, you created the problem, you've got to deal with it. I've dealt with it the only way I can deal with it, now you've go to make a decision.

...

[DEFENSE COUNSEL]: We have spoken to our client and we've spoken to his parents and the grandparents for our client. And we like the Court's proposition. Yes, we will waive our right to a speedy trial because of the Court's urging that we get this set in August, September, or even October and we think that's our best option. And we appreciate the Court continuing that and telling us that we'll shoot for that. And so, yes to clear up the record, we'll go along with that.

THE COURT: All right. Mr. Lundquist do you understand what your attorney said?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Is that agreeable with you?

THE DEFENDANT: Yes.

Lundquist cannot rely upon the statutory six-month time period found in I.C. § 19-3501.

While the statutory right to a trial within six months cannot be revived once waived, Lundquist was also entitled to a speedy trial under both the state and federal constitutions. The court's decision to continue the trial until January must meet constitutional requirements. In order to determine whether Lundquist's constitutional rights have been violated, the Court employs the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, (1972).¹ The Court must consider four different factors: 1) the length of the delay, 2) the reason for the delay, 3) the defendant's assertion of his or her speedy trial rights, and 4) the prejudice occasioned by the delay. Considering these factors, we conclude that Lundquist's constitutional rights were not violated.

II. Information Charging Lundquist with Felony-murder.

Lundquist contends that the information did not include all the elements of felony-murder and was thus insufficient to invoke the district court's jurisdiction over the charge of felony-murder.

The amended information filed on February 5, 1997, provides:

COUNT I MURDER IN THE FIRST DEGREE _______________________________ I.C. §§ 18-4001, 02, 03(a)(d); 18-4004; 18-204

Said Defendant did willfully, unlawfully, deliberately, with premeditation and with malice aforethought, either directly or indirectly, by aiding or abetting, or encouraging the killing and murder of Fidela Tomchak, a human being, when she was shot in the head from which wound she died; alternatively,

Said Defendant did, either directly or indirectly, aid or abet, in the perpetration of or attempt to perpetrate a robbery or burglary in the commission of which Fidela Tomchak, a human being, died.

Idaho Code § 18-4003(d) defines felony-murder:

Any murder committed in the perpetration of, or attempt to perpetrate, aggravated battery on a child under twelve (12) years of age, arson, rape, robbery, burglary, kidnapping or mayhem is murder of the first degree.

Lundquist argues that the information is insufficient because the word "murder" does not appear in the alternative portion of Count I. Although inartful, we do not believe the language of Count I deprived the court of jurisdiction to hear the charge of felony-murder.

We first note that Lundquist did not challenge the information before the trial court. This is not fatal to Lundquist's challenge on appeal because the jurisdiction of the court is fundamental and can be raised at any time. See I.C.R 12(b)(2); State v. Cahoon, 116 Idaho 399, 775 P.2d 1241 (1989). However, "Informations which are tardily challenged are liberally construed in favor of validity.... An Information not challenged before a verdict will be upheld on appeal unless it is so defective that it does not, by any fair or reasonable construction, charge an offense for which the defendant is convicted." State v. Robran, 119 Idaho 285, 805 P.2d 491 (Ct.App.1991).

Under any fair and reasonable construction, the information in this case properly charged Lundquist with felony-murder. The words used in an information need not precisely track the language of the statute defining an offense. I.C. §§ 19-1303, -1417. Rather than using the word murder, the information charges that Fidela Tomchak died in the commission of a robbery. Murder is defined in I.C. § 18-4001 as "the unlawful killing of a human being with malice aforethought." With...