State v. Mason
| Decision Date | 30 July 1986 |
| Docket Number | No. 15999,15999 |
| Citation | 726 P.2d 772,111 Idaho 660 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. James MASON, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
William P. Combo and Jerry K. Woolf, Idaho Falls, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.
James Mason was found guilty by a jury and convicted for aggravated assault. On appeal, Mason contends (1) he was denied a timely preliminary hearing as required by I.C.R. 5.1; (2) he was denied his right to a speedy trial; (3) evidence obtained pursuant to a search warrant should have been suppressed because the return of the warrant was not verified by the executing officer; and (4) the district court committed prejudicial error by refusing to instruct the jury on lesser included offenses and on the theory of self-defense. We hold the trial court erred in refusing to give an instruction requested by Mason concerning the misdemeanor crime of exhibiting a deadly weapon. We reverse the judgment of conviction and remand the case for a new trial.
The record reveals the following facts. Mason and Patricia Stapleton had verbal confrontations in a bar and its parking lot during the early morning hours of February 14, 1984. After the confrontation inside the bar, Mason was asked by the bartender to leave. Mason left the bar and went to his automobile. Stapleton and a companion also left the bar and again confronted Mason. The argument began anew; and Mason asked Stapleton to leave him alone. The argument continued until Mason turned and walked toward the rear of his car at which time Stapleton and her companion went in the opposite direction toward their vehicle. Mason obtained a revolver from the trunk of his car and walked a short distance in Stapleton's direction. He then allegedly pointed the revolver at Stapleton and said "I'm going to blow your guts out." Mason acknowledged at trial that he removed the revolver from the car and walked in Stapleton's direction, but he denied making the threatening statement or pointing the gun at her. He testified that he held the gun at his side at all times with the barrel pointed directly at the ground. He then returned to his car and placed the revolver in the trunk. A passing policeman was hailed by witnesses at the scene. Mason was arrested and charged with aggravated assault, a felony. He was arraigned the following day before a magistrate.
Two months later, on April 17, 1984, Mason received a notice that his preliminary hearing had been set for the next day. Due to the lack of adequate notice, Mason and the state stipulated to continuing the matter without the waiver of any rights. The hearing was finally held on May 9 at which time Mason moved that the case should be dismissed because the preliminary hearing had not been held within twenty-one days of his initial appearance before the magistrate. See I.C.R. 5.1 (1980). The magistrate agreed and dismissed the complaint without prejudice.
The aggravated assault complaint was refiled on May 23 and Mason was summoned to appear again on May 31. Mason's attorney arranged for Mason to appear on that date without his counsel being present also. At this appearance, Mason was advised by the magistrate that a preliminary hearing must be requested before being scheduled. Mason did not request such a hearing. Later, on July 26, Mason received notice that a preliminary hearing was set for August 16. Mason moved that the charge be dismissed because, again, a preliminary hearing had not been timely held. The motion was denied, the hearing was held and Mason was bound over to district court. The information was filed the following day.
Mason pled not guilty in district court on September 4 and trial was set for September 17. Mason requested a transcript of the preliminary hearing to support his pretrial motion to dismiss. Because the transcript was not received by the trial date, the district court rescheduled the trial at Mason's request. A jury trial was subsequently held January 14, 1985--eleven months after Mason's arrest. The district court denied Mason's pretrial and trial motions to dismiss for lack of a timely preliminary hearing and for denial of a speedy trial. Mason also moved that the revolver obtained from the trunk of his car pursuant to a search warrant be suppressed because the return of the warrant was not verified by the executing police officer. Finally, at trial, he maintained that the jury should have been instructed on lesser included offenses and on his theory of self-defense. The court denied his suppression motion and his requested jury instructions. Mason was convicted of aggravated assault. As noted, Mason continues to assert these same issues on appeal.
Mason contends the refiled aggravated assault charge should have been dismissed because the second preliminary hearing was not held within twenty-one days as required by I.C.R. 5.1. Rule 5.1(a) entitles any defendant to a preliminary hearing when charged with a felony. Before amendment in 1985, this rule provided in part:
If the defendant does not waive the preliminary hearing, the magistrate shall fix a time for the preliminary hearing to be held within a reasonable time, but in any event not later than ... twenty-one (21) days after the request for a preliminary hearing if [the defendant] is not in custody. With the consent of the defendant and upon showing of good cause, taking into account the public interest and prompt disposition of criminal cases, time limits in this subsection may be extended. In the absence of such consent by the defendant, time limits may be extended only upon a showing that extraordinary circumstances exist .... [Emphasis added.]
Mason maintains that the rule as quoted mandates that the magistrate shall fix a time for the preliminary hearing. He insists that the rule is unconditional and required no affirmative acts by a defendant to trigger the setting of a preliminary hearing. The state counters that the rule requires a preliminary hearing within twenty-one days after the defendant requests a preliminary hearing. Since Mason did not request a hearing, the state maintains the time limit was not applicable and that the hearing was held within a reasonable period.
In ruling on Mason's pretrial motion to dismiss, the district court held that the running of the twenty-one day period did not commence until the defendant requested the hearing. After reviewing the transcript of Mason's appearance in response to the summons, the district court found that Mason was advised he should discuss the need for a preliminary hearing with his attorney. Once Mason requested a preliminary hearing, then the hearing must be held within a certain time frame. As previously mentioned, Mason's counsel arranged for Mason to appear by himself at the summons appearance. The commitment order resulting from that appearance further states that "[a] Preliminary Hearing will be set upon request." The record reveals no such request by Mason. Giving full meaning to the language of the rule persuades us to hold that the rule 1 required the defendant to first request a preliminary hearing before invoking the time limits. In the absence of Mason's request for a hearing after being advised of his need to request one, we hold that the second preliminary hearing was held within a reasonable period of time. The district court properly denied Mason's Rule 5.1 motion to dismiss. 2
Mason asserts he was denied his right to a speedy trial as guaranteed under I.C. § 19-3501, the United States Constitution and the Idaho Constitution. As a result, Mason argues that the district court erred in refusing to grant Mason's motion to dismiss the charge against him.
When a defendant's right to speedy trial is in issue, we first determine if the statute, I.C. § 19-3501, has been abridged. 3 State v. Hobson, 99 Idaho 200, 579 P.2d 697 (1978); State v. Dillard, 110 Idaho 834, 718 P.2d 1272 (Ct.App.1986). If there is no "good cause" for delay or if the trial was not postponed at the defendant's request, then the charge against the defendant must be dismissed and our inquiry is at an end. However, if the statute is not breached, we must then determine whether both the state and federal constitutional safeguards which protect a defendant's right to a speedy trial have been violated. State v. Russell, 108 Idaho 58, 696 P.2d 909 (1985).
Subsection (1) of I.C. § 19-3501 deals with the pretrial time frame from arrest to the filing of an indictment or information. It requires dismissal of the charge when no indictment or information is filed within six months of the defendant's arrest. In this case, the information was filed six months and three days after Mason's arrest at the scene of the altercation. However, the original charge against Mason was dismissed on May 9, 1984. Rather than being rearrested, Mason received a summons to appear. Consequently, there was no second "arrest" to restart the running of the statute's six-month time limit. Because Mason was ordered to appear and answer for the charge of aggravated assault, we believe that the service of the summons was the functional equivalent of an arrest. Thus, the statutory clock began to run anew. E.g., United States v. Feldman, 788 F.2d 544 (9th Cir.1986); United States v. Rubin, 733 F.2d 837 (11th Cir.1984); United States v. McCown, 711 F.2d 1441, 1446 (9th Cir.1983). The information was filed within six months of the service of the summons. Thus, we hold that I.C. § 19-3501(1) was not violated.
Idaho Code § 19-3501(2) is not applicable to the present case. Mason was brought to trial on January 14, 1985, within six months from the date the information was filed on August 17, 1984. In summary, we hold that Mason was not entitled under I.C. § 19-3501 to a dismissal of the aggravated assault charge against him.
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