State v. McNew

• Decision Date: 26 February 1998
• Docket Number: No. 23078,23078
• Citation: 954 P.2d 686,131 Idaho 268
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Paul McNEW, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 686

954 P.2d 686

131 Idaho 268

STATE of Idaho, Plaintiff-Respondent, v. Paul McNEW, Defendant-Appellant.

No. 23078.

Court of Appeals of Idaho.

Feb. 26, 1998.

David W. Lohman, Coeur d'Alene, for defendant-appellant.

Alan G. Lance, Attorney General, Kimberly A. Coster, Deputy Attorney General, Boise, for plaintiff-respondent. Kimberly A. Coster argued.

BENGTSON, Judge Pro Tem.

Following a trial by jury, Paul McNew was found guilty of committing lewd conduct with a minor under sixteen years of age, I.C. § 18-1508. A judgment convicting McNew of such offense was entered imposing a unified sentence of four (4) years, consisting of a fixed term of one (1) year, followed by an indeterminate term of three (3) years.

McNew has appealed the conviction. The basis of this appeal is McNew's contention that the trial court erroneously denied his motion to dismiss the criminal information, said motion being predicated upon the grounds that he had been denied his constitutional and statutory right to a speedy trial.

The record before this Court establishes, without cavil, that the criminal information in this case was filed on July 20, 1994, and that the jury trial in this matter did not commence until March 26, 1996. The record further discloses that on March 4, 1996, McNew moved for dismissal of the criminal information, contending that he had been denied his right to a speedy trial. Such motion was denied by the trial court in its "Memorandum Order" filed on March 20, 1996, and this matter proceeded to trial on March 26, 1996, some twenty months after the filing of the criminal information. McNew raises no other issues for consideration by this Court, and thus the sole issue before us is whether the trial court erred in

denying McNew's motion to dismiss the information.

I. STANDARD OF REVIEW

Whether McNew was denied his right to a speedy trial presents this Court with a mixed question of law and fact. State v. Rodriquez-Perez, 129 Idaho 29, 33, 921 P.2d 206, 210 (Ct.App.1996), citing State v. Wavrick, 123 Idaho 83, 86, 844 P.2d, 712, 715 (Ct.App.1992). This Court, when faced with mixed questions of law and fact, defers to findings which are founded upon substantial evidence, but freely reviews the trial court's determination as to whether constitutional requirements have been satisfied in light of facts found by the trial court. Id.

II. DISCUSSION

A. Trial Court's Findings of Fact

In its "Memorandum Order" filed March 20, 1996, the trial court denied McNew's motion to dismiss, specifying the factual predicate for denial of such motion in the following language:

For the reasons to follow, the Court denies defendant's motion to dismiss. Trial was initially set to commence 4.5 months following the filing of the Information, and was continued a week before the scheduled commencement upon defendant's motion. The second setting, January 24, 1995, was again aborted by defendant's request for psychiatric evaluation. The delay between the second setting of January 24, 1995, and the September 1, 1995, report on mental status was due to defendant's lack of cooperation in conferring with his counsel and presenting himself for evaluation, the result ultimately being an order to incarcerate him so that the examination could be conducted. When the report on mental status was finally received and counsel had an opportunity to digest the same, the Court calendered (sic ) the matter for its third setting on March 26, 1995. That delay was due to the congested nature of the Court calendar.

Additionally defendant had expressed through his attorney as early as November 30, 1994, that he was waiving his right to a speedy trial.

In any event, the Court finds that the majority of the delay to be attributable to defendant, with the last period of delay due to the congested court calendar, a "neutral source." (Emphasis added).

We first address the question of whether these findings of fact are founded upon substantial evidence.

A careful perusal of the transcript of proceedings conducted before the trial court relevant to the speedy trial issue convinces us that the trial court's findings of fact are indeed predicated upon substantial evidence. Summarizing the record, as well as the transcript, the evidence establishes:

1) McNew appeared in response to a summons on June 20, 1994. The criminal information was filed on July 20, 1994, and on July 29, 1994, he was arraigned and entered a not guilty plea. The District Court set the case for jury trial to commence on December 5, 1994.

2) One week before trial McNew moved for a continuance based upon the state's alleged untimely disclosure of two "potentially exculpatory witnesses." The motion was granted and the trial was reset for January 24, 1995. However, on January 19, 1995, McNew's counsel moved, pursuant to I.C. § 18-211, for a mental evaluation to determine McNew's fitness to stand trial. The motion was granted, and trial was vacated pending the outcome of the examination.

3) The Court appointed a doctor from the Department of Health and Welfare to perform a psychiatric evaluation of McNew, but the doctor disqualified herself, and McNew was then referred to two private physicians, one of whom required cash payment at the time of the examination, and the other would only extend credit if the Court issued an order guaranteeing payment. On April 14, 1995, the Court granted McNew's motion for an order guaranteeing payment for the evaluation.

4) Thereafter, a problem arose regarding McNew's transportation from his home in St. Maries to the doctor's office in Coeur d'Alene because McNew was not licensed to drive, and neither he nor his defense counsel wanted him to be transported by the Benewah County Sheriff's Office. ¹ On May 22, 1995, the Court entered an order stating that if McNew was unable to provide his own transportation to attend his psychiatric evaluation, then transportation would be provided by the sheriff's office, and any statements made during such transport would be inadmissible.

5) Due to reasons not clear from the record, McNew did not present himself for the scheduled evaluation. As a result, the Court, on August 15, 1995, ordered McNew placed in custody on August 20, 1995, to ensure his "presence and sobriety" at the evaluation that was then scheduled for August 22, 1995. On September 1, 1995, the Court received the psychiatric evaluation which found McNew competent to stand trial. Trial was reset for March 26, 1996, and commenced on that date.

We conclude that the trial court's findings of fact pertinent to McNew's motion to dismiss for lack of a speedy trial are supported by substantial evidence.

B. Application of the Balancing Test

Having concluded that the trial court's findings of fact pertinent to the speedy trial issue are supported by substantial evidence, we now exercise free review to determine whether the trial court erred in denying McNew's motion to dismiss the criminal information for lack of a speedy trial.

McNew asserts that his right to a speedy trial, guaranteed him by the Sixth Amendment to the United States Constitution; Article I, Section 13 of the Constitution of the State of Idaho; and Section 19-3501 of the Idaho Code, was violated. We disagree.

This Court is guided, in substantial part, by the treatment of a speedy trial claim under the United States Constitution, announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). There, the United States Supreme Court analyzed such claim by a balancing process in which the Court considered four factors: (1) the length of the delay; (2) the reason or reasons for the delay; (3) the defendant's assertion or nonassertion of speedy trial rights; and (4) the prejudice or lack of prejudice to the defendant occasioned by the delay.

The same Barker balancing test is employed in determining whether the right to a speedy trial under Article I, Section 13 of the Idaho Constitution has been violated. State v. Holtslander, 102 Idaho 306, 629 P.2d 702 (1981). Additionally, the analysis of speedy trial rights under Idaho Code Section 19-3501 "is closely related to and based upon the analysis applied to constitutional speedy trial guarantees ..." State v. Rodriquez-Perez, 129 Idaho 29, 33, 921 P.2d 206, 210 (Ct.App.1996).

We here address the four Barker factors in the light of the factual findings of the trial court set out above:

(1) Length of the delay

The delay in this case was a little over twenty-one (21) months, which is certainly long enough, according to Idaho case law, to trigger judicial scrutiny. See, e.g., State v. Holtslander, 102 Idaho 306, 629 P.2d 702 (1981) (delay of nine months between complaint and arrest is sufficient to warrant scrutiny by the court); Rodriquez-Perez, supra (delay of thirteen months sufficient to trigger judicial scrutiny); State v. Beck, 128 Idaho 416, 913 P.2d 1186 (Ct.App.1996) (delay of forty-two days between the expiration of the I.C. § 19-3501 six-month period and the scheduled start of trial was significant); State v. Wengren, 126 Idaho 662, 889 P.2d 96 (Ct.App.1995) (delay of one month was "insignificant," but nonetheless sufficient to trigger the court's scrutiny). Furthermore, the nature of the case is of import as to the period of delay that can be tolerated: "[D]elay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192. See also Rodriquez-Perez, 129 Idaho at 34, 921 P.2d at 211 (quoting the same language from Barker). The case now before us is hardly complex; rather, the acts complained of are alleged to have all been committed by one defendant, at one time, against one victim, in only one manner, and in only one place.

Since we here hold that the twenty-one (21) month period of delay in bringing McNew to trial is sufficient to trigger judicial inquiry, we next look to the reasons for such delay.

(2) Reasons...