State v. Powers

• Decision Date: 26 November 1979
• Docket Number: No. 12639,12639
• Citation: 603 P.2d 569,100 Idaho 614
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Adrian Lee POWERS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 569

603 P.2d 569

100 Idaho 614

STATE of Idaho, Plaintiff-Respondent, v. Adrian Lee POWERS, Defendant-Appellant.

No. 12639.

Supreme Court of Idaho.

Nov. 26, 1979.

Leslie T. McCarthy, Lewiston, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Steven M. Parry, Deputy Attys. Gen., Boise, for plaintiff-respondent.

PER CURIAM:

A complaint was filed on January 17, 1977, which alleged that defendant-appellant Adrian Lee Powers sold a small quantity of amphetamine to an undercover agent on June 24, 1976. Powers was arrested the day after the complaint was filed and released on $1,000 bond.

At the preliminary hearing on January 31, 1977, Powers requested disqualification of the magistrate in an affidavit of prejudice. The request was denied as untimely filed under I.R.C.P. 40(d)(1). Undercover agent Richard Rohrbach, and his Bureau of Narcotics Supervisor, Terrence Perkins, testified for the State, and Powers was bound over to the district court for trial.

The case was set for trial on February 25, 1977, and on March 4, 1977 the prosecutor moved to have the district judge disqualified, pursuant to I.R.C.P. 40(d)(1), and the motion was granted. Trial to a jury before another district judge was had on May 6 and 7, 1977, with Rohrbach and Perkins again establishing the bulk of the state's case. Powers was found guilty, and on May 17, 1977, was sentenced to 5 years imprisonment, the sentence to run concurrently with a 3 year sentence which had been imposed on May 8, 1977, in a separate action. See State v. Powers, 100 Idaho 290, 596 P.2d 802 (1979). Powers thereafter filed a timely notice of appeal.

Powers first directs our attention to the six month delay between the occurrence of the alleged sale and the filing of the complaint in this action, alleging that this delay abridged his right to a speedy trial. This argument is without merit. Under both the Idaho Constitution and statutes, Olson v. State, 92 Idaho 873, 452 P.2d 764 (1969); Jacobson v. Winter,91 Idaho 11, 415 P.2d 297 (1966), and under the sixth amendment to the United States Constitution, U. S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the guarantee of a speedy trial does not extend to the period prior to arrest.

It is true, however, that the defendant is protected by the fifth amendment to the United States Constitution during the period prior to accusation. The United States Supreme Court, in Marion, supra, intimated that under certain circumstances preaccusation delay might result in "actual prejudice" to the defendant which could give rise to a due process claim under the fifth amendment. 404 U.S. at 325-6, 92 S.Ct. at 466, 30 L.Ed.2d at 481-2. Appellant urges that he has in fact suffered "actual prejudice": first, because he was not on notice to preserve evidence and recollections, and his memory faded, and second, because had he been promptly charged in this case he would not have been involved in the sale of marijuana which is the subject of State v. Powers, 100 Idaho 290, 596 P.2d 802 (1979).

Appellant's claims are put to rest by the United States Supreme Court's recent elaboration on the "actual prejudice" language of Marion in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) Reh. den. 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). In Lovasco a delay of more than eighteen months led to the death of two material defense witnesses to the prejudice of Lovasco's case. Stating that "no one's interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to," 431 U.S. at 792, 97 S.Ct. at 2050, 52 L.Ed.2d at 760 (citation omitted), the Court held that absent an impermissible purpose behind the delay, no reversal was mandated. The Court noted the policy considerations which favor the exercise of discretion by the prosecutor in these circumstances and left the delineation of particular impermissible purposes which would require reversal to lower courts and later cases.

Appellant has offered no evidence to show that the prosecutor's delay in filing the complaint in this case was motivated by an impermissible objective, even assuming that there was actual prejudice of a nature sufficient to justify reversal if he had. We therefore decline to reverse on this ground.

Appellant next claims that the magistrate erred in allowing the undercover narcotics agent Rohrbach to refresh his memory from a copy of a report dictated by him, to which certain material had been added. We see no clear showing of an abuse of discretion in such a procedure, and therefore do not disturb the magistrate's probable cause conclusion. State v. O'Mealey,95 Idaho 202, 506 P.2d 99 (1973); Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967).

Appellant also claims prejudice in the granting of the state's 40(d)(1) motion to disqualify the first trial judge assigned to hear the case, while the defendant's motion to disqualify the magistrate was denied as untimely filed. Defendant's motion, filed at the preliminary hearing itself, was clearly untimely. At the district court level, however, because a Saturday and Sunday intervened in the seven days between trial setting and the State's motion to disqualify, it was timely. I.C.R. 25(a); I.R.C.P. 40(d)(1); I.R.C.P. 6(a). We see no error.

Finally appellant claims an abuse of discretion in his sentence of five years' imprisonment, to run concurrently with a three-year sentence on another charge. Essentially, then, appellant's sentence on this charge is two years' imprisonment. The maximum term authorized for this offense is life imprisonment and a $25,000 fine. I.C. § 37-2732(a)(1)(A). Particularly in view of the presentence investigation report's observation that defendant had previously abused the terms of a parole arrangement we see no clear abuse of discretion in a two-year sentence. State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979); State v. Seifart, 100 Idaho 321, 597 P.2d 44 (1979); State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976).

Nor do we see error in the sentencing judge's use of the presentence investigation report prepared in connection with Powers' earlier sentencing in his conviction for the sale of marijuana, which occurred nine days before the sentencing in this case. The use of a presentence investigation report by the sentencing judge is discretionary. I.C.R. 37(a). Absent a showing of some material change in defendant's circumstances in the nine-day interim it was not error to reuse the same report. The judgment of conviction and sentence is affirmed.

BISTLINE, Justice, specially concurring.

Taking this case on an individual basis, I concur in the Court's opinion that no error was committed in the court below. That opinion, however, refers to a companion case involving the same defendant, State v. Powers, 100 Idaho 290, 596 P.2d 802 (1979), in which we heard oral argument at Lewiston in May of this same year.

The State had earlier moved that the two appeals be consolidated for argument. ¹ We denied the motion on an objection raised by counsel for Powers. ² It appears all too clearly now that the State's motion should have been granted, and the two appeals heard at the same time.

The appeal heard in May involved the sale of a small quantity of marijuana; this appeal involves the...