State v. Wheeler

• Decision Date: 06 April 1988
• Docket Number: No. 16970,16970
• Citation: 753 P.2d 833,114 Idaho 97
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Deloy WHEELER, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 833

753 P.2d 833

114 Idaho 97

STATE of Idaho, Plaintiff-Respondent, v. Deloy WHEELER, Defendant-Appellant.

No. 16970.

Court of Appeals of Idaho.

April 6, 1988.

William F. Bacon of Johnson, Olson, Robison, Chartered, Pocatello, for defendant-appellant.

Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

A magistrate, in a trial without a jury, found Deloy Wheeler guilty of driving while intoxicated. On appeal, the district court upheld the magistrate's judgment of conviction. Wheeler further appeals, contending that he did not waive his right to a jury trial, that an insufficient foundation was laid to admit the results of a breath analysis, and the evidence did not support the magistrate's finding of guilt. We hold that an effective waiver of the right to a jury trial is not shown by this record. Because we find that issue to be determinative, we do not reach the other issues raised by Wheeler. We remand the case for a new trial.

On August 16, 1986, Wheeler was cited for driving while under the influence of alcohol, a violation of I.C. § 18-8004. It appears that on November 20, 1986, the court set Wheeler's case for trial before a jury on January 15, 1987. However, on the latter date a court trial was held instead. Wheeler contends that the lack of a jury at his trial resulted from confusion and a misunderstanding between his counsel and the court, and should not constitute a waiver of his right to have his case heard by a jury.

Because our decision rests upon the lack of a showing of a clear waiver in the record, we have included extensive excerpts from the trial transcript. (Punctuation and capitalization by transcriber.) At the opening of the trial, the following exchange occurred:

COURT: All right, are there any preliminary matters?

BACON [Wheeler's Counsel]: Yes, Your Honor, there is. We would like to have the Court hear an argument or a Motion to Dismiss based on probable cause, or the failure thereof, in the event that the Court rules favorable [sic] to the Defendant, it would necessarily mean that the remainder of the trial would be unnecessary. I would like to argue that first, Your Honor.

COURT: Well, do you wish to make the motion, now?

BACON: Yes, Your Honor.

COURT [Addressing the prosecutor]: Mr. Heideman, what's your--

HEIDEMAN: Your Honor, the State would object at this time to the motion. This is a pre-trial matter, legal issues should have been taken sometime--taken up before the Court sometime before the time set for trial. It is not part of the State's case. We have four elements. The Motion to Dismiss is based upon the probable cause. The probable cause is not one of the elements that the State needs to prove. So, the State would object at this time, due to the untimeliness of the motion.

COURT: Mr. Bacon, I have, in anticipation of that copy--or taken a photocopy of [Idaho Criminal] Rule 12, subsection (f), failure to raise the defenses or objections must be made prior to trial, or at a time set by the Court pursuant to subsection (d), or prior to an extension thereof made by the Court, or it shall constitute a waiver. So, I would--

BACON: I would, for the record at this time, Your Honor, state on the record, that we had initially requested a jury trial, I had anticipated arguing before the jury the probable cause issue, not on a Motion to Dismiss, but as a factual finding. And based on my conferences with the Court and Mr. Heideman, it was my understanding that there would be no objection, or I would have the opportunity to make that argument, then the jury trial was waived--

COURT: Well, you can certainly raise any defenses that you--I mean, as a matter of fact. What the facts are, but as far as the Motion to Dismiss, it is untimely and it is denied.

BACON: Okay, I am ready to proceed, Your Honor.

The trial followed on the heels of this exchange. During closing argument Wheeler's counsel again attempted to raise the issue of "probable cause." ¹ The prosecuting attorney again objected. The following colloquy ensued:

"COURT: Well, I know what you are getting at, Mr. Bacon. As I indicated that probably, Mr. Bacon, if you are going to argue probable cause for the stop, it should have been argued long before the time of trial.

"BACON: This is not a Motion to Dismiss for Failure of Probable Cause.

"COURT: I am aware of what the evidence has been concerning the stop. If you want to make your argument relative to the factual situation of that stop, why that's one thing. But, as far as the Constitutional provision for dismissal, I think that it has been waived.

"BACON: Well, may we approach the bench, Your Honor? I am going to ask for a mistrial. Basically, I only waived the jury trial under the belief that I could argue the officer's stop.

"COURT: Well, you can argue the stop. But, as far as using the Constitutional basis--

"BACON: Well, that's what it is, probable cause.

"COURT: No, it isn't. You've waived that, because it wasn't brought up before trial.

"BACON: Okay, that's my grounds for mistrial. I didn't know at that time. I was not under the impression that that was going to be held to. Because I've got the United States Supreme Court case with the jury instruction. The jury can make that finding, whether it is actual facts to support probable cause. [sic]

"COURT: The jury and the court, the trier of the fact can make a determination as to the facts.

"BACON: Okay, well, that's it. That's what in our regard on a Motion to Dismiss, wouldn't it?

"COURT: Well, I have already denied your Motion to Dismiss.

"BACON: Well, we agreed--

"COURT: The facts of the case are there. That's been presented to the Court. All of the legal issues have been waived.

"BACON: Well, maybe we ought to verify the record, because I am not clear. The only grounds I waive the jury trial, was under the belief that I could argue that probable cause factual--

"COURT: You can argue the factual setting of the case.

"BACON: Isn't the point, that the officer had to make the stop? Is the Court not going to make a determination on that?

"COURT: I am going to make a determination on that. That's part of the factual scenario of the whole case.

"BACON: Okay, I'm--I make make [sic] a motion for mistrial. I just don't understand what the difference is.

"COURT: Well, the difference is, that if you are going to make a motion, a legal motion for a dismissal of the case, based upon--

"BACON: No--

"COURT: The fact that there was not probable cause, it should have been done. You still have the factual circumstances that led up to this entire circumstance, you are entitled to make your argument on, but it is on the fact, not on the legal technicalities of whether or not this man's Constitutional Rights have been violated.

"BACON: Okay, are you referencing that from an [sic] 1983 action or something?

"COURT: No, I am referencing it on whether or not, you are going to raise the question of probable cause on a legal question, that his Constitutional Rights have been violated, that should have been done. Now, we are down to the facts of the arrest and what happened on it. I am well aware what the testimony has been relative to that. You may make your factual argument.

"BACON: Okay, for the record, I guess that I am going to make a motion for a mistrial at this point in time. Based on my--and this is on the record, a motion for a mistrial at this time, based on the fact that the jury was waived only under the belief, which apparently was a mistaken belief that I would be given an opportunity to argue the right to dismiss the cause of action, based on probable cause.

"COURT: Well, Mr. Heideman, maybe if you want to respond to that?

"HEIDEMAN: Yes, Your Honor, I believe that I have made it perfectly clear in talking to Mr. Bacon throughout these proceedings for the jury trial, that I would object to any time, to him arguing the probable cause, due to the untimeliness of the motion. He has indicated to me before that probable cause was his issue in this. That we talked about it at the pre-trial, at that time, he intended to talk to the officer. I have a note in my file about the probable cause. I fully expected the Defendant to motion it up for a Motion to Dismiss on the probable cause. When I found out that he was going to argue probable cause to the jury, I told him that I would object to that. He indicated to me at that time, that he intended to waive the jury and we would argue that in front of the Judge. I told him again, that I would object to him arguing probable cause to the Judge in a trial setting.

"BACON: More factual background, I did attempt to contact Officer Calling, he never did return my calls. Furthermore, the only condition that I had--the only opportunity that I had to argue formal rule 12, Motion to Dismiss, was on the condition that if I was not successful, that my client have to enter a plea of guilty, which was certainly unconscionable.

"COURT: Well, the facts of the case--where we are at now, we're at the trial--the legal motions for probable cause that I have tried to explain to you, Mr. Bacon, have long since gone. The trial is here, now. I will take into consideration any determination that is made here today, based on the facts that have been presented to the Court. Whether or not, and I will specifically tell you right now, that I will be concerned with what happened in this stop. That is part of the factual setting that we find ourselves in, now. But, as far as the legal niceties of the preliminary motions, they weren't made. I am not going to consider it in that setting. The trial has been made, the evidence has been presented, you may argue on the evidence that has been presented.

"BACON: Very good. As long as the Court realizes that I am not making a Rule 12 motion at this time.

"COURT: I hope we're not. I want you to understand that we're now on the facts. And I am the trier of the...