State v. Wilbanks, 11023

• Decision Date: 18 April 1973
• Docket Number: No. 11023,11023
• Citation: 509 P.2d 331,95 Idaho 346
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert Howard WILBANKS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 331

509 P.2d 331

95 Idaho 346

STATE of Idaho, Plaintiff-Respondent, v. Robert Howard WILBANKS, Defendant-Appellant.

No. 11023.

Supreme Court of Idaho.

April 18, 1973.

Brauner, Fuller & Doolittle, Caldwell, for defendant-appellant.

W. Anthony Park, Atty. Gen., Peter E. Heiser, Asst. Atty. Gen., Boise, for plaintiff-respondent.

McQUADE, Justice.

In this case we are called upon to determine whether appellant was afforded his constitutional rights to a speedy and fair trial and to due process of law. Because appellant bases part of his appeal on the events leading up to his trial on two counts of forgery and a persistent violator charge on September 8 and 9, 1971, the undisputed facts are related in some detail.

On December 2, 1970, appellant Wilbanks was arrested and charged with forgery of a $20 check allegedly passed on or about October 31, 1970, (hereafter referred to as the 'October check'). After a preliminary hearing was held on December 15, 1970, appellant was held to answer the charge in district court. On February 10, 1971, an information was filed in district court. Trial was set for June 14 and 15, 1971 on the October check charge. The State discovered an error in the pleading of the check and filed an amended complaint on March 24, 1971. On April 22, 1971, an arrest warrant on the amended charge was served on appellant in the Canyon County jail.

The preliminary hearing on the amended charge was held on May 10, 1971. At that time, appellant complained of the delay between arrest and trial, and requested a reduction of bail. The magistrate reduced appellant's bail to $750, but appellant was unable to raise this amount and remained incarcerated.

An amended information was filed on May 13, 1971. This information contained a list of witnesses relating to the alleged forgery of the October check. A preliminary hearing was held on the amended charge, and trial was scheduled for June 15 and 16, 1971, a delay of one day from the original scheduling of the trial. On June 9, 1971, shortly before the rescheduled trial, the prosecuting attorney moved for permission to add additional witnesses to the information. In that motion, he asserted that an investigation had shown that the appellant had 'passed at least three other checks' in November, 1970, and that he wished to present witnesses concerning those occurrences to show a common scheme, plan, or method. Included in the motion was the statement:

'At the time of filing the Information, it had not been determined whether the better procedure would be to charge the Defendant with a Forgery of each of these three other checks or to charge him solely with the forgery of the check on which the Information was filed in this Court.'

The appellant's counsel opposed the motion to amend the information on the ground that there would not be sufficient time to interview the additional witnesses in preparation for trial, and that the prosecution had had the names of the witnesses since the information was filed. The district judge denied the motion on the ground that adding additional witnesses at that late date would be prejudicial to the appellant. In the order denying the motion the district judge expressed his opinion that the names of the additional witnesses had been known to the prosecuting attorney at the time the amended information was filed.

At the jury trial on June 15, 1971, appellant was found not guilty of the forgery of the October check. Appellant was not released from jail upon his acquittal but was arrested by the sheriff and delivered into the custody of the United States Marshal on a parole violation warrant. Appellant was returned to Canyon County jail as a federal prisoner on June 19, 1971. On June 23, 1971, Riley R. Newton of the Nampa Police Department swore to a three-count complaint charging appellant with forgery of the three checks (hereafter called the 'November checks') mentioned in the prosecuting attorney's motion to expand his list of witnesses shortly prior to trial on the October check. The new complaint was filed on June 24, 1971, and an arrest warrant was served on appellant in the Canyon County jail on June 25, 1971. Specifically, these new charges related to an alleged forgery with intent to defraud 'Lloyd's Lumber Co., an Idaho Corporation,' an alleged forgery with intent to defraud 'Mallea's Pharmacy, Nampa, and Jim Mallea, its owner,' and an alleged forgery with intent to defraud the 'Seven Seas Tavern, an Idaho Corporation.' The amounts of the checks listed in the new complaint were $12, $15 and $20. After the new State's charges were filed, the federal parole violation charge was dropped. Apparently, although the only place it appears in the record is in the respondent's brief, on the day that appellant was scheduled to appear before the magistrate on the new charges, counsel for appellant telephoned the magistrate and requested a postponement while Wilbanks was in the hospital for tests. On July 13, 1971, a hearing on motion for continuance was held and the preliminary hearing was scheduled for August 12, 1971.

On August 9, 1971, appellant filed a petition for a writ of habeas corpus, alleging that the State had deliberately delayed filing charges on the November checks until after appellant's acquittal on the October check charge and that such action was part of a plan to harass appellant, depriving him of his rights to speedy trial and due process of law. At the hearing on the petition, held August 11th, Detective Riley Newton testified that all three checks figuring in the new charges were known to the prosecution prior to the filing of the amended charge in the prior case in March, 1971. However, he also testified that he was 'ninety-nine percent sure' that his department did not have all three of the November checks on December 2, 1970, the date of appellant's arrest on the October check charge. He also mentioned that the three November checks, were sent to 'an agency' for analysis and that the usual period of time involved in this procedure is two months. It is not clear from the record when these two months were, but it appears that it was some time in early 1971. It also appears that the 'agency' referred to was the Federal Bureau of Investigation. Newton testified that the October check was not mailed to the 'agency' because of time pressures. Appellant testified at the hearing that his memory had dimmed as to his actions in November, 1970. Habeas corpus relief was denied.

At the preliminary hearing held the next day, August 12, 1971, appellant was ordered to answer to the charges of forgery of the November checks in district court. On August 20, 1971, the State filed an information in the case from which the third count of forgery had been dropped (relating to the 'Seven Seas Tavern' check) and a persistent violator charge had been added. The State alleged that appellant had been convicted of four previous felony forgeries.

On the morning of the trial, September 8, the appellant filed a motion to dismiss on the basis that he had been denied his right to a speedy trial. Although the district judge indicated his displeasure at the fact that the State had refrained from prosecuting appellant on the November checks until he had been acquitted for the forgery of the October check, he stated that the time for computing a speedy trial begins running at the date of the filing of the complaint and denied the motion.

After trial, appellant was found guilty on both forgery counts and on the persistent violator charge. The district court entered a judgment of conviction on the two forgery counts, but not on the persistent violator charge. He sentenced appellant to two concurrent fourteen year terms in the Idaho State Penitentiary.

On this appeal, appellant makes two assignments of error which we will deal with in turn. The first is set out in full below:

'1) The Trial Court erred in denying Defendant-Appellant's Mtoion to Dismiss because the capricious, deliberate, oppressive tactics of the prosecutor in holding back known charges and filing them only after Defendant-Appellant's acquittal on an original charge, and then bringing Defendant-Appellant to trial only after nine months incarceration, deprived Defendant-Appellant of his right to a speedy trial and to due process of law.

The right to a speedy trial in Idaho is guaranteed to an accused by the Idaho Constitution, ¹ by statute, ² and by the speedy trial guarantee of the United States Constitution ³ which is binding on the states. ⁴ However, the fundamental, or threshold question that must be answered before applying speedy trial standards to a given case is: When is the right to a speedy trial activated? The Idaho case of Jacobson v. Winter ⁵ held that the relevant period for measuring the State's delay in bringing a case to trial begins to run at the time of filing of a criminal complaint. The recent United States Supreme Court case of United States v. Marion ⁶ held that the speedy trial right is activated at the point when a defendant formally becomes an 'accused,' whether that be by arrest, the filing of a complaint, or by indictment or information.

In that case, the two appellees had been indicted by a federal grand jury in 1970 and charged in nineteen counts with fraud and other offenses connected with running a home improvement business. The indictment was returned three years after the end of the criminal scheme charged. The appellees moved to dismiss the indictment because of 'unreasonably oppressive and unjustifiable' delay between the alleged offenses and the return of the indictment. The district court judge dismissed the indictment for 'lack of speedy prosecution.' The United States Supreme Court reversed. In Marion, the Court firmly declined to apply the speedy trial guarantee to any period prior to accusation, even though the prosecuting authorities had knowledge of the offense long before the formal initiation of the prosecution....