IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37141
STATE OF IDAHO, )
) 2011 Opinion No. 35
Plaintiff-Respondent, )
) Filed: June 10, 2011
v. )
) Stephen W. Kenyon, Clerk
ADAM RICHARD CROCKETT, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael R. McLaughlin, District Judge.
Order denying motion to dismiss felony DUI charge, affirmed.
Nevin, Benjamin, McKay & Bartlett LLP; Robyn A. Fyffe, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LANSING, Judge
Adam Richard Crockett appeals from the district court’s denial of his motion to dismiss a
charge of driving under the influence made on grounds that his rights to a speedy trial and due
process had been violated.
I.
BACKGROUND
On August 1, 2008, Crockett was arrested for driving under the influence. The State
charged the case as a felony on the premise that Crockett had been convicted twice of DUI
within the preceding ten years. See Idaho Code §§ 18-8004, 18-8005(5). At the preliminary
hearing, however, it was learned that Crockett had not yet been convicted of the second of the
two predicate DUI offenses as that charge was still pending. Consequently, on August 15, 2008,
the State dismissed the felony charge for the August 1, 2008, incident rather than proceeding
with a misdemeanor DUI charge. On January 8, 2009, Crockett pleaded guilty to the second
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predicate DUI offense, and on January 23, 2009, the State refiled the felony DUI charge for the
August 1, 2008, incident, initiating the case that is now before us. Crockett was rearrested on
February 3, 2009, and released on his own recognizance the next day. A trial was scheduled for
August 3, 2009.
On July 17, 2009, Crockett moved to dismiss this charge, contending that his
constitutional rights to a speedy trial and to due process had been violated. The district court
denied the motion. Thereafter, Crockett pleaded guilty, reserving the right to appeal the denial of
his dismissal motion. This appeal followed.
II.
ANALYSIS
A. Speedy Trial
Crockett first argues that the delay in filing this case violated his rights to a speedy trial
under the state and federal constitutions. The Sixth Amendment to the United States
Constitution guarantees to criminal defendants the right to a speedy trial, a guarantee that is
made applicable to the states through the Fourteenth Amendment. In addition, Article 1,
Section 13, of the Idaho Constitution guarantees the accused in a criminal case the right to a
speedy trial. In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court adopted
a four-part balancing test to determine whether a defendant’s Sixth Amendment speedy trial right
has been infringed. The Idaho Supreme Court has adopted that same test for application of the
corresponding right under the Idaho Constitution. State v. Young, 136 Idaho 113, 117, 29 P.3d
949, 953 (2001); State v. Lindsay, 96 Idaho 474, 475-76, 531 P.2d 236, 237-38 (1975). The four
factors to be balanced are: (1) the length of the delay, (2) the reason for the delay, (3) the
assertion of accused’s right to a speedy trial, and (4) the prejudice to the accused occasioned by
the delay. Barker, 407 U.S. at 530; State v. Davis, 141 Idaho 828, 836, 118 P.3d 160, 168 (Ct.
App. 2005).
The length of delay serves a dual role in the analysis of the right to a speedy trial. First, it
is a triggering mechanism, for until there is some delay that is presumptively prejudicial, it is
unnecessary to inquire into the other three factors. Barker, 407 U.S. at 530; Young, 136 Idaho at
117, 29 P.3d at 953. Second, it is one of the factors to be considered once the balancing process
is triggered. Id. Under the Sixth Amendment, the period of delay is measured from the date
there is “a formal indictment or information or else the actual restraints imposed by arrest and
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holding to answer a criminal charge.” United States v. Marion, 404 U.S. 307, 320 (1971).
Similarly, under the Idaho Constitution the period of delay is measured from the date formal
charges are filed or the defendant is arrested, whichever occurs first. Young, 136 Idaho at 117,
29 P.3d at 953.
Crockett’s assertion of a speedy trial violation is based largely on delay that occurred
before he was arrested or charged in the current case; i.e., the period between his initial arrest in
August 2008 and the filing of the present charge on January 23, 2009. This pre-charge period is
not relevant, however, to speedy trial analysis because the constitutional right of the accused to a
speedy trial has no application beyond the confines of a formal criminal prosecution. Doggett v.
United States, 505 U.S. 647, 655 (1992); Davis, 141 Idaho at 836, 118 P.3d at 168. That is, the
speedy trial guarantee of the Sixth Amendment does not apply to the period before a defendant is
arrested, indicted, or otherwise officially accused. United States v. MacDonald, 456 U.S. 1, 6
(1982); Marion, 404 U.S. at 313. In MacDonald, the United States Supreme Court considered a
circumstance like this one where a charge had been filed, dismissed, and refiled and the
defendant was not incarcerated in the interim. The Court said:
Once charges are dismissed, the speedy trial guarantee is no longer
applicable. At that point, the formerly accused is, at most, in the same position as
any other subject of a criminal investigation. Certainly, the knowledge of an
ongoing criminal investigation will cause stress, discomfort, and perhaps a certain
disruption in normal life. This is true whether or not charges have been filed and
then dismissed.
MacDonald, 456 U.S. at 8-9 (footnote omitted). Thus, the time period from August 15, 2008,
when the State dismissed the initial felony DUI charge against Crockett, to January 23, 2009,
when the State refiled the felony DUI charge, is not counted in assessment of Crockett’s claim of
a speedy trial violation.
Crockett contends, however, that this time period should count in his case because, in his
view, the State dismissed the charge in bad faith. His contention that the prosecution’s motive
for the delay is relevant to his speedy trial claim is predicated on the following statement in
MacDonald:
[T]he Speedy Trial Clause has no application after the Government, acting in
good faith, formally drops charges. Any undue delay after charges are dismissed,
like any delay before charges are filed, must be scrutinized under the Due Process
Clause, not the Speedy Trial Clause.
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MacDonald, 456 U.S. at 7 (emphasis added).
A subsequent Supreme Court decision, however, calls into question whether the
prosecutor’s good faith has bearing upon the speedy trial inquiry. In United States v. Loud
Hawk, 474 U.S. 302, 310 n.12 (1986), the Supreme Court stated, “In MacDonald, we held that
where the Government has dismissed an indictment and the defendant is not subject to actual
restraints on his liberty, the Speedy Trial Clause does not apply.” The Loud Hawk Court rejected
the defendant’s claim that the time between dismissal and refiling of charges should count
toward a speedy trial claim because the Government’s desire to prosecute him was a matter of
public record and the Government was still “actively pursuing its case.” The Court instead held
that “under the rule of MacDonald, when defendants are not incarcerated or subjected to other
substantial restrictions on their liberty, a court should not weigh that time towards a claim under
the Speedy Trial Clause.” Loud Hawk, 474 U.S. at 312. Notably absent from the discussion in
Loud Hawk is any indication that bad faith on the part of the prosecution is relevant to
determining whether to count the time between the dismissal of a charge and the refiling of that
charge for speedy trial analysis, as distinguished from due process analysis.
We need not decide the issue, however, because Crockett has shown no bad faith on the
part of the prosecution. Like the district court, we hold that waiting for the outcome of a pending
misdemeanor DUI prosecution in order to file another DUI offense as a felony is not an act of
bad faith. There is nothing impermissible about the State waiting until it could charge a higher
offense, and the State did not thereby gain any unfair advantage as a result of the delayed
prosecution. Crockett’s position is no different than it would have been if the State had initially
waited to file the current charge until after the previous DUI was resolved. Accordingly, the
speedy trial “clock” for this case started again on January 23, 2009.
For purposes of the Barker analysis, the “delay” here was minimal. Crockett filed his
motion to dismiss on July 17, 2009, and his trial was scheduled for August 9, 2009. The district
court denied the motion on August 19, 2009. Thus, the elapsed time was a little over seven
months from the date when Crockett was charged. It is highly questionable that this period of
delay was “presumptively prejudicial” so as to make the threshold showing that is requisite for
speedy trial analysis. However, because we decide that Crockett’s claim fails on the merits, we
need not resolve the issue on that basis. It is sufficient to say that the length of delay does not
weigh in favor of finding a speedy trial violation. Regarding the reason for the delay, from
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January 23, 2009, forward the case proceeded in the ordinary course. Both sides filed and
responded to discovery, and a preliminary hearing was held on April 1, 2009. The next day an
information was filed, and on April 29, 2009, the district court scheduled a trial date. There is no
cause of delay that is heavily chargeable to the State. Therefore, the reason for the delay does
not support a finding of a speedy trial violation. Crockett did not demand a speedy trial until late
in the proceedings, May 13, 2009; thus, the third Barker factor also does not support Crockett’s
claim that his right to a speedy trial was violated.
The fourth factor is prejudice to the accused caused by the delay. The nature and extent
of prejudice arising out of a delay in bringing a criminal action to trial is the most important of
the Barker factors. Davis, 141 Idaho at 840, 118 P.3d at 172. Prejudice is to be assessed in light
of the interests of defendants that the speedy trial right is designed to protect. Young, 136 Idaho
at 118, 29 P.3d at 954. Those interests are: (1) to prevent oppressive pretrial incarceration;
(2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the
defense will be impaired. Barker, 407 U.S. at 532; Young, 136 Idaho at 118, 29 P.3d at 954.
Infringement on the third interest is the most serious form of prejudice because the inability of
the defendant to adequately prepare his or her case skews the fairness of the entire system.
Barker, 407 U.S. at 532; State v. Moore, 148 Idaho 887, 903, 231 P.3d 532, 548 (Ct. App. 2010);
State v. Avila, 143 Idaho 849, 854, 153 P.3d 1195, 1200 (Ct. App. 2006); State v. Hernandez,
133 Idaho 576, 583, 990 P.2d 742, 749 (Ct. App. 1999).
Crockett identifies no actual prejudice to his ability to defend the charge, but makes a
general assertion that such prejudice is hard to prove. He cannot and does not contend that he
was prejudiced by oppressive pretrial incarceration, having been released the day after arrest by
stipulation with the State. The only prejudice he asserts is that “he undoubtedly experienced
significant anxiety awaiting resolution of the felony DUI.” Such anxiety by itself is generally
insufficient to support a claim of a speedy trial violation. Young, 136 Idaho at 118, 29 P.3d at
954; State v. Cotant, 123 Idaho 787, 790, 852 P.2d 1384, 1387 (1993), overruled on other
grounds by State v. Clark, 135 Idaho 255, 258-60, 16 P.3d 931, 934-36 (2000).
Having considered the four Barker factors, we conclude that Crockett’s speedy trial right
under the federal and state constitutions were not infringed. Therefore, the district court did not
err by denying Crockett’s motion to dismiss for violation of his right to a speedy trial.
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B. Due Process
Crockett also contends that the State’s refiling of the same felony charge that had been
dismissed five months earlier violated his right to due process. We find no merit in this
assertion.
Statutes of limitation, which provide predictable, legislatively-prescribed limits on
prosecutorial delay, provide the primary guarantee against overly stale criminal charges. United
States v. Lovasco, 431 U.S. 783, 789 (1977). Nonetheless, statutes of limitation do not fully
define a defendant’s rights arising from events occurring before criminal charges are filed--the
Due Process Clause also “has a limited role to play in protecting against oppressive delay. Id. A
deprivation of due process may occur if a delay in prosecution caused substantial prejudice to the
defendant’s right to a fair trial and the delay was an intentional device to gain a tactical
advantage over the accused. Id. at 795; Marion, 404 U.S. at 324. The inquiry is whether the
delay in prosecution violated those “fundamental conceptions of justice which lie at the base of
our civil and political institutions” and which define “the community’s sense of fair play and
decency.” Lovasco, 431 U.S. at 790 (citations omitted).
Similarly, the Idaho Supreme Court has held that the dismissal and refiling of criminal
complaints by the prosecutor, when done for the purpose of harassment, delay, or forum-
shopping, can violate a defendant’s right to due process. State v. Bacon, 117 Idaho 679, 683,
791 P.2d 429, 433 (1990); Stockwell v. State, 98 Idaho 797, 806, 573 P.2d 116, 125 (1977).
Thus, refiling may not be done “without good cause or in bad faith.” State v. Ruiz, 106 Idaho
336, 337-38, 678 P.2d 1109, 1110-11 (1984); Bacon, 117 Idaho at 683, 791 P.2d at 433. The
prejudice component of the due process inquiry requires that a defendant show actual prejudice
affecting his or her ability to mount or present a defense. Davis, 141 Idaho at 843, 118 P.3d at
175; State v. Averett, 142 Idaho 879, 885, 136 P.3d 350, 356 (Ct. App. 2006). The proof of
prejudice must be definite and not speculative. Averett, 142 Idaho at 885, 136 P.3d at 356.
Here, the district court concluded that Crockett’s only asserted prejudice was that he
preferred an immediate misdemeanor prosecution rather than a somewhat delayed felony
prosecution, and this was not “prejudice” of the sort that would demonstrate a due process
violation. We agree. Crockett showed no way in which the delay in prosecution impeded his
ability to defend against the present charge. In addition, the district court held that Crockett had
not shown that the delay in refiling the charge was a deliberate device to gain a tactical
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advantage over the accused. Again, we agree. The prosecutor’s choice to postpone this charge
until after disposition of a pending DUI case so that the present charge would qualify for a
statutory enhancement to a felony does not deviate from “fundamental conceptions of justice”
which define “the community’s sense of fair play and decency.” To the contrary, it effectuates
the legislative policy that successive DUI offenses, if committed with sufficient frequency,
should be subject to escalating penalties. There has been no showing of any improper motive of
the prosecutor, any tactical advantage to the prosecution produced by the delay, or any prejudice
to Crockett. Therefore, the district court did not err by denying Crockett’s motion to dismiss on
due process grounds.
The district court’s order denying Crockett’s motion to dismiss is affirmed.
Chief Judge GRATTON and Judge MELANSON CONCUR.
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