Thursday, October 14, 2010

Challenge to Validity of Charge Waived by Failure to Raise in District Court.

Here's the latest Supreme Court case refusing to consider an issue because it was not raised below. State v. Luis Pierce, In Pierce, the appellant pleaded guilty to an information charging sex abuse of a child under sixteen (pulling down the panties of a four year old and having a look) and was placed on probation. He later admitted to a violation of that probation. The district court revoked and imposed the suspended sentence.

On appeal, sharp-eyed counsel noticed that the prosecutor made a passing reference to presenting the case to the grand jury. When she was offering photographs as a supplement to the presentence report, the prosecutor stated "These were shown to the grand jury as well." Appellate counsel then challenged the subject-matter jurisdiction of the district court under Article I, § 8 of the state constitution which provides, in part, "[t]hat after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor."

The Court, however, declined to reach the issue because there was no challenge to validity of the information made in the district court. In resolving the issue this way, the Court found that a violation of the above constitutional provision did not deprive the district court of subject-matter jurisdiction. Otherwise, the Court would have had to reach the issue as subject matter jurisdiction can be raised "at any time, including for the first time on appeal." State v. Rogers, 140 Idaho 223, 227, 91 P.3d 1127, 1131 (2004). The Court wrote that "under our current rules of criminal procedure, the appropriate course of action in cases wherein a grand jury has ignored the charge and returned a not true bill is for the defendant to move for dismissal pursuant to I.C.R. 12(b). The failure to do so constitutes a waiver of the issue in the criminal action."

This part of the opinion is concerning. Defense counsel couldn't have had an inkling that the case had been presented to the grand jury until the prosecutor made the comment about the grand jury at sentencing. But motions under I.C.R. 12(b) must be "raised before the trial[.]" So, defense counsel is required to find out whether the prosecutor submitted the case to the grand jury in every case where the case proceeds by the filing of a complaint? I assume the late disclosure in this case amounts to "excusable neglect" which permits the court "to relieve the party of failure to comply with this rule" under 12(d). But if this ever happens to me, I'm going to file a Rule 12(b) motion and a motion to withdraw the guilty plea under Rule 33(c).

Thursday, October 7, 2010

Free Money for PDs!

If you're a public defender who is still paying back student loans, take a look at this website ( and see if you can get some repayment help from the feds. According to the site: "The [Idaho/John R. Justice] Program provides educational loan repayment benefits to prosecutors and public defenders in Idaho (ID), using funding from the John R. Justice (JRJ) Program. The purpose of the program is to encourage qualified attorneys to choose careers as prosecutors and public defenders and to continue in that service."

It looks like those selected can get up to $6,000 a year and up to $60,000 in total lifetime benefits. In return, you must agree to “remain employed as a prosecutor or public defender for a period of service of not less than three years (36 months) unless involuntarily separated from employment.” (Emphasis added.) That's a good deal.

See #32 in my recent book "51 Good Reasons to Get Fired." Get your ID/JRJ money, tell your boss to shove his/her caseload, get involuntarily separated and then open up that lucrative private law practice you've been dreaming about. It worked for me, except for the lucrative part and the part about telling my boss to shove it. Actually, I didn't get any money from the feds either. But I have most definitely been involuntarily separated.

Wednesday, October 6, 2010

What Does "Shall Not Be Given Retroactive Application" Mean?

Last July the Court issued State v. Perry which changed the standards employed by Idaho appellate courts in analyzing trial errors for fundamental error and harmless error. The new standards make it more difficult to prevail on appeal without an objection below. See SCOIDBlog for Thursday, July 22, 2010: State v. Perry -- Restatement of Appellate Standards of Review.

There was a small silver lining in the opinion. It appeared that the new rules would be given prospective application only. I say "appeared" because the Court said "[t]his restatement shall not be given retroactive application," but then applied the new standards to Perry's case. This left me wondering: Is Perry retroactive or not? That question bothered Mr. Perry so much that he filed a petition for rehearing.

Today we found out the Court is going to apply the rule retroactively, notwithstanding its statement above, at least until the petition for rehearing in Perry is decided.

In State v. Longest, the appellant argued that the State had breached the plea agreement. Unfortunately, trial counsel had not objected at the time of the breach. Undeterred, Mr. Longest argued that it could be considered for the first time on appeal under the pre-Perry fundamental error doctrine. The Court, however, applied the new Perry standard and stated that "Longest's claim of error does not pass muster under Idaho's fundamental error doctrine and will not be reviewed for the first time on appeal."

So, if Perry applies to cases tried before Perry was decided, what does the Court mean when it says that Perry shall not be given retroactive application? Does it mean that Perry does not apply to cases where a post-conviction petition has been filed? I don't think so. How could a new rule of appellate review apply to a post-conviction case pending in the trial court? Moreover, Perry is unfavorable to defendants/appellants so why would a post-conviction petitioner seek retroactive application? To my mind, the Court's statement in Perry cannot be squared with its application of the new rules in these cases.

I'm hoping that the Court grants Mr. Perry's petition for rehearing and makes it clear that Perry does not apply to cases decided in the district court prior to the issuance of that opinion.

To read State v. Longest:
To read State v. Perry:

Sunday, October 3, 2010

Judge's Ruling Admitting Highly Prejudicial Evidence The Week Before Trial Did Not Require Continuance Where No Specific Prejudice Was Shown.

The Court has affirmed the first-degree murder conviction of Donna Thorgren. This case presented the question of whether the trial court abused its discretion in denying a motion to continue a trial when it changed its mind about the admissibility of highly inculpatory evidence a week before it was set to start.

Donna Thorngren was charged by the grand jury with murdering her husband. Her son, Austin, was indicted as an accessory. The cases were severed for trial because the State wanted to introduce a statement the son made to his friend. According to the Court: "The statement occurred after a conversation between Donna and Austin in a shed outside Donna's mother's home on the day Curtis was murdered, but before his body was discovered. Ketterling entered the shed shortly after Donna left and found Austin visibly shaken. When Ketterling asked Austin what was wrong, he said 'I think my mom did it.' "

At the motion to sever, the court said that the statement "would not be admissible as against Donna."

One week before trial, the district court changed its ruling and held that the statement would be admissible as an excited utterance. Donna filed a motion for continuance arguing the changed ruling impaired her trial strategy. The motion was denied by the district court. Donna was convicted.

On appeal, she argued that: 1) the statement was not an excited utterance; 2) her right to due process was violated when the court changed its ruling only a week before trial; and 3) the court should have granted the motion to continue.

The Court rejected all three arguments. It first held that the court did not abuse its discretion in admitting the statement even though it was made in response to a question and not a spontaneous statement. "The question in this case does not undermine its spontaneity because Ketterling asked a[n] . . . open-ended question ('what was wrong') to which Austin briefly replied 'I think my mom did it.' Because the question was not specific or leading, and because Austin's response was brief and made while emotionally unsettled, the statement does not lack spontaneity or bear other indicia of reflective thought."

Second, the Court found that Donna's reliance on the pretrial ruling was not justified thus her due process rights were not violated when the court changed its mind. It explained: "The district court's initial 'ruling' on the shed statement merely served as a backdrop for its determination of the motion to sever the trials, and was not a definitive ruling on the ultimate admissibility of the shed statement." It stated that "[b]ecause the pretrial ruling in this case was not definitive on the issue of the admissibility of the shed statement, but rather concerned whether Donna and Austin should be tried separately, Donna was not in a position to 'sensibly rely' on the definitiveness of the ruling[.]" "Moreover," it continued, "even if the district court did definitively rule on the admissibility of the shed statement, a party must be mindful of a court's discretion to change its own pretrial rulings, especially evidentiary rulings."

Third, the Court found that Donna did not demonstrate that her substantial rights were prejudiced by the denial of the motion to continue. The only specific argument made in support of the motion was that counsel had not sufficiently prepared to impeach Ketterling's testimony. "However, Ketterling was thoroughly impeached at trial, which supports a finding of no prejudice" and, "Donna's failure to raise and pursue the issue immediately after her conviction and before sentencing, provides additional assurance that Donna suffered no prejudice as a result of this ruling."

Here's a link to the opinion.