State v. Ish ( 2024 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49412
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, February 2024 Term
)
v. ) Opinion filed: June 28, 2024
)
MARTIN EDMO ISH, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
Bannock County. Rick Carnaroli, District Judge.
The judgment of conviction and sentence are affirmed.
Erik R. Lehtinen, State Appellate Public Defender, Boise, for Appellant. Sally
Cooley argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Kenneth Jorgensen
argued.
_______________________________________________
MOELLER, Justice.
Appellant Martin Edmo Ish was convicted of voluntary manslaughter in 2017 and
sentenced to a unified sentence of 15 years with 10 years fixed and five years indeterminate.
However, Ish’s original conviction was later vacated by this Court in State v. Ish, 166 Idaho 492,
461 P.3d 774 (2020). After this Court’s opinion became final on May 5, 2020, the district court
reinstated Ish’s bail. When he was unable to post a bond, he was returned to the Bannock County
jail to await his retrial.
While Ish was awaiting his second trial, the Idaho Supreme Court issued a series of orders
addressing public safety at jury trials during the COVID-19 pandemic, which postponed the
commencement of Ish’s second trial several times. Citing speedy trial concerns, Ish repeatedly
moved for dismissal of his case, but his requests were denied by the district court. Ish also moved
for a change of venue, which had been granted in his first trial. Although the motion was joined
by the State, the motion to change venue was denied by the district court.
1
Ish’s second trial commenced on July 27, 2021. During voir dire, and again during the
evidentiary phase of the trial, Ish moved to strike Juror No. 3, a Bannock County probation officer,
for cause. The district court denied both requests to strike the juror.
At the conclusion of his second trial, a jury again convicted Ish of voluntary manslaughter.
Ish was sentenced to a fifteen-year unified sentence, the same overall sentence he received before;
however, this time the district court ordered that the first 14 years would be fixed with one year
indeterminate. This resulted in a fixed sentence four years longer than his original sentence. After
the sentence was pronounced, Ish filed a motion to vacate his judgment or, in the alternative, for
relief under Idaho Criminal Rule 35. The district court denied Ish’s motions.
Ish timely appealed to this Court, asserting seven points of error. For the reasons set forth
herein, we affirm Ish’s judgment of conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case concerns the second trial of Martin Edmo Ish, who was originally convicted of
voluntary manslaughter in 2017 for the 2009 death of Eugene Lorne Red Elk. Ish’s first conviction
was vacated in 2020 in State v. Ish, 166 Idaho 492, 461 P.3d 774 (2020) [hereinafter “Ish I”], after
this Court concluded that the district court erred in its ruling on Ish’s challenge to the jury panel
under Batson v. Kentucky, 476 U.S. 79 (1986). The facts related to the death of Red Elk were
previously articulated in Ish I, where this Court explained:
On the evening of June 14, 2009, Ish and some friends were barhopping in
Pocatello, Idaho. At one point, the group patronized the Bourbon Barrel until the
staff ordered Ish to leave after a confrontation with bar staff. Ish’s friends took him
a few blocks down the road to Duffy’s Tavern. Ish’s friends returned to the Bourbon
Barrel. When Bourbon Barrel staff learned of Ish’s whereabouts, they phoned
Duffy’s Tavern to inform them of Ish’s actions earlier that evening. Upon receiving
the call, Red Elk, who was working as a bouncer that night, asked Ish to leave the
bar and he complied. A short time later, Red Elk left the bar to visit his girlfriend.
A patron[,] [Narcissus “Narci” Kimball,] drove up to Duffy’s Tavern and
found Red Elk lying in the parking lot gurgling blood. She alerted the bar, the police
were called, and an investigation followed. Red Elk was taken to the local
emergency room where it was determined that he had suffered a brain injury from
blunt force trauma to the head. He was life-flighted to a medical center in Idaho
Falls for surgery. He died three days later.
Ish I, 166 Idaho at 497, 461 P.3d at 779 (alteration added). This Court’s opinion in Ish I was filed
on April 13, 2020. Thereafter, the remittitur was issued on May 5, 2020.
2
The remittitur was issued during the early days of the COVID-19 pandemic. In March of
2020, Idaho was under a statewide emergency declaration issued by Governor Brad Little. While
the courts of this state remained open throughout the pandemic, restrictions were imposed through
a series of emergency orders issued by this Court. These orders were issued in response to the state
of emergency, the rising number of COVID-19 cases throughout the state, and mounting concerns
for public safety. Under the order in force in May of 2020, the district court was temporarily unable
to call jury panels “during the pendency of this Amended Order.” In Re: Idaho Supreme Court
Response to COVID-19 Emergency, Amended Order (Mar. 23, 2020). This Court explained that
“[t]his order prohibiting the calling of juries shall be deemed good cause to deny a motion to
dismiss a criminal case based upon the time requirements set forth in section 19-3501, Idaho
Code.” Id. The order was extended and remained in effect until September 14, 2020. A later order
permitted jury trials to resume provided they met certain safety standards established by the
Supreme Court. However, this order authorized the administrative district judge in each judicial
district to further suspend jury trials after considering the local rates of outbreak. Accordingly, the
suspension of jury trials was extended in Bannock County through September 18, 2020, after
which trials in Bannock County briefly resumed until November 9, 2020.
During this first suspension of jury trials, on July 14, 2020, Ish moved the district court for
a change of venue. Although the motion was joined by the State, it was later denied by the district
court in a written order.
At a hearing on August 12, 2020, in preparation for the resumption of jury trials in Bannock
County, there was a discussion between the district court and counsel regarding potential trial
dates. In that exchange, counsel for Ish requested the trial be scheduled “as soon as we can have
it.” The district court ultimately scheduled the trial for December 7, 2020. This trial setting was
later vacated by the Idaho Supreme Court’s second suspension of jury trials on November 9, 2020,
due to a surging wave of COVID-19 cases in Idaho. This Court explained in its order that “data
shows that the weekly moving average incidence rate of COVID-I9 cases in the state [had]
increased from September 13, 2020 to November 8, 2020 by 335%, with an average week over
week increase of 21%.” Order Re: Commencement of Jury Trials (Nov. 9, 2020). We again
temporarily suspended all jury trials effective November 9, 2020, and later extended that
suspension on December 7, 2020. The suspension of jury trials was finally lifted on March 1, 2021,
and jury trials were recommenced throughout the state.
3
The district court scheduled Ish’s trial for April 6, 2021. On March 12, 2021, the State
moved to appoint conflict counsel for Ish after a lead prosecutor left the Bannock County
Prosecuting Attorney’s Office to take a job at the Bannock County Public Defender’s Office. Two
weeks later, on March 26, 2021, the State moved to vacate the April 6 trial setting. The State
explained that Dr. Dennis Minister, the “primary emergency room physician who treated Red Elk,”
was “ ‘absolutely unavailable’ to attend trial the week of April 6, 2021,” due to his surgical
schedule and his own health concerns. The State also explained that another witness, Dr. Robert
Cach, 1 the neurosurgeon who treated Red Elk at Eastern Idaho Regional Medical Center in Idaho
Falls was the only available, on-call trauma surgeon at his medical facility during the period
scheduled for trial and “if he were unavailable to treat a patient due to being in court, the patient
would have to be diverted to another medical facility and delay emergency treatment.” In seeking
to postpone the trial, the State added:
While the [S]tate is sensitive to the fact the defendant’s retrial has been
substantially delayed due to COVID, the [S]tate would be unable to present its case
without the participation of [these] two key medical witnesses, and requests the
court consider resetting the matter sometime in June 2021. Doing so will give the
[S]tate ample time to secure the attendance of necessary witnesses.
(Emphasis added). Importantly, both State’s witnesses were frontline medical doctors and Idaho
was still under a statewide emergency declaration due to COVID-19.
The same day the State’s motion to vacate was filed, Ish filed an objection to the motion
to appoint conflict counsel. Three days later, on March 29, 2021, at a hearing on both matters, the
district court denied the request for appointment of conflict counsel but approved the State’s
motion to vacate the trial date. Ish’s trial was rescheduled for June 2, 2021. However, without an
initial explanation, the district court later vacated the June 2, 2021, setting and rescheduled the
trial for July 27, 2021.
On July 20, 2021, Ish again moved for dismissal, asserting a violation of his constitutional
right to a speedy trial. Importantly, the district court recognized that Ish asserted his right to a
speedy trial:
I will note for the record that Mr. Andrew has insisted upon Mr. Ish’s right to speedy
trial from the very beginning at almost every, if not every, juncture when we were
1
Both “Cache” and “Cach” are used in the record. We use the latter because he is referenced that way in the briefing
to this Court.
4
talking about trial dates. So it’s not an issue of not asking for the speedy trial. I
think that’s been sought consistently since the beginning.
Two days later, the State again moved to continue the trial “on the grounds . . . that the State
previously submitted a motion and affidavit requesting that the court rule that Dr. Charles Garrison
is an unavailable witness . . . [and] that Dr. Garrison has serious health issues that prevent him
from testifying in the upcoming trial set to begin July 27, 2021.”
The district court heard argument on July 22, 2021, and took both matters under
advisement, with a decision expected the following day. The district court again noted for the
record that Ish had asserted his “right to speedy trial from the very beginning at almost every, if
not every, juncture when we were talking about trial dates.” The court also explained, for the first
time, its reason for the June 2, 2021, continuance:
And I wanted to state for the record, there were a number of reasons for the
June 2 continuance. First and foremost was we were not ready at that point to get
the written questionnaire out to the jury pool, so that wasn’t ready. And I suppose
I could have raised that issue, but that wasn’t in at the time. And the number of
jurors that were polled by the jury commissioner to begin trials, which I believe the
case you talked about, the two-day one, was the first one for Bannock County or
one of the first ones for Bannock County in early June, and the jury commissioner
had not polled [sic] enough jury members for us to have had enough for a panel. So
that’s why it was continued on my own motion, and I probably should have made
that clear on the record why it was being moved.
I stayed with the vacation plan that I had, and I did go on vacation. That’s
why Judge Dunn covered that one trial on the 2nd of June. But if we had been
prepared to go, I would have probably had to forgo vacation plans. But I didn’t
think we were ready to go with this trial, and that’s the reason why it was continued
on my own motion, so...but I think even with that continuance, we're probably at
about the five-month mark, give or take, since we had the opportunity following
the lifting of the tolling of the speedy trial provision.
The following day, before the commencement of voir dire, Ish moved for a change of
venue, citing information contained in the completed jury questionnaires. Counsel for Ish
explained the basis for the motion:
[B]ased on my count, there are 44 of these jurors that have been exposed to this
case through the media. And so I think if the [c]ourt grants -- and I’m prepared to
argue it more fully, but I think if the [c]ourt grants that, then there isn’t really a need
to go through these individual jurors and talk about the dos or don’ts.
5
The district court responded with a question to counsel about a change of venue delaying the trial
even further. Counsel for Ish attempted to balance his concern over the jury pool with his client’s
desire to have the trial as soon as possible:
I know. And I’ve -- and I’ve discussed that this aftern [sic] -- or just a moment ago
with Mr. Ish. And between having a trial that we have to do twice because of pretrial
publicity or we get into the questioning and have to vacate it after all these jurors
are here and just making a decision up front -- I want to have his trial as soon as
possible, Mr. Ish wants to have it as soon as possible, but he wants to have it with
a pool of his peers that isn’t influenced by all the pretrial publicity.
So he understands that, and that’s what we’re having to balance, Your
Honor. The fact that that’s going to be -- having a jury that hasn’t been exposed to
this is more important than just having the trial done.
The district court then asked the State for its perspective on the matter. The State responded
that it seemed like “a pretty small number of people that really had any knowledge of this case.”
After further colloquy, the district court deferred ruling on the motion for a change of venue until
voir dire was completed: “I think what we need to do is go through and pick through this panel
and see how many we have left by agreement or order today.” Later that same day, Ish followed
up on his oral motion for a change of venue by filing a written motion.
The following day, the district court took up Ish’s renewed motion for a change of venue.
The State joined the motion for a change of venue, noting:
Although the State and defense seldom really agree on much, I think this is an issue
that we do agree upon. And I think Mr. Andrew’s been articulate in explaining his
concerns from his client’s perspective. And at the end of the day, the State is also,
I believe, responsible for doing what they can to ensure that the defendant has a fair
trial. And in this case, given the composition of this jury pool, the State has the
same concerns that the defense does. So I would just, for the record, state that the
State is joining in the defendant's motion for a change of venue.
Ruling from the bench, the district court denied the motion for a change of venue and the motion
to dismiss for a violation of Ish’s speedy trial rights. The district court also denied the State’s
request for another continuance and the trial proceeded to voir dire.
As voir dire progressed, Ish moved to strike Juror No. 3 for cause due to the juror’s
exposure to media coverage and his employment. On his jury questionnaire, Juror No. 3 indicated
that he had been exposed to news coverage of the case. In a follow-up colloquy with counsel during
voir dire, Juror No. 3 explained that he had seen a “blip” of coverage, which he explained as “[j]ust
once in a while a blip will come up of who they charged or who they arrested.” When asked about
6
whether he had any specific knowledge of the case, Juror No. 3 explained: “Yeah, just, like I said
there, that there was an altercation at a bar in town, and an individual was killed.”
As for his employment, Juror No. 3 explained that he was a probation officer for Bannock
County and worked with the Pocatello Police Department on “at least” a weekly basis. The
following is an early colloquy between counsel for Ish and Juror No. 3:
DEFENSE COUNSEL: So, Juror Number 3, what -- for our record, just explain
what your experience or what your knowledge is of law enforcement.
PROSPECTIVE JUROR: What my knowledge is of law enforcement?
DEFENSE COUNSEL: Yes.
PROSPECTIVE JUROR: I’m a probation officer for the State of Idaho, and I have
a cousin that works for Nampa PD.
DEFENSE COUNSEL: Okay. How often do you deal with police officers in your
job?
PROSPECTIVE JUROR: On a weekly basis at least.
DEFENSE COUNSEL: Okay. And what sort of things do you do with them?
PROSPECTIVE JUROR: We can do searches. We can do arrests with them,
transports. That’s kind of what I can think of off the top of my head.
DEFENSE COUNSEL: So if you had, for instance, somebody that had a warrant
or for some other reason needed to go to jail and they were at your office, would
you have them come to your office and do the transport?
PROSPECTIVE JUROR: We could, or we could do the transport ourself.
DEFENSE COUNSEL: What about the searches? So they participate in -- is it
residential searches?
PROSPECTIVE JUROR: Residential searches or searches of vehicles. We ask
them for their assistance in doing those searches, yes.
DEFENSE COUNSEL: Okay. In terms of the variety of officers, I mean, do you
deal with the same ones all the time or does it --
PROSPECTIVE JUROR: It’s a variety. But you do get to know some a little bit
more than others just because a lot of stuff happens on a night shift or on weekends
and that tends to be when -- the officers you become a little more familiar with.
DEFENSE COUNSEL: Do you think there’s an agency you deal with the most?
PROSPECTIVE JUROR: Probably Pocatello Police Department.
DEFENSE COUNSEL: Okay. And so you said weekly. Maybe once a week? Twice
a week? And I’m sure it fluctuates, but...
PROSPECTIVE JUROR: In the current position I’m in, not as much, but probably
once every couple weeks.
7
DEFENSE COUNSEL: Okay. And in your dealings with them -- and I say this only
tongue in cheek, but do they have some superpower in determining the truth or
doing anything else?
PROSPECTIVE JUROR: No, they don’t.
DEFENSE COUNSEL: Okay. Some of them might have some training, correct,
that’s helpful?
PROSPECTIVE JUROR: Correct.
DEFENSE COUNSEL: Okay. But have you found any of them to be basically a
human lie detector?
PROSPECTIVE JUROR: No.
Thereafter, Ish moved to have Juror Number 3 dismissed “for cause because of his business
relationship with the prosecutor’s office.” The district court took the matter under advisement and
later ruled from the bench, concluding that neither actual nor implied bias had been established:
THE COURT: All right. Did a little bit of looking at some Idaho case law,
and I’m going to find that there’s no actual or implied bias, especially the statutory
implied bias under 19-2020 upon which to excuse this juror for cause. I find that
we have a fair and impartial juror -- potential juror ready to be seated in Juror
Number 3.
Thus, Juror No. 3 remained on the jury panel and was eventually seated as a trial juror.
Ish’s trial commenced on July 29, 2021. During the State’s case-in-chief, another concern
regarding Juror No. 3 was raised. Narcissus “Narci” Kimball testified that she was the person who
found Red Elk lying wounded and unconscious outside of Duffy’s Tavern. However, Kimball’s
name was “left off the [jury] questionnaire” filled out before the trial and no juror was questioned
during voir dire about their knowledge of or relationship to her. After an inquiry of the jury panel,
Juror Number 3 was the only juror who indicated that he knew her. Voir dire was reopened for
Juror Number 3, who explained that three to four years prior, he was Narci’s husband’s probation
officer. He explained that he had been to her house and spoke with her about her husband’s
progress:
JUROR: We’re required to be in their homes once in a while, so -- and I can’t even
remember. It’s been a couple, three years, I think four years since I supervised him.
I was in her house maybe once every two, three months. Sometimes she was there;
sometimes she wasn’t. To be honest, I didn’t even recognize her till I saw her
husband sitting back there, and that's when I put two and two together.
PROSECUTOR: But you don’t think that would impact your ability to be a juror?
JUROR: I don’t.
8
PROSECUTOR: Okay. Thank you.
THE COURT: Mr. Andrew.
DEFENSE COUNSEL: Do you remember any interactions with her, conversations,
anything like that?
JUROR: Not other than if I was in her house, I might have asked her how she felt
her husband was doing, how things were going for her, and that’s about it.
DEFENSE COUNSEL: And are those sort of standard things you discuss with
spouses?
JUROR: Absolutely.
After this discovery, Ish renewed his objection to Juror Number 3, which the district court denied.
At the conclusion of the trial, the jury found Ish guilty of voluntary manslaughter. Ish was
later sentenced to 14 years fixed with 1 year indeterminate. Notably, the fixed portion of his
sentence was 4 years longer than the original fixed sentence imposed following his first trial.
Thereafter, Ish filed a motion to “vacate [the] judgment or in the alternative, [a] motion pursuant
to Idaho Criminal Rule 35.” The district court denied the motion.
Ish filed a timely notice of appeal and argued seven points of error: (1) Ish’s speedy trial
rights were violated; (2) the district court erred in denying Ish’s motion for a change of venue; (3)
the district court erred in denying Ish’s motion to strike Juror No. 3 for cause; (4) all of the errors
in the aggregate deprived Ish of his right to a fair trial; (5) the district court violated Ish’s right to
due process when it “imposed a vindictive sentence” following his first successful appeal; (6) the
district court abused its discretion by imposing a fifteen year sentence, with fourteen years fixed,
following Ish’s guilty verdict for voluntary manslaughter in the second trial; and (7) the district
court abused its discretion in denying Ish’s Idaho Criminal Rule 35 motion in light of the new
information he provided.
II. STANDARDS OF REVIEW
As we have said, “[c]onstitutional issues and the construction and application of legislative
acts are pure questions of law over which this Court exercises free review.” Hall v. State, 155
Idaho 610, 615, 315 P.3d 798, 803 (2013). “Whether there was an infringement of [a defendant’s]
. . . right to a speedy trial presents a mixed question of law and fact.” State v. Clark, 135 Idaho
255, 257, 16 P.3d 931, 933 (2000); State v. Prano, 170 Idaho 337, 340, 510 P.3d 690, 693 (Ct.
App. 2021). We defer to the trial court’s “findings of fact if supported by substantial and competent
9
evidence. This Court, however, exercises free review of the trial court’s conclusions of law.” Id.(citations omitted).
“The Court employs an abuse of discretion standard when reviewing a district court’s
ruling on a motion to change the venue.” State v. Sheahan, 139 Idaho 267, 278, 77 P.3d 956, 967
(2003) (quoting State v. Jones, 125 Idaho 477, 484, 873 P.2d 122, 129 (1994)). Moreover, we have
noted that the scope of the discretion is “broad.” State v. Grube, 126 Idaho 377, 385, 883 P.2d
1069, 1077 (1994) (citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989))
(“[T]he district court has broad discretion to decide whether to remove a juror for cause.).
Sentencing decisions are also highly discretionary, and “[s]o long as the sentence is within
the statutory limits, the appellant must show that the trial court, when imposing the sentence,
clearly abused its discretion.” State v. Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006).
Likewise, in reviewing a Rule 35 motion, we have held that when “the basis for the illegality of
the sentence is that the sentence is excessive, and the sentence is within the statutory limits, a
motion for reduction of sentence under Rule 35 is a plea for leniency, and this Court will then
review a denial or grant of the motion for an abuse of discretion.” State v. Draper, 151 Idaho 576,
601, 261 P.3d 853, 878 (2011) (alteration in original) (citing State v. Farwell, 144 Idaho 732, 735,
170 P.3d 397, 400 (2007)). “When presenting a Rule 35 motion, the defendant must show that the
sentence is excessive in light of new or additional information subsequently provided to the district
court in support of the Rule 35 motion.” Id. (alteration in original) (citing Farwell, 144 Idaho at
735, 170 P.3d at 400). “If the sentence was not excessive when pronounced, the defendant must
later show that it is excessive in view of new or additional information presented with the motion
for reduction.” Knighton, 143 Idaho at 320, 144 P.3d at 25.
When reviewing discretionary decisions of a trial court, we employ our well-known abuse
of discretion standard, which requires us to consider “[w]hether the trial court: (1) correctly
perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3)
acted consistently with the legal standards applicable to the specific choices available to it; and (4)
reached its decision by the exercise of reason.” State v. Leavitt, 171 Idaho 757, 525 P.3d 1150,
1157 (2023) (alteration in original) (quoting State v. Villa-Guzman, 166 Idaho 382, 384, 458 P.3d
960, 962 (2020)); see also Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194
(2018).
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III. ANALYSIS
Ish assigns seven points of error, all related to rulings that the district court made before,
during and after Ish’s trial. We will address each in turn.
A. Ish’s right to a speedy trial was not violated.
(1) The right to a speedy trial is renewed during a subsequent trial on remand even if
the right was waived during the first trial.
Before we begin with the application of the speedy trial rule to this case, we note that during
oral argument the State expressed disagreement with this Court’s recent holding in State v.
Lankford, 172 Idaho 548, ____, 535 P.3d 172, 184 (2023), arguing that the right to a speedy trial,
once waived, is not automatically renewed on remand. Despite recognizing our holding in that
case, the State urged this Court to reconsider its holding in Lankford and conclude that there is not
a “right to a speedy retrial.” We decline the State’s invitation to reconsider our holding in Lankford
and refuse to read the speedy trial right, under both the United States Constitution and the Idaho
Constitution, so narrowly.
This Court recently articulated the proper analysis for review of an alleged violation of the
right to a speedy trial in Lankford. In that case, this Court followed a similar analytical framework
to that articulated in State v. Talmage, 104 Idaho 249, 658 P.2d 920 (1983). Talmage concerned a
retrial that followed a mistrial. This Court calculated the length of the delay as the time between
the mistrial and the second trial: “The interval between the first and second trials in this action, the
delay of which defendant complains, was approximately seven and one-half months. A delay of
this length is sufficient to trigger our inquiry into whether a defendant has been denied a speedy
trial.” Id. at 252, 658 P.2d at 923. We even used the phrase “speedy retrial” later in that opinion
when evaluating whether the right had been violated. Id. Thus, our decision in Lankford was not
the trailblazing, expansion of the speedy trial right that the State suggests it was.
It must also be remembered that a defendant invoking the speedy trial right upon a retrial
may have already experienced some level of constitutional error which necessitated a new trial.
Under the State’s view, a defendant who has experienced a constitutionally deficient trial, served
significant prison time, successfully appealed his conviction, and has effectively been restored to
a state of innocence should not have his right to a speedy trial restored. Regardless of whether the
right was waived in the first trial, the State’s position is untenable, manifestly unjust, and runs
afoul of the very purpose of the right to a speedy trial. The right ensures that the State does not
11
unduly burden a defendant with oppressive delays under the weight of prosecution from the State
itself. Indeed, as the Supreme Court of the United States has said of the speedy trial right: “This
guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to
minimize anxiety and concern accompanying public accusation and to limit the possibilities that
long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383
U.S. 116, 120 (1966).
While the need for a speedy trial is vitally important to all defendants in all circumstances,
it is perhaps even more vital to defendants who have already had years of their life disrupted by a
prior conviction that did not meet constitutional standards. Thus, we reaffirm our holding in
Lankford and reiterate that, just as the presumption of innocence is restored to the defendant on
remand, the right to a speedy trial is fully restored upon the issuance of a remittitur.
(2) Applying the balancing test from Barker v. Wingo, Ish’s right to a speedy trial was
not violated.
To determine whether a defendant’s speedy trial right has been violated, we employ the
same balancing test adopted in Barker v. Wingo, 407 U.S. 514 (1972). “In applying Barker, this
Court balances four primary factors identified by the Supreme Court of the United States: ‘(1) the
length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a
speedy trial; and (4) the prejudice to the defendant.’ ” Lankford, 172 Idaho at ___, 535 P.3d at 184
(citing Clark, 135 Idaho at 258, 16 P.3d at 934); see also Barker, 407 U.S. at 530. We will examine
each factor in turn.
(a) Length of the delay
Although Barker is framed as a four-factor framework, the first factor, the length of the
delay, “serves as a threshold consideration in determining whether further inquiry is required.”
Lankford, 172 Idaho at ___, 535 P.3d at 184. As the United States Supreme Court noted in Barker:
“The length of the delay is to some extent a triggering mechanism. Until there is some delay which
is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the
balance.” 407 U.S. at 530. Thus, we must first decide whether the length of delay here is
presumptively prejudicial.
In Lankford, this Court observed that it had “previously determined that a seven-and-a-
half-month interval between a mistrial declaration and a second trial was presumptively
prejudicial. . . .” 172 Idaho at ___, 535 P.3d at 185 (first citing State v. Talmage, 104 Idaho 249,
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252, 658 P.2d 920, 923 (1983) (concluding a seven-and-one-half-month period was presumptively
prejudicial); and then citing State v. Lindsay, 96 Idaho 474, 476, 531 P.2d 236, 238 (1975)
(concluding a fourteen month period was presumptively prejudicial); and then citing State v.
Campbell, 104 Idaho 705, 708, 662 P.2d 1149, 1152 (Ct. App. 1983) (concluding a twelve-month
period was presumptively prejudicial)). We went on to conclude that the delay of over two years
before retrial in Lankford was presumptively prejudicial.
In making this determination, this Court in Lankford looked to the period between the
issuance of the remittitur and the commencement of the new trial. Lankford, 172 Idaho at ___, 535
P.3d at 185. Applying the same analysis here, we note that the remittitur in Ish I was issued on
May 5, 2020, and Ish’s second trial commenced on July 27, 2021. Thus, the length of delay was
448 days—almost 15 months. Consistent with this Court’s prior decisions, we conclude that the
length of the delay in this case was presumptively prejudicial and triggers further inquiry into the
remaining three factors under Barker.
(b) The reasons for the delay
Having found the length of the delay presumptively prejudicial, we now turn to the reasons
for the delay. Importantly, the weight ascribed to the various reasons for a delay is not necessarily
the same. As the Supreme Court explained in Barker:
[D]ifferent weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense should be weighted heavily
against the government. A more neutral reason such as negligence or overcrowded
courts should be weighted less heavily but nevertheless should be considered since
the ultimate responsibility for such circumstances must rest with the government
rather than with the defendant. Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay.
Barker, 407 U.S. at 531 (footnote omitted). Ish correctly observes that none of the delays to his
trial were caused by his own actions. Instead, he points to the multiple delays that were caused by
this Court’s COVID-19 emergency orders, the State’s requests for continuances, and the district
court’s continuance on its own initiative.
First, concerning the COVID-19 delays, Ish recognizes that this Court’s orders “suspending
jury trials provided references to the good cause requirement set forth in I.C. § 19-3501.” However,
Ish asserts that the Idaho Supreme Court’s orders did not toll or suspend Ish’s federal or state
constitutional rights to a speedy trial. In support of his position, Ish generally cites Justice
Gorsuch’s concurring opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, where the Justice
13
explained that the “Government is not free to disregard the First Amendment in times of crisis.”
592 U.S. 14, 21, 141 S. Ct. 63, 69, 208 L. Ed. 2d 206 (2020) (Gorsuch, J., concurring). Ish then
points to the majority opinion, which explains that: “even in a pandemic, the Constitution cannot
be put away and forgotten.” Roman Cath. Diocese of Brooklyn, 592 U.S. at 19.
We acknowledge the authority cited by Ish and agree that the Constitution is always our
lodestar and should not be forgotten—especially in times of crisis. However, even Justice Gorsuch
recognized the right at issue in Roman Catholic Diocese of Brooklyn (attending religious services)
was not absolute, such as when the government is “pursuing a compelling interest and using the
least restrictive means available.” Roman Cath. Diocese of Brooklyn, 592 U.S. at 21 (Gorsuch, J.,
concurring) (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993)).
Further, as Justice White’s concurring opinion in Barker explains, there can be intrusions into the
right of a speedy trial upon a pressing public need: “A defendant desiring a speedy trial, therefore,
should have it within some reasonable time; and only special circumstances presenting a more
pressing public need with respect to the case itself should suffice to justify delay.” Barker, 407
U.S. at 537 (White, J., concurring) (emphasis added).
In this case, as it pertains to the delays attributable to this Court’s emergency orders, there
were dire circumstances presenting “a more pressing public need”: protecting the health of all trial
participants during a global pandemic. While delays in commencing a trial must still be balanced
against the defendant’s interests under the Barker analysis, we conclude that the pandemic-related
delays were justified under the circumstances. When the remittitur in Ish’s case was issued, all
jury trials were temporarily suspended statewide. This occurred during the early days of the
COVID-19 pandemic when the virus was little understood and concepts like “social distancing”
and “flattening the curve” were relatively new concepts. Of the 448 days between remittitur and
Ish’s second trial, this Court’s pandemic-related orders accounted for 248 of those days. We
conclude that these delays were justifiable under Barker. The following table illustrates the causes
for the delays and the amount of time elapsed.
14
Date of Event Event Elapsed Time
May 5, 2020 Issuance of Remittitur
Jury trials suspended statewide for the first time by Idaho
Effective 132 Days*
Supreme Court’s emergency order (suspended prior to
May 5, 2020
issuance of the Remittitur on Mar. 23, 2020)
Statewide suspension lifted by this Court; Bannock County 4 Days*
Sept. 14, 2020
extends suspension for its courts for 4 additional days
Sep. 18, 2020 Jury trials resume in Bannock County; Ish’s trial set for Dec. 7, 2020
Sep. 18, 2020
Time between the first and the second suspension of jury 52 Days**
to
trials by Idaho Supreme Court’s emergency order
Nov. 9, 2020
Jury trials suspended statewide for the second time by Idaho 112 Days*
Nov. 9, 2020
Supreme Court’s emergency order
Mar. 1, 2021 Jury trials resume statewide; Ish’s trial reset for Apr. 6, 2021
Apr. 6, 2021 First continuance – Ish’s trial reset for June 2, 2021
148 Days**
May 21, 2021 Second continuance – Ish’s trial reset for July 27, 2021
July 27, 2021 Ish’s second jury trial commences
*Days elapsed during Supreme Court ordered suspension of jury trials 248 Days
**Days elapsed due to other reasons 200 days
TOTAL DAYS BETWEEN REMITTITUR AND START OF TRIAL 448 Days
As shown above, the remaining 200 days were attributable to, at least in part, decisions of
the district court. Of those 200 days, there was a 52-day period between the first and second jury
trial suspension. 2 During this period, the district court rescheduled the trial for December 7, 2020.
The district court proceeded with preparations for trial—even holding a pretrial hearing just prior
to the scheduled trial date. However, as the trial date approached, Idaho experienced a surge in
COVID cases and this Court issued a second emergency order temporarily suspending jury trials.
The district court was left with no choice but to continue the trial in light of this Court’s order
suspending jury trials statewide. Again, we conclude that this 52-day delay was justifiable and not
attributable to anything within the district court’s control.
2
Ish argues that this was actually a 56-day period. While Ish is correct as to the number of days, the administrative
district judge responsible for Bannock County, following the procedure prescribed by this Court, concluded that
resumption of jury trials in Bannock County needed to be delayed four additional days. Ish does not challenge this
conclusion or its effect on appeal.
15
Importantly, there is no claim that the prosecution intentionally delayed the trial during the
first ten months following remand for a tactical advantage. These delays were all predicated on
this Court’s emergency orders and the dire public health emergency presented by the pandemic.
See State v. Ingraham, 172 Idaho 30, ___, 528 P.3d 966, 973 (2023) (“The Emergency Order and
its counterparts were issued by this Court to ensure that those safeguards of a free society continued
in the face of a public health crisis, while at the same time balancing the need to protect the lives
and health of those attending court proceedings.”).
Once the second suspension was lifted on March 1, 2021, the trial commenced within 148
days—just under five months. While it is possible that the trial could have started sooner, there
were neutral, yet legitimate reasons for the delays that occurred during this time frame, including
the State’s motion to continue due to two witnesses’ unavailability, the court’s difficulties in
sending out the jury questionnaires, and an insufficient number of prospective jurors empaneled.
We conclude that the reasons for the delays in this case, once the COVID-19 restrictions were
mostly lifted, are either neutral or justifiable delays.
We are mindful that the presiding judge’s June vacation was cited by Ish as an improper
basis for the last continuance. However, the record establishes that the trial judge explained that
“if we had been prepared to go, I would have probably had to forgo vacation plans.” The court
noted that difficulties with courthouse operations and witness availability had necessitated further
delay. While Barker would treat these as neutral factors, under the circumstances they were
justified. Reviewing the record as a whole, all proffered reasons were either neutral or a valid
reason for delay. Therefore, we conclude that the second prong of Barker weighs in favor of the
State.
(c) Whether the defendant asserted the right to a speedy trial
Regarding the third prong of Barker, whether the defendant asserted the right to a speedy
trial, we defer to the factual findings of the district court. The district court found that Ish had
asserted his right to a speedy trial:
I will note for the record that Mr. Andrew has insisted upon Mr. Ish’s right
to speedy trial from the very beginning at almost every, if not every, juncture when
we were talking about trial dates. So it’s not an issue of not asking for the speedy
trial. I think that’s been sought consistently since the beginning.
16
Since our review of the record confirms that the district court properly found that Ish had
consistently asserted his right at every opportunity, we conclude that the defendant properly
asserted his right to a speedy trial. Therefore, the third prong of Barker weighs in Ish’s favor.
(d) The prejudice to the defendant
Finally, under the fourth factor of the Barker balancing test, this Court looks to the
prejudice to the defendant, if any, caused by the delay. As the Supreme Court explained in Barker
there are three “interests” used to evaluate the prejudice factor:
This Court has identified three such interests: (i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii)
to limit the possibility that the defense will be impaired. Of these, the most serious
is the last, because the inability of a defendant adequately to prepare his case skews
the fairness of the entire system. If witnesses die or disappear during a delay, the
prejudice is obvious. There is also prejudice if defense witnesses are unable to recall
accurately events of the distant past. Loss of memory, however, is not always
reflected in the record because what has been forgotten can rarely be shown.
Barker, 407 U.S. at 532 (internal footnote omitted).
We note that Ish’s claims of prejudice are predicated on oppressive pretrial incarceration
and the “anxiety and concern” caused by his continued incarceration pending trial. Ish does not
directly allege that the Bannock County facilities were constitutionally inadequate; instead, he
merely asserts that being held in the county jail was oppressive. For example, Ish claims that he
“was never released from custody—causing him anxiety and concern—and he was denied the
opportunity for medical treatment he desperately needed.” Ish explains that he was required to pay
for medications while in the county jail that he did not have to pay for while in the state prison. He
also alleges that he contracted COVID while in the Bannock County jail and was denied a medical
furlough.
We are unpersuaded that these concerns equate to legal prejudice. We hold that these
occurrences, although unpleasant for Ish, were common to most of the incarcerated population at
the time and do not constitute the excessive “anxiety and concern” Barker contemplates.
Importantly, there is no evidence that they prejudiced his case on remand. Having successfully
appealed his first conviction, Ish had to be returned to the county where he was charged because,
having had his conviction vacated and his presumption of innocence restored, he could no longer
remain in the custody of the Idaho Department of Corrections. He had an opportunity for bail, but
could not post a bond.
17
Ish also alleges that his defense was impaired because a key witness for the State in the
first trial could not be located to testify in the second trial. As Ish explains in his brief, “because
Ms. [Lovette] Denny could not be located, she was declared an unavailable witness, and her trial
testimony [from the first trial] was read into the record at the second trial.” In his view, this
prejudiced his defense because he could not cross-examine her regarding an affidavit she signed.
As Ish further explains, “Ms. Denny signed a notarized affidavit . . . in which she stated that she
had been pressured by the Pocatello Police and Bannock County Prosecutor’s Office into
untruthfully testifying at trial that Mr. Ish told her he had hurt or injured Mr. Red Elk.” While we
do not foreclose the possibility that a missing witness could impair a defendant’s case, Ish has not
demonstrated that the delay in bringing his case to a second trial on remand was the reason this
witness was unavailable. Therefore, we cannot conclude that Ish’s defense was impaired by the
delay.
Taken together, we conclude that the fourth Barker factor weighs in favor of the State and
the defendant has not shown that he was prejudiced due to the delay.
(e) Conclusion
Considering all four Barker factors, we conclude Ish’s speedy trial rights have not been
violated. Although the length of the delay was presumptively prejudicial and Ish timely asserted
his right to a speedy trial, the remaining factors weigh in the State’s favor. The most significant
period of delay was related to the temporary suspension of jury trials by this Court due to the
pandemic. The other delays due to the unavailability of certain State’s witnesses were also
justifiable. While the district court did sua sponte delay the trial for an additional month without
explaining it at the time, 3 it later offered an extensive justification on the record, which included
the neutral reason of the inability of the court to call a jury in time. We also note that when later
faced with another request for a continuance from the State in July, again due to the unavailability
of a witness, the district court denied the State’s request based on Ish’s assertion of his speedy trial
rights. Once the issues related to this Court’s COVID-19 emergency orders were resolved, Ish’s
case went to trial in less than six months.
3
Ish only challenges his delays as a violation of his speedy trial rights and does not argue that this continuance was
an abuse of discretion. Accordingly, we do not address whether it was an independent error to continue the trial in the
manner the district court did here.
18
In conclusion, we are mindful that Barker is a “balancing test” and that every factor does
not carry an equivalent weight. After carefully weighing and balancing all the relevant factors, we
conclude that there has been no violation of Ish’s speedy trial rights.
B. The district court did not err in denying the motion to change venue.
Ish next maintains that the district court committed reversible error by denying his motion
for a change of venue. As we have said, “[t]he Court employs an abuse of discretion standard when
reviewing a district court’s ruling on a motion to change the venue.” State v. Sheahan, 139 Idaho
267, 278, 77 P.3d 956, 967 (2003) (quoting State v. Jones, 125 Idaho 477, 484, 873 P.2d 122, 129
(1994)). In addressing a motion to change venue “the Court determines whether, in the totality of
existing circumstances, juror exposure to pretrial publicity resulted in a trial that was not
fundamentally fair.” Id. (citing State v. Winn, 121 Idaho 850, 856, 828 P.2d 879, 885 (1992)). We
review a district court’s decision regarding a motion for a change of venue by considering these
five factors:
[1] the existence of affidavits indicating prejudice or an absence of prejudice in the
community where the trial took place; [2] the testimony of the jurors at jury
selection regarding whether they had formed an opinion based upon adverse pretrial
publicity; [3] whether the defendant challenged for cause any of the jurors finally
selected; [4] the nature and content of the pretrial publicity; and [5] the amount of
time elapsed between the pretrial publicity and the trial.
Id. (citing Winn, 121 Idaho at 856, 828 P.2d at 885).
In his brief, Ish asserts that 44 of the 92 prospective jurors had been exposed to some
amount of media coverage about the case. However, the proper inquiry is not merely whether
prospective jurors were aware of the case due to media coverage. See State v. Hadden, 152 Idaho
371, 376, 271 P.3d 1227, 1232 (Ct. App. 2012) (“Publicity by itself does not require a change of
venue . . . .” (citation omitted)). Rather, the issue is whether the jurors were somehow tainted by
their exposure to coverage. State v. Hall, 111 Idaho 827, 830, 727 P.2d 1255, 1258 (Ct. App. 1986)
(“When a trial judge finds a reasonable likelihood that qualitative or quantitative elements of
pretrial publicity have affected the impartiality of prospective jurors, the constitutional balance
swings in favor of assuring a fair trial.”). It has never been the standard that a prospective juror
must have had no exposure to the media. Indeed, citizens who read a daily newspaper, watch a
nightly news broadcast, and generally stay abreast of current events have not somehow disqualified
themselves from future jury service. The critical inquiry is whether the nature of their exposure to
pretrial publicity caused the prospective juror to form an opinion about the defendant’s guilt and,
19
as a result, they are unable to serve as an unbiased juror. Hadden, 152 Idaho at 377, 271 P.3d at
1233 (“When reviewing the nature and content of the pretrial publicity, this Court is concerned
with the accuracy of the pretrial publicity, the extent to which the articles are inflammatory,
inaccurate, or beyond the scope of admissible evidence, the number of articles, and whether the
jurors were so incessantly exposed to such articles that they had subtly become conditioned to
accept a particular version of the facts at trial.” (emphasis added) (citing Sheahan, 139 Idaho at
278, 77 P.3d at 967; and Hall, 111 Idaho at 829–30, 727 P.2d at 1257–58)).
Fatal to Ish’s claim is the lack of evidence in the record indicating the “nature and content
of the pretrial publicity” in this case. There is no evidence detailing the amount of coverage and
its tone. Without such evidence, we cannot determine whether the jury pool was tainted by media
coverage that was pervasive, sensationalized, inaccurate, or misleading. See Hadden, 152 Idaho at
376, 271 P.3d at 1232 (“Publicity by itself does not require a change of venue . . . .” (citation
omitted)). Moreover, there is no evidence regarding the timing of the coverage. For example, was
the bulk of the coverage concerning the remand after Ish I was decided, or was it heavier in the
days preceding trial? Without knowing the time period between the pretrial publicity and the start
of the trial, we cannot conclude that the district court abused its discretion. In essence, Ish would
have us find error simply because roughly half of the jurors reported that they were aware of the
case through the media in some manner. This is not the appropriate standard under Sheahan or
Winn. See Sheahan, 139 Idaho at 278, 77 P.3d at 967; Winn, 121 Idaho at 856, 828 P.2d at 885.
Ish also focuses on the fact that the trial judge in his first trial granted a similar motion to
change venue, and that the State eventually joined in his motion to change venue for the second
trial. Neither of these points are determinative of this issue. First, there has been no effort made to
compare the level of media coverage of the first trial with the second trial. Even if venue was
changed in the first trial, that does not automatically mean that it would be harder to select an
unbiased jury four years later, much less satisfy the legal prerequisites for changing venue under
Winn. Similarly, the mere fact that the motion was joined by the State does not automatically mean
that the denial of the motion by the district court was an abuse of its discretion. The court is not
bound by a stipulation of counsel—it must still apply the law.
Such discretionary decisions involve highly fact specific inquiries; yet the facts supporting
the need for a change of venue are largely missing from this appeal. This is not an unreasonably
high hurdle for a defendant to clear, but it does require proof of prejudice or a showing of a
20
“reasonable likelihood” of prejudice. See Hadden, 152 Idaho at 376, 271 P.3d at 1232 (“[A]
defendant’s inability to make a detailed and conclusive showing of prejudice is not a proper ground
for refusing to change venue as prejudice seldom can be established or disproved with certainty
. . . . Rather, it is sufficient for the accused to show there was a reasonable likelihood prejudicial
news coverage prevented a fair trial in violation of the Sixth Amendment to the United States
Constitution.” (citations omitted) (emphasis added)); Hall, 111 Idaho at 829, 727 P.2d at 1257
(“Impartiality may be affected adversely by the quality or the quantity of pretrial media coverage.
Qualitatively, the courts must be concerned with news stories and editorials that are inflammatory,
inaccurate or beyond the scope of admissible evidence.” (citing State v. Beason, 95 Idaho 267, 506
P.2d 1340 (1973) (emphasis added))).
In the absence of such evidence, we must base our decision on the findings made by the
district court, as supported by the record. Here, the only evidence offered and considered by the
court consisted of the information provided by potential jurors in their jury questionnaires and
during voir dire. The record shows many jurors had a general awareness of the existence of the
case, while many also indicated that they had not “heard/seen/read anything about this case.”
Importantly, Ish has pointed to no particular jurors, aside from Juror No. 3, 4 who he believed had
experienced prejudicial pretrial exposure to the case through the media and who ultimately served
on the trial jury. In the absence of such evidence, the district court recognized that “the nature and
extent of any pretrial publicity about [the] case [was] only generally addressed in Ish’s motion and
argument.” Accordingly, the district court found that “[t]here is no evidence before this [c]ourt
concerning distant past or current media attention to this case.” (Emphasis added).
Having reviewed the record, we conclude that this finding of the district court is supported
by the record. Thus, Ish has not carried his burden in demonstrating that the district court abused
its discretion by denying the motion to change venue. Based on “the totality of existing
circumstances” found in the record, we cannot say that “juror exposure to pretrial publicity resulted
in a trial that was not fundamentally fair.” Accordingly, we must affirm.
C. Ish has not demonstrated that Juror No. 3 should have been excused for bias.
At the commencement of the trial, during voir dire, Juror No. 3 disclosed that he was a
probation officer for the State of Idaho and that he had often worked with the Pocatello Police
4
See section III(C), infra.
21
Department. Ish’s challenge to Juror No. 3 for cause was denied by the district court. Later, during
the State’s case-in-chief, it was discovered that a State’s witness, Narci Kimball, had not been on
the State’s list of witnesses reviewed with the jury during the initial voir dire. When the court
allowed the attorneys to further voir dire the trial jurors regarding Kimball, Juror No. 3 indicated
that he knew her. He informed the court that “a couple, three years, I think four years since” he
was a probation officer for Kimball’s husband. When asked about the effect this remote connection
would have on his ability to weigh the evidence, Juror No. 3 explained that it would not impact
his ability to be a juror. Ish argues that the district court erred when it denied both his requests to
remove Juror No. 3 for cause, arguing that Juror No. 3 was both actually and impliedly biased.
The State responds by asserting that Ish has not demonstrated actual bias and that implied bias is
statutorily limited. We will begin with Ish’s claim of implied bias.
As we have consistently held, “the due process requirements of the Idaho Constitution
require ‘a trial by a fair and impartial jury.’ ” State v. Lankford, 162 Idaho 477, 485, 399 P.3d 804,
812 (2017) [hereinafter “Lankford 2017”] (quoting State v. Nadlman, 63 Idaho 153, 163, 118 P.2d
58, 62 (1941)). We also recognized that “the right to a fair trial before an impartial jury is
fundamental to both the U.S. Constitution and the Idaho Constitution.” Lankford 2017, 162 Idaho
at 485, 399 P.3d at 812 (first citing U.S. Const. amends. VI, XIV; and citing Idaho const. art. 1,
sections 7, 13; and then citing State v. Abdullah, 158 Idaho 386, 421, 348 P.3d 1, 36 (2014)). To
ensure a fair trial, “[t]he impartiality of a juror may be challenged for ‘actual or implied’ bias.” Id.(first citing United States v. Wood, 299 U.S. 123, 133, (1936); and then citing Abdullah, 158 Idaho
at 421, 348 P.3d at 36). As explained in Wood, both forms of bias can disqualify a prospective
juror:“[t]he bias of a prospective juror may be actual or implied; that is, it may be bias in fact or
bias conclusively presumed as matter of law.” Wood, 299 U.S. at 133.
In addition to these constitutional protections, Idaho Code provides defendants with a
statutory right to challenge jurors for cause on the grounds of actual or implied bias. Idaho Code
section 19-2019 articulates the distinction between both types of bias:
PARTICULAR CAUSES OF CHALLENGE. Particular causes of challenge are of
two kinds:
1. For such a bias as, when the existence of the fact is ascertained, in
judgment of law disqualifies the juror, and which is known in this code as implied
bias.
22
2. For the existence of a state of mind on the part of the juror in reference
to the case, or to either of the parties, which, in the exercise of a sound discretion
on the part of the trier, leads to the inference that he will not act with entire
impartiality, and which is known in this code as actual bias.
I.C. § 19-2019.
Counsel’s questioning of Juror No. 3 revealed no evidence of actual bias on his part. While
we understand Ish’s argument that we should recognize implicit bias due to Juror No. 3’s
occupation and his association with the husband of a witness, we decline to add to the statutory
list of relationships in Idaho Code section 19-2020 that automatically create an inference of
implicit bias. In United States v. Wood, the Supreme Court recognized that “the Constitution lays
down no particular tests and procedure is not chained to any ancient and artificial formula,” 299
U.S. 123, 146 (1936), the extent of this right is generally left to the states. Having considered the
question, we cannot say that district court abused its discretion by declining to conclude that the
relationships alleged here are sufficiently analogous to the existing statutory relationships to find
automatic grounds to automatically remove a probation officer for cause. Therefore, we must
analyze this issue based on the record before us.
(1) Ish has not demonstrated implied bias.
Ish appears to argue for this Court to expand the categories upon which a juror may be
challenged for implied bias. In support of his argument, Ish relies on Fields v. Brown, 503 F.3d
755 (9th Cir. 2007) (en banc). In Fields, the Ninth Circuit sitting en banc considered three different
challenges of bias. 503 F.3d at 766 (“[The defendant’s] claim of juror bias puts three theories on
the table: so-called McDonough-style bias, which turns on the truthfulness of a juror’s responses
on voir dire; actual bias. . . , and implied (or presumptive) bias, which may exist in exceptional
circumstances where, for example, a prospective juror has a relationship to the crime itself or to
someone involved in a trial, or has repeatedly lied about a material fact to get on the jury.”). 5 The
Ninth Circuit applied its own precedents and found there was no bias, under any of the three
theories advanced, after recognizing “the Supreme Court has not explicitly adopted (or rejected)
the doctrine of implied bias.” Fields, 503 F.3d at 768.
Relying on Fields, Ish argues that a business relationship between a prosecutor’s office and
a juror is an automatic basis for finding implied bias and should be characterized as an
5
See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) (plurality opinion).
23
“inappropriate extrinsic influence.” However, without disclosing it as such to this Court, the
language Ish relies on comes from the dissenting opinion in Fields. Indeed, Ish seems to overlook
the majority’s conclusion in Fields, which recognized the “distinct concepts” of implied bias at
play. In responding to the dissenting opinion in Fields, the majority opinion recognized the same
distinct concepts which Ish also seems to conflate:
[The dissent’s] conclusion to the contrary collapses the distinct concepts of implied
bias-which arises intrinsically from an “extreme” and “extraordinary” relationship
between a juror and an aspect of the litigation-and ex parte communication with, or
extrinsic influence on, a juror. To do so creates a novel, hybrid category of implied
bias that goes well beyond anything heretofore recognized.
Fields v. Brown, 503 F.3d 755, 775 n.14 (9th Cir. 2007) (emphasis added) (internal opinion
citations omitted). Thus, the specific theory advanced by Ish was rejected by the majority because
it relies on a separate constitutional issue outside the holding of Wood. Accordingly, we likewise
decline to apply the dissent’s analysis in Fields in the manner advanced by Ish, as to do so would
create “a novel, hybrid category of implied bias that goes well beyond anything heretofore
recognized.” Fields, 503 F.3d at 775 n.14.
As explained in our precedents: “Implied bias . . . conclusively presumes bias as a matter
of law based on the existence of a specific fact.” Lankford 2017, 162 Idaho at 485, 399 P.3d at 812
(first citing I.C. § 19-2018(1); and then citing Wood, 299 U.S. at 133). Idaho Code section 19-2020
contains an exhaustive list of statutory challenges for implied bias. I.C. § 19-2020 (“A challenge
for implied bias may be taken for all or any of the following causes and for no other. . . .” (emphasis
added)). Ish has not demonstrated or otherwise argued that any of the legislatively designated
relationships constituting grounds for implied bias in Idaho Code section 19-2020 are applicable
to this case, nor can we find that the relationship at issue here is sufficiently analogous to the type
of relationships which qualify for removal on the grounds of implied bias. In the absence of such,
we are left to conclude that Ish has not demonstrated implied bias.
(2) Ish has not demonstrated actual bias.
Unlike implied bias, this Court has explained that “[a]ctual bias deals with the specific state
of mind of an individual juror and is proved by questioning the juror as to whether he or she can
serve with entire impartiality.” Lankford 2017, 162 Idaho at 485, 399 P.3d at 812 (first citing I.C.
§ 19-2018(2); and then citing Abdullah, 158 Idaho at 421–22, 348 P.3d at 36–37); I.C. § 19-
2019(2) (“For the existence of a state of mind on the part of the juror in reference to the case, or
24
to either of the parties, which, in the exercise of a sound discretion on the part of the trier, leads to
the inference that he will not act with entire impartiality, and which is known in this code as actual
bias.”). To succeed on a claim of actual bias, Ish must establish evidence that “in the exercise of a
sound discretion on the part of the trier, leads to the inference that [the juror] will not act with
entire impartiality . . . .” I.C. § 19-2019(2).
Ish offers Juror No. 3’s questionnaire and his statements made during voir dire as grounds
for finding actual bias. Yet neither the questionnaire responses nor the statements Juror No. 3 made
during voir dire demonstrate any actual bias on his part.
We acknowledge that the most concerning disclosure by Juror No. 3 occurred during the
trial, when he disclosed that as a probation officer, he had previously supervised the husband of
one of the State’s witnesses. As discussed more fully above, during the State’s case-in-chief, it
was discovered that the State’s witness Narci Kimball had been inadvertently left off the jury
questionnaire sent to prospective jurors prior to trial. When she was called to testify, Juror No. 3
timely disclosed to the district court his connection to Kimball, through her husband. The timing
of this disclosure was not Juror No. 3’s fault and his integrity in timely bringing this to the court’s
attention is commendable. While this disclosure was understandably concerning, Ish was provided
an opportunity to inquire into the connection and demonstrate actual bias—yet he was unable to
do so.
Reviewing the record, we cannot find an abuse of discretion by the district court. As to
defense counsel’s extended colloquy with Juror No. 3, Ish has failed to demonstrate that Juror No.
3 could not serve “with entire impartiality.” Lankford 2017, 162 Idaho at 485, 399 P.3d at 812
(citations omitted). In fact, there is no indication that Juror No. 3 would find any of the evidence
more or less credible—especially Kimball’s testimony, which was merely foundational in nature.
Although Kimball testified that she discovered Red Elk lying injured in the parking lot, she did
not implicate Ish or anyone else.
Taken together, Ish has not demonstrated bias, either actual or implied. Thus, we cannot
conclude that the trial court abused its discretion in allowing Juror No. 3 to remain on the jury.
D. Because we have found no individual errors in the proceedings, there can be no
cumulative error.
Ish asserts that even if any combination of the individual errors alleged above are found to
be harmless, they still amount to reversible error when considered in the aggregate. Of course,
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having found no error, it has not been necessary for this Court to make any conclusions about
harmless error in this opinion. As we have said: “In order to find cumulative error, this Court must
first conclude that there is merit to more than one of the alleged errors and then conclude that these
errors when aggregated, denied the defendant a fair trial.” State v. Capone, 164 Idaho 118, 127,
426 P.3d 469, 478 (2018) (quoting Dunlap v. State, 141 Idaho 50, 65–66, 106 P.3d 376, 391–92
(2004)). Importantly, “a necessary predicate to the application of the [cumulative error] doctrine
is a finding of more than one error.” State v. Perry, 150 Idaho 209, 230, 245 P.3d 961, 982 (2010)
(citing State v. Hawkins, 131 Idaho 396, 407, 958 P.2d 22, 33 (Ct. App. 1998)). Therefore, because
we have found no error below, we cannot conclude that cumulative error has been shown.
E. The Pearce presumption of vindictiveness, as it pertains to the sentencing by the
same judge, does not apply here.
At Ish’s original sentencing, he received 15 years with 10 years fixed and 5 years
indeterminate. However, following his second trial, he was sentenced to 14 years fixed with 1 year
indeterminate for the same crime. As Ish explains in his brief, “the district court increased the fixed
portion of his sentence by four years, without explanation.” Thus, Ish argues that under North
Carolina v. Pearce, 395 U.S. 711 (1969), he is entitled to a legal presumption that his second,
harsher sentence following his successful appeal was vindicative. Relying on his argument that the
presumption applied, Ish argues that the district court erred by failing to articulate what conduct
in the period between his first and second sentencing justified the increase in his sentence.
In Pearce, the United States Supreme Court recognized “that neither the double jeopardy
provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon
reconviction.” Id. at 723. In that regard, the Supreme Court made clear that: “[a] trial judge is not
constitutionally precluded, in other words, from imposing a new sentence, whether greater or less
than the original sentence, in the light of events subsequent to the first trial that may have thrown
new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ”
Id. However, the Supreme Court qualified its holding: “To say that there exists no absolute
constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end
the inquiry. There remains for consideration the impact of the Due Process Clause of the
Fourteenth Amendment.” Id. Thus, the Supreme Court further held that “whenever a judge
imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so
must affirmatively appear.” Id.26
Subsequent cases have limited the application of what has since been called the “Pearce
presumption,” which presume vindictiveness when the same sentencing judge provides an
enhanced sentence for the same charge without making the reasons justifying the sentence
affirmatively clear. For example, in Alabama v. Smith, 490 U.S. 794 (1989), the United States
Supreme Court overruled the application of Pearce when the sentence following the first
conviction was entered upon a guilty plea and the second sentence was entered after trial following
a successful appeal. As the Court clarified: “While the Pearce opinion appeared on its face to
announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption
of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher
sentence on retrial.’ ” Alabama v. Smith, 490 U.S. at 799 (quoting Texas v. McCullough, 475 U.S.
134, 138 (1986)). In Texas v. McCullough, 475 U.S. 134 (1986), the Supreme Court held that
“[t]he presumption of Pearce does not apply in situations where the possibility of vindictiveness
is this speculative, particularly since the presumption may often ‘operate in the absence of any
proof of an improper motive and thus . . . block a legitimate response to criminal conduct. . . .’ ”
McCullough, 475 U.S. at 139 (citing United States v. Goodwin, 457 U.S. 368, 373 (1982)).
This Court has applied Pearce and its progeny as a brightline rule, holding that “[a]
presumption of vindictiveness in sentencing only applies where the defendant has successfully
appealed a conviction and received a greater sentence by the same district court after a retrial or
remand.” State v. Herrera, 164 Idaho 261, 279, 429 P.3d 149, 167 (2018) (emphasis is original)
(quoting State v. Baker, 153 Idaho 692, 695, 290 P.3d 1284, 1287 (2012)). Thus, “[a]bsent the
presumption, the defendant must show actual vindictiveness.” Id. (citing State v. Robbins, 123
Idaho 527, 527, 850 P.2d 176, 181 (1993)).
In light of these cases, counsel for Ish clarified his position at oral argument, conceding
that the Pearce presumption does not apply when a different sentencing judge handles the
subsequent sentencing. Ish’s argument rests solely on the premise that since Judge Carnaroli heard
the Rule 35 motion in the first trial, Judge Carnaroli should be deemed the same sentencer in the
second trial. Thus, he argues that the presumption of vindictiveness should apply. Although this is
a situation not addressed by the case law, we disagree with Ish and hold that a judge who ruled on
a post-sentencing motion following the first trial, such as Rule 35 motion, and then later sentences
a defendant after a subsequent trial, remains a different sentencer for purposes of Pearce and
McCullough.
27
Idaho Criminal Rule 35 provides that “a motion may be filed to correct a sentence that has
been imposed in an illegal manner or to reduce a sentence and the court may correct or reduce the
sentence.” (Emphasis added). Rule 35 does not allow or contemplate resentencing; rather, it
merely provides an opportunity to correct or reduce the original sentence. We are not persuaded
that by ruling on a post-sentencing motion from the first trial, this somehow placed the second
sentencing judge into the shoes of the original sentencer. Since “[t]he presumption is also
inapplicable [when] different sentencers assessed the varying sentences,” we are left to conclude
that the Pearce presumption is inapplicable here. McCullough, 475 U.S. at 140. Accordingly, we
hold that under the unique circumstance of this case, a district judge who did not sentence a
defendant in a prior trial, but later ruled on a Rule 35 motion and then presided over a subsequent
trial and sentencing, is a different judge for the purposes of the Pearce presumption.
We note that our holding here is limited to our specific conclusion that a district judge who
only ruled on a Rule 35 motion before remand, is not the same sentencer for the purposes of Pearce
and McCullough. Because Ish has challenged his sentence only on this basis, we do not address
whether, in the context of a subsequent conviction after successful appeal under Pearce and
McCullough, a different sentencing judge is required to give any explanation at all for a sentence
in excess of the original one.
C. The district court did not abuse its discretion by imposing an unduly harsh sentence.
As this Court has said, “[s]o long as the sentence is within the statutory limits, the appellant
must show that the trial court, when imposing the sentence, clearly abused its discretion.” State v.
Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006). When reviewing a discretionary decision
of a trial court, this Court employs its well-known abuse of discretion standard: “[w]hether the
trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason.” Leavitt, 171
Idaho at 525 P.3d at 1157 (alteration in original) (quoting Villa-Guzman, 166 Idaho at 384, 458
P.3d at 962); see also Lunneborg, 163 Idaho at 863, 421 P.3d at 194.
As it pertains to the alleged abuse of discretion in his sentence, Ish seems to concede the
first three elements of Lunneborg and instead challenges the sentence handed down by the district
court solely as a failure of an exercise of reason. Specifically, Ish argues that “[i]n light of the
mitigating factors present in this case, Mr. Ish’s sentence is excessive considering any view of the
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facts.” Ish points to a heart condition and the support of his family. Ish explained at sentencing
that he developed a heart condition after having COVID-19. Additionally, he explained that his
“family members want him home, and they are willing to help him with housing.”
While Ish argues that the district court did not “properly consider[] Mr. Ish’s family support
and his physical health conditions,” the record demonstrates that the district court considered these
factors. The district court noted that he reviewed the presentence investigation report (the “PSI”),
which includes information about Ish’s family support and health conditions, and both were
addressed by Ish in his argument at sentencing. While the district court did not recite every fact
contained in the PSI in handing down its sentence, this does not mean it was not considered. More
importantly, this does not amount to a failure of an exercise of reason.
A review of the district court’s overall analysis when sentencing Ish shows a detailed,
reasoned analysis of the relevant law, principles, and facts of this case. The district court properly
considered sentencing factors set forth in Idaho Code section 19-2521 and the four objectives of
criminal punishment we have long articulated. See State v. Toohill, 103 Idaho 565, 568, 650 P.2d
707, 710 (Ct. App. 1982) (“[The Idaho] Supreme Court has articulated four objectives of criminal
punishment: (1) protection of society, (2) deterrence of the individual and the public generally, (3)
possibility of rehabilitation, and (4) punishment or retribution for wrongdoing.”). These were all
addressed by the district court. While Ish’s health and his family’s support for him may be
mitigating factors, Ish has not demonstrated how the information he claims that the district court
failed to consider would have changed the court’s analysis of the statutory factors or the Toohill
objectives at sentencing.
Ish concedes that the district court’s sentence was within the boundaries of its discretion
and the legal choices available to it under the applicable statute. Indeed, the maximum punishment
for voluntary manslaughter is “a fine of not more than fifteen thousand dollars ($15,000), or by a
sentence to the custody of the state board of correction not exceeding fifteen (15) years, or by both
such fine and imprisonment.” I.C. § 18-4007. Here, the district court applied the sentencing criteria
under Idaho Code section 19-2521 and sentenced Ish accordingly. Thus, we conclude that the
district court properly exercised its discretion in the sentencing of Ish.
D. The district court did not err in denying Ish’s Rule 35 motion for leniency following his
second sentence.
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Following Ish’s sentencing after his second trial, Ish filed a motion for relief from his
sentence pursuant to Rule 35. Ish challenges the district court’s denial of his Rule 35 motion for
leniency. Although not clear, it does not appear that Ish is claiming that he was entitled to relief
under Rule 35(a), which pertains to illegal sentences. Rather, Ish’s claims appear to be based on
Rule 35(b), which allows a court to “correct or reduce” an excessive sentence based on additional
information.
As it pertains to Rule 35, we have explained the purpose and operation of the rule:
Rule 35 is a narrow rule which allows a trial court to correct an illegal
sentence or to correct a sentence imposed in an illegal manner. Generally, whether
a sentence is illegal or whether it was imposed in an illegal manner is a question of
law, over which we exercise free review. However, if the basis for the illegality of
the sentence is that the sentence is excessive, and the sentence is within the statutory
limits, a motion for reduction of sentence under Rule 35 is a plea for leniency, and
this Court will then review a denial or grant of the motion for an abuse of discretion.
When presenting a Rule 35 motion, the defendant must show that the sentence is
excessive in light of new or additional information subsequently provided to the
district court in support of the Rule 35 motion. An appeal from the denial of a Rule
35 motion cannot be used as a vehicle to review the underlying sentence absent the
presentation of new information.
State v. Draper, 151 Idaho 576, 601, 261 P.3d 853, 878 (2011) (citing Farwell, 144 Idaho at 735,
170 P.3d at 400). “If the sentence was not excessive when pronounced, the defendant must later
show that it is excessive in view of new or additional information presented with the motion for
reduction.” State v. Knighton, 143 Idaho 318, 320, 144 P.3d 23, 25 (2006).
Ish argues that the district court improperly “focused on an increasingly violent society and
deterrent effect of a lengthy sentence for Mr. Ish.” Ish maintains that he provided the court with
additional evidence providing relevant statistical information indicating “that society in fact was
not growing more violent—the district court was laboring under a misapprehension.” Additionally,
Ish also notes that the district court fixated on a “1982 Utah robbery conviction in concluding that
Mr. Ish was violent, [but] the PSI did not contain the details of that offense.”6
6
Ish also submitted his completion of an anger management program in 2013 and other related programming in 2014
as justification for leniency. However, this programming was before the district court when it initially sentenced Ish
upon his second conviction. The transcript reflects that there was other programming completed after Ish’s second
conviction, but completion of that programming is not in the record. We note that even though evidence of the
programming’s completion is not in the record, the district court inquired about the completion certification, which
was not provided to the district court, and took the subsequent programming into consideration when it ruled on the
motion for leniency.
30
In denying the Rule 35 motion, the district court issued a written decision that concluded
Ish had not provided any new information: “The [court] finds that the Defendant failed to bring
forth any new or different evidence or information that would support his motion for a correction
or reduction. The Defendant further failed to show the [court] that the original sentence was unduly
severe.” The district court explained that while it considered the request for leniency, “the
Defendant has offered no reason why the [court] should be more lenient other than the fact that
the prior sentencing judge was more lenient and the fact that it appears he has been [a] compliant
inmate.”
The district court addressed the evidence Ish provided to undercut the court’s statements
made at sentencing regarding the culture of violence in our society. The district court explained:
Defendant did take issue with a few of the comments made by the [c]ourt
during the sentencing. These comments regarding violent crimes, societal
indifference or de-sensitivity towards violence and the rise of professional mixed
martial arts as violent and bloody form of entertainment were merely observations
made by the [c]ourt. Whether or not society is more violent now than before he
committed his crime is not the issue. We live in [a] violent society. It was violent
in 2009, and it is violent now. The Defendant’s crime is one of violence that took
human life unnecessarily.
Ultimately, the [c]ourt sentenced [the] Defendant based solely on his
conduct and the testimony heard during his retrial. The Defendant violently
attacked the victim Lorne Red Elk either with [a] devastating punch to the head
with his fist, or with [a] blow to the head struck with blunt instrument causing Red
Elk to die from [a] severe brain injury. The next morning, the Defendant bragged
to his family members about attacking the victim and about leaving him bleeding
and gurgling on the pavement outside Duffy’s Tavern. He complained with
[disdain] that Red Elk’s blood was on his shoes. He later threatened a witness to
stay quiet. If not for the bravery of the witnesses who came forward years later, the
homicide that caused Red Elk’s death would likely have never been solved.
Ish was convicted of brutally killing a man; thus, it was not surprising that the district court
expressed general concerns about violence in society. We find no error in the court’s comments.
As we have said: “If the sentence was not excessive when pronounced, the defendant must
later show that it is excessive in view of new or additional information presented with the motion
for reduction.” State v. Knighton, 143 Idaho 318, 320, 144 P.3d 23, 25 (2006) (quoting State v.
Trent, 125 Idaho 251, 253, 869 P.2d 568, 570 (Ct.App.1994)). Further, “[i]f the defendant fails to
make such a showing, the denial of the motion is not an abuse of discretion.” Id. (citing State v.
Shiloff, 125 Idaho 104, 107, 867 P.2d 978, 981 (1994); and State v. Hernandez, 121 Idaho 114,
31
822 P.2d 1011 (Ct. App. 1991)). Ish has made no such showing here. We cannot say that under
any view of the facts that the 14-year fixed term was excessive for taking a life in such a manner.
Therefore, we affirm the denial of the Rule 35 motion for leniency because Ish has not shown that
the sentence was excessive in light of any new information provided.
IV. CONCLUSION
For the reasons explained above, the judgment of conviction and sentence are affirmed.
Chief Justice BEVAN, Justices BRODY, ZAHN and MEYER CONCUR.
32