Thomas Lundquist has appealed from a first-degree murder conviction for his participation in the murder of Fidela Tomchak. We affirm.
BACKGROUND AND PRIOR PROCEEDINGS
Lundquist, Christopher Shanahan, and Benjamin Jenkins decided to run away to Las Vegas. The three teenagers planned to rob a local convenience store to get money for the trip and because Shanahan believed that shooting someone could help him become a member of a gang. After obtaining guns from Jenkins' house and ammunition from Lundquist's, the three drove to the Grant Store. Shanahan and Jenkins went into the store. Lundquist remained in the car with a shotgun to act as a lookout and "shoot anyone if they come." Jenkins' job was to distract the clerk so that Shanahan could shoot her. When they entered the store, Fidela Tomchak was stocking a cooler. Shanahan walked up and shot her in the back
Shanahan pled guilty to first-degree murder and robbery and Jenkins pled guilty to second-degree murder and robbery. Both agreed to testify against Lundquist. Lundquist was found guilty by a jury of first-degree felony-murder. On appeal, Lundquist argues that his rights to a speedy trial were violated, that the indictment was insufficient to give the court jurisdiction over the felony-murder charge, and that the verdict form did not contain essential elements of a felony-murder charge. Lundquist also argues that the court abused its discretion by imposing a life sentence with a minimum term of confinement of twenty years.
I. Speedy Trial.
Lundquist initially argues that the case must be dismissed pursuant to I.C. § 19-3501(2). We disagree. Although it is clear that Lundquist was not tried within six months as required by § 19-3501, Lundquist's rights under § 19-3501 were not violated because he waived them. See State v. Wavrick, 123 Idaho 83, 844 P.2d 712 (Ct.App. 1992).
Lundquist was arraigned on January 4, 1996. His trial date was set for July 9, 1996, within the six-month period allowed under § 19-3501. On April 18, 1996, Lundquist made a motion to separate his trial from that of Shanahan and Jenkins. The court granted Lundquist's motion on May 31, 1996 because Shanahan and Jenkins had requested continuances and Lundquist was still asserting his right to a speedy trial. On June 14, 1996, Lundquist made a motion to substitute a new attorney for one of his two defense attorneys. With approximately three weeks until the trial, the court was concerned that Lundquist's new attorney would not have time to prepare. The court decided that it would allow Lundquist to substitute counsel if Lundquist agreed to a continuance for counsel's preparation and if Lundquist waived his speedy trial rights. Lundquist and his counsel were concerned that by waiving the right to a speedy trial, Lundquist was at risk of being tried together with Shanahan and Jenkins. However, the court indicated that Lundquist's trial could be set for mid-August or early September and that Shanahan and Jenkins were not ready for trial and had requested a January 1997 trial date. Lundquist agreed to the continuance and waived his right to a speedy trial. The court granted Lundquist's motion to substitute counsel. Lundquist's trial was set for September 5, 1996.
On August 5, 1996, the state moved to continue the trial because it had just received a report from a defense psychologist and had not had time to prepare a response. Lundquist objected to a continuance. He argued that the state had sufficient time to prepare. He also indicated that he would not call the psychologist if it meant that there would be a continuance. The court granted the state's motion for a continuance and set the trial for January 8, 1997. On August 9, 1996, the state moved to consolidate the three trials. This motion was granted. Jury selection in Lundquist's trial began on January 29, 1997, one year and 25 days after his arraignment.
Lundquist has not challenged the continuance from July until September. He argues instead that the subsequently granted continuance from September until late January was impermissible because his waiver was limited to the first continuance.
Section 19-3501 does not allow for such a limited waiver. State v. Wavrick, supra. Once the trial has been postponed, the six-month statutory period no longer applies. Id. Furthermore, Lundquist knew when he agreed to the continuance of his July trial that a trial in August or September was not guaranteed:
Lundquist cannot rely upon the statutory six-month time period found in I.C. § 19-3501.
While the statutory right to a trial within six months cannot be revived once waived, Lundquist was also entitled to a speedy trial under both the state and federal constitutions. The court's decision to continue the trial until January must meet constitutional requirements. In order to determine whether Lundquist's constitutional rights have been violated, the Court employs the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, (1972).
II. Information Charging Lundquist with Felony-murder.
Lundquist contends that the information did not include all the elements of felony-murder and was thus insufficient to invoke the district court's jurisdiction over the charge of felony-murder.
The amended information filed on February 5, 1997, provides:
Idaho Code § 18-4003(d) defines felony-murder:
We first note that Lundquist did not challenge the information before the trial court. This is not fatal to Lundquist's challenge on appeal because the jurisdiction of the court is fundamental and can be raised at any time. See I.C.R 12(b)(2); State v. Cahoon, 116 Idaho 399, 775 P.2d 1241 (1989). However, "Informations which are tardily challenged are liberally construed in favor of validity.... An Information not challenged before a verdict will be upheld on appeal unless it is so defective that it does not, by any fair or reasonable construction, charge an offense for which the defendant is convicted." State v. Robran, 119 Idaho 285, 805 P.2d 491 (Ct.App.1991).
Under any fair and reasonable construction, the information in this case properly charged Lundquist with felony-murder. The words used in an information need not precisely track the language of the statute defining an offense. I.C. §§ 19-1303, -1417. Rather than using the word murder, the information charges that Fidela Tomchak died in the commission of a robbery. Murder is defined in I.C. § 18-4001 as "the unlawful killing of a human being with malice aforethought." With regard to felony-murder, the element of malice aforethought is satisfied by the fact that the killing was committed in the perpetration of a felony. State v. Dunlap, 125 Idaho 530, 533, 873 P.2d 784, 787 (1993). The question in this case is whether the allegation that Fidela Tomchak died in the commission of a robbery sufficiently conveys that Fidela Tomchak was killed unlawfully. Under the liberal construction appropriate at this stage of the proceedings, we hold that it does. Furthermore, Count I is entitled "MURDER IN THE FIRST DEGREE," and the information specifically cites I.C. § 18-4003(d) where felony-murder is defined.
We hold that the information was sufficient to charge Lundquist with felony-murder.
III. The Verdict Form.
The initial jury verdict form in this case contained the following two questions:
After the jury began deliberations it sent out a question asking "if convicted of a robbery where a murder took place, is it automatically considered First Degree Murder?" The Court referred the jury to instructions 18-23, which correctly set forth the relevant law. The jury then sent a second note:
The next morning the jury was provided with a new verdict form that contained the following question:
The jury marked question NO. 1(A) guilty and did not mark anything else on the verdict form.
Lundquist argues that the revised verdict form essentially directed a guilty verdict because there was no dispute that "Fidela Tomchak's death occurred in the commission of or attempted commission of a robbery or burglary[.]" While we agree that the revised verdict form does not set forth the elements of felony-murder, we do not agree that the verdict form directed a verdict of felony-murder.
The question of whether the jury was properly instructed is a question of law over which this court exercises free review.
Lundquist concedes that the jury was correctly instructed on the elements of felony-murder; he only challenges the verdict form. Although the verdict form did not recite with particularity the elements of felony-murder, it was not in conflict with the elements instruction that instructed the jury that it must find the defendant not guilty if the state failed to prove any of the relevant elements. Consequently, we hold that the instructions when read as a whole properly instructed the jury regarding the elements of felony-murder.
IV. The Sentence.
Lundquist was sentenced to the custody of the state board of corrections for the remainder of his life, with a minimum period of confinement of twenty years during which he would not be eligible for parole. Lundquist argues that a twenty-year fixed sentence as a minimum period of confinement is excessive in this case. He asks this Court to modify the sentence to a ten-year fixed term of confinement.
Where a sentence is within the statutory limits, the appellant bears the burden of demonstrating that it is a clear abuse of discretion. State v. Hedger, 115 Idaho 598, 604, 768 P.2d 1331, 1337 (1989). To constitute an abuse of discretion, the sentence must be shown to be excessive under any reasonable view of the facts. State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991). A sentence is reasonable if at the time of imposition it appears necessary to achieve "the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to the given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). For the purpose of sentencing review, this Court considers the minimum period of incarceration to be the probable measure of confinement. State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989). Therefore, Lundquist must show that a minimum term of confinement of twenty years is unreasonable.
The trial court issued detailed findings of fact in support of the sentence imposed in this case. The court considered each of the four sentencing objectives:
The maximum sentence available to the district court in this case was an order of execution as capital punishment. However the court concluded it was not an appropriate case to impose the death sentence. The court was then faced with the decision to impose a life sentence with a portion of required confinement without parole eligibility. Given the serious nature of this crime and the level of Lundquist's involvement, we cannot say that the district court abused its discretion by committing Lundquist to a life sentence with a minimum period of confinement of twenty years.
The judgment of conviction and sentence are affirmed.