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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38817

STATE OF IDAHO,

Plaintiff-Respondent,

v.

ALBERT A. CICCONE,

Defendant-Appellant.

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2012 Opinion No. 66

Filed: December 11, 2012

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, 

Elmore County. Hon. Michael Wetherell; Hon. Richard D. Greenwood, District 

Judges. 

Judgment of conviction and determinate life sentence for first degree murder and 

concurrent fifteen-year determinate term for second degree murder, affirmed.

Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Chief,

Appellate Unit, Boise, for appellant. Erik R. Lehtinen argued.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. Lori. A. Fleming argued.

________________________________________________

PERRY, Judge Pro Tem

Albert A. Ciccone appeals from the judgment of conviction and sentence entered upon 

the jury verdict finding him guilty of one count of first degree murder and one count of second 

degree murder. Ciccone presents three issues on appeal: (1) whether his constitutional and 

statutory rights to a speedy trial were violated; (2) whether the prosecutor engaged in misconduct 

during his rebuttal closing arguments; and (3) whether his determinate life sentence is excessive.

I. 

BACKGROUND

On October 16, 2003, Ciccone struck his pregnant wife with his car, killing her and the

unborn fetus. Ciccone was charged with two counts of first degree murder--one count for his 

wife and one count for the unborn fetus. On January 27, 2004, the district court entered an order 

holding defendant to answer, and on the same day, the State filed its information.
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Trial was initially set for July 2004; however, a week before trial the State filed a motion 

to continue. The State’s motion asserted that several witnesses were military personnel assigned 

to temporary duty (TDY) outside the state and were unavailable for trial. Ciccone opposed the 

motion, arguing that the prosecutor negligently waited for the Air Force investigation to 

conclude before attempting to contact witnesses. The district court granted the motion to 

continue and the trial was delayed until January 4, 2005. The jury ultimately found Ciccone 

guilty of first degree murder of his wife and second degree murder of the unborn fetus. The 

district court entered judgment on the jury’s verdict and imposed a determinate life sentence 

upon Ciccone’s conviction for first degree murder and a concurrent determinate fifteen-year 

sentence upon his conviction for second degree murder. Ciccone appealed and after the case was 

briefed and argued before this Court and the Idaho Supreme Court, his appeal was dismissed 

because it was not timely. See State v. Ciccone, 150 Idaho 305, 246 P.3d 958 (2010). Pursuant 

to a stipulation and order entered in post-conviction proceedings, the district court vacated its 

original judgment and conviction and reentered it as of April 19, 2011. Ciccone timely appeals 

from that judgment of conviction. 

II.

ANALYSIS

A. Right to a Speedy Trial

Ciccone argues on appeal that his constitutional and statutory rights to a speedy trial were 

violated when the district court allowed him “to be tried almost fifteen months after his arrest 

and almost a full year after the filing of the Information . . . .” 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). We will defer to the trial 

court’s findings of fact if supported by substantial and competent evidence; however, we will 

exercise free review of the trial court’s conclusions of law. Id.

In Idaho, criminal defendants enjoy both constitutional and statutory entitlements to a 

speedy trial. The right to a speedy trial is guaranteed by the Sixth Amendment to the United 

States Constitution and Article I, Section 13 of the Idaho Constitution. These constitutional 

protections are supplemented by Idaho Code § 19-3501, which sets specific time limits within 

which a criminal defendant must be brought to trial. Idaho Code § 19-3501 provides as follows:
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The court, unless good cause to the contrary is shown, must order the 

prosecution or indictment to be dismissed, in the following cases:

. . . .

(2) If a defendant, whose trial has not been postponed upon his 

application, is not brought to trial within six (6) months from the date that the 

information is filed with the court.

I.C. § 19-3501(2). Under this statute, the State bears the burden to demonstrate good cause for a 

failure to bring a defendant to trial within the six-month limit. Clark, 135 Idaho at 258, 16 P.3d 

at 934; State v. Livas, 147 Idaho 547, 549, 211 P.3d 792, 794 (Ct. App. 2009).

In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court addressed 

application of the speedy trial right guaranteed by the Sixth Amendment and chose a flexible 

approach for assessing whether a speedy trial has been unconstitutionally denied. The Court 

adopted a balancing test in which the conduct of the defendant and the prosecution are to be 

considered, and the Court identified four primary factors to be weighed in determining whether a 

particular defendant has been deprived of his Sixth Amendment speedy trial right: (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. See Barker, 407 U.S. at 530. This same balancing 

test was adopted by the Idaho Supreme Court for determining whether the speedy trial guarantee 

of the Idaho Constitution has been violated. See State v. Lindsay, 96 Idaho 474, 476, 531 P.2d 

236, 238 (1975).

In Clark, the Idaho Supreme Court reexamined “what ‘good cause’ means in the context 

of I.C. § 19-3501.” Clark, 135 Idaho at 259, 16 P.3d at 935. The Court thereupon abandoned 

the previous approach of wholesale incorporation of the Barker balancing test when enforcing 

the speedy trial rights conferred by I.C. § 19-3501. The Court stated that to evaluate the 

justification for bringing a defendant to trial after the statutory six-month time limit,

[W]e believe that a thorough analysis of the reasons for the delay represents the 

soundest method for determining what constitutes good cause. We therefore 

conclude that good cause means that there is a substantial reason that rises to the 

level of a legal excuse for the delay. See State v. Johnson, 119 Idaho 56, 58, 803 

P.2d 557, 559 (Ct. App. 1990); State v. Stuart, 113 Idaho 494, 496, 745 P.2d 

1115, 1117 (Ct. App. 1987). Because there is not a fixed rule for determining 

good cause for the delay of a trial, the matter is initially left to the discretion of 

the trial court. See Johnson, 119 Idaho at 58, 803 P.2d at 559; Naccarato, 126 

Idaho at 13, 878 P.2d at 187; see also People v. Johnson, 26 Cal. 3d 557, 162 Cal.

Rptr. 431, 606 P.2d 738, 746 (1980); Gallimore v. State, 944 P.2d 939, 943 (Okla.

Crim. App. 1997).
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But as the Iowa Supreme Court noted in State v. Petersen, the reason for 

the delay “cannot be evaluated entirely in a vacuum.” 288 N.W.2d 332, 335 

(Iowa 1980). The good cause determination may take into account the factors 

listed in Barker. The Barker factors, however, “considered only as surrounding 

circumstances . . . are important, if at all, only insofar as they bear on the 

sufficiency of the reason itself. The shortness of the period, the failure of the 

defendant to demand a speedy trial, and the absence of prejudice are legitimate 

considerations only insofar as they affect the strength of the reason for delay. 

This means that, to whatever extent the delay has been a short one, or the 

defendant has not demanded a speedy trial, or is not prejudiced, a weaker reason 

will constitute good cause. On the other hand, if the delay has been a long one, or 

if the defendant has demanded a speedy trial, or is prejudiced, a stronger reason is 

necessary to constitute good cause.” Id.

Clark, 135 Idaho at 260, 16 P.3d at 936.

This Court recently commented in State v. Jacobson, 153 Idaho 377, 283 P.3d 124 (Ct. 

App. 2012) that:

Our Supreme Court’s non-application of the Barker factors, other than the 

reason for the delay, in Clark and Young is significant. We take this to mean that 

where the reason for the delay is well defined, and that reason on its face clearly 

does, or clearly does not, constitute good cause, there is no occasion to consider 

the other Barker factors in assessing a claimed violation of Idaho Code § 19-3501. 

This comports with the Supreme Court’s statement in Clark that “if the reason for 

the delay is sufficient the other [Barker ] factors are not needed. If the reason for 

the delay is insufficient the other factors will not avail to avoid dismissal.” Clark, 

135 Idaho at 260, 16 P.3d at 936 (quoting State v. Nelson, 600 N.W.2d 598, 601 

(Iowa 1999)). We conclude that resort to the other Barker factors will be 

appropriate primarily in close cases as where, for example, there are multiple 

reasons for the delay attributable to both the State and the defendant or the 

sufficiency of the reason to constitute “good cause” is genuinely subject to 

disagreement.

Id. at 380, 283 P.3d at 127.

1. Reason for the delay

In evaluating the reason for the delay, different weights are assigned to different reasons.

United States v. Loud Hawk, 474 U.S. 302, 315 (1986); State v. Davis, 141 Idaho 828, 837, 118 

P.3d 160, 169 (Ct. App. 2005). Our speedy trial standards recognize that pretrial delay is often 

both inevitable and wholly justifiable. Doggett v. United States, 505 U.S. 647, 656 (1992); 

Davis, 141 Idaho at 837, 118 P.3d at 169. We attach great weight to considerations such as the 

State’s need for time to collect witnesses, oppose pretrial motions, or locate the defendant in the 

event that he or she goes into hiding. Doggett, 505 U.S. at 656; Davis, 141 Idaho at 837, 118 
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P.3d at 169. A valid reason, such as a missing witness, should serve to justify appropriate delay. 

Barker, 407 U.S. at 531. However, there is an enormous difference between being 

inconvenienced and being unavailable. Clark, 135 Idaho at 260, 16 P.3d at 936; Davis, 141 

Idaho at 837, 118 P.3d at 169. True unavailability suggests an unqualified inability to attend, 

while inconvenience merely implies that attendance at trial would be burdensome. Clark, 135 

Idaho at 260, 16 P.3d at 936; Davis, 141 Idaho at 837, 118 P.3d at 169.

A deliberate attempt to delay the trial in order to hamper the defense should be weighed 

heavily against the State. Barker, 407 U.S. at 531; Davis, 141 Idaho at 837, 118 P.3d at 169. A 

more neutral reason, such as negligence or overcrowded courts, should be weighed less heavily 

but nevertheless should be considered since the ultimate responsibility for such circumstances 

must rest with the State rather than with the defendant. Barker, 407 U.S. at 531; Davis, 141 

Idaho at 837, 118 P.3d at 169; State v. Wavrick, 123 Idaho 83, 89, 844 P.2d 712, 718 (Ct. App.

1992). While not compelling relief in every case where a bad-faith delay would make relief 

virtually automatic, neither is negligence automatically tolerable simply because the accused 

cannot demonstrate exactly how it has prejudiced him or her. Doggett, 505 U.S. at 657; Davis, 

141 Idaho at 837-38, 118 P.3d at 169-70. Although negligence is weighed more lightly than a 

deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide 

between acceptable and unacceptable reasons for delaying a criminal prosecution. Doggett, 505 

U.S. at 657; Davis, 141 Idaho at 837-38, 118 P.3d at 169-70.

In its oral ruling granting the State’s motion to continue, the district court identified what 

it believed to be the causes of the delay:

However, the court in reviewing the affidavits and statements of the State 

and with considering those matters which I must consider with regard to the 

granting of any continuance in this particular case the length of the delay would 

have to be until December. That is the first available date when two weeks would 

be available on the court’s calendar. Pardon me, January, when two weeks would 

be available on the court’s calendar, which the parties are advising me is the 

amount of time that they feel would be taken. 

The court had in fact advised both parties at the time that trial was set in 

this matter that it would not be able to be here the first week of August. As a 

result of that, other commitments have been made with the court’s time. While a 

congested calendar is not enough for a continuance, the fact that other calendar 

items have been scheduled because of the fact that the parties felt the matter could 

be completed by July 30th and now do not feel that that is the case, I think is a 

little bit different matter.
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And the court feels that continuing a matter and having half your trial in 

July and the other half in August creates other problems that could potentially 

prejudice the defendant, as well. 

The reason for the request the court feels is in fact reasonable. The court 

notes that a jury trial for a murder case in Elmore County has not gone to trial for 

nearly twenty years. Somehow I seem to have had the luck of getting two of them 

in my first year and a half on the bench. 

And it appears that the prosecution in this case did make efforts to be in 

touch with the Air Force with regard to these witnesses; that according to the 

affidavit the Information with regard to the witnesses was not provided until June; 

that the prosecution was not advised that some of those witnesses were out of the 

country, out of reach of the subpoena power of this court until July a few days 

prior to trial.

Certainly hindsight is always 20-20. And the fact of the matter is that we 

must recognize that this is a military community and military do in fact have their 

own procedures and the United States is at the current time in a state of war in 

two countries. And that military personnel are being switched around, moved for 

training on a regular basis, which creates a problem for the prosecution. Probably 

even greater than those that are presented when the United States is not in that 

situation.

Prosecution’s representation is that it did not know that these witnesses 

would not be available until July. Intent is a key element in a first degree murder 

trial and certain of these witnesses directly relate to the issue of intent. Not only 

is the defendant required to--is entitled to a fair and speedy trial, but the people as 

well are entitled to a fair and speedy trial. And it would be extremely--an extreme 

hardship on the State to attempt to obtain these people on such short notice. It is 

possible they could not be obtained at all. 

Finally, is there prejudice to the defendant? The court will note that yes 

there is in fact prejudice to the defendant any time, in the court’s opinion, when 

there is a delay.

However, given the facts of this case, the court does not believe that this is

an unreasonable delay, nor does it present an unreasonable prejudice to the 

defendant and will note that the State has cooperated in the taking of depositions 

voluntarily where the defendant discovered that one of the witnesses was going to 

be on temporary duty, as well.

So, is there prejudice? Yes, there is some prejudice. Is that prejudice 

unreasonable given the circumstances? No. The court finds that it is not. And 

has the defendant demanded his rights? The defendant has in fact demanded and 

asserted his rights to speedy trial. However, the court will note that under the 

laws of this state and under the United States Supreme Court decision, the right to

a trial within a specified period of time is not absolute. The court does have 

discretion to grant a continuance for reasonable cause shown. The court does 

believe that reasonable cause has been shown in this matter.

. . . .

So, the court, despite its concerns over the continuance and the 

inconvenience that is going to occur, will for all of those reasons grant the 
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continuance requested. The court will reset this matter for trial for a period of two 

weeks to commence January 4th of 2005.

As noted above, a valid reason, such as a missing witness, should serve to justify 

appropriate delay. Barker, 407 U.S. at 531. Moreover, in Doggett the United States Supreme 

Court stated: “[t]he government may need time to collect witnesses . . . . We attach great weight 

to such considerations when balancing them against the costs of going forward with a trial whose 

probative accuracy the passage of time has begun by degrees to throw into question.” Doggett, 

505 U.S. at 656. Ciccone argues that the witnesses here were not truly unavailable as 

contemplated by the Idaho appellate decisions of Clark and Davis and any unavailability therein

was caused by the State’s negligence. In Clark, the Idaho Supreme Court dealt with a speedy 

trial issue hinging on true unavailability or mere inconvenience. See Clark, 135 Idaho at 255, 16 

P.3d at 931. There, the State requested a continuance to accommodate the complaining witness, 

French. Id. at 256, 16 P.3d at 932. The prosecutor informed the magistrate that French lived in 

Montana and was scheduled to take board exams on September 8. Id. The prosecutor also stated 

that French could not travel to Boise for a trial between September 20 and October 6, 1997, 

because of teaching obligations. Id. The Court concluded:

But the record in this case indicates that French was neither “missing” in any 

sense of the word, nor was she actually “unavailable.” There is an enormous 

difference between being inconvenienced and being unavailable. True 

unavailability suggests an unqualified inability to attend, while inconvenience 

merely implies that as in a case such as this, attendance at trial would be 

burdensome. Here, French could have attended the September 22 trial, and in fact 

was compelled to do so by the magistrate’s previous order. The State, however, 

not wishing to have French travel from out of state only to face postponement of 

the trial, requested that Clark’s trial either be given top priority on September 22 

or moved to a date in which the trial would have first priority. But the desire to 

accommodate French’s schedule cannot be said to comprise a reason that rises to 

the level of a legal excuse for the delay.

Id. at 260-61, 16 P.3d at 936-37. 

Our review of the record in this instance leads us to conclude that the State demonstrated 

good cause for the delay--the unavailability of witnesses. The State filed the information 

charging Ciccone with two counts of first degree murder on January 27, 2004. Ciccone’s trial 

was originally set to commence on July 20, 2004--seven days prior to the statutory deadline of 

I.C. § 19-3501. On July 16, 2004, the State filed a motion to continue the trial, asserting that six
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of its witnesses were active duty military personnel assigned to TDY outside the state and were 

unavailable for trial. Of those six witnesses, three were in South Korea and another was in Texas 

preparing to be deployed to Iraq. 

Ciccone argues that the State has not demonstrated that the witnesses were truly 

unavailable. A witness being unavailable for trial due to active military service is a good reason 

for delay. See, e.g., Bell v. State, 651 S.E.2d 218, 219-20 (Ga. Ct. App. 2007) (reason for the 

delay was sufficient when witness was unavailable because she was on active duty as a member 

of the armed forces and was serving in Iraq); People v. Chardon, 922 N.Y.S.2d 127, 128-29 

(N.Y. App. Div. 2011) (holding that a “subsequent period between June 8, 2005, and July 7, 

2005, were attributable to exceptional circumstances and, therefore, excludable [ ], since the 

complainant was deployed for military service in Korea”); Commonwealth v. Hyland, 875 A.2d 

1175, 1190-92 (Pa. Super. Ct. 2005) (“The Commonwealth cannot be held to be acting without 

due diligence when a witness becomes unavailable due to circumstances beyond its control. 

Certainly, [a witness’s] deployment to the Middle East was a matter over which the

Commonwealth had no control.”); Kelley v. Commonwealth, 439 S.E.2d 616, 619 (Va. Ct. App. 

1994) (“the Commonwealth was justified in requesting a continuance for the period in which [ ],

their primary witness, was called to military duty in the Persian Gulf”).

Ciccone also argues that the State negligently waited for the Air Force to conclude its

investigation, which caused the subpoenas to be sent in June. The Air Force investigation 

contained a witness list that the State used to prepare for trial. All of the witnesses in the report 

were Air Force members. Although waiting for the conclusion of the investigation pushed the 

State to the discovery deadline, the list was given to defense counsel before the deadline date. 

The State waiting for the conclusion of the Air Force investigation was reasonable, given the 

unique circumstances of the military community and military procedures. 

Although this Court concludes that the reason for the delay ultimately weighs in favor of 

finding that Ciccone’s speedy trial rights were not violated, we further determine that it is 

sufficiently close to warrant a discussion of the other three Barker factors.

2. Length of delay

Barker’s four-part speedy trial test creates no bright-line boundaries. Rather, the United 

States Supreme Court pointed out that because of the imprecision of the right to a speedy trial, 

the length of delay that will provoke an inquiry into whether those rights have been violated is 
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necessarily dependent upon the peculiar circumstances of the case. Barker, 407 U.S. at 530-31. 

The nature of the case is also of import in determining the period of delay that can be tolerated, 

for the period that is reasonable for prosecution of an ordinary street crime is considerably less 

than for a complex conspiracy charge. Id. at 531; Lopez, 144 Idaho at 353, 160 P.3d at 1288; 

Davis, 141 Idaho at 837, 118 P.3d at 169; State v. McNew, 131 Idaho 268, 272, 954 P.2d 686, 

690 (Ct. App. 1998).

As Ciccone points out, when his trial began on January 4, 2005, it was nearly twelve 

months from when the information was filed. This delay is not as significant, given that the 

nature of the charges Ciccone was facing--two counts of first degree murder--can be fairly

characterized as complex. Compare Davis, 141 Idaho at 837, 118 P.3d at 169 (concluding that a 

DUI charge arising out of a traffic stop could not be characterized as complex), and State v. 

Moore, 148 Idaho 887, 902, 231 P.3d 532, 547 (Ct. App. 2010) (same), with Lopez, 144 Idaho at 

353, 160 P.3d at 1288 (concluding a seventeen-month delay was unreasonable because “the 

record on appeal shows no difficulty with complexity of investigation, lost witnesses, trouble 

marshalling evidence, or any other mitigating circumstance justifying the delay”). Here, the 

severe nature of the alleged offenses required more time than that of a non-complex case. In 

addition, witnesses were unavailable, the defense did not provide an expert’s curriculum vitae

until after the State requested a continuance, and the Air Force procedures and protocol provided 

complications that all added to the length of the delay. 

3. Assertion of speedy trial rights

In the context of a constitutional speedy trial analysis, the defendant’s assertion of his or 

her right to a speedy trial is entitled to strong evidentiary weight in determining whether the 

defendant is being deprived of the right. Barker, 407 U.S. at 531-32. At the hearing on the 

State’s continuance motion, Ciccone clearly asserted his speedy trial rights. Thus, we conclude 

that Ciccone asserted his speedy trial rights as soon as he knew he would not be brought to trial 

within six months, and his assertion weighs in favor of dismissal on speedy trial grounds.

4. Prejudice

The fourth factor in the Barker analysis is prejudice to the accused caused by the delay.

Prejudice is to be assessed in light of the interests that the right to a speedy trial is designed to 

protect. State v. Young, 136 Idaho 113, 118, 29 P.3d 949, 954 (2001). Those interests are: (1) to 

prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; 
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and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532; Young, 

136 Idaho at 118, 29 P.3d at 954; Lopez, 144 Idaho at 354-55, 160 P.3d at 1289-90. The third of 

these is the most significant because a hindrance to adequate preparation of the defense “skews 

the fairness of the entire system.” Barker, 407 U.S. at 532; Lopez, 144 Idaho at 355, 160 P.3d at 

1290. See also State v. Hernandez, 133 Idaho 576, 583, 990 P.2d 742, 749 (Ct. App. 1999).

Relevant to this inquiry, the district court stated:

Finally, is there prejudice to the defendant? The court will note that yes 

there is in fact prejudice to the defendant any time, in the court’s opinion, when 

there is a delay.

However, given the facts of this case, the court does not believe that this is 

an unreasonable delay, nor does it present an unreasonable prejudice to the 

defendant and will note that the State has cooperated in the taking of depositions 

voluntarily where the defendant discovered that one of the witnesses was going to 

be on temporary duty, as well.

So, is there prejudice? Yes, there is some prejudice. Is that prejudice 

unreasonable given the circumstances? No. The court finds that it is not.

As for the first two interests, it is unquestioned that Ciccone endured anxiety while he 

was facing charges from the State and remained incarcerated for the entirety of the time between 

his arrest and trial. As to the last interest, Ciccone asserts that the delay impaired his defense 

against the charges in this case. Ciccone specifically argues that one witness, Ms. Shaw, testified 

at trial that when Ciccone got out of his car and started talking on his cell phone, he said “I got 

the job done.” When confronted with the fact that she had never revealed this information 

before, Shaw said that no one had ever asked her what Ciccone had said into his cell phone. 

However, Shaw had been asked that question before at Ciccone’s preliminary hearing and had 

testified then to not being able to hear what Ciccone had said into his cell phone. Ciccone 

attributes that misstatement to the extended delay in bringing him to trial. Ciccone contends that 

one witness’s memory “could have deteriorated so significantly by the time of Mr. Ciccone’s 

trial, one must wonder how reliable any of the witness’ (sic) trial testimony was so long after the 

fact.” 

Ciccone’s prejudice argument concerning possible witness memory loss is unavailing. 

First, the witness that misstated her previous testimony was cross-examined and impeached by 

Ciccone’s attorney. Furthermore, Ciccone’s attorney made specific reference to the inconsistent 

statements during closing argument. The impeachment removed any prejudice Ciccone could 

have faced by the witness’s inconsistent testimony. Second, Ciccone’s argument is based solely 
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on speculation and does not demonstrate prejudice. See Loud Hawk, 474 U.S. at 315 (alleging 

only a “possibility of prejudice is not sufficient to support” a claim of a speedy trial violation). 

Thus, Ciccone has failed to demonstrate that the delay prejudiced his defense to the charges in 

any degree.

5. Conclusion

Although the delay in this case went beyond the six-month statutory speedy trial date, the 

most important consideration is the reason for the delay and we conclude, from the record, the 

State demonstrated good cause in seeking a continuance. Likewise, the length of the delay was 

not significant in light of the charges Ciccone was facing--two counts of first degree murder--and 

the complexities of prosecuting an Air Force member in a military community. Further 

weighing against a speedy trial violation is that there is no perceptible prejudice from the delay 

apparent in the record. Accordingly, we conclude Ciccone has not shown a constitutional or 

statutory speedy trial violation. 

B. Prosecutorial Misconduct

Ciccone argues that during rebuttal closing argument the prosecutor made three improper 

statements. The first statement Ciccone alleges was improper because it infringed on his right to 

silence under the United States and Idaho Constitutions. The second statement Ciccone now 

argues contributed to the general tone that he did not testify at trial. The third statement Ciccone 

alleges was an improper plea to the jury to convict him not on the evidence, but on sympathy for 

the victims. Each statement will be taken up in turn.

1. Defendant’s silence

Ciccone argues that the prosecutor referred to Ciccone’s decision not to testify and the 

statement rose to the level of fundamental error because it resulted in him being denied due 

process of law and violated his right to remain silent under the United States Constitution and 

Idaho Constitution. During closing argument, the prosecutor stated “[t]here’s only two people 

that know, and Kathleen Ciccone isn’t here to tell us.” Ciccone did not object to the statement at 

trial.

In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified 

the fundamental error doctrine that applies where a defendant asserts that an error occurred at 

trial--which it explicitly stated included allegations of prosecutorial misconduct. The Court 
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summarized the standards applicable both when there was a contemporaneous objection and 

when there was not, the latter of which is applicable here:

If the alleged error was not followed by a contemporaneous objection, it 

shall only be reviewed by an appellate court under Idaho’s fundamental error 

doctrine. Such review includes a three-prong inquiry wherein the defendant bears 

the burden of persuading the appellate court that the alleged error: (1) violates 

one or more of the defendant’s unwaived constitutional rights; (2) plainly exists 

(without the need for any additional information not contained in the appellate 

record, including information as to whether the failure to object was a tactical 

decision); and (3) was not harmless. If the defendant persuades the appellate 

court that the complained of error satisfies this three-prong inquiry, then the 

appellate court shall vacate and remand.

Id. at 228, 245 P.3d at 980. In regard to the harmless error analysis, a defendant bears the burden 

of proving there is a reasonable possibility that the error affected the outcome of the trial. Id. at 

226, 245 P.3d at 978.

Closing argument serves to sharpen and clarify the issues for resolution by the trier of 

fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). 

Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence. 

Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides 

have traditionally been afforded considerable latitude in closing argument to the jury and are 

entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be 

drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144 

Idaho at 86, 156 P.3d at 587. While our system of criminal justice is adversarial in nature, and 

the prosecutor is expected to be diligent and leave no stone unturned, he or she is nevertheless 

expected and required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). 

However, in reviewing allegations of prosecutorial misconduct we must keep in mind the 

realities of trial. Id. A fair trial is not necessarily a perfect trial. Id.

Ciccone claims that he has satisfied Perry’s first prong because the prosecutor’s 

statement violated his constitutional right to silence. According to Ciccone, the prosecutor’s 

statement implied that Ciccone was invoking his right to silence because only he could have told 

the jury about his argument with the victim. The Idaho Supreme Court has stated that a 

prosecutor’s comments “must be evaluated in light of defense conduct and in the context of the 

entire trial.” State v. Severson, 147 Idaho 694, 719, 215 P.3d 414, 439 (2009); see also Darden 

v. Wainwright, 477 U.S. 168, 179 (1986) (stating that when the State’s closing follows the 
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defense’s, “[t]he prosecutors’ comments must be evaluated in light of the defense argument that 

preceded it”). Indeed, “a criminal conviction is not to be lightly overturned on the basis of a 

prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; 

only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of 

the trial.” United States v. Young, 470 U.S. 1, 11 (1985).

The relevant portion of the prosecutor’s rebuttal argument is as follows:

Let’s talk about [defense counsel] talking about the scene on K & R Ranch 

Road. How this precious purse a woman would have carried, the bag of food she 

obviously had in her possession because that’s what Albert said.

So I guess she has got the purse in the car, the bag of food in the car, the 

medicine, the sweater tied around her and everything. And she decided to get out 

with all of that stuff on K & R Ranch Road . . . and decided to walk however 

many feet--let’s just say--it is on the chart--walk up there with all the purse, 

sweatshirt tied around her waist, bottle of pills, and all the food bag, and had 

enough wherewithal to throw it all at him right- or left-handed. Maybe she sat the 

purse down to get the McDonalds bag or the Burger King to throw at him. Maybe 

she just left it there. I don’t know. There’s only two people that know, and 

Kathleen Ciccone isn’t here to tell us. 

Did the defendant try and hide this evidence, as the defense has talked to 

Cathy Wolfe about? He knew she was going to find it. Well, he sure as heck 

didn’t walk back towards the driveway after he had run down his wife. As a 

matter of fact, they found him about as far away as you could get in that time 

frame from the driveway.

Did he ever tell Cathy Wolfe, “I didn’t turn around here. You’re wrong. I 

turned around at K & R Ranch Road. That’s where we got to. That’s where we 

stopped. That’s where we had a fight. That’s where I turned around”?

He never once said, at least in my memory, that that’s where he turned 

around. He bought on, “Oh, this is where I turned around. Why would I turn 

around here? It doesn’t make sense. We just had a little tiff. We were just 

joking. She wanted to go see her friends. That was it.”

He didn’t say, “Detective Wolfe, it has come back to me now. I turned 

around up here.”

As a matter of fact, he didn’t even mention throwing the food or anything 

else until Cathy Wolfe said, “Look, we found all the food.” Oh, well, excuse me. 

I had a bad day. Pardon me for my omission.

(Emphasis added.) 

In this case, the prosecutor’s statement did not infringe on Ciccone’s right to silence. The 

statement was made in response to defense counsel’s reference to Ciccone’s interview with the 

police. At that interview, Ciccone discussed the purported evidence and claimed that he 

accidently hit his wife with the car. Rather than making the improper implication as Ciccone 
14

alleges, the prosecutor merely explained Ciccone’s prior statement to the police. This result is 

further evidenced by the prosecutor’s remarks “that’s what Albert said” and “[d]id he ever tell 

Cathy Wolfe.” Considering the entirety of the argument, the prosecutor’s statement was not 

improper and, therefore, did not rise to the level of fundamental error.

At oral argument, Ciccone’s appellate counsel conceded that his second alleged error of 

prosecutorial misconduct could not be an independent claim of error because a defense objection 

was sustained and trial counsel failed to move for a mistrial. During rebuttal, the prosecutor also 

stated:

There is no testimony that he was looking down at is [sic] watch, that the 

cigarette smoke had blown in his face, that he was changing the radio station, that 

a cassette dropped, a cigarette dropped in his pants, he had to try and put it out 

real quick. No testimony as to that. Absolutely none. He doesn’t say anything 

about any--

In light of Ciccone’s concession at oral argument, he now argues that although this statement is 

not an individual claim of error, it contributed to the “general tone” that Ciccone failed to testify.

When Ciccone’s trial attorney objected to this statement, the district court sustained the 

objection and admonished the jury:

Ladies and gentlemen of the jury, the jury will disregard any argument 

based upon what the defendant did not say. As stated earlier in instruction 55, a 

defendant in a criminal trial has a constitutional right not to be compelled to 

testify.

The decision of whether to testify is left to the defendant acting with the 

advice and assistance of the defendant’s lawyer. You must not draw any 

inference of guilt from the fact the defendant did not testify, nor should this fact 

be discussed by you or enter into your deliberations in any way.

We conclude that the prosecutor’s statement did not contribute to any “general tone” that 

Ciccone did not testify. The second statement was objected to and the objection was sustained, 

stopping any further improper comments. Furthermore, a curative instruction was given to the 

jury to ensure that no weight was given to Ciccone invoking his right to silence. In light of our 

determination that the first alleged prosecutorial misconduct statement was a reference to a 

custodial interview, this second statement was not a part of a general tone created by the 

prosecutor to illustrate that Ciccone refused to testify at trial. 
15

2. Sympathy for the Victim

Ciccone also argues that the prosecutor engaged in misconduct when he allegedly asked 

the jury to convict Ciccone based on sympathy for the victim. Ciccone did not object to the 

prosecutor’s statement at trial. As noted above, where prosecutorial misconduct was not 

objected to during trial, this Court may only reverse when that misconduct constitutes a 

fundamental error. Perry, 150 Idaho at 227, 245 P.3d at 979. Under Perry’s first prong, an 

alleged error must violate one of the accused’s unwaived constitutional rights. Id. at 228, 245 

P.3d at 980. A defendant’s right to a fair trial, under the Fourteenth Amendment of the United 

States Constitution, is violated where a prosecutor attempts to “secure a verdict on any factor 

other than the law as set forth in the jury instructions and the evidence admitted during trial, 

including reasonable inferences that may be drawn from that evidence.” Id. at 227, 245 P.3d at 

979.

Ciccone relies on the following rebuttal statement to support his argument:

When you kill somebody, you take away everything they have and 

everything they ever will have. Kathleen was twenty-two years old. Her death is 

a tragedy. Give her life meaning and give her death the sense of justice that it 

requires. Hold the defendant accountable for the purposeful, willful, deliberate, 

premeditated actions that he took that night.

We are not persuaded that Ciccone has shown fundamental error in the prosecutor’s 

arguments. Even if we assume that the prosecutor’s statement strayed into the realm of 

emotional appeal, it did not approach the level of egregiousness necessary to constitute 

fundamental error. Prior to making the statement cited above, the prosecutor said, “[t]his case is 

about Kathleen Ciccone’s death, not the mother’s pains, not about Albert Ciccone’s being in the 

hands of [defense counsel]. It is about how and why she died.” (Emphasis added.) Moreover, 

after the statement Ciccone alleges is improper, the prosecutor clearly asks the jury to “[h]old the 

defendant accountable for the purposeful, willful, deliberate, premeditated actions that he took 

that night.” The prosecutor stated twice that Ciccone should be found guilty based on his 

criminal actions. We conclude this statement does not rise to the level of prosecutorial 

misconduct and thus Ciccone has failed to demonstrate fundamental error. 

Lastly, Ciccone in passing asserts that “[t]aken together, these instances of misconduct 

rendered it impossible for Mr. Ciccone to receive a truly fair trial.” Although not cited as such, 

Ciccone appears to argue that when taken together the three statements constitute cumulative 
16

error. The cumulative error doctrine refers to an accumulation of irregularities, each by itself 

might be harmless, but when aggregated, show the absence of a fair trial in contravention of the 

defendant’s right to due process. State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 183 (1998). 

A necessary predicate to application of the cumulative error doctrine is a finding of more than 

one error. Severson, 147 Idaho at 723, 215 P.3d at 443; State v. Hawkins, 131 Idaho 396, 407, 

958 P.2d 22, 33 (Ct. App. 1998). Because this Court determined that there was no error, Ciccone

has failed to show errors sufficient to invoke the doctrine of cumulative error.

C. Excessive Sentence

Ciccone argues that the district court abused its discretion by imposing a determinate life 

sentence for first degree murder.1 Specifically, Ciccone asserts that “while his actions are 

reprehensible and tragic (as any murder is), the murder in this case is devoid of aggravating 

circumstances and, therefore, is relatively non-egregious.” Ciccone further contends that the 

district court did not properly consider other mitigating factors, including his: (1) mental health;

(2) rehabilitation potential; (3) service in the Air Force; and (4) lack of prior felony convictions.

An appellate review of a sentence is based on an abuse of discretion standard. State v. 

Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, 

the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. 

State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such 

an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 

103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it 

appears at the time of sentencing that confinement is necessary “to accomplish the primary 

objective of protecting society and to achieve any or all of the related goals of deterrence, 

rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650 

P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed 

an excessively harsh sentence, we conduct an independent review of the record, having regard 

for the nature of the offense, the character of the offender, and the protection of the public 

interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When 

reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 

144 Idaho 722, 726, 170 P.3d 387, 391 (2007).

 

1 Ciccone does not challenge the sentence he received upon his conviction for second 

degree murder for the unborn fetus.
17

Imposing a life sentence requires a high degree of certainty that the defendant cannot be 

released safely back into society or that the nature of the offense requires the defendant to spend 

the rest of his or her life in prison. State v. Stevens, 146 Idaho 139, 149, 191 P.3d 217, 227 

(2008). The Idaho Supreme Court recently addressed a sentencing court’s ability to consider the

nature of the offense when imposing a determinate life sentence in State v. Windom, 150 Idaho 

873, 253 P.3d 310 (2011). There, the Idaho Supreme Court reiterated that a sentencing court 

may consider the heinous and cruel nature of the crime when determining whether a defendant 

should spend the rest of his or her life in prison. Id. at 876, 253 P.3d at 313. See also State v. 

Cannady, 137 Idaho 67, 73 44 P.3d 1122, 1128 (2002); State v. Jackson, 130 Idaho 293, 294, 

939 P.2d 1372, 1373 (1997). The Windom Court went on to hold that the sentencing 

considerations of societal retribution and general deterrence are decided based upon the unique 

characteristics of the offense. Windom, 150 Idaho at 880, 884, 253 P.3d at 317, 321.

Regarding the calculated and callous method in which the victim was killed, the district 

court determined that Ciccone’s crime of first degree murder mandated life in prison, stating:

The report of the accident reconstruction specialist from the Idaho State 

Police, who reviewed the scene shortly after the events happened, was as follows: 

“Albert Ciccone drove his vehicle to the right side of the road in a straight-ahead 

motion. The speed of his vehicle would have been about fifty miles-per-hour 

when he struck Kathleen Ciccone, the pedestrian. 

“The lack of any action on the driver’s part until he saw that he was going 

to hit the mailbox indicates that he had no reaction to the pedestrian that was 

walking on the right side of the road.” 

“The marks at the scene indicate a deliberate running over of the 

pedestrian and then a reaction to attempt to miss the mailbox. The driver could 

not have seen the mailbox until his vehicle struck the pedestrian.”

The district court also noted:

There had been prior acts witnessed by others of verbal abuse; prior acts, 

the effects of which were seen by others, of battery by the defendant upon the 

decedent, Kathleen Ciccone. And perhaps most telling, although not revealed to 

the jury at the time of trial, a prior attempt to hit Kathleen Ciccone with a motor 

vehicle when she left the hospital on one occasion at the Air Force base when the 

defendant was angry with her. 

Ciccone contends that his determinate life sentence cannot be reasonable “based on a 

finding that the murder in this case was particularly egregious. To do so would be to find that 

first degree murder, in and of itself, is so egregious that it demands the harshest possible sentence 
18

short of death, but that clearly is not the case.” We cannot agree with Ciccone that this was a 

relatively non-egregious murder. The district court had before it facts that proved Ciccone 

intentionally struck his wife with his car traveling at speeds of almost fifty miles per hour. 

Furthermore, Ciccone only applied his brakes to avoid hitting a mailbox, not in a reaction to 

striking his wife. Ciccone completed his atrocious act by callously walking away from his 

injured wife without providing aid or calling for help. Ciccone’s argument that this was a 

relatively non-egregious murder is based entirely on his belief that the incident was a tragic 

accident. This belief was not supported by the jury finding him guilty of first degree murder, and

thus was not a factor in sentencing.

 Ciccone further argues that the district court did not properly consider other mitigating 

factors, including his mental health, potential for rehabilitation, service in the Air Force, and lack 

of prior felony convictions. As our Supreme Court stated in Windom:

Sentencing is less a science than an art. Judges face a different uncertainty 

principle than physicists: they must make a factual finding of the probability of 

future criminal behavior based upon limited data. In so doing, they draw upon 

their accumulated experience. It is precisely because of the difficulty of 

fashioning an objectively appropriate sentence that this Court has adopted a 

deferential standard of review of sentencing decisions.

. . . .

Our standard of review does not require (nor indeed, does it permit) us to conduct 

our own evaluation of the weight to be given each of the sentencing 

considerations (societal protection, general and specific deterrence, defendant’s 

prospects for rehabilitation and societal retribution) in order to determine whether 

we agree with the district court’s conclusion. 

In short, our task is not to determine whether we agree with the sentence 

imposed; rather, our duty is to determine whether Windom has demonstrated that 

the district court’s imposition of sentence constituted an abuse of discretion under 

the well-established standards of review governing such decisions.

Id. See also State v. Thurlow, 152 Idaho 256, 260, 269 P.3d 813, 817 (Ct. App. 2011).

In this case, the district court recognized its discretion in sentencing. The district court 

articulated the goals of sentencing. The district court also properly: (1) considered the egregious 

nature of the crime; (2) acknowledged Ciccone’s mental health issues, his background and 

character, and lack of a criminal record; (3) applied the correct legal standard; and (4) arrived at 

the determinate life sentence through an exercise of reason. The district court even noted: “I 

must base my decision on the facts and the law and not upon the emotions or the pain of either 

party when I declare sentence.” In essence, Ciccone requests that this Court reweigh the 
19

evidence presented before the district court and arrive at a different conclusion. However, to do 

so would be contrary to our established standards of review. Thus, we hold Ciccone has not 

demonstrated that the district court abused its discretion in sentencing him to a determinate life 

sentence for first degree murder.

III.

CONCLUSION

For the reasons set forth above, we hold that the district court did not err in finding good 

cause existed for the State’s delay in bringing Ciccone to trial. Thus, Ciccone has failed to show

that his constitutional or statutory speedy trial rights were violated. Ciccone alleged two

instances of prosecutorial misconduct and has failed to show that the unobjected-to errors rose to 

the level of fundamental error. Lastly, the district court did not abuse its discretion by imposing 

a life sentence for his conviction of first degree murder. Therefore, the judgment of conviction 

and sentence for one count of first degree murder and one count of second degree murder is 

affirmed.

Judge LANSING and Judge GUTIERREZ CONCUR.