               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41578

STATE OF IDAHO,                                 )    2016 Opinion No. 29S
                                                )
       Plaintiff-Respondent,                    )    Filed: June 14, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
ROBERT BENJAMIN BRACKETT,                       )    SUBSTITUTE OPINION
                                                )    THE COURT’S PRIOR OPINION
       Defendant-Appellant.                     )    DATED APRIL 27, 2016, IS
                                                )    HEREBY WITHDRAWN
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Michael R. Crabtree, District Judge.

       Judgment of conviction for eight counts of possession of sexually exploitative
       material and five counts of sexual battery on a minor child of sixteen or
       seventeen, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Robert Benjamin Brackett appeals from his judgment of conviction for eight counts of
possession of sexually exploitative material and five counts of sexual battery on a minor child of
sixteen or seventeen. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In January 2011, a minor reported to authorities that she had a sexual relationship with
forty-six-year-old Brackett. At the time of the relationship, the minor was sixteen years old.
Officers recovered a camera containing many sexually explicit photos of the minor, which the



                                                1
minor claimed were taken by Brackett and some of which depicted her having sexual contact
with Brackett. Brackett was charged with eight counts of possession of sexually exploitive
materials, I.C. § 18-1507A, and eight counts of sexual battery on a minor child of sixteen or
seventeen, I.C. § 18-1508A.     Brackett’s first trial ended in a mistrial after Brackett, during his
opening statement, violated the district court’s pretrial order. After his second trial, Brackett was
found guilty by a jury of eight counts of possession of sexually exploitive materials and five
counts of sexual battery on a minor child of sixteen or seventeen. Brackett appeals.
                                                 II.
                                            ANALYSIS
A.     Right to a Speedy Trial
       Brackett argues that the district court erred in denying his motions to dismiss for violating
his right to a speedy trial under the Idaho and United States Constitutions. Whether there was an
infringement of a defendant’s right to 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.
       Both the Sixth Amendment to the United States Constitution and Article 1, Section 13 of
the Idaho Constitution guarantee to criminal defendants the right to a speedy trial. State v.
Lopez, 144 Idaho 349, 352, 160 P.3d 1284, 1287 (Ct. App. 2007). The speedy trial guarantees
are designed to minimize the possibility of lengthy incarceration prior to trial; to reduce the
lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released
on bail; and to shorten the disruption of life caused by arrest and the presence of unresolved
criminal charges. United States v. Loud Hawk, 474 U.S. 302, 311 (1986); United States v.
MacDonald, 456 U.S. 1, 8 (1982).
       When analyzing claims of speedy trial violations under the state and federal constitutions,
the Idaho appellate courts utilize the four-part balancing test set forth by the United States
Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). State v. Young, 136 Idaho 113, 117, 29
P.3d 949, 953 (2001); Lopez, 144 Idaho at 352, 160 P.3d at 1288; State v. Avila, 143 Idaho 849,
853, 153 P.3d 1195, 1199 (Ct. App. 2006). The factors to be considered are: (1) the length of
the delay; (2) the reason for the delay; (3) the defendant’s assertion of his or her right to a speedy


                                                  2
trial; and (4) the prejudice occasioned by the delay. Barker, 407 U.S. at 530. None of the four
Barker factors is, by itself, “either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial.” Moore v. Arizona, 414 U.S. 25, 26 (1973). If the reason
for the delay is sufficient, these 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.
       1.      Length of delay
       The first factor, the length of the delay, is initially a triggering mechanism. Young, 136
Idaho at 117, 29 P.3d at 953. Until there is some delay which is presumptively prejudicial, it is
unnecessary to inquire into the other three factors. Id. Under the Sixth Amendment, the period
of delay is measured from the date there is a formal indictment or information or else the actual
restraints imposed by arrest and holding to answer a criminal charge. United States v. Marion,
404 U.S. 307, 320 (1971); Young, 136 Idaho at 117, 29 P.3d at 953. The Idaho Supreme Court
has held that, for cases prosecuted in state courts, the filing of a complaint constitutes a formal
charge that begins the time computation for Sixth Amendment purposes. Young, 136 Idaho at
117, 29 P.3d at 953. Similarly, under the Idaho Constitution, the period of delay is measured
from the date formal charges are filed or the defendant is arrested, whichever occurs first. Id.
       Brackett was in custody on charges related to his relationship with the minor between his
January 14, 2011, arrest and his January 29, 2013, second trial--more than twenty-four months.
The threshold issue for this Court is what portion of the twenty-four months should be used for
purposes of the Barker analysis. Brackett argues that the entire twenty-four months, including
the time between a mistrial and his second trial, should be considered. The state argues that only
the twenty-one months between Brackett’s arrest and mistrial should be considered, especially
because Brackett’s actions during the first trial resulted in the mistrial.
       Appellate courts throughout the United States have split on whether to consider the time
between the individual’s arrest and second trial as one combined period of time or as two
separate periods of time before and after the first trial ended in a mistrial. The Idaho appellate
courts have not determined which of these two approaches to utilize in Idaho. This Court holds
that, for purposes of the Barker analysis, the combined period from when an individual is
charged or arrested until his or her final trial--the trial that results in a disposition--is the proper
period to be considered. We acknowledge the merit of the state’s argument that the period


                                                   3
between the mistrial and final trial should not be considered, especially when the defendant is the
cause of the mistrial. However, rather than disregarding the period while performing the Barker
analysis, the period of time should be considered and the defendant’s cause of the additional
delay will weigh against the defendant in the second prong of the Barker analysis. Accordingly,
this Court will consider the entire twenty-four months between Brackett’s arrest and his final
trial.
         Barker’s four-part speedy trial test creates no bright-line boundaries. Rather, the United
States Supreme Court stated 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
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
because the period that is reasonable for prosecution of an ordinary street crime is considerably
less than for a complex conspiracy charge. Barker, 407 U.S. at 531; State v. Davis, 141 Idaho
828, 837, 118 P.3d 160, 169 (Ct. App. 2005); State v. McNew, 131 Idaho 268, 272, 954 P.2d 686,
690 (Ct. App. 1998).
         The Idaho Supreme Court has held that a delay of fourteen months in a drug delivery case
was sufficient to trigger a constitutional speedy trial inquiry. State v. Lindsay, 96 Idaho 474,
476, 531 P.2d 236, 238 (1975). This Court has held that a delay of one year in a robbery case
was presumptively prejudicial, triggering a speedy trial inquiry. State v. Campbell, 104 Idaho
705, 708, 662 P.2d 1149, 1152 (Ct. App. 1983). This Court has also held that a delay of over
thirteen months in a complex conspiracy case was sufficient to trigger analysis.          State v.
Rodriquez-Perez, 129 Idaho 29, 34, 921 P.2d 206, 211 (Ct. App. 1996). The nature of the
charges Brackett was facing, eight counts of sexual battery on a minor child of sixteen or
seventeen and eight counts of possession of sexually exploitive materials, all stemmed from
Brackett’s relationship with one minor, over approximately four months. These facts are more
complex than an ordinary street crime, but are far less than a complex conspiracy charge.
Accordingly, here, the twenty-four-month delay (eleven months longer than was found sufficient
to trigger inquiry in a complex conspiracy) was sufficient to trigger inquiry into whether
Brackett’s constitutional speedy trial rights were violated.




                                                 4
       Once the balancing test is triggered, the length of the delay also becomes a factor in the
balancing itself. Avila, 143 Idaho at 853, 153 P.3d at 1199. This Court ascribes heavy weight to
the delay. A delay of twenty-four months, while Brackett remained in custody, is unreasonable.
The record on appeal shows no difficulty with complexity of investigation, trouble collecting
evidence, or any other mitigating circumstance justifying the delay.            The length of delay,
therefore, weighs in favor of Brackett in balancing the speedy trial factors.
       2.      Reason for delay
       Brackett admits that portions of the twenty-four-month delay are attributable to him and,
therefore, weigh against him. However, Brackett contends that, as a whole, the reason for the
delay is neutral--neither attributable to him nor the state. The state, on the other hand, contends
that the delay is largely attributable to Brackett and weighs heavily against him.
       Brackett admits that a portion of the delay between January 2011 and September 2011 is
attributable to him, though he does not specify what portion. During that period, Brackett had
five court-appointed attorneys, all whom withdrew from Brackett’s representation. Between
January 2011 and April 2011, the first three attorneys withdrew due to conflicts of interest.
These conflicts are not attributable to Brackett. However, between May 2011 and October 2011,
Brackett’s next two attorneys withdrew from representation as a result of Brackett’s
uncooperative behavior. This six-month delay is attributable to Brackett.
       The period from October 2011 until March 2012 is attributable to neither party. During
that period, a number of motions were filed, hearings were held, and the case against Brackett
was progressing reasonably.
       The period from March 2012 until October 2012 (approximately eight months) is largely
attributable to Brackett. On the day scheduled for Brackett’s original trial, Brackett filed a
motion to represent himself, which was granted.          In order to allow Bracket to prepare to
represent himself at trial, the district court granted Brackett’s motions for continuances.
       Finally, the three months from October 2012 until January 2013 is attributable to
Brackett. Due to his failure to follow the district court’s pretrial orders, the district court ordered
a mistrial and reset the trial for January 29, 2013.
        Viewing the twenty-four-month period as a whole, it is clear that a significant portion of
the delay--at least fifteen months--is attributable to Brackett. Brackett’s frequent changes in


                                                  5
counsel, culminating with his motion to represent himself, were largely the cause of delay in his
case. Accordingly, this Barker factor, the reason for delay, weighs against Brackett in our
analysis.
       3.      Assertion of speedy trial right
       Both parties recognize that Brackett frequently asserted his constitutional speedy trial
right and moved for dismissal of the charges on those grounds.                 The more serious the
deprivation, the more likely a defendant is to complain.          Barker, 407 U.S. at 531.       The
defendant’s assertion of his or her speedy trial right, then, is entitled to strong evidentiary weight
in determining whether the defendant is being deprived of the right. Id. at 531-32. Accordingly,
Brackett’s repeated assertion of his speedy trial right weighs in his favor.
       4.      Prejudice
       The fourth factor in the Barker analysis is prejudice to the accused caused by the delay.
The nature and extent of prejudice is the most important of the Barker factors. McNew, 131
Idaho at 273, 954 P.2d at 691. Prejudice is to be assessed in light of the interests that the right to
a speedy trial is designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to
minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will
be impaired. Barker, 407 U.S. at 532; Young, 136 Idaho at 118, 29 P.3d at 954. 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; State v. Hernandez, 133 Idaho 576,
583, 990 P.2d 742, 749 (Ct. App. 1999).
       Prior to the first trial, Brackett filed a motion arguing that the case must be dismissed
because his speedy trial right was violated. At the hearing on that motion, the state explained:
       I just would like the court to know that the state is stipulating to the motion at this
       time. We believe that the pendency of this case and the hearing that we had in
       August clearly show that there’s been prejudice to [Brackett] of the presentation
       of his case at this time and that prejudice goes towards his right to a speedy trial
       issue as well.
The remainder of that hearing focused on whether the case should be dismissed with prejudice or
without prejudice. Based upon the state’s stipulation, Brackett’s case was dismissed without
prejudice. The state then recharged Brackett.




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       Based upon the state’s concession in September 2011, this Court holds that Brackett was
prejudiced by the delay between January 2011 and September 2011. If Brackett was prejudiced
in September 2011, it stands to reason the additional fifteen-month-delay that followed added to
the prejudice Brackett suffered.   In addition, on March 27, 2012, during a bond reduction
hearing, Brackett notified the district court that he had been impaired in his defense because his
roommate at the time of the relationship with the minor had died. The state argues that the death
of a potential witness does not prove prejudice because it is unknown what the unavailable
witness would have said regarding Brackett’s relationship. We agree that there is no way of
knowing whether the witness would have strengthened Brackett’s defense but disagree with the
state’s conclusion. Because the witness is unavailable and his testimony is unknown, Brackett is
prejudiced by the delay. As the Supreme Court in Barker explained, if a witness dies during a
delay, the prejudice is obvious. Barker, 407 U.S. at 532. The state’s admission that Bracket was
prejudiced by the delay between January 2011 and September 2011, coupled with the death of a
potential defense witness, leads this Court to conclude that Brackett was prejudiced by the
twenty-four-month delay between his arrest and trial.
       5.      Balancing
       In this case, three of the four Barker factors--length of delay, assertion of speedy trial
right, and prejudice--weigh in Brackett’s favor in proving his speedy trial right was violated. On
the other hand, one factor--the reason for the delay--weighs heavily against Brackett. Few would
disagree that twenty-four months is a lengthy time awaiting trial. In addition, few would deny
that the death of a potential defense witness is a serious prejudice. Both of these factors weigh
heavily in Brackett’s favor in his effort to prove that his right to a speedy trial was violated.
However, the delay was largely of Brackett’s own making. As outlined above, at least fifteen
months of the delay is attributed to Brackett’s inability to work with his appointed counsel,
necessitating multiple changes in counsel and multiple continuances in order for new counsel to
become acquainted with Brackett’s case. That leaves a delay of between nine and ten months
that is attributable to the state, which is not an unreasonable delay for a case involving sixteen
felony charges. We hold that Brackett’s right to a speedy trial was not violated by the long delay
when much of the delay was the result of Brackett’s own actions.




                                                7
B.     Motion for a Mistrial
       Brackett alleges that the district court abused its discretion when it declared a mistrial
over his objection. In criminal cases, motions for mistrial are governed by I.C.R. 29.1. A
mistrial may be declared upon motion of the state, when there occurs during the trial misconduct
by the defendant resulting in substantial prejudice to the state’s case. I.C.R. 29.1(b). Due to the
defendant’s valued right to have his or her case decided by the seated jury, appellate courts have
an obligation to satisfy themselves that a trial judge exercised sound discretion in declaring a
mistrial; thus, if a trial judge acts irrationally or irresponsibly, the mistrial declaration cannot be
condoned. State v. Manley, 142 Idaho 338, 344-45, 127 P.3d 954, 960-61 (2005). When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine: (1) whether the lower court correctly perceived the issue as one of
discretion; (2) whether the lower court acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it; and (3) whether
the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
       Brackett represented himself at his first trial. Prior to the trial, the district court granted
the state’s motion in limine, ruling that allegations that the district court had violated Brackett’s
rights were inadmissible and were not to be mentioned at trial. In addition, the district court
ruled that evidence regarding prior bad acts of the victim or any other witness was inadmissible.
During opening argument, Brackett stated that there “must be, with over the potential eight life
sentences being faced by [Brackett], a solid chain of custody, a standard of operating procedure,
but, most of all, fairness and truth for the story to be told.” Additionally, Brackett stated:
               A guy walks into a bar, and he sees someone. What does he think? He
       thinks that person’s of age. Again, he walks into a different club, sees the same
       person. What does he think? He thinks that person’s of age. He sees that
       person’s I.D., and it says they’re of age. What does he think? He knows they’re
       of age.
Brackett also stated:
       [W]itnesses for the state are allowed to make changes of their stories, even lie at
       time and, “oops, that was a mistake I made.” What we want you to say and what
       we--“just say what we want you to say, and we can make all your troubles go
       away.”



                                                  8
        The state moved for a mistrial, alleging that the state’s case was substantially prejudiced
by Brackett’s statements. Bracket objected to the state’s motion, arguing that a jury instruction
could cure the prejudice suffered by the state. After taking a recess to review the law and draft a
potential curative instruction, the district court heard additional argument from Brackett and the
state. The district court explained that “the comment on the punishment goes straight to the
court’s previous admonition to the jury in instruction number 5.”1 The district court further
stated that there was simply no excuse, intentional or otherwise, for the comment made by
Brackett. While Brackett’s comment was, “in part, meant to express Brackett’s maintenance of
his innocence, . . . it was clearly designed to appeal to the sympathies of the jury and to--the
members of the jury and to attempt to persuade them through that fashion right from the very
beginning.” The district court discussed instructing the jury to disregard Brackett’s statements
and concluded that, “as a matter of discretion, I’m not convinced that the proposed instruction
that I have presented to you all would actually cure the prejudice that’s occurred to the state, and
the prejudice is substantial.” Accordingly, the district court granted the state’s motion for a
mistrial.
        Brackett asserts that the district court abused its discretion when it declared a mistrial
over his objection. Specifically, Brackett alleges that the law requires a district court to consider
available alternatives prior to declaring a mistrial and that the district court failed to do so.   The
Idaho Supreme Court has explained that a judgment for a mistrial may be set aside if the
reviewing court finds that the judge has abused its discretionary power, particularly where it
appears that the judge has not scrupulously exercised his or her discretion by making a full
inquiry into all the pertinent circumstances and deliberately considering the options available.
Manley, 142 Idaho at 344, 127 P.3d at 960.
        Here, the record is clear that Brackett’s comments tainted the jury, prejudicing the state’s
case. The district court took a recess to consider the motion for a mistrial and draft a potential
curative instruction. After hearing argument from Brackett and the state, the district court


1
       After empaneling the jury, the district court instructed the jury: “Do not concern yourself
with the subject of penalty or punishment. That subject must not in any way affect your verdict.
If you find [Brackett] guilty, it will be my duty to determine the appropriate penalty or
punishment.”

                                                   9
considered the context of Brackett’s comments and the resulting prejudice to the state’s case.
The district court considered the only reasonable alternative to cure the taint--instructing the jury
to disregard Brackett’s comments. However, the district court ultimately determined that the
prejudice to the state was too much to be overcome by use of a curative instruction. The United
States Supreme Court has held that the trial court’s determination to declare a mistrial is entitled
to special respect where the trial court ordered a mistrial because the defendant’s lawyer made
improper and prejudicial remarks during his opening statement to the jury.               Arizona v.
Washington, 434 U.S. 497, 510 (1978).       Neither party has a right to have a case decided by a
jury which may be tainted by bias; in these circumstances, the public’s interest in fair trials
designed to end in just judgements must prevail over the defendant’s valued right to have a trial
concluded before the first jury impaneled. Id. at 516. Accordingly, we hold that the district
court did not abuse its discretion in declaring a mistrial based upon its finding that the state’s
case was prejudiced by Brackett’s comments and that the available remedy was inadequate to
remove the taint from the jury.
C.     Access to Evidence
       Brackett alleges that the district court erred in denying his requests for access to
evidence. After Brackett’s arrest, his residence was searched and an SD memory card, which
had been erased, was seized. A detective copied the contents of the SD card to his computer and
used specialized software to recover at least 269 images. The detective prepared a forensic
report of his analysis of the SD card, which included all of the images that were recovered from
the SD card. Brackett alleges that the district court violated his due process rights when it denied
him access to the original SD card, a copy of the SD card, and the forensic report during the
period between a mistrial and Brackett’s second trial.
       The Due Process Clause of the Fourteenth Amendment requires that criminal
prosecutions comport with prevailing notions of fundamental fairness. Fundamental fairness
requires a meaningful opportunity to present a complete defense, which includes constitutionally
guaranteed access to evidence. California v. Trombetta, 467 U.S. 479, 485 (1984). Where a
defendant claims that his or her right to due process was violated, we defer to the trial court’s
findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho 712, 720, 23




                                                 10
P.3d 786, 794 (Ct. App. 2001). However, we freely review the application of constitutional
principles to those facts found. Id.
       Idaho Criminal Rule 16(b)(4)2 provides that, upon written request of the defendant, the
prosecuting attorney shall permit the defendant to inspect and copy physical materials which are
in the possession of the prosecuting attorney where the materials were obtained from or belonged
to the defendant. Idaho Criminal Rule 16(b)(5) provides that, upon request of the defendant, the
prosecuting attorney shall permit the defendant to inspect and copy results of examinations or
tests conducted in connection with the particular case, where the examinations and tests are
known or are available to the prosecuting attorney.
       Rule 16(m) provides:
               (1)     Any property or material that constitutes or is alleged to constitute
       sexually exploitative material as defined in I.C. § 18-1505B or I.C. § 18-1507
       shall remain in the care[,] custody, and control of either the court or a law
       enforcement agency.
               (2)     A court shall deny any request by a defendant to copy, photograph,
       duplicate, or otherwise reproduce any property or material that constitutes or is
       alleged to constitute sexually exploitative material as defined in I.C. § 18-1505B
       or I.C. § 18-1507, so long as the state makes the property or material reasonably
       available to the defendant.
               (3)     For purposes of subsection (m)(2) of this rule, property or material
       shall be deemed to be reasonably available to the defendant if the state provides
       ampl[e] opportunity for inspection, viewing, and examination of the property or
       material by the defendant, defense counsel and any individual the defendant may
       seek to qualify to furnish expert testimony at trial.
       Prior to his first trial, Brackett was incarcerated in the Twin Falls County Jail. The
images of the minor were contained on the original SD card and in the forensic report, both of
which were held under seal at the Twin Falls County Courthouse. Prior to his first trial, Brackett
had physical access to the original SD card and the forensic report. Shortly after Brackett’s first
trial ended in a mistrial, he was transferred to the jail in Blaine County. Brackett then filed a
Rule 16 motion to transfer the original SD card and forensic report to Blaine County so he could
access the evidence in preparation for his second trial. The district court ruled:



2
       Rule 16 has been amended to provide direction on the production of digital medial
recordings. However, that section was not in effect at the time of Brackett’s discovery requests.

                                                 11
              To the extent [Brackett] is requesting access to certain evidence kept
       under seal at the Twin Falls County Courthouse, [Brackett] has had ample
       opportunity to view the evidence at issue and to prepare for trial. Further,
       [Brackett] indicated that he was prepared to proceed with [his first] trial on
       October 29, 2012. Idaho Criminal Rule 47 provides that a motion “shall state the
       grounds upon which the motion is made and shall set forth the relief or order
       sought.” [Brackett] has not provided any statute, procedural rule, or case law that
       would require the court to permit [Brackett’s] continued access to the evidence at
       issue where the case was ready to proceed with trial but was only continued to a
       new date due to misconduct on the part of [Brackett]. The motions set forth
       above are denied on this basis.
       The issue here is whether the district court erred in denying Brackett continued access to
the original SD card and forensic report between his mistrial and second trial. Rule 16(m)
provides sexually exploitive material must remain in the care, custody, and control of the court
or a law enforcement agency and that a court shall deny any request to reproduce any sexually
exploitive material. Accordingly, the district court did not err in denying Brackett’s request for a
copy of the SD card or forensic report, which contained sexually exploitive materials.
       Brackett alleges he was denied access to evidence because he was not allowed to access
the exact copy of the SD card, which the detective created to analyze with specialized software.
Analogizing, Brackett argues that, because a drug defendant has a right to have an independent
chemist review the contraband in the presence of a representative of the state to determine the
chemical makeup, the same is true for sex crimes. Specifically, Brackett argues that he was
entitled to have an independent expert access and analyze the SD card’s contents.              It is
uncontested that under Rule 16(m)(3) an individual who Brackett might seek to qualify as an
expert, such as an independent analyst, was entitled to access the SD card had Brackett moved
the court to allow an expert access to the evidence. However, Brackett did not make such a
request. Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Accordingly, this claim is not
preserved for appeal.
       Finally, Brackett alleges that he was denied access to evidence when the district court
denied his motion to have the original SD card and forensic report transferred to Blaine County
for Brackett’s use in preparing for his second trial. The district court held that Brackett had
access to the evidence prior to his first trial and had indicated that he was prepared to proceed to



                                                12
trial. Accordingly, the district court held that Brackett had a sufficient opportunity to access the
evidence and needed no more access in order to prepare for his second trial. Rule 16(m)(3)
requires that a defendant have ample opportunity to inspect, view, and examine the property.
Assuming, without deciding, that the district court is correct that Brackett had ample opportunity
to access the evidence prior to his first trial, Brackett did not have any opportunity, let alone
ample opportunity, to access the evidence in preparation for his second trial. Accordingly, the
district court erred in denying Brackett access to the evidence during the period between his
mistrial and second trial.
          Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667
P.2d 272, 274 (Ct. App. 1983).          With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005). Where a defendant meets his or her initial burden of showing that a constitutional
violation has occurred, the state has the burden of demonstrating to the appellate court beyond a
reasonable doubt that the violation did not contribute to the jury’s verdict. State v. Perry, 150
Idaho 209, 227-28, 245 P.3d 961, 979-80 (2010). However, where the error in question is a
constitutional violation that affects the base structure of the trial to the point that the trial cannot
serve its function as a vehicle for the determination of guilt or innocence, the appellate court
shall vacate and remand. Id. Such structural defects include the complete denial of counsel, a
biased trial judge, denial of self-representation, denial of a public trial, defective reasonable
doubt instruction, and erroneous deprivation of the right to counsel of choice. Id. at 222-23, 245
P.3d at 974-75. Although structural defects require automatic reversal, most constitutional
violations will be subject to a harmless error analysis. Neder v. United States, 527 U.S. 1, 8
(1999).
          With regard to the original SD card, we hold that the district court’s erroneous denial of
Brackett’s motion to access evidence was harmless. Had Brackett been granted access to the
original SD card (or even an exact copy of the SD card), there is nothing in the record that
suggests Brackett had access to the sophisticated software needed to restore and access the
deleted contents. Thus, granting Brackett access to the original SD card or an exact copy thereof




                                                  13
would have been of no benefit to Brackett in preparing his defense for his second trial.
Accordingly, the district court’s error was harmless.
       Further, with regard to the both the original SD card and the forensic report, we hold that
the district court’s denial of Brackett’s motion for access to the evidence was harmless. Brackett
had access to the original SD card and forensic report in preparation for his first trial, which
ended in a mistrial. Brackett claims that denying him access to the evidence during the three
months before the second trial meant that he could not review the images the state alleged to be
sexually exploitive as he readied himself for the second trial and impacted his ability to prepare a
defense. The images had not changed and allowing Brackett to access and view the images,
some of which were images of the victim’s genitals, would not have changed whether they were
sexually exploitive. Brackett was aware of the images and knew what they depicted, based upon
his prior access, sufficient to prepare a defense to whether they were sexually exploitive.
Accordingly, the district court’s denial of access was harmless error.
D.     Expert Assistance
       In December 2011, the district court appointed an independent district judge or “money
judge” to conduct ex parte reviews of Brackett’s requests for funding to support expert and
investigative assistance. On appeal, Brackett alleges that the money judge abused its discretion
in precluding him from making further requests for funds for expert assistance.                 On
December 13, 2011, the money judge ordered Brackett to support requests with two documents:
(1) a motion which described the need for the funds, the requested expert’s credentials, how
travel and other expenses would be measured and billed, and a certification that the expenditure
of public funds was appropriate to make available necessary services and facilities of
representation; and (2) an accompanying affidavit which contained a specific estimate of the
amount of public funds to be expended, a certification that Brackett had pursued the available
market for experts, that the requested expert provided the most economic service available in his
or her field, and a certification that the expert would provide bills on a monthly basis.
       In April 2012, Brackett filed a motion requesting public funds to support expert
assistance from a computer forensic expert in California. The money judge authorized Brackett
to retain the expert for the upcoming trial and approved funding in the amount of $3,000. In
August 2012, Brackett, citing jail phone restrictions, filed a motion requesting the appointment


                                                 14
of a second expert to replace the first as his forensic expert. The money judge issued an order
authorizing Brackett to retain the second expert and approved additional funding in the amount
of $5,000. Later that month, at a hearing, Brackett told the money judge that the second expert
had done “absolutely nothing” on the case and requested that the second expert not be paid.
Brackett requested that the money judge appoint a third forensic expert.
        Before the money judge could rule on Brackett’s new request, the second expert sent a
letter to the court disputing Brackett’s characterization of the expert’s services. The second
expert attached a detailed billing invoice which he had previously submitted to the court. This
invoice indicated that the second expert had communicated with Brackett’s investigator and had
obtained and reviewed the defense casefile provided to him by Brackett’s first expert. In the
accompanying letter, the second expert stated that he had engaged in numerous and extensive
telephone conversations with Brackett, but that Brackett repeatedly requested that the second
expert travel to Twin Falls immediately to speak with him--an activity that the second expert did
not believe would be an efficient use of his resources. The second expert also reported that he
had requested relevant Idaho law enforcement authorities to provide “original items of digital
evidence for [his] examination,” but it was his understanding that Brackett, through his
investigator, stopped the investigator’s request to have copies of the original evidence transferred
for examination. As a result, the second expert stated he had not yet had the opportunity to
review the copies of the original digital evidence. However, the second expert explained that he
still planned (assuming adequate funding to support an additional forty to sixty hours of billable
time) to examine the original evidence, travel to Twin Falls to meet with Brackett, provide
Brackett with the results of the examination, write a detailed report about the expert’s findings,
help prepare Brackett for trial, and request that the court allow him to sit alongside Brackett in
presenting his defense. For the remainder of the proceedings in the underlying case, it appears
that Brackett made no additional requests for funding for the second expert to complete this
work.
        On September 5, 2012, the money judge denied Brackett’s motions to appoint and fund
Brackett’s third requested expert. The money judge noted that it was unclear what the second
expert was or was not directed to do by Brackett or his investigator. The money judge then
concluded in light of the services already provided by the second expert and his willingness and


                                                15
apparent ability to perform additional services, Brackett had failed to make an adequate factual
showing for additional funds to retain a new expert. Approximately one week later, Brackett
submitted an unsworn affidavit, again requesting that the third expert be funded and appointed to
assist his defense. The money judge denied the request. The money judge concluded that, based
upon its review, the services completed by the second expert were reasonable. The money judge
further held there was no showing that the second expert was unable to provide the expert
assistance and services required by Brackett or was otherwise unqualified and that, although
Brackett “may have an unsubstantiated lack of confidence” in the second expert, it was “not a
legitimate basis to appoint yet another expert.” The money judge also noted that it would likely
approve additional funding requests for the second expert to continue his work in this case,
provided such requests complied with the December 13, 2011, order. At approximately the same
time, the second expert sent a sealed declaration to the district court requesting additional funds
and stating that he had completed some additional work on Brackett’s case for which the money
judge had not yet approved funding.      The second expert also informed the district court that
Brackett no longer wanted him to work on the case. In a subsequent order responding to the
second expert’s declaration, the money judge reiterated that the second expert remained the
appointed expert for Brackett but was not authorized to perform any services on Brackett’s
behalf until Brackett filed a properly supported motion for funding for those services.
       Despite the money judge’s invitation to Brackett to request more funding for the second
expert, and despite the judge’s indication that approval of those requests was likely, Brackett
continued to request that new experts be appointed.          Between September 26, 2012, and
November 8, 2012, Brackett filed several additional motions requesting that a third expert be
appointed to replace the second expert. The money judge denied all of the motions, noting that
Brackett had repeatedly failed to comply with the December 13, 2011, order governing the
requests and had failed to support his repeated motions with new or additional information.
       Finally, on November 13, 2012, based on Brackett’s continued failure to comply with the
order entered on December 13, 2011; the previously authorized funds for an investigator to assist
in Brackett’s defense; Brackett’s choice not to utilize the digital expert appointed; and there
having been no further showing of the need and necessity for further services of an investigator
or expert, the money judge ordered:


                                                16
       1.      The appoint[ment] of [Brackett’s] investigator at county expense hereby
       TERMINATED and this court will not consider any further request for the
       investigator at county expense;
       2.      The appointment of a new Digital Expert is hereby DENIED and this court
       will not consider any further application for public funds for an expert;
       3.      The further request of [Brackett’s investigator] for payment of
       investigative services that exceeded the authorization of this court is DENIED.
       On appeal, Brackett contends that this order constituted an abuse of the money judge’s
discretion because it denied him “any access to expert assistance before and during the second
trial.” Indigent defendants are entitled as a matter of due process and equal protection to the
basic tools of an adequate defense, including the provision of expert assistance at public expense
when such is necessary for a fair trial. Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985); Britt v.
North Carolina, 404 U.S. 226, 227 (1971); State v. Lovelace, 140 Idaho 53, 65, 90 P.3d 278, 290
(2003); State v. Olin, 103 Idaho 391, 394, 648 P.2d 203, 206 (1982); State v. Martin, 146 Idaho
357, 361-62, 195 P.3d 716, 720-21 (Ct. App. 2008). In Idaho, these rights are safeguarded by
I.C. § 19-852(a)(2), which provides that needy defendants are entitled “to be provided with the
necessary services and facilities of representation (including investigation and other
preparation).” See Olin, 103 Idaho at 394, 648 P.2d at 206 (included within the scope of I.C.
§ 19-852(a) are the Fourteenth Amendment requirements of due process and equal protection as
they apply to indigent defendants). However, neither the Constitution nor I.C. § 19-852(a)
prescribes any particular procedure that must be followed when an indigent defendant seeks
funds to assist in the preparation of his or her defense.3
       In determining whether to provide additional assistance at public expense, the Idaho
Supreme Court has held that such assistance is not “automatically mandatory, but rather depends
upon [the] needs of the defendant as revealed by the facts and circumstances of each case.” State
v. Powers, 96 Idaho 833, 838, 537 P.2d 1369, 1374 (1975).     It is incumbent upon the trial court
to consider the needs of the defendant and the facts and circumstances of the case and then
decide whether an adequate defense is available to the defendant without the assistance of the
requested expert or investigative aid. Olin, 103 Idaho at 395, 648 P.2d at 207. Denial of a


3
         Subsequent to the trial in this case, the Idaho Supreme Court adopted I.C.R. 12.2, which
sets forth procedures a court must utilize in entertaining motions requesting additional defense
services.

                                                  17
request for expert or investigative assistance will not be disturbed absent a showing that the trial
court abused its discretion by rendering a decision which is clearly erroneous and unsupported by
the circumstances of the case. Id.
       In this case, the money judge considered Brackett’s request to appoint a third expert and
determined that an adequate defense was available without the assistance of the third expert. As
the United States Supreme Court held, an indigent defendant does not have a constitutional right
“to choose an [expert] of his personal liking.” Ake, 470 U.S. at 83. The money judge found that
the second expert was competent and willing to adequately provide the services sought by
Brackett in preparation of his defense.   In addition, the money judge indicated to Brackett that it
was “likely” that it would grant additional funds for the second expert to continue working on
Brackett’s case. However, Brackett failed to follow the proper procedure to seek funds and
utilize his expert’s assistance. The money judge’s decision to deny Brackett’s request for funds
for a third expert was not clearly erroneous or unsupported by the circumstances of the case.
Accordingly, Brackett has not shown that the money judge abused its discretion in denying
Brackett’s request for funds to hire a third expert.
E.     Cumulative Error
       Brackett also contends that the cumulative error doctrine applies here, necessitating a
reversal of his convictions. Under the doctrine of cumulative error, a series of errors, harmless in
and of themselves, may in the aggregate show the absence of a fair trial. State v. Adamcik, 152
Idaho 445, 483, 272 P.3d 417, 455 (2012). However, a necessary predicate to the application of
the doctrine is a finding of more than one error. Id. Brackett has only shown that the district
court erred in denying him access to evidence. Accordingly, Brackett has failed to demonstrate
at least two errors, a necessary predicate to the application of the cumulative error doctrine.
                                                 III.
                                          CONCLUSION
       Brackett has not shown that his speedy trial right was violated because he was largely the
cause of the delays. Brackett has not shown that the district court erred in granting the state’s
motion for a mistrial because Brackett’s comments substantially prejudiced the state’s case.
Brackett has shown that the district court erred in denying him access to evidence. However, the
error was harmless. Brackett has not shown that the money judge erred in denying his request


                                                 18
for funds to hire a third expert. Finally, the cumulative error doctrine does not apply because
Brackett has not shown two or more errors by the district court.          Accordingly, Brackett’s
judgment of conviction for eight counts of possession of sexually exploitative material and five
counts of sexual battery on a minor child of sixteen or seventeen is affirmed.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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