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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. ) ) ) ) ) ) ) ) ) ) 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. Richard D. Greenwood, District Judge. 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

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