STATE V. JOHNSON, 1991-NMCA-134, 113
N.M. 192, 824 P.2d 332 (Ct. App. 1991)
STATE OF NEW MEXICO,
Plaintiff-Appellant,
vs.
ROBERT JOHNSON, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
1991-NMCA-134, 113 N.M. 192, 824 P.2d 332
TOM UDALL, Attorney General, WILLIAM
McEUEN, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellant.
ROBERT R. COOPER, Albuquerque, New
Mexico, Attorney for Defendant-Appellee.
{1} The state appeals the
order of the district court dismissing the indictment against defendant on
speedy trial grounds. We affirm the decision of the trial court.
{2} On September 30, 1986,
defendant and his codefendant were arrested and charged with murder stemming
from an incident that had occurred during the previous month. Defendant was
released on his own recognizance after six and one-half hours of incarceration.
This release included restrictions placed on defendant's liberty.
{3} Defendant was
subsequently indicted for manslaughter and aggravated battery on September 4,
1987. Defendant filed a motion to dismiss the charges on November 30, 1987. A
hearing on this motion was held on February 3, 1988. The trial court dismissed
the manslaughter charge but refused to dismiss the aggravated battery charge.
At the hearing, defendant presented evidence to show that, due to the
preindictment delay, he was suspended from his job, suffered stress and
depression, and suffered marital difficulties and financial difficulties that
affected his children. Defendant's motion to dismiss was later granted by a
different judge who was subsequently assigned to the case. This appeal followed
that decision.
{4} This case is related to
the recent case of
State v. Garcia,
110 N.M. 419,
796 P.2d 1115 (Ct.
App. 1990), in that the defendant in
Garcia and this defendant were
arrested at the same time for the same activity. Speedy trial analysis involves
application of the balancing test in
Barker v. Wingo, 407 U.S. 514
(1972). Under the
Barker test, we consider four factors, namely, the
length of the delay, the reason for the delay, defendant's assertion of his
speedy trial right, and prejudice to the defendant caused by the delay.
{5} For purposes of speedy
trial analysis, the facts in
Garcia relating to the first three factors
in the
Barker test are identical to the facts in this case. The delay in
the instant case was over nineteen months and was presumptively prejudicial.
See
Salandre v. State,
111 N.M. 422,
806 P.2d 562 (1991). The reason for delay,
as observed in
Garcia, was attributable to further investigation of the
case, inadequate staffing, a busy trial schedule on the part of the prosecutor,
and attempts of the prosecutor to meet with defense counsel to discuss a
possible plea bargain. We weigh this factor against the state, but not heavily.
Defendant asserted his right to a speedy trial by filing a motion to dismiss
for delay on November 30, 1987. This factor is also weighed in favor of
defendant, but not heavily.
See Work v. State,
111 N.M. 145,
803 P.2d
234 (1990). In weighing the length of the delay, the reason for the delay, and
the assertion of the right to a speedy trial, similar to the weighing of these
factors by the court in
Garcia, we determine that the first three
factors should be balanced in defendant's favor, but not heavily.
See id.
at 423-24, 796 P.2d at 1119-20.
{6} However, in weighing the
prejudice factor of the
Barker test, we find that the balance tips
substantially in favor of defendant. In reference to this factor, this court in
Garcia stated that the defendant had shown minimal prejudice caused by
the delay. The defendant in
Garcia claimed that she had lost visitation
time with her daughter and the esteem of her co-workers; that she had endured
emotional suffering and lost weight; that she was unable to plan her future;
and that she lived in fear. This showing was held to be not sufficiently
different from the showing any criminal defendant could make to justify
dismissal on speedy trial grounds.
Id. Garcia concluded that the
defendant's minimal showing of prejudice was insufficient to support her claim
that the state had denied her the right to a speedy trial.
{7} Many of the reasons cited
by defendant to show prejudice fall in the same category as those claimed by
the defendant in
Garcia. However, unlike the result in
Garcia,
considering the problems suffered by defendant herein, which were similar to those
suffered by the co-defendant, plus the suspensions of defendant from his
employment, the problems attending such suspensions, and the psychological
stress resulting therefrom, we are persuaded that defendant has established
that he suffered substantial prejudice as a result of the delay
{*194} herein.
See, e.g., State v.
Kilpatrick,
104 N.M. 441,
722 P.2d 692 (Ct. App. 1986) (defendant who
suffered restrictions on his liberty and was impaired in his defense by loss of
a witness satisfied the prejudice prong of the test for speedy trial
violation).
See also State v. Lujan,
112 N.M. 346,
815 P.2d 642 (Ct. App.
1991). In the instant case, defendant was employed as a juvenile probation
officer for the state. After his arrest, defendant was suspended without pay
for two and one-half months and then reinstated to a position behind a desk.
Upon reassignment to the desk job, defendant's employee benefits were different
than those available to him prior to his arrest. During the initial suspension,
defendant was forced to work on a part-time basis, creating financial
difficulties for defendant and his family. Restrictions on defendant's travel
prevented him from leaving the state, and as a result of the pending charges,
defendant was required to seek help for psychological problems and marital
difficulties, and he was suspended from his job on two occasions.
{8} The state does not rebut
defendant's claim of prejudice resulting from his suspensions. The state merely
suggests that the anxiety described by defendant be given little weight.
Defendant has the burden of production in showing that he was prejudiced by the
delay, but the state has the burden of persuasion to show that defendant's
right to a speedy trial was not violated.
See Zurla v. State,
109 N.M.
640,
789 P.2d 588 (1990). The state has not met its burden in this case.
Weighing each of the speedy trial factors, we determine defendant's right to a
speedy trial was violated.
{9} For the foregoing
reasons, the decision of the trial court is affirmed.
HARTZ, Judge (Dissenting).
{11} I would reverse the
district court's ruling that Defendant's right to a speedy trial was violated.
{12} The remedy for a
violation of the constitutional right to a speedy trial is dismissal of the
charges.
Strunk v. United States, 412 U.S. 434, 440 (1973). We should
heed the warning that "overzealous application of this remedy [will]
infringe 'the societal interest in trying people accused of crime, rather than
granting them immunization because of legal error....'"
Barker v. Wingo,
407 U.S. 514, 522 n.16 (1972), quoting
United States v. Ewell, 383 U.S.
116, 121 (1966).
{13} Defendant suffered no
prejudice to his defense and no significant restraint on his liberty; he made
no effort to seek a speedy resolution of the charges against him; and the sole
cause of any improper delay was lack of prosecutorial resources. In these circumstances
the delay here was not long enough to deprive the state of the right to try
Defendant on the charge against him. The result reached by the majority is not
compelled by controlling New Mexico precedent and ignores some of the central
teachings of
Barker.
{14} To explain my views
requires a more expansive summary of the facts and procedural posture of this
case than the majority opinion provides. After summarizing the background, I
will discuss the four factors set forth in
Barker and what I believe is
the proper analysis of the speedy trial claim.
{15} On August 9, 1986,
Defendant and his Co-defendant, Bernice Johnson Garcia, had an altercation with
Alfred H. Garcia. Mr. Garcia suffered a fractured leg. On September 28 Mr.
Garcia died, perhaps as a result of his August injuries.
{16} Two days later,
Defendant and Co-defendant were arrested on warrants charging murder. Both were
released on their own recognizance, with conditions. They were not indicted by
a grand jury until September 4, 1987. The indictment charged them with
voluntary manslaughter and aggravated battery inflicting great bodily harm.
{*195} On October 27 the court set trial for
March 7, 1988. A month later, on November 30, Defendant and Co-defendant moved
to dismiss the charges on the ground that they had been denied their right to a
speedy trial. The court conducted a hearing on February 3, 1988. Judge James
Blackmer orally granted the motion to dismiss the manslaughter charges but not
the battery charges. The oral ruling was followed by a written order with
findings and conclusions filed on May 25, 1988, the date trial began on the
battery charges.
{17} Co-defendant was
convicted of aggravated battery with great bodily harm. The jury was unable to
reach a verdict on the charge against Defendant. The state appealed the
dismissal of the manslaughter charges. This court dismissed the appeal after
the state failed to respond to our calendar notice proposing to dismiss the
appeal on double-jeopardy grounds. On December 28, 1988, Judge Blackmer vacated
his dismissal of the voluntary manslaughter charges. (Because of
double-jeopardy concerns, Co-defendant has not been tried on the manslaughter
charge.)
{18} Thereafter, Judge Joe
Castellano was assigned to the case. On Defendant's oral motion, Judge
Castellano reconsidered Defendant's speedy-trial claim. He did not take any
further testimony but relied on the record from the hearing before Judge
Blackmer. On October 18, 1989, Judge Castellano entered an order dismissing the
battery charge. (Although the state appears to assume that Judge Castellano
also dismissed the manslaughter charge, the order specifically dismisses only
Count III, the battery charge against Defendant.) On June 5, 1990, this court
affirmed Co-defendant's battery conviction, denying her claim of violation of
her right to a speedy trial.
State v. Garcia,
110 N.M. 419,
796 P.2d
1115 (Ct. App. 1990).
{19} The first question that
must be resolved is whether the delay was sufficiently long to trigger review
of a speedy trial claim. A delay that triggers review is termed
"presumptively prejudicial." In
Salandre v. State,
111 N.M.
422, 428,
806 P.2d 562, 568 (1991), the New Mexico Supreme Court held that a
delay of less than nine months cannot be presumptively prejudicial. A
nine-month delay is, however, presumptively prejudicial for cases, such as
Salandre
itself, which involve simple charges and readily-available evidence.
Id.
Delay of more than fifteen months is always presumptively prejudicial, no
matter how complex the case.
Id. n.3. For cases of intermediate
complexity, twelve months is presumptively prejudicial.
Id.
{20} This case appears to be
more complex than
Salandre. The circumstances of the victim's death are
unusual. Also, there are apparently conflicting witness accounts of the
incident. I believe that our supreme court would find this case to fit along
the spectrum somewhere between the simple and the intermediate. Therefore, I
conclude that delay in this case would be presumptively prejudicial if it
exceeded ten months.
{21} I would measure the
delay in this case from (1) the time at which Defendant was arrested and
restraints on his liberty imposed
1
to (2) the date of trial.
See id. n.4. That delay was almost twenty
months, which is presumptively prejudicial. Therefore, the other factors set
forth in
Barker must be analyzed.
{*196} B. Reason
for the Delay
{22} Defendant complains only
of the pre-indictment delay. At the February 3, 1988, hearing before Judge
Blackmer, the state accounted for that delay as follows: Assistant district
attorney Kenneth Martinez was assigned the case when he began work in the
office on December 1, 1986. At the same time, he was assigned numerous other
murder and violent felony cases, including a jury trial set for that month. He
reviewed the case and found that it included a significant issue as to the
cause of the victim's death. He also noted conflicting accounts from the witnesses
to the altercation. At some unspecified time in the next several weeks Martinez
encountered Defendant's attorney, who told him that he had additional evidence
that might dissuade the state from prosecuting the matter. They scheduled a
meeting for February 24, 1987, to review defense counsel's evidence, but
defense counsel was unable to keep the appointment. The following month
Martinez had to spend most of his time in Taos trying a murder case. The two
attorneys met on April 1. Martinez shared his file with defense counsel;
defense counsel gave Martinez the names of two witnesses. In April and May,
Martinez was busy preparing for trial and trying cases. In early June, Martinez
tried two murder cases.
{23} Realizing that his trial
schedule was preventing him from working on this case, Martinez arranged to
turn over the prosecution to Robert Schwartz, then director of the violent
crimes division in the district attorney's office. Schwartz wrote the attorneys
for Defendant and Co-defendant to ask if they had any information that would
dissuade him from seeking an indictment. The indictment was returned on
September 4, 1987.
{24} In his formal findings
after the February 3, 1988, hearing, Judge Blackmer stated:
The State satisfactorily explained the delay in filing the
charges between the 30 September 1986 arrest of the Defendants and the 4
September 1987 Indictment: they operated diligently, in good faith, without
intent to damage or prejudice the Defendants' constitutional or other rights in
the State's investigation and delay in charging the offenses in the Indictment.
Judge Castellano's order of October 18, 1989, stated only:
"The reason for the delay offered by the state was a heavy caseload, a
neutral reason that is weighed against the state.... The Defendant did not
cause the delay[.]" Because Judge Castellano did not take any additional
testimony but relied on the prior record in the case, I assume that he was not
setting aside any fact-findings made by Judge Blackmer. Cf. Paulson v.
Meinke, 352 N.W.2d 191 (N.D. 1984) (in non-jury trial, replacement judge
should not alter findings made by predecessor judge who heard and observed
witnesses and whose findings required evaluation of credibility of witnesses);
Note, Replacing Finders of Fact -- Judge, Juror, Administrative Hearing
Officer, 68 Colum. L. Rev. 1317, 1379 (1968) (successor judge should give
findings same deference as would appellate court). Inasmuch as Judge Blackmer
obviously credited what the state said concerning the reasons for the delay, I
would also credit those statements for purposes of this appeal.
{25} Some delay resulted from
the request by Defendant's attorney to meet with the prosecutor to discuss
evidence that could persuade the prosecutor to dismiss the charges. To the
extent that delay is caused by a defense attorney's indication that he can
produce exculpatory evidence, the delay works to the advantage of the
defendant, should be encouraged, and weighs against the defendant in the
calculus.
Cf. United States v. Lovasco, 431 U.S. 783, 793 (1977) (in
considering a due process challenge to pre-indictment delay, "insisting on
immediate prosecution once sufficient evidence is developed to obtain a
conviction would pressure prosecutors into resolving doubtful cases in favor
of... possibly unwarranted... prosecutions"). I am not suggesting that the
state should file charges first and ask questions later. On the contrary, when
the state's investigation indicates that there is insufficient evidence to
prosecute the charge successfully, the charge should not be brought
{*197} and, if already filed, should be
dismissed pending further investigation. When, however, the state has a
prosecutable case and the defendant requests pursuit of certain leads that may
prove exculpatory, any delay created by the state's good faith response to the
request is the proper responsibility of the defendant. Although
State v.
Lujan,
112 N.M. 346,
815 P.2d 642 (Ct. App. 1991), recently held that plea
negotiations are not ordinarily an excuse for delay in bringing the defendant
to trial, the court had no occasion in that opinion to address specifically
delays caused by defense requests made in the course of plea negotiations.
{26} The remaining cause of
excessive delay was inadequate resources for the district attorney's office.
The staff could not promptly prepare for trial every case that was presented to
it by a law enforcement agency, even when the charge was quite serious.
Nevertheless, "unintentional delays caused by overcrowded court dockets or
understaffed prosecutors" must be considered against the state.
Strunk
v. United States, 412 U.S. 434, 436 (1973). They are, however, "to be
weighed less heavily than intentional delay, calculated to hamper the
defense,"
id.; nor is case overload as negative a reason for delay
as "bureaucratic indifference."
Zurla v. State,
109 N.M. 640,
644,
789 P.2d 588, 592 (1990).
See State v. Garcia,
110 N.M. 419,
796
P.2d 1115 (Ct. App. 1990) (rejecting speedy-trial claims of Co-defendant in
this case);
Flowers v. Warden, Connecticut Correctional Inst., 853 F.2d
131 (2d Cir.),
cert. denied, 488 U.S. 995 (1988) (no violation of right
to speedy trial despite seventeen-month incarceration caused by congested
courts);
United States v. Askew, 584 F.2d 960, 962 (10th Cir. 1978)
(delay caused by conflicting obligations of prosecutor not weighed against
government);
Taylor v. United States, 471 A.2d 999, 1002 (D.C. 1983)
(institutional delays may be easily outweighed by inadequate assertion of the
right or low threshold of prejudice).
{27} Defendant testified at
length before Judge Blackmer concerning the impact of the proceedings against
him: When the incident occurred, Defendant was employed as a juvenile probation
officer. Upon his arrest on September 30, 1986, he was immediately suspended
without pay. He felt humiliated at being arrested and handcuffed at his place
of work. After his arrest he was detained for about six and one-half hours
before being released on his own recognizance. The conditions of his release
required that he not leave Albuquerque, that he report to his lawyer once a
week, and that he not contact the victim's family. The travel restrictions
prevented him from going to California for his brother's wedding and from
joining his sisters for an apparent vacation in Arizona or Utah. While on
suspension, he received gifts of money from his former fellow employees and
obtained a job with a friend in the appliance business. Yet he was unable to
meet his child support obligations, lost his insurance coverage, and felt
degraded.
{28} On December 18, 1986,
Defendant was reinstated at work because nothing had come of the charges
against him. His duties, however, were changed. He no longer supervised
children but handled paperwork. He had enjoyed working with children. Although
he had established a good relationship with law enforcement personnel prior to
the incident, he felt ostracized after he returned to work.
{29} Upon Defendant's
indictment in September 1987, he was again suspended from his job without pay.
He had been told that he would be suspended if he was indicted. His only work
since the indictment had been repairing cars, apparently for former fellow
employees. He felt trapped in his home and was distressed that he could not
support his family.
{30} Defendant cried almost
every day. At one time he had thought of suicide. He suffered from headaches,
tension, nervousness, and nightmares. He had fought more with his wife,
especially early on, when he almost got a divorce. He sought help for his
psychological problems. He
{*198} met
for an average of about one hour every two weeks with a counselor who
apparently worked upstairs from him. The counselor moved out of state in
November 1987. Defendant obtained the services of another professional the
following month.
{31} Thus, Defendant's claims
of prejudice relate to loss of liberty, economic damage, and psychological
harm. His brief also refers to injury to members of his family, but the right
involved is a personal right; he supplies no authority to suggest that he can
rely on injury to others to support
his claim of denial of the right to
a speedy trial. (Of course, his knowledge of that collateral harm can affect
him emotionally, which is a proper consideration.)
{32} The restrictions on
Defendant's liberty were not oppressive for purposes of speedy trial analysis.
His six-and-one-half-hour incarceration immediately upon his arrest was not a
consequence of any delay in the indictment or trial. The constraints imposed by
his bond, although sufficient to start the speedy trial clock, were minor. The
initial limitation to Albuquerque was relaxed to allow him to go throughout New
Mexico after he told his attorney of his need to go to Santa Fe for work. His
inability to attend his brother's wedding or to join his sisters for an
out-of-state vacation is not entitled to substantial weight, particularly in
the absence of any indication that Defendant sought a change in his conditions
of release to permit him to join his family on those occasions. The prohibition
on contact with the victim's family was hardly a burden.
{33} The economic and
psychological injury to Defendant was more significant. He lost his job for
approximately two and one-half months after his initial arrest and then lost it
again after his indictment. He was psychologically injured by his inability to
provide for his family, by the loss of a job he enjoyed (even after he was
reinstated at the juvenile probation office he was not permitted to work with
juveniles), and by the humiliation of being charged with a serious felony.
Because I would be reluctant to hold that a defendant's constitutional right to
a speedy trial depends upon how sensitive an individual the defendant is, I do not
place great reliance on the testimony showing the specific psychological injury
to Defendant caused by the delays in this case.
Cf. Salandre v. State,
111 N.M. at 430-31, 806 P.2d at 570-71 (rejecting possibility of expert
testimony regarding normal levels of anxiety and concern versus those suffered
by the accused). Nevertheless, that testimony was consistent with what one
would expect to be the consequences of a serious charge.
{34} To assign proper weight
to this prejudice suffered by Defendant, it is necessary to consider the timing
of the particular elements of prejudice. For example,
Salandre cited
State
v. Grissom,
106 N.M. 555, 563,
746 P.2d 661, 669 (Ct. App. 1987), for the
proposition that "when documentary evidence was destroyed before delay became
inordinate, loss of evidence did not constitute prejudice."
Id. at
430, 806 P.2d at 570. Later, in finding that the defendant was prejudiced by
the state's failure to deliver title documents to him, the
Salandre
court noted, "The period of time during which the delay in this case
became inordinate was the period during which the State refused to release
these documents."
Id. at 431, 806 P.2d at 571. In this case the
greatest injury to Defendant -- both financial and psychological -- occurred
after the indictment and was caused specifically by the indictment; Defendant
lost his job upon being indicted and one can presume that the psychological
stress was greatest when Defendant was unemployed and formally charged by
indictment. Consequently, the injury to Defendant may have been comparable even
if the prosecution had proceeded in timely fashion -- the indictment, and the
resultant injury, would just have occurred sooner. (There was no evidence at
the motion hearings that there had been improper post-indictment delay.)
Similarly, the injury to Defendant between the time of his arrest and his
reinstatement at work would very likely have occurred even if the district
attorney had the resources to work up the case diligently. Two and one-half
months is not an inappropriate pre-indictment period. Time is required for law
enforcement officers to put
{*199} together
a file for the district attorney, for the district attorney to assign an
assistant to the case, and for the assistant to prepare the matter for the grand
jury. In short, the most significant part of the prejudice to Defendant would
probably have resulted even if there had been no improper delay.
{35} Finally, of critical
importance is Defendant's failure to assert any prejudice to his defense of the
charge against him. As the United States Supreme Court has stated, prejudice of
this type is "the most serious..., because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system."
Barker
v. Wingo, 407 U.S. at 532. The full import of that proposition is reflected
in the Court's analysis of the facts in
Barker itself. The Court wrote:
Prejudice was minimal. Of course, Barker was
prejudiced to some extent by living for over four years with a cloud of
suspicion and anxiety. Moreover, although he was released on bond for most of
the period, he did spend 10 months in jail before trial. But there is no claim
that any of Barker's witnesses died or otherwise became unavailable owing to
the delay.
Id. at 534 (emphasis added).
{36} By
Barker's
standards -- which, after all, are the standards we are required to apply --
the prejudice to Defendant must be termed "minimal."
D. Assertion of the Right
{37} The assertion by a
Defendant of the right to a speedy trial is relevant in two respects: (1) Delay
by the state in the face of a defendant's demand for a speedy trial is less
excusable than if the defendant has not pressed for a speedy trial.
See
Zurla v. State. (2) "The strength of a defendant's assertions of the
right (i.e., early and/or frequent) also indicates the probable extent to which
the defendant has suffered from the inevitable burdens that fall upon the
target of a criminal prosecution, burdens the speedy trial right was intended
to minimize."
Id. at 644, 789 P.2d at 592. The significance in this
regard of the defendant's demand for a speedy trial derives from the fact that
delay may actually benefit a defendant.
See Barker v. Wingo, 407 U.S. at
521 ("Deprivation of the right may work to the accused's advantage. Delay
is not an uncommon defense tactic.") A defendant's demands both establish
that the defendant is not desirous of delay and serve as a fair measure of the
balance of prejudice being suffered by the defendant.
See id. at 531-32;
State v. Tartaglia,
109 N.M. 801, 807,
791 P.2d 76, 82 (Ct. App. 1990)
(Hartz, J., dissenting).
{38} In light of the reasons
why assertion of the right is relevant, Defendant's motion to dismiss does not
support his claim of denial of the right to a speedy trial. First, Defendant does
not contend, nor is there any evidence in the record to support a contention,
that there was any improper delay in the proceedings from the time that the
motion was filed until the trial. The state did not delay in the face of a
demand by Defendant.
{39} Second, the motion to
dismiss is not probative of prejudice being suffered by Defendant. The motion
was not filed in an effort by Defendant to accelerate the proceedings in order
to prevent or reduce prejudice to him. One month before Defendant filed the
motion, the district court had already set the case for trial. Thus, the
purpose of the motion was to
avoid trial. Perhaps even more importantly,
prior to filing the motion to dismiss, Defendant had failed to take readily
available steps to bring matters to a head sooner. As noted in findings by
Judge Blackmer in his order of December 28, 1988, Defendant was represented
promptly after his arrest in September 1986 by counsel experienced in criminal
law. An unindicted defendant is entitled to a preliminary examination within 60
days of the initial appearance. SCRA 1986, 7-202(D);
see SCRA 1986,
7-501(A)(8) (defendant to be advised at initial appearance of right to
preliminary examination). Yet Defendant's attorney made no effort to require
the state to either proceed with a preliminary examination (which would have
{*200} initiated a series of time constraints
for events culminating in trial,
see SCRA 1986, 5-901) or dismiss the
charge,
cf. State v. Tollardo,
99 N.M. 115,
654 P.2d 568 (Ct. App. 1982)
(dismissal not the proper remedy for good-cause delay in holding a preliminary
examination when prejudice to defendant not shown).
{40} The
assertion-of-the-right factor should not be weighed in favor of the Defendant
whenever a motion to dismiss on speedy trial grounds is filed prior to trial.
Although
Work v. State,
111 N.M. 145, 147,
803 P.2d 234, 236 (1990), may
suggest that proposition,
Alexander v. Delgado,
84 N.M. 717,
507 P.2d
778 (1973) (court of appeals must follow law established by supreme court), does
not compel this court to adopt that view because (1)
Work merely states
the result (the assertion-of-right factor was weighed in favor of the
defendant) rather than analyzing the law and propounding a general principle
and (2)
Work was not an opinion of the majority of our Supreme Court.
Given these limitations on
Work as a controlling precedent on this
point, it is appropriate to follow the persuasive authority that Defendant's
motion to dismiss does not necessarily cause the assertion-of-the-right factor
to weigh in his favor.
{41} One persuasive authority
is
Barker v. Wingo itself. Barker moved to dismiss the indictment
(although it is not clear what the grounds were) when the prosecution sought a
continuance some twenty months before the actual trial, objected to other
continuances seven months and four months before trial, and invoked his right
to a speedy trial in moving to dismiss the case at the outset of trial. But the
Supreme Court noted that Barker had not objected to continuances during the 40
months prior to his motion to dismiss nor to the first two continuances
following his motion to dismiss. The Court wrote, "The record strongly
suggests that while he hoped to take advantage of the delay in which he had
acquiesced, and thereby obtain a dismissal of the charges, he definitely did
not want to be tried." 407 U.S. at 535. Indeed, at oral argument before
the Supreme Court, counsel for Barker said: "I would concede that Willie
Mae Barker probably -- I don't know this for a fact -- probably did not want to
be tried. I don't think any man wants to be tried."
Id.
{42} The observation about
human nature uttered by Barker's counsel certainly contains much truth. Few
people look forward to a trial. We should not reject common sense and infer (a)
a desire to advance the trial date from (b) a motion to dismiss that was filed
after a trial date had been set. Such a motion, if it does not succeed in
foreclosing trial altogether, is more likely to delay trial than to accelerate
it. Thus, it is not surprising that courts regularly have found that the
assertion-of-the-right factor weighs against the defendant despite a motion to
dismiss on speedy trial grounds, particularly when the motion was filed well
after arrest or indictment.
See United States v. Avalos, 541 F.2d 1100,
1115 (5th Cir. 1976) (motion to dismiss eleven months after arrest and four
months before trial);
United States v. Palmer, 537 F.2d 1287 (5th Cir.
1976) (thirty months after arrest -- which was one month after notice of
indictment -- and three months before trial);
Thompkins v. State, 437
So. 2d 634, 635 (Ala. 1983) (four months before trial);
State v. Johnson,
461 A.2d 981, 984 (Conn. 1983) (fourteen months after arrest, seven weeks
before trial);
Graves v. United States, 490 A.2d 1086, 1098-1101 (D.C.
App. 1984) (ten months after arrest, fourteen months before trial);
State v.
Murphy, 496 A.2d 623, 628 (Me. 1985) (one year after arrest, thirteen
months before trial);
Simonsen v. State, 662 S.W.2d 607 (Tex. Ct. App.
1983) (seven months after arrest, two months before trial);
Prince v. State,
638 S.W.2d 550, 554 (Tex. Ct. App. 1982).
{43} Barker formulates
"a balancing test in which the interests and conduct of both the defendant
and the prosecutor must be weighed."
The Supreme Court, 1971 Term,
86 Harv. L. Rev. 52, 166 (1972). The purpose of the assessment of the four
factors listed in
Barker is to focus the inquiry as to whether the
prejudice to the
{*201} interests of the
defendant has been sufficient, in light of the conduct of the parties, to
override the public interest in trying the defendant on the pending charge.
Although
Barker did not supply a mathematical formula to determine from
the four factors whether the speedy trial right has been violated, at least the
result in
Barker serves as a benchmark.
{44} Given the result in
Barker,
I conclude that the state did not violate Defendant's right to a speedy trial.
Two of the factors were much more favorable to Barker than they are to
Defendant, and the other two factors are toss-ups:
(a) The delay in Barker -- more than five years -- was
far longer than in this case.
(2) The prejudice to Barker (which the Supreme Court termed
"minimal") -- ten months in jail and four years of anxiety and living
under a cloud of suspicion -- was substantially greater than the prejudice to
Defendant, the great bulk of which would have occurred in the absence of any
improper delay.
(3) Barker asserted his interest in advancing the date of his
trial at least as strongly as Defendant: Barker was consistent in opposing
delays for at least seven months, and his objections to continuances
(regardless of the motive behind the objections) would have resulted in an
earlier trial if they had been granted. Defendant, on the other hand, did
nothing to indicate a desire to resolve the charges promptly, despite the
opportunity to do so.
(4) The reason for the delay in Barker -- awaiting
completion of the prosecution of co-defendant Manning (whose first four trials
ended in two hung juries and two convictions that were reversed on appeal), so
that Manning could testify against Barker -- may at first seem more justifiable
than the inadequacy of prosecutorial resources here. Yet, as the Barker
court noted, "Four years was too long a period [to wait for Manning],
particularly since a good part of that period was attributable to the
Commonwealth's failure or inability to try Manning under circumstances that
comported with due process." 407 U.S. at 534. It would be hard to say that
this factor weighs more heavily for Defendant than it did for Barker.
Thus, in light of the conduct of the parties, the prejudice
to Defendant caused by improper delay was not substantial enough to override
the public interest in trying him on the pending charge.
{45} Perhaps in December 1986
the state should have dismissed the charge pending an indictment, as it became
apparent that presentation of the case to the grand jury might be delayed for
months. Then Defendant would have had no speedy trial claim.
See United
States v. MacDonald, 456 U.S. 1 (1982) (speedy trial clause does not apply
to period after good faith formal dismissal of charge). But such a dismissal
would not have materially benefitted Defendant, which is probably why defense
counsel did not seek dismissal.
{46} As
Barker stated,
"The right of a speedy trial is necessarily relative. It is consistent
with delays and depends upon circumstances. It secures rights to a defendant.
It does not preclude the rights of public justice." 407 U.S. at 522,
quoting
Beavers v. Haubert, 198 U.S. 77, 87 (1905). The majority opinion
improperly denies the rights of public justice. Therefore, I respectfully
dissent.
1
Because I find no violation of Defendant's right to a speedy trial, I need not
consider whether the delay with respect to the aggravated battery charge should
be measured from the date of the indictment on that specific charge rather than
from the date of the previous arrest on an open charge of murder. See United
States v. Reme, 738 F.2d 1156 (11th Cir. 1984); Commonwealth v. Gove,
320 N.E.2d 900 (Mass. 1974) (measure delay from date of indictment for assault
with deadly weapon and armed robbery, not from date of prior complaint for rape
arising out of same incident); 2 Wayne R. LaFave & Jerold H. Israel, Criminal
Procedure 18.1, at 400-01 (1984); 2 David S. Rudstein et al., Criminal
Constitutional Law P11.01[1][b] at 11-5 to -6 (1990); cf. McNeil v.
Wisconsin, 111 S. Ct. 2204 (1991) (sixth amendment right to counsel is
offense-specific).