KILPATRICK V. STATE, 1985-NMSC-064, 103
N.M. 52, 702 P.2d 997 (S. Ct. 1985)
JOHNIE LOUIS KILPATRICK, Petitioner,
vs.
STATE OF NEW MEXICO, Respondent.
SUPREME COURT OF NEW MEXICO
1985-NMSC-064, 103 N.M. 52, 702 P.2d 997
Original Proceeding on Certiorari,
Richard B. Traub, District Judge
PAUL J. KENNEDY, Albuquerque, New Mexico,
Attorney for Petitioner.
PAUL G. BARDACKE, Attorney General, Santa
Fe, New Mexico, Attorney for Respondent.
Walters, J., wrote the opinion. WE CONCUR:
WILLIAM R. FEDERICI, Chief Justice, DAN SOSA, JR., Senior Justice, WILLIAM
RIORDAN, Justice HARRY E. STOWERS, JR., Justice (Dissenting)
{1} Defendant Kilpatrick was
convicted of aggravated assault. The Court of Appeals affirmed the conviction
and defendant petitioned this Court for a writ of certiorari. We reverse the
Court of Appeals.
{2} The sole issue raised in
defendant's petition is whether the time period between his arrest and his
indictment and trial must be considered in evaluating his speedy trial claim
under the Sixth Amendment to the United States Constitution. In
United
States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982),
the United States Supreme Court answered that question affirmatively. "The
speedy trial guarantee is designed to minimize the possibility of lengthy
incarceration prior to trial,
to reduce the lesser, but nonetheless
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."
Id. at 8, 102 S. Ct.
at 1502 (emphasis added).
{3} In the instant case,
defendant posted a surety bond of $2500 on the day he was
{*53}
arrested, and lived under its "impairment of liberty" and the
cloud of "unresolved criminal charges" for almost a year before the
indictment was filed. The indictment was later dismissed and he was reindicted
two months later. Without stating any reasons, the trial court denied
defendant's motion to dismiss the new indictment.
{4} MacDonald, which relies
on a line of cases holding that the protections of the Sixth Amendment become
applicable when "the putative defendant in some way becomes an
'accused'...." (
United States v. Marion, 404 U.S. 307, 313, 92 S.
Ct. 455, 459, 30 L. Ed. 2d 468 (1971)), declares unequivocally, in repetition
of
Lovasco v. United States, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d
752 (1977);
Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46
L. Ed. 2d 205 (1975); and
Marion, that the time between defendant's
arrest and indictment must be considered.
{5} In affirming defendant's
conviction, the Court of Appeals focused first on dates of indictment and
reindictment rather than upon the time between arrest and indictment, and then
applied the "actual restraint" test outlined in
State v. Tafoya,
91 N.M. 121,
570 P.2d 1148 (Ct. App.1977).
Tafoya, because defendant had
made no showing of actual restraint following his arrest, held that there had
been no denial of the right to a speedy trial. In the instant case, defendant
showed that he had been required to post a bond and bear the restrictions
imposed upon one "accused." Kilpatrick, therefore, carried the burden
of showing "substantial impairment of liberty... while released on
bond,"
MacDonald, and of "subjection to public obloquy... and
anxiety,"
Dillingham, for more than 15 months before he went to
trial.
{6} Defendant correctly
points out in his petition that
Tafoya was based upon a misunderstanding
of the facts of
Marion. The
Marion defendants were arrested and
indicted on the same day. Their speedy trial objection was grounded on the
three-year delay between
the time of the crime and
the date of
"arrest and indictment." Thus, the
Marion language quoted
in
Tafoya (91 N.M. at 123,
570 P.2d 1148) was meant to recognize a
distinction between the time
before the putative defendant became an
"accused," which is
not to be considered, and the time after
arrest and accusation, which
MacDonald, 456 U.S. at 7, 102 S. Ct. at
1501;
Lovasco, fn.8 at 431 U.S. 789, 97 S. Ct. at 2048 fn. 8;
Dillingham,
423 U.S. at 64-65, 96 S. Ct. at 303-304; and
Marion, 404 U.S. at
320-321, 92 S. Ct. at 463-464, all insist shall be counted.
Marion
emphasized that the purpose of the Sixth Amendment was not intended, as
commonly believed, solely to limit possibilities that delay would prevent,
impair or prejudice the accused's ability to present a defense. Rather,
"major evils" intended to be protected by the Sixth Amendment were to
minimize interference that public arrest may cause "with the defendant's
liberty, whether he is free on bail or not," and to avoid disruption of
his employment, curtailment of his associations, subjection of defendant to
obloquy, and creation of anxiety in him, his family and his friends.
Marion,
404 U.S. at 320, 92 S. Ct. at 463.
{7} Finally, contrary to the
expression of the Court of Appeals,
Tafoya cannot survive
MacDonald
untouched. Based as
Tafoya presumably was on
Marion and
Lovasco,
that case must be affected by the
MacDonald ruling to the same extent
Marion
and
Lovasco were. Although individual states may provide broader rights
under state constitutions than those required by similar provisions of the
United States Constitution, states are not free to restrict those rights to
something less than as guaranteed under the federal charter.
State ex rel.
Serna v. Hodges, 89 N.M. 351, 356,
552 P.2d 787, 792 (1976).
{8} The Court of Appeals is
reversed and the matter is remanded to that court for reinstatement and
assignment to the limited calendar, to determine whether defendant was
prejudiced, or otherwise unduly subjected to
Marion-listed interferences
and disruptions, by the delay between arrest and indictment so as to warrant
dismissal of the charges.
{*54} WE CONCUR:
WILLIAM R. FEDERICI, Chief Justice, DAN SOSA, JR., Senior Justice, WILLIAM
RIORDAN, Justice
HARRY E. STOWERS, J., dissents.