# Work v. State > New Mexico Supreme Court · September 6, 1990 · 111 N.M. 145 URL: https://www.frixlaw.com/law-library/cases/9534784 ## Case - **Full name:** John B. WORK, Petitioner, v. STATE of New Mexico, Respondent - **Court:** New Mexico Supreme Court - **Decided:** September 6, 1990 - **Citations:** 111 N.M. 145; 803 P.2d 234 - **Precedential status:** Published - **Opinion:** Concurrence by Ransom - **Judges:** Montgomery, Sosa, Ransom, Baca, Wilson - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9534784 ## How later opinions describe it (automated extraction) - stating that when the defendant fails to corroborate the presumption of prejudice, it remains a probability entitled to more or less weight depending on the other factors - stating that the delay may be so lengthy as to become conclusive, thereby making proof of actual prejudice unnecessary - stating that time between dismissal and reindictment is not counted towards speedy-trial calculation ## Opinion text RANSOM, Justice (specially concurring). I agree with the principles of the continuing presumption of prejudice, weight, balancing, and burdens as relied upon in the opinion announced by the Court today. However, in this case of greater than average complexity I find the presumption of prejudice entitled to little weight when consideration is limited to the thirteen-month delay consisting of five months during which charges were pending in the magistrate court and eight months following the indictment. In balancing other factors, I note the allegation of anxiety and concern over the possibility of being indicted on murder charges refers on its face to the fifteen-month preindictment period. Moreover, much of the alleged memory loss on the part of the witness also may have occurred during this period of time. To the extent that the prejudice alleged does not relate unambiguously to the period of delay considered by the majority, it does little to shift the balance in petitioner’s favor. Cf. Zurla v. State, 109 N.M. 640, 647-48 , 789 P.2d 588, 595-96 (1990) (minimal prejudice established when record did not show the relationship between the inordinate delay in bringing defendant to trial and the allegation that two exculpatory witnesses could no longer be located). There exists, however, ample authority that formal dismissal of charges for tactical reasons does not stop the running of the speedy trial right. See United States v. Lara, 520 F.2d 460 (D.C.Cir.1975) (when dismissal of indictment in District of Columbia and reindictment in Florida were attributable to governmental forum shopping, interim during which no charges were pending counted under speedy trial analysis); State v. McCrary, 100 N.M. 671 , 675 P.2d 120 (1984) {Lara rule not applied when nolle prosequi had been entered in good faith in order to allow the prosecution of more serious charges); see also United States v. Avalos, 541 F.2d 1100, 1111-13 (5th Cir.1976) (four-month period between government dismissal of arrest warrants and indictment before a different district court that was attributable to government’s desire to find a prosecutor who was willing to present testimony of particular witness was tactical delay and weighed heavily against the government); United States v. Thomas, 527 F.Supp. 261 (1981) (period following formal dismissal of charges because of governmental forum shopping counted under speedy trial analysis). See generally United States v. MacDonald, 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982) (speedy trial clause has no application after government, acting in good faith, formally drops charges); Dillingham v. United States, 423 U.S. 64 , 96 S.Ct. 303 , 46 L.Ed.2d 205 (1975) (arrest constitutes a condition initiating running of speedy trial right). But see United States v. Loud Hawk, 474 U.S. 302 , 106 S.Ct. 648 , 88 L.Ed.2d 640 (1986) (fact that government’s desire to prosecute defendants was public knowledge did not affect defendants’ liberty interests and thus was not sufficient under MacDonald to allow consideration of the time during which court’s dismissal of the indictment was appealed and no charges were pending against defendants). The Lara line of cases recognizes that when a bad faith, tactical dismissal has been shown: (1) substance rules over form, and the speedy trial analysis includes this period of time even though no formal charges were pending; and (2) the delay caused by the government’s tactics weighs heavily in favor of defendant. Although it might be argued from the Court’s focus on the defendants’ liberty interests in Loud Hawk that it is irrelevant whether charges are dismissed in good faith or in bad faith, I note that there was no issue in Loud Hawk of a bad faith dismissal. Moreover, the interests protected by the speedy trial right include more than just the defendant’s liberty interest. See United States v. Marion, 404 U.S. 307, 320 , 92 S.Ct. 455, 463 , 30 L.Ed.2d 468 (1971) (sixth amendment intended to minimize interference with defendant’s liberty and to avoid disruption of employment, curtailment of associations, subjection to obloquy, and creation of anxiety in defendant as well as in defendant’s family and friends). These other interests are implicated directly by bad faith dismissals. Therefore, unless and until advised differently by the Supreme Court, I would recognize the Lara exception as an aspect of federal constitutional jurisprudence. Citing United States v. Pino, 708 F.2d 523 (10th Cir.1983) (bad faith not shown under due process analysis when government delayed prosecution of defendant to await outcome of stronger case against third party), the court of appeals analogizes the fifteen-month preindictment delay in this case to “investigative delay.” Cf. Johnson v. United States, 434 A.2d 415 (D.C.Cir.1981) (good faith dismissal to investigate case not counted in speedy trial analysis). I disagree with the court of appeals’ characterization. Here, the reason given for the state’s dismissal of the original charges in April 1986 was to procure the testimony of Gloria Bustos without jeopardizing its prosecution of her case. However, delay cannot be excused by reasons unconnected with the case itself. See Zurla, 109 N.M. at 648 , 789 P.2d at 596 . Moreover, Avalos held that dismissal motivated by the government’s desire to obtain the testimony of a particular witness constituted tactical delay, did not stop the running of defendant’s speedy trial right, and weighed heavily against the state. 541 F.2d at 1111-13 ; see also Redd v. Sowders, 809 F.2d 1266 (6th Cir.1987) (delay in prosecution caused by desire to obtain testimony of co-defendant without jeopardizing its case against the latter because of his fifth amendment privilege against self-incrimination constituted advantage seeking delay under speedy trial analysis). Additionally, the trial court noted in its findings that the state offered no explanation at all for a five-month delay between resolution of the charges against Bustos and petitioner’s indictment in December 1987, and that this “casts doubt on the State’s entire explanation.” Being generous to the state, one might accept that it dismissed charges against petitioner solely in order to allow prosecution of its case against Bustos without having to present her testimony against petitioner. 1 One similarly might infer that the state simply was negligent in delaying petitioner’s indictment after the charges against Bustos had been resolved. The fact remains that the dismissal was for tactical reasons. I conclude that the fifteen-month period of time between dismissal of the metropolitan court charges and indictment in district court should be counted for speedy trial purposes as well as the thirteen-month period following indictment. In total then, the length of the delay is twenty-eight months. The presumption of prejudice as applied to the record becomes considerably stronger and weighs heavily against the state. Moreover, when the delay caused by tactical reasons is considered in conjunction with the reasons for the delay after reindictment, the “reasons for delay” factor weighs substantially in favor of petitioner, rather than slightly in favor of the state. Therefore, I conclude that the delay deprived petitioner of his right to a speedy trial guaranteed by the sixth amendment. Finally, it is important to view in context the citation to Holtslander for the proposition that a trial court’s determination of speedy trial claims is due some deference. State v. Grissom, 106 N.M. 555, 561 , 746 P.2d 661, 667 (Ct.App.), cert. denied, 106 N.M. 439 , 744 P.2d 912 (1987), held that, “[o]n appeal, a reviewing court is required to independently balance the factors considered by the trial court * * Although it is entirely reasonable to defer to the trial court’s findings of fact, we should not defer to his judgment of the constitutional significance of those facts. See Lara, 520 F.2d at 464-65 (substantial basis existed for trial court’s finding that government dismissal was attributable to forum shopping, and this delay held on appeal to be unnecessary and unconscionable); Aguilar v. State, 106 N.M. 798, 799 , 751 P.2d 178, 179 (1988) (in analyzing coerced confession claims, duty of appellate court is to make independent determination of the ultimate question of voluntariness based on totality of circumstances). . The question can be posed, however, as to why the state sought dismissal of the metropolitan court charges rather than a continuance. Whatever the prosecutor’s motives, preventing the running of the six-month rule is one consequence that attended the dismissal. See SCRA 1986, 5-604. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9534784. Public record. Not legal advice.