Work v. State

WILSON, Justice, dissenting.

My application of the first Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972) factor to the facts in this case precludes my concurrence in the majority opinion.

Length of the Delay

I disagree with the majority’s determination that the delay in this case was presumptively prejudicial. While I agree with the majority (excepting Justice Ransom’s special concurrence) that the fifteen-month period between the magistrate court dismissal and the grand jury indictment should not be considered, I do not believe that the remaining thirteen-month period was sufficiently lengthy to give rise to a presumption of prejudice triggering an inquiry into the speedy trial factors of Barker.

The majority and Justice Ransom’s special concurrence treat the total thirteen-month period as one continuous delay. However, actually two proceedings developed. The first period of five months began with the defendant’s arrest on April 24, 1986, and resulted in the magistrate court’s dismissal of the charges without prejudice on September 22, 1986. The second period of eight months began with the defendant’s grand jury indictment on December 17, 1987, and resulted in another dismissal on August 18,1988, following the defendant’s assertion of his speedy trial rights.

The proposition that the thirteen-month delay should be viewed in its sequence of two proceedings, consisting of five and eight months respectively, is consistent with this court’s holdings in similar cases. In New Mexico ex rel. Delgado v. Stanley, 83 N.M. 626 , 495 P.2d 1073 (1972) this court held that the speedy trial clock, interrupted by a nolle prosequi filing, started again with a subsequent indictment. See also State v. McCrary, 100 N.M. 671 , 675 P.2d 120 (1984); State v. Grissom, 106 N.M. 555 , 746 P.2d 661 (Ct.App.1987).

Moreover, practical demands of the judicial process necessitate some flexibility in this case in light of the state’s obligation to retry the case from beginning to end. This is not to say that the five-month delay initiated by the first filing should be discounted. But in cases such as this where the state justifiably dismissed the original charges, it should be given a reasonable period of time to bring the second action to a conclusion.

The record of this case lacks any suggestion that the state acted with bad motive or deliberate delay. I take exception to Justice Ransom’s special concurrence which criticizes the state for dismissing the first action for tactical reasons or for reasons “unconnected” to this case. The state dismissed the charges against the defendant in order to complete a prosecution against a codefendant and to secure testimony against the defendant. In dismissing a case which could not be substantiated by compelling evidence and in attempting to prepare the most persuasive case before bringing the defendant to trial, the state should not be condemned, but on the contrary, should be commended.

The Supreme Court stated in Barker: “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 . As I believe the thirteen-month period in this case was not presumptively prejudicial, at this point my analysis should rest. However, I take this opportunity to comment on the remaining three Barker factors and their relevancy in this case.

Reason for the Delay

I agree with the majority that the reason for the delay in this case should weigh somewhat in favor of the state.

Assertion of the Right

The majority in this case agrees with the court of appeals’s analysis that the defendant’s assertion of his right to a speedy trial was timely. I respectfully disagree.

The defendant in this case not only failed to assert his right to a speedy trial in a timely manner, but substantially contributed to the delay of both the first and second proceedings. The defendant twice waived the time limits for preliminary hearings and on three occasions obtained additional time in which to file pretrial motions while he sought a writ of superintending control from this court. The defendant should not be allowed to complain of a delay that he has in part caused himself. See State v. Tarango, 105 N.M. 592 , 734 P.2d 1275 (Ct. App.), cert. denied, 105 N.M. 521 , 734 P.2d 761 (1987), overruled on other grounds, Zurla v. State, 109 N.M. 640 , 789 P.2d 588 (1990). See also United States v. Loud Hawk, 474 U.S. 302 , 106 S.Ct. 648 , 88 L.Ed.2d 640 (1986) (even in limited class of cases where pretrial appeal is appropriate, delays from such appeal ordinarily will not weigh in favor of a defendant’s speedy trial claim; a defendant who resorts to pretrial appeal normally should not be able to return to the trial court and reap the reward of dismissal for failure to receive a speedy trial).

If the requirement of assertion has any validity, it is to put the state on notice that the defendant does not acquiesce to the delay and that the state must go forward in all due haste with his prosecution. The defendant’s complaint of delay, filed approximately five weeks prior to the scheduled trial, was not calculated to put the state on notice that the defendant wanted a speedy trial in time for the state to react effectively. Instead, the defendant lay behind the log for as long as possible and then brought his demand for a speedy trial at a time when he had finally eliminated any possible recourse from the appellate courts and when the state was helpless to respond. This case is a classic example of the type of defense trial tactics described in Barker. The Court noted: “[Tjhe 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.” Barker, 407 U.S. at 535 , 92 S.Ct. at 2194 . As in the Barker case, the defendant in this case did not seek a speedy trial, but to the contrary, attempted to escape the consequences of a trial altogether.

Prejudice to the Defendant

The majority states that once a presumption of prejudice is shown, such presumption “carries forward” and shifts the burden of persuasion to the state. In its analysis the majority relies upon Zurla v. State, 109 N.M. 640 , 789 P.2d 588 (1990). It is my opinion that Zurla misapplied Barker; I consequently cannot agree with the majority’s conclusion in this case that the defendant was actually prejudiced.

Zurla, having determined that the length of the delay was presumptively prejudicial, proceeded to analyze the remaining three Barker factors. In its discussion of the fourth factor, prejudice to the defendant, the court stated: “Once the defendant has demonstrated presumptively prejudicial delay and thus triggered the Barker v. Win-go analysis, the presumption of prejudice does not disappear. Rather, the burden of persuasion rests with the state to demonstrate that, on balance, the defendant’s speedy trial right was not violated.” Zurla, 109 N.M. at 646 , 789 P.2d at 594 . The court continued: “[Njeither has the state shown how the evidence controverts the ‘presumption of prejudice’ as applied to the loss of this testimony, which, as noted above, was facially material to Zurla’s defense.” Zurla, 109 N.M. at 648 , 789 P.2d at 596 . Zurla erroneously “carried forward” or superimposed the presumption of prejudice onto the fourth factor of prejudice to the defendant.

Barker provides a functional balancing test with which to determine whether a defendant’s right to a speedy trial has been violated. Barker lends no support for the majority’s proposition that the presumption of prejudice initially found to exist, the factor which triggers the further inquiry into the remaining three Barker factors, “carries forward” and attaches to the fourth factor. To the contrary, in balancing the factors within the factual context of the Barker case, the Supreme Court illustrated how to evenhandedly weigh each piece of evidence without a compelling presumption tipping the scales one way or another. See also United States v. Loud Hawk, 474 U.S. 302 , 106 S.Ct. 648 , 88 L.Ed.2d 640 (1986) (employing Barker test, Supreme Court held possibility of prejudice not sufficient to weigh fourth factor in defendant’s favor).

Additionally, practical and rational constraints foreclose the success of the majority’s theory. If we require the state to affirmatively disprove prejudice to a defendant in a case where the defendant has not attempted to show the same, we are placing the burden upon the state to positively prove a negative. As stated in State v. Tartaglia, 108 N.M. 411, 415 , 773 P.2d 356, 360 (Ct.App.), cert. denied, 108 N.M. 318 , 772 P.2d 352 (1989), overruled, Zurla v. State, 109 N.M. 640 , 789 P.2d 588 (1990):

Second, it is difficult to conceive of how the state could come forward and effectively rebut a presumption of prejudice from time lapse alone without knowing, at the least, how defendant claims he was prejudiced. For example, how could the state rebut a claim that a potential exculpatory witness has disappeared, causing prejudice to the defense, when the state may be unaware of the existence of such a person? How could the state rebut claims of anxiety and concern without some claim made by defendant that he, in fact, suffered such consequences from the delay? To state the proposition that the state must affirmatively rebut prejudice without knowing what prejudice defendant claims shows the impossibility of adopting defendant’s position.

How can the state be expected to shadowbox its way through such an undefinable maze? The state should not be required to affirmatively prove that the defendant did not suffer prejudice by the delay. See United States v. Martinez, 776 F.2d 1481 (10th Cir.1985) (when defendant failed to articulate any specific harm suffered as a consequence of prosecutorial delay, and when only prejudice shown was presumption arising out of length of delay itself, defendant’s speedy trial right not violated).

In my view, the better rule is to hold that the question of actual prejudice is a factor which must be determined on balance. If a defendant brings forth evidence of prejudice, the state will have the burden of rebutting such evidence. If no evidence of prejudice is offered, then the scales are balanced. In this latter situation the question of actual prejudice would be neither for nor against either party, but neutral.

In the present case the defendant contended that he suffered humiliation, embarrassment, anxiety, and concern. He further claimed that one witness could not remember a specific conversation which allegedly occurred between the defendant and that witness. However, the defendant was unable to remember how much of the conversation the witness heard, and the witness did not testify regarding his alleged memory loss. Speculative allegations of an impaired defense and uncorroborated, general assertions of memory deterioration are unpersuasive and are subject to careful scrutiny as to their impact on a particular case when a defendant offers no proof regarding how the witness, if present, would testify. See United States v. Jenkins, 701 F.2d 850 (10th Cir.1983); State v. Grissom, 106 N.M. 555 , 746 P.2d 661 (Ct.App.1987).

I believe the evidence of actual prejudice introduced by the defendant in this case failed to show that the defendant’s anxiety and concern exceeded that ordinarily attendant to criminal prosecutions. Further, the evidence did not demonstrate that the defense witness’s testimony would have been different without the delay or that, if the testimony had been available, it would have been material to the defendant’s defense. But for the heavy thumb of presumption which the majority placed on the scales, the defendant’s claim of prejudice would fail.

Summation

Excepting the period of time between the magistrate court’s dismissal of the charges and the grand jury indictment, and considering the time necessary to complete two judicial proceedings, I do not think the length of the delay was presumptively prejudicial. However, assuming the delay was determined to be sufficiently lengthy to give rise to a presumption of prejudice, I believe the second Barker factor (reason for the delay) should weigh somewhat in favor of the state, the third factor (assertion of the right) should weigh in favor of the state, and the fourth factor (prejudice to the defendant) should remain neutral. Balancing these four factors thus, I conclude that the defendant was not denied a speedy trial under the Barker announcements. I would remand this matter to the trial court with instructions to reinstate the case for trial.

BACA, J., concurs.