finding no reversible error when “defendant ha[d] not established that the technical speedy trial error in this case prejudiced his defense in any way or deprived him of a fair trial.”
How later courts described this case
- finding no reversible error when “defendant ha[d] not established that the technical speedy trial error in this case prejudiced his defense in any way or deprived him of a fair trial.”
- noting that, in the related context of a speedy trial violation, assessing prejudice turns on “whether defendant has shown that his defense has been harmed by the delay; it is not sufficient for a defendant to contend that the state may not have made its case had the trial proceeded without the continuance”
- noting that a defendant must show he was prejudiced by a Rule 8.2 delay for there to be reversible error
- noting that “unavailability of a key witness may constitute an extraordinary circumstance” justifying a continuance under Rule 8.5(b), but not if the “scheduling conflict can be foreseen and avoided”
Written by the judges who cited it.
The opinion
GARBARINO, Judge,
dissenting:
¶32 I respectfully dissent. The record does not reveal an attempt by the State to secure Officer Hamilton’s attendance at trial or to subpoena him for trial. The fact that a person is in the military does not, by that fact alone, make that individual immune from civil process. State v. Ratzlaff, 27 Ariz.App. 174, 176 , 552 P.2d 461, 463 (1976) (citing 6 C.J.S. Armed Services, § 140 (1975)). Even though Officer Hamilton is in the military, the State should have attempted to compel his attendance by using the appropriate civil process designed to secure the attendance of witnesses. See id. Only after an unsuccessful attempt to subpoena Officer Hamilton could the State contend that he was indeed unavailable, that extraordinary circumstances existed, and that the requested continuance was indispensable to the interests of justice.
¶ 33 The majority concludes that the unavailability of the State’s key witness constitutes extraordinary circumstances for purposes of Rule 8.5. I would agree if the record reflected more than the State’s assurance to the trial court that its witness was not available for trial. The State must do more. Police officers, as representatives of the state, are required to make some adjustments in their schedules in order to be available for trial. See State v. Strickland, 27 Ariz.App. 695, 696 , 558 P.2d 723, 724 (1976). The State cannot justify a continuance by merely alleging a scheduling conflict. Cf. id. (bare allegation of “vacation conflict” did not justify continuance). The State cites State v. Lukezic, 143 Ariz. 60, 70 , 691 P.2d 1088, 1098 (1984) (discussing State v. Heise, 117 Ariz. 524 , 573 P.2d 924 , (App.1977)), contending that the Arizona Supreme Court has acknowledged that the unavailability of a vacationing witness may constitute an extraordinary circumstance. However, the State fails to mention that the court in Heise went on to state that a scheduling conflict, which the prosecutor’s office could have foreseen, would not constitute an extraordinary circumstance. 117 Ariz. at 526 , 573 P.2d at 926 . As the supreme court noted in Lukezic , the unavailability of the witness in Heise was not enough to justify a continuance because the delay was foreseeable by the prosecutor. 143 Ariz. at 70 , 691 P.2d at 1098 . For extraordinary circumstances to exist, the State must also show that it was unforeseeable that a witness would be unavailable. See Heise, 117 Ariz. at 526 , 573 P.2d at 926 . Like the prosecutor in Heise , the State knew or should have known that Officer Hamilton was scheduled to attend a training course and that it should be prepared to offer evidence that he could not be subpoenaed. Although the State could have easily done so, it failed to offer any evidence to establish that extraordinary circumstances existed justifying a continuance. The trial court committed reversible error by determining, without the benefit of any evidence, that Officer Hamilton was unavailable and that his unavailability created an extraordinary circumstance justifying the granting of the State’s request for a continuance.
¶ 34 The majority, although conceding that the trial court did abuse its discretion by excluding the eight days that the case was pending assignment “while riding the calendar,” concludes that the infraction does not *150 warrant a dismissal of the charges. Although acknowledging that there are many cases to the contrary, the majority concludes that the caselaw supports a finding of no harm, no foul.
¶ 35 Without getting into a discussion of the many cases that discuss the same issue and appear to arrive at different results, I cannot concede away defendant’s right to a speedy trial as easily. I would rely upon the rule our supreme court has given us and its subparts. Rule 8.6 tells us that for a violation of a Rule 8 time limit, the court “shall on motion of the defendant, or on its own initiative, dismiss the prosecution with or without prejudice.” (Emphasis added.) The rule does not provide that the court can search for reasons or speculate why it should not dismiss. It does not say that the charges can be dismissed before trial but that they should not be dismissed after trial absent certain conditions. The rule clearly states that the court “shall” dismiss.
¶ 36 The bottom line is either we have a rule or we do not have a rule. A rule riddled with exceptions provides little if any guidance to trial judges and attorneys. I would stay the course and apply Rule 8.6 as I believe the drafters meant it to be applied. I would reverse and remand to the trial court to determine whether the dismissal is to be with or without prejudice.