# State v. Brown

> Supreme Court of New Hampshire · July 31, 2008 · 157 N.H. 555

URL: https://www.frixlaw.com/law-library/cases/9735373

## Case

- **Full name:** The State of New Hampshire v. Russell Brown
- **Court:** Supreme Court of New Hampshire
- **Decided:** July 31, 2008
- **Citations:** 157 N.H. 555; 953 A.2d 1174
- **Precedential status:** Published
- **Opinion:** Concurring in part by Broderick
- **Judges:** Duggan, Galway, Hicks, Broderick, Dalianis
- **Cited by:** 10 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/9735373

## How later opinions describe it (automated extraction)

- holding that reasonable delay during the pendency of a defendant’s pretrial motion tolls the IAD’s time periods

## Opinion text

BRODERICK, C.J.,
concurring in part and dissenting in part. I agree with the majority that the seventy-seven days that the defendant was represented by counsel, who later withdrew, must be included in calculating the 180-day time period under the Interstate Agreement on Detainers (IAD). See RSA ch. 606-A (2001). I also agree that the trial court’s sua sponte decision to continue the trial date from September 25, 2006, to November 13, 2006, did not toll the running of the time period, for the reasons stated in the majority’s opinion.
I write separately because I disagree that this continuance rendered the eventual resolution of this case, which occurred on October 27, 2006, untimely under the IAD. The defendant agrees that for the purposes of his appeal, the date upon which he stipulated to resolve the case, October 27, 2006, is the end date by which the 180-day period must be measured. The issue before this court, therefore, is whether the October 27,2006 date was within the 180-day period.
The parties concur that the 180-day period was tolled from March 10, 2006, the date upon which the trial court granted a continuance, to September 25, 2006, the date to which the trial was postponed as a result of the continuance. They dispute whether the time period was tolled also from September 25,2006, to October 27,2006. The majority concludes that although the trial court was resolving the defendant’s motion to dismiss during this period, the 180-day period was not tolled because, in July 2006, the trial court sua sponte continued the trial to November 13, 2006. In this way, the majority reasons, the defendant did not “occasion the delay” from *567 September 25, 2006, to October 27, 2006. The majority focuses unduly, I believe, upon the word “occasion,” leading it to a conclusion that conflicts with our own case law, precedent from the First Circuit Court of Appeals as well as precedent from the majority of other jurisdictions under which a defendant is deemed “unable to stand trial” for periods during which a defense motion is pending.
Article VI(a) of the IAD provides: “In determining the duration and expiration dates of the time periods provided in Article[] III . . . of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” RSA 606-A:l, art. VI(a). “The court having jurisdiction over the matter determines whether the inmate is unable to stand trial. If so, the court subtracts from the total number of days elapsed the number of days the inmate is unable to stand trial to determine if the time period has been exceeded.” Abramson, The Interstate Agreement on Detainers: Narrowing Its Availability and Applications, 21 New Eng. J. on Crim. & Civ. Confinement 1, 35 (1995).
The predominant view among federal circuit courts of appeal is that a defendant is “unable to stand trial” for the purposes of the IAD for all time periods during which a defense motion is pending. United States v. Whiting, 28 F.3d 1296, 1307 (1st Cir.), cert. denied, 513 U.S. 956 , and cert. denied, 513 U.S. 994 , and cert. denied, 513 U.S. 1009 (1994). This includes the time it takes the court to resolve such motions. United States v. Neal, 36 F.3d 1190, 1210 (1st Cir. 1994), cert. denied, 519 U.S. 1012 (1996). The filing of a defense motion stops the clock under the IAD. See United States v. Walker, 924 F.2d 1, 5 (1st Cir. 1991). The clock does not begin to run again until the motion is resolved. Id.
This way of looking at the phrase “unable to stand trial” is borrowed from the Federal Speedy Trial Act, which excludes from computing the time within which an information or indictment must be filed or a trial must commence “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161 (h)(1)(F) (2000); see Walker, 924 F.2d at 5 . The IAD and the Federal Speedy Trial Act are related statutes that serve the same purpose. See United States v. Cephas, 937 F.2d 816, 819 (2d Cir. 1991), cert. denied, 502 U.S. 1037 (1992). Accordingly, federal courts in the Second, Fourth and Ninth Circuit Courts of Appeal have ruled that these acts should be construed consistently. See id.; see also United States v. Odom, 674 F.2d 228, 231 (4th Cir.), cert. denied, 457 U.S. 1125 (1982); United States v. Collins, 90 F.3d 1420, 1427 (9th Cir. 1996). The First Circuit concurs with these circuits, at least with respect to tolling for any delay resulting from a pretrial defense motion. See Walker, 924 F.2d at 5 .
*568 In Whiting , for instance, the First Circuit Court of Appeals concluded that the IAD clock was stopped during the time it took for the trial court to resolve the defendant’s pretrial motions, including his motion to dismiss the federal indictment on IAD grounds. Whiting, 28 F.3d at 1307 . Although the court noted that it had previously “held out the possibility that the time involved in disposing of a motion might not all be excluded where the defendant timely advised the [trial] court that he... claimed the protection of the IAD and the [trial] court took more time than was necessary to resolve the motion,” the court ruled that in this case, the defendant offered “no specifics that would lead [the court] to conclude . . . that the district court was slothful in acting on defense motions.” Id.
We have also deemed defendants “unable to stand trial” for all periods of time during which defense motions are pending, including a reasonable period of time to resolve such motions. See State v. McGann, 126 N.H. 316, 322-23 (1985). For example, in McGann , we ruled that the 180-day period was tolled from June 11,1984, to August 7,1984, because this is the time it took the trial court to resolve the defendant’s motion to suppress. Id. at 322 . We further ruled that the defendant’s motion to dismiss the indictments under the IAD, which he filed on August 6, 1984, tolled the 180-day limitation until “all the issues on the motion to dismiss” were resolved. Id. at 323 .
Like the defendant in Whiting , the defendant in this case has failed to offer any specifics that would lead me to conclude that the trial court was slothful in acting on his motion to dismiss. The defendant here filed his first motion to dismiss on May 1,2006. This motion was discussed only ten days later, at a hearing on a motion to consolidate. At that time, the defendant conceded that his motion did not require an evidentiary hearing and indicated that he understood that the trial court would not have time to hear his motion that day. He requested that the court hear his motion at a later date.
The trial court scheduled the motion to be heard on August 2, 2006, a little over one month after it decided the motion to consolidate. On August 1, 2006, however, the defendant requested a continuance, which the trial court granted the same day. The new hearing date was set for September 26, 2006. The trial court issued its decision denying the defendant’s motion to dismiss twenty-nine days later, on October 25, 2006.
A delay from May 1, 2006, to August 2,2006, to hear a motion to dismiss is not, in my view, unduly long, particularly in this case where the 180-day period was already tolled until September 25, 2006. Nor did the trial court take undue time to decide the motion once it was heard; it decided the motion in only twenty-nine days. See Neal, 36 F.3d at 1210 (finding that twenty-eight-day delay was not longer than necessary). Indeed, the *569 defendant’s motion would undoubtedly have been decided earlier but for his August request for a continuance. In these circumstances, I cannot conclude that the trial court took longer than necessary to resolve the defendant’s first motion to dismiss. See United States v. Taylor, 861 F.2d 316, 321-22 (1st Cir. 1988), overruled on other grounds by Alabama n Bozeman, 533 U.S. 146 (2001). As the First Circuit has observed:
[I]t [is] inappropriate for [an appellate court] to scrutinize each defense motion for the purpose of deciding whether a judge should have been able to dispose of it in two days, two weeks or two months. Many factors affect a judge’s readiness to render a decision, and [an appellate court] would overstep [its] role were [it] to intrude routinely into the trial judge’s deliberative process.
Id. at 321-22.
In contrast to the majority, I believe that the trial court’s sua sponte continuance was a non-event. As the majority has aptly explained, because the trial court issued the continuance sua sponte, as opposed to in open court, the continuance did not stop the IAD clock from running. What did stop the clock from running initially was the continuance granted on March 10, 2006, as this was a continuance granted for good cause in open court. Had the defendant not moved to dismiss, the clock would have begun running on September 26,2006, the day after the date to which the trial was postponed. But, because of the defendant’s motion to dismiss, the IAD clock was stopped from September 26, 2006, until October 25, 2006, when the court resolved the motion. Because the 180-day statutory time period was tolled for an additional twenty-nine days, resolving the case on October 27,2006, did not violate the defendant’s statutory right to a speedy trial as this date was well within the 180-day statutory period.
The majority opinion rests upon the premise that a defense motion that causes no actual delay of a trial date does not trigger the tolling provision of the IAD. See United States v. Rodriguez, 63 F.3d 1159, 1166 (1st Cir. 1995). For this proposition, the majority relies upon state court decisions that do not follow the law of the First Circuit. The law in the First Circuit as well as other federal circuit courts of appeal, however, is that with respect to the similar tolling provision under the Federal Speedy Trial Act, the exclusion of time during which a defense motion is pending is “automatic,” and does not depend upon any showing of actual delay. Id. (citing cases from Third, Fourth and Seventh Circuit Courts of Appeal). By ruling that the exclusion of time for a defense motion does depend upon a showing of actual delay in the trial date, the majority has created a divergence between the IAD and the Federal Speedy Trial Act, which is contrary to federal law under which these acts are to be construed together. *570 While the majority purports to follow the First Circuit, I believe that its decision is contrary to the law in that circuit, as well as to our own case law. For all of the above reasons, therefore, I respectfully dissent from the majority’s conclusion that the October 27, 2006 date was outside of the 180-day period under the IAD.
DALIANIS, J., joins the opinion of BRODERICK, C.J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735373. Public record. Not legal advice.