City of Grand Forks v. Gale, 20150204.

• Decision Date: 15 March 2016
• Docket Number: No. 20150204.,20150204.
• Citation: 876 N.W.2d 701
• Parties: CITY OF GRAND FORKS, Plaintiff and Appellee v. Jason William GALE, Defendant and Appellant.
• Court: North Dakota Supreme Court

876 N.W.2d 701

CITY OF GRAND FORKS, Plaintiff and Appellee

v.Jason William GALE, Defendant and Appellant.

No. 20150204.

Supreme Court of North Dakota.

March 15, 2016.

Kristi Pettit Venhuizen, City Prosecutor, Grand Forks, ND, for plaintiff and appellee.

Scott P. Brand, Fargo, ND, for defendant and appellant.

Erica J. Shively, Bismarck, ND, for amicus curiae North Dakota Association of Criminal Defense Lawyers.

KAPSNER

, Justice.

[¶ 1] A jury found Jason Gale guilty of driving under the influence. He appeals from the criminal judgment. We conclude his constitutional right to a speedy trial was violated, and we reverse the judgment.

I

[¶ 2] Gale was cited for driving under the influence on April 20, 1995. He retained attorney Henry Howe. Howe requested Gale sign a "limited power of attorney" that authorized Howe to appear in court on Gale's behalf. Gale signed the power of attorney, and it was filed with the district court. Howe requested a jury trial. Although the record does not contain information regarding plea negotiations that presumably took place, a sentencing hearing was scheduled for June 21, 1995. Gale failed to appear at the sentencing hearing, despite the court having mailed him three notices stating he was required to appear personally. After Gale failed to appear, the court issued a warrant for his arrest.

[¶ 3] No subsequent action was taken on the case until March 5, 2015, when Gale filed a motion to recall the arrest warrant. The City of Grand Forks then filed an amended information, and Gale filed a motion to dismiss arguing his right to a speedy trial had been violated. The district court held a hearing on his motion. Gale asserted he was unaware of the pending case and bench warrant because Howe had told him the case was closed and that Gale's bond had been used to pay the associated fines. Gale claimed he was made aware of the open case when a pre-employment background check revealed the warrant. He asserted the City did not prosecute his case for twenty years despite the fact that he had appeared in North Dakota courts for various criminal and child support proceedings. Gale argued his address was on file with the state, and the City's failure to prosecute the matter amounted to a speedy trial violation. The City claimed it could not locate Gale because he moved to Colorado soon after he failed to appear. The City claimed it had no knowledge of Gale's whereabouts, he caused the delay, and there was no speedy trial violation. The district court found Gale's testimony incredible. The court reasoned Gale likely knew the case was pending but chose not to do anything about it. The court found it likely the only reason Gale took action in 2015 was because his employment opportunity was dependent upon resolution of the warrant. The court denied Gale's motion to dismiss.

[¶ 4] A jury trial was held on July 7, 2015. The arresting officer was the only witness to testify. Although the officer remembered some of the incident, his testimony was based largely on a report he had written after the arrest. No blood-alcohol test evidence was admitted. The jury found Gale guilty, and the district court sentenced him in accordance with 1995 DUI laws. Gale filed a timely appeal. He argues he was convicted and sentenced in violation of his state and federal constitutional rights to a speedy trial.

II

[¶ 5] The Sixth Amendment to the United States Constitution and article 1, section 12 of the North Dakota Constitution

guarantee the right to a speedy trial. "[T]he right to speedy trial is a more vague concept than other procedural rights." Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). "It secures rights to a defendant. It does not preclude the rights of public justice." Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905). It has been called "amorphous, slippery, and necessarily relative." Vermont v. Brillon, 556 U.S. 81, 89, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009). It is impossible to determine when the right has been denied with precision. Barker, at 521, 92 S.Ct. 2182. Nonetheless, "[t]he history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution." Klopfer v. North Carolina, 386 U.S. 213, 225, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

[¶ 6] The United States Supreme Court has developed a four-factor test to determine whether the right to a speedy trial has been violated: (1) the length of the delay, (2) the reason for the delay, (3) the accused's assertion of his right to a speedy trial, and (4) the prejudice to the accused. Barker, 407 U.S. at 530, 92 S.Ct. 2182

. See also State v. Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915. No single factor is controlling; the court must weigh "all the factors in a ‘difficult and sensitive balancing process.’ " State v. Runck, 418 N.W.2d 262, 265 (N.D.1987) (quoting State v. Wunderlich, 338 N.W.2d 658, 660 (N.D.1983) ). See also Barker, at 531–33, 92 S.Ct. 2182.

[¶ 7] Rule 48(b), N.D.R.Crim.P

., allows the district court to dismiss a case when there has been an unnecessary delay in bringing a defendant to trial:

The court may dismiss an indictment, information or complaint, or order the release of any arrested person if unnecessary delay occurs in:

....

(4) bringing a defendant to trial.

"Although Rule 48(b)

is separate from the Sixth Amendment of the United States Constitution, the factors considered by the trial court in granting relief pursuant to Rule 48(b) parallel speedy trial factors under the United States Constitution." Runck, 418 N.W.2d at 265.

[¶ 8] When an appellant raises a speedy trial issue, we review the district court's findings of fact under a clearly erroneous standard; we review its speedy trial determination de novo. Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915

. See also United States v. Erenas–Luna, 560 F.3d 772, 776 (8th Cir.2009) ("We review the district court's findings of fact on whether a defendant's right to a speedy trial was violated for clear error but review its legal conclusions de novo.") (quoting United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir.2007) ).

A

[¶ 9] "The first factor, the length of delay, defines a threshold in the inquiry: there must be a delay long enough to be presumptively prejudicial."

United States v. Loud Hawk, 474 U.S. 302, 314, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986)

. "If the delay is longer than the delay usually allowed for criminal prosecutions, the delay is presumptively prejudicial, and a court must complete a speedy-trial analysis.... A presumptively prejudicial delay alone does not create a speedy-trial violation, and the other factors must still be weighed." Moran, 2006 ND 62, ¶ 9, 711 N.W.2d 915 (citation omitted). See also Wunderlich, 338 N.W.2d at 661 ("the length of the delay is not controlling by itself").

[¶ 10] The delay in this case was approximately twenty years. We have called a thirteen-month delay "considerable." See State v. Littlewind, 417 N.W.2d 361, 364 (N.D.1987)

. We have concluded a seventeen-month delay was "significant." See Runck, 418 N.W.2d at 265. And the United States Supreme Court has described a delay of eight-and-a-half years as "extraordinary." See Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Twenty years is longer than all of these delays. It is also clearly longer than the time normally required to prosecute a DUI case; the City concedes this point and agrees the delay gives rise to a presumption of prejudice. This factor weighs heavily in Gale's favor.

B

[¶ 11] The second factor is the reason for the delay. "A defendant has no duty to bring himself to trial; the state has that duty...." Barker, 407 U.S. at 527, 92 S.Ct. 2182

. However, if the defendant causes the delay, this factor weighs against him. Moran, 2006 ND 62, ¶ 10, 711 N.W.2d 915. The reason for the delay is closely related to the last factor: prejudice to the defendant. The defendant's burden under that factor depends on the government's diligence in bringing the case forward:

If the government diligently pursues a defendant from indictment to arrest, a speedy trial claim will always fail without a showing of actual prejudice. On the other hand, if the Government intentionally held back in its prosecution to gain some impermissible advantage at trial, that fact weighs heavily against the Government. The middle ground between diligent prosecution and bad-faith delay is government negligence in bringing an accused to trial.

United States v. Cardona, 302 F.3d 494, 497 (5th Cir.2002)

(citations omitted); See also Brillon, 556 U.S. at 90, 129 S.Ct. 1283. We have explained the defendant's burden under the prejudice prong is determined by the government's diligence:

When the State diligently pursues the defendant, the defendant must prove actual prejudice. When the State intentionally delays prosecution because of a bad-faith motive, prejudice is presumed. When the State has been negligent by not diligently pursuing the defendant ... the weight of the other factors and the length of the delay controls whether prejudice must be actual or may be presumed.

Moran, at ¶ 18 (citations omitted).

[¶ 12] The City argues Gale caused the delay. It claims Gale was aware of the scheduled sentencing hearing because he received three notices to appear. It asserts that despite the notices, Gale did not appear in court and later moved out of the state. Gale argues he was unaware he needed to appear or that a warrant was issued because he had signed a power of attorney that authorized Howe to appear for him in court. Gale claims Howe informed him the case had been closed. Moreover, Gale claims, the City failed to execute its warrant even though Gale appeared in North Dakota courts in a number of unrelated legal proceedings and his address was on file with the state. The district court found Gale's claims "incredible" and that he was aware of the open case and warrant. The court concluded Gale...