Kilpatrick v. State

• Decision Date: 11 July 1985
• Docket Number: No. 15673,15673
• Citation: 1985 NMSC 64,702 P.2d 997,103 N.M. 52
• Parties: Johnie Louis KILPATRICK, Petitioner, v. STATE of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 997

702 P.2d 997

103 N.M. 52

Johnie Louis KILPATRICK, Petitioner, v. STATE of New Mexico, Respondent.

No. 15673.

Supreme Court of New Mexico.

July 11, 1985.

[103 NM 52] Paul J. Kennedy, Albuquerque, for petitioner.

Paul G. Bardacke, Atty. Gen., Santa Fe, for respondent.

OPINION

WALTERS, Justice.

Defendant Kilpatrick was convicted of aggravated assault. The Court of Appeals affirmed the conviction and defendant petitioned this Court for a writ of certiorari. We reverse the Court of Appeals.

The sole issue raised in defendant's petition is whether the time period between his arrest and his indictment and trial must be considered in evaluating his speedy trial claim under the Sixth Amendment to the United States Constitution. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the United States Supreme Court answered that question affirmatively. "The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nonetheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." Id. at 8, 102 S.Ct. at 1502 (emphasis added).

In the instant case, defendant posted a surety bond of $2500 on the day he was arrested, and lived under its "impairment of liberty" and the cloud of "unresolved criminal charges" for almost a year before the indictment was filed. The indictment was later dismissed and he was reindicted two months later. Without stating any reasons, the trial court denied defendant's motion to dismiss the new indictment.

MacDonald, which relies on a line of cases holding that the protections of the Sixth Amendment become applicable when "the putative defendant in some way becomes an 'accused'...." (United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971)), declares unequivocally, in repetition of Lovasco v. United States, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); and Marion, that the time between defendant's arrest and indictment must be considered.

In affirming defendant's conviction, the Court of Appeals focused first on dates of indictment and reindictment rather than upon the time between arrest and indictment, and then applied the "actual restraint" test outlined in State v. Tafoya, 91 N.M. 121, 570 P.2d 1148 (Ct.App.1977). Tafoya, because defendant had made no showing of actual restraint following his arrest, held that there had been no denial of the right to a speedy trial. In the instant case, defendant showed that he had been required to post a bond and bear the restrictions imposed upon one "accused." Kilpatrick, therefore, carried the burden of showing "substantial impairment of liberty ... while released on bond," MacDonald, and of "subjection to public obloquy ... and anxiety," Dillingham, for more than 15 months before he went to trial.

Defendant correctly points out in his petition that Tafoya was based upon a misunderstanding of the facts of Marion. The Marion defendants were arrested and indicted on the same day. Their speedy trial objection was grounded on the three-year delay between the time of the crime and the date of "arrest and indictment." Thus, the Marion language quoted in Tafoya (91 N.M. at 123, 570 P.2d 1150) was meant to recognize a distinction between the time before the putative defendant became an "accused," which is not to be considered, and the time after arrest and accusation, which Mac...