Rutherford v. State, 1375

• Decision Date: 01 July 1971
• Docket Number: No. 1375,1375
• Parties: Wilma Alyce RUTHERFORD, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 946

486 P.2d 946

Wilma Alyce RUTHERFORD, Appellant, v. STATE of Alaska, Appellee.

No. 1375.

Supreme Court of Alaska.

July 1, 1971.

H. Bixler Whiting, Fairbanks, for appellant.

John E. Havelock, Atty. Gen., Juneau, Stephen Cooper, Dist. Atty., Lyle R. Carlson, Asst. Dist. Atty., Fairbanks, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.

ERWIN, Justice.

This case and two other cases before this court ¹ raise important questions regarding a criminal defendant's constitutional right to a speedy trial. ^2$ We had occasion recently to deal extensively with the content of that right in Glasgow v. State, 469 P.2d 682 (Alaska 1970), and we are now called upon to clarify and expand upon the principles announced therein.

I. FACTUAL BACKGROUND

The relevant facts in this case are as follows: On April 23, 1969, five days after the death of her husband, appellant herein was arrested, charged with first degree murder, and released on bail. Following a preliminary hearing, appellant was bound over to the grand jury on June 23, 1969, on the charge of second degree murder. A month later, on July 24, 1969, the grand jury returned an indictment on that charge. Appellant was arraigned July 29, 1969, and on August 12, 1969, she entered a not guilty plea.

The case remained completely dormant from August 12, 1969, until June 9, 1970, when the superior court notified appellant's counsel by letter that trial would be held July 6, 1970. ³ The latter date was fourteen months and thirteen days after the original complaint, arrest and arraignment. Appellant's subsequent motion to dismiss the indictment with prejudice based on her constitutional right to a speedy trial was denied after a hearing on July 2, 1970. It is this ruling which appellant seeks to have reviewed here.

At the trial, appellant was convicted of involuntary manslaughter, given a five-year suspended sentence, and placed on probation for a period of five years.

II. DETERMINATION OF SPEEDY TRIAL VIOLATION

The speedy trial guarantee has been seen as fulfilling at least three purposes: (1) to prevent harming the defendant by a weakening of his case as evidence and memories of witnesses grow stale with the passage of time; (2) to prevent prolonged pre-trial incarceration; and (3) to limit the infliction of anxiety upon the accused because of long-standing charges. ⁴ In postulating speedy trial standards, it is necessary to be cognizant of each of these purposes.

In Alaska, contrary to many states, we have no statutory provisions which implement speedy trial guarantees by setting a definite period within which trial must be held. ⁵ Whether a speedy trial violation has occurred depends on the facts of each case and general constitutional principles.

In Spight v. State, 450 P.2d 157, 158 (Alaska 1969), we drew upon Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S.Ct. 88, 13 L.Ed.2d 52 (1964), in deciding that speedy trial is a 'relative concept in that the circumstances of each case determine whether it had been afforded an accused.' 387 P.2d at 736.

In Spight, the defendant had requested several continuances, which were granted, but later continuances were granted at the request of the prosecution because of the inability to locate a witness. The total delay due to the prosecution's own requests, and the granting of a mistrial, amounted to about three months. We held that since appellant had made no showing that the delay was 'purposeful or oppressive or that (it) prejudiced her defense in any manner. * * * (a)ppellant's constitutional right to a speedy trial was not violated.'

In Glasgow v. State, 469 P.2d 682 (Alaska 1970), this court again balanced society's interest in the conviction of those who violate its criminal laws against a defendant's constitutional interest in a speedy trial. We found that a delay of approximately fourteen months attributable to the state was excessive:

We find this to be an excessive amount of time within which to bring an accused to trial and, as such, a deprivation of the constitutional right to a speedy trial. In arriving at this conclusion, we rely on the persuasive reasoning of (the opinions of the United States Supreme Court in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) and Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)) and on our interpretation of section 11, article 1 of the Alaska Constitution.

It should be noted that in maintaining a proper balance between the needs of the accused and the commitments of the judicial process, we approve the statement of countervailing principles as set forth in United States v. Ewell * * * ⁶

We then went on to quote the following language from the Ewell opinion, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630-631 (1966):

(B)ecause of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. * * * '(T)he essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1048).

We held, however, that a fourteen-month delay was an improper balance to strike.

With this framework of purpose and countervailing interests as background, we now turn to the question of what factors, other than the length of delay, are relevant in passing on a motion to dismiss based on an asserted speedy trial violation.

The state argues that the absence of proof of demand for trial, lack of prosecutorial fault, ⁷ and no showing of actual prejudice should be determinative here. However, our opinion in Glasgow v. State, supra, casts serious doubt on the relevancy of any of these criteria where lengthy delay has occurred:

The degree to which the earlier case law on speedy trial is still sound has been thrown into some doubt by the Klopfer and Hooey decisions (supra). Both stress the burden resting upon the state to bring the accused promptly to trial. Neither case resorts to undue technicalities about the necessity of showing prejudice to the defense, nor are waiver doctrines apparently relied upon.

As a result of Hooey and Klopfer it is apparent that a positive duty rests upon the courts and prosecutors to see that criminal defendants are afforded a speedy trial. The requirement of a demand, the showing of prejudicial harm to the defendant's case, and the implication of a waiver from the defendant's failure to make a demand arguably are no longer determinative of the claim to a speedy trial. While the presence of a demand or a showing of prejudice to one's case can only help the claim, their absence alone will not necessarily frustrate the right to a speedy trial, including the right to a dismissal of the charges with prejudice when there has been a clear denial of this constitutional right. We reach this conclusion on the basis of our interpretation of article I, section 11, of the Alaska Constitution rather than upon any dispositive holding in Hooey and Klopfer. * * * (footnotes omitted.) ⁸

Additional discussion may be necessary, however, both in order to further clarify our holding in Glasgow and to answer the state's request that we recede from the above portion of the Glasgow opinion.

A. Waiver

Our decision in Glasgow to reject the doctrine that failure of an accused to demand a speedy trial constitutes a waiver was based on a growing body of legal thought which holds that waiver of constitutional rights can ordinarily only be done knowingly and intentionally. ⁹ In this regard, the position taken by the Supreme Court of the United States is particularly illustrative.

The United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938), defined 'waiver' as 'an intentional relinquishment or abandonment of a known right or privilege.' The Supreme Court further stated that every presumption should be indulged against waiver, Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177, 1180 (1937), and that the Court would not presume acquiescence in the loss of fundamental rights. Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 81 L.Ed. 1093, 1103 (1937).

Against this backdrop, the cases of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), were decided and held that the prosecution had a duty to inform the accused of particular rights, and that there could be no waiver in the absence of an explanation of those rights. There is respectable authority in the federal courts that waiver of a right to a speedy trial is similarly not to be inferred from mere silence unless the silence is for some tactical purpose. ¹⁰

Many of these authorities were alluded to in Glasgow and provide a sound foundation for the opinion. The state argues, however, that another factor should be considered in weighing the effect of silence. The failure to demand a speedy trial can be a tactical ploy by a guilty defendant. Most defense counsel are aware that delay may be beneficial. Witnesses, memories, etc., may be lost, and the case may be forced from the judicial process and justice thwarted.

However, we feel it is too much to expect of human nature that a defendant must demand a speedy trial to receive one when he has no assurance as to the outcome of trial. The uncertainty as to the verdict can bring indecision to the innocent as well as the guilty. While trial should vindicate the innocent, such a defendant may nevertheless be apprehensive about the outcome, for even his innocence has not prevented him from reaching the...