State Ex Rel. David T. Garcia v. The Honorable Steven H. Goldman

• Decision Date: 31 August 2010
• Docket Number: No. SC 90833.,SC 90833.
• Citation: 316 S.W.3d 907
• Parties: STATE ex rel. David T. GARCIA, Relator,v.The Honorable Steven H. GOLDMAN, Respondent.
• Court: Missouri Supreme Court

316 S.W.3d 907

Supreme Court of Missouri,

En Banc.

STATE ex rel. David T. GARCIA, Relator,v.The Honorable Steven H. GOLDMAN, Respondent.

No. SC 90833.

July 16, 2010.

Rehearing Denied Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED

Joseph Yeckel, Law Office of Joseph F. Yeckel LLC, and Grant J. Shostak, Shostak & Shostak LLC, St. Louis, for Relator.

Robert P. McCulloch, David R. Truman and John Quarenghi, St. Louis County Prosecuting Attorney's Office, Clayton, for the State.

John L. Davidson, John L. Davidson PC, St. Louis, for Missouri Association of Criminal Defense Lawyers, which filed a brief as a friend of the Court.

MICHAEL A. WOLFF, Judge.

Introduction

David Garcia was indicted eight years ago for a shooting that occurred 12 years ago in Kirkwood. Although he has been employed, paying taxes and living openly in Chicago for the past 10 years, the police made no serious attempt to find him until 2009, when a police officer looked him up in a computer database. After his arrest in Chicago and return to St. Louis County for trial, Garcia moved to dismiss the charge, contending that police and the prosecution violated his constitutional right to a speedy trial. The victim of the shooting was wounded seriously, but the case apparently received scant attention. In the circumstances here, the state has denied Garcia's right to a speedy trial.

Facts

Kwan Tung Tse, the owner of the Sunny China Buffet in Kirkwood, heard a knock on the kitchen door in April 1998, opened it and let in a man who entered, talked to an employee and then left. The man returned about a minute later carrying a shotgun, shot employee Rigoberto Dominguez in the abdomen and left. Dominguez was hospitalized but survived the attack.

Meliton Gonzalez, another employee at Sunny China, followed the assailant out the door after the shooting and saw him get into a brown coupe. Gonzalez identified the assailant as David Garcia. Dominguez, the victim, and Manuel Castro, another Sunny China employee, also identified the assailant as Garcia. Dominguez told police Garcia shot him because Dominguez had been talking about Garcia's girlfriend two days earlier. Kirkwood police interviewed three other witnesses around the time of the shooting: Nabor Garcia (Garcia's cousin and housemate), Jesus Rojas and Moises Aguilar.

The police found a Mossburg pump-action 12-gauge shotgun hidden in the bushes near the doorway exiting from the kitchen area. Police took photographs of the scene and prepared a diagram of the kitchen area of Sunny China. In addition, they conducted videotaped interviews of Nabor Garcia and Gonzalez. These videotapes have been lost.

Through their investigation, police obtained Garcia's date of birth, driver's license number, social security number and address. Police then searched the apartment Garcia shared with Nabor Garcia and canvassed the apartment complex. Police were told that if Garcia were to leave the St. Louis area, he might go to California or Illinois. Detective Michael Bales testified that he could not recall any of the locations he visited after searching the Garcias' apartment and that he could not remember to whom he spoke at the apartment complex besides Nabor Garcia. Police were unable to locate David Garcia.

Nearly three years after the shooting, the St. Louis prosecuting attorney's office asked Kirkwood police to make further attempts to find David Garcia, because the statute of limitations for the crime was running out. Police received information that Garcia might be in Breckenridge Hills, St. Ann or other communities in north and central St. Louis. Kirkwood police sergeant Steven Guyer attempted to locate Garcia on four days in late February or early March 2001. Guyer was admitted into three residences but did not locate Garcia. No reports were prepared documenting these efforts to locate Garcia.

Garcia was charged by indictment in February 2002 with first-degree assault. The police made no efforts to look for Garcia during the next seven years; according to a Kirkwood detective, the case had become “cold.”

In early 2009 Kirkwood Detective Steve Urbeck entered Garcia's social security number into the Accurint computer system and received a Chicago address for Garcia. Detective Urbeck contacted the Chicago police department's fugitive apprehension service and requested its assistance. Chicago police determined that Garcia was working at a Chicago hotel and arrested him in February 2009.

Garcia was living openly in Chicago, using his actual name, date of birth and social security number since at least 2002. The trial court found that the social security number could have been used to locate Garcia in 2002 or before. Garcia filed tax returns from 2000 to 2008 using his real information. He opened several credit card accounts and obtained a Missouri driver's license using his St. Louis address. Garcia's whereabouts between the April 1998 shooting and September 2000 are unknown.

Garcia filed a motion to dismiss the indictment against him, alleging a violation of his right to a speedy trial under the Sixth Amendment to the United States Constitution. The parties stipulate that witnesses Nabor Garcia, Moises Aguilar, Manuel Castro and Jesus Rojas cannot be found and are currently unavailable. They also stipulate that the videotaped statements of Nabor Garcia and Meliton Gonzalez are unavailable and that Sunny China was demolished two years before Garcia's arrest. The respondent circuit court, balancing the factors discussed below and the evidence, overruled the motion to dismiss. The court found that Garcia knew that there were witnesses at the scene of the shooting, that police would be searching for him, that he fled his home address, and that there was no evidence that Garcia was aware of the indictment or arrest warrant. The court also concluded the police did not use reasonable diligence to find Garcia.

Garcia filed a petition for writ of mandamus with this Court, which issued its preliminary writ pursuant to article V, section 4 of the Missouri Constitution.¹

Analysis

A defendant's right to a speedy trial arises under the Sixth Amendment to the United States Constitution,² which applies to the states through the Fourteenth Amendment.³Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). These constitutional provisions “provide equivalent protection for a defendant's right to a speedy trial.” State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007).

“[T]he protections of the speedy trial provisions attach when there is a ‘formal indictment or information’ or when ‘actual restraints [are] imposed by arrest and holding to answer a criminal charge.’ ” State of Missouri v. Bolin, 643 S.W.2d 806, 813 (Mo. banc 1983) (quoting Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975)). Garcia's right to a speedy trial accrued when he was indicted in February 2002. ⁴ The relevant inquiry in this case is whether the seven-year period between Garcia's indictment and arrest violated his speedy trial rights.

The determination of whether there has been a violation of speedy trial rights involves a balancing process. In determining whether Garcia's right to speedy trial has been violated, the Court is to consider and balance all of the circumstances and to weigh four factors: “Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

1. The length of the delay is a “triggering mechanism” because until there is a “delay [that] is presumptively prejudicial,” there is no need to discuss the other factors that are part of the balancing process. Id. Missouri courts have found that a delay of greater than eight months is “presumptively prejudicial.” See McKee, 240 S.W.3d at 729. The trial court found, and both parties agree, that the nearly seven-year delay in this case between Garcia's indictment and arrest is presumptively prejudicial.

2. The reason for the delay. Different weights are assigned to different reasons for a delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182. A deliberate attempt by the state to delay the trial is weighted heavily against the government, while “[a] more neutral reason such as negligence ... should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. The trial court found that the police did not use reasonable diligence to find Garcia. After the grand jury indicted Garcia in February 2002, there is no evidence that the police made any effort to locate Garcia until February 2009. This is indeed a lack of diligence and negligence on behalf of the state that weighs against the state.

The trial court also found that Garcia fled from St. Louis after the shooting and that he “knew there were witnesses at the scene and police would be searching for him.” The issue is whether this action should be weighed against Garcia. The state argues Garcia fled St. Louis and, therefore, should bear some responsibility for the delay in his apprehension and prosecution. Garcia argues that the state offered no evidence that he left Missouri or concealed his identity to avoid prosecution and, therefore, that the state's negligence was the sole responsibility for the delay.

The police searched for Garcia on two occasions: once immediately after the shooting and a second time in early 2001. Garcia's whereabouts from the time of the shooting in April 1998 until his application for a job in Chicago in September 2000 are unknown. Although the police were informed that Garcia might go to California or Illinois, there is no evidence that anyone had actual knowledge that he left the state.

Garcia lived openly and notoriously throughout the entire post-indictment period, albeit in Chicago, in a foreign jurisdiction. The...