State v. Drachman

• Decision Date: 15 June 1987
• Docket Number: No. 17325,17325
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Todd DRACHMAN.

Page 603

358 S.E.2d 603

178 W.Va. 207

STATE of West Virginia v. Todd DRACHMAN.

No. 17325.

Supreme Court of Appeals of West Virginia June 15, 1987.

Syllabus by the Court

1. The Sixth Amendment speedy trial right begins with the actual arrest of the defendant and will also be initiated where there has been no arrest, but formal charges have been brought by way of an indictment or information.

2. In those situations where there has been no arrest or indictment, the Sixth Amendment right to a speedy trial is not implicated. Yet, the prosecution may have substantially delayed the institution of criminal proceedings causing prejudice to the defendant by way of loss of witnesses or other evidence. In this situation, the Fifth Amendment due process standard is utilized.

3. "The right to a trial without unreasonable delay is basic in the administration of criminal justice and is guaranteed by both the state and federal constitution. U.S. Const.Amend. VI; W.Va. Const., Art. 3, § 14." Syllabus Point 1, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).

4. "A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial." Syllabus Point 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).

5. Under the Sixth Amendment speedy trial right, the length of the delay is a triggering mechanism. Until there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance.

6. Under the Sixth Amendment speedy trial right, the prosecution has a duty to seek the return of a prisoner known to be incarcerated out of state.

Gayle Fiedler, Asst. Atty. Gen., for appellant.

Raymond H. Yackel, Oliver & Yackel, Morgantown, for appellee.

MILLER, Justice:

The defendant, Todd Drachman, appeals from a judgment of the Circuit Court of Monongalia County finding him guilty of the felony offense of issuing a worthless check in the amount of $7,250. His sole contention is that the circuit court erred in not dismissing the indictment on the ground that his constitutional right to a speedy trial had been denied.

On December 24, 1978, the defendant executed a check in the amount of $7,250 for the purchase of some machinery from one John Wassick, Jr., in Morgantown, West Virginia. This check was drawn on an account with the First Citizens Bank and Trust Company of Fayetteville, North Carolina. When this check was returned due to insufficient funds, Mr. Wassick obtained a felony warrant charging the defendant with issuing a worthless check.

The defendant was a resident of the State of North Carolina. On March 28, 1979, the defendant was served in North Carolina with a warrant charging him as a fugitive from justice. The defendant was released on bond and was scheduled to appear in the Superior Court of Cumberland County, North Carolina, on June 26, 1979.

Prior to this hearing, the defendant was arrested on charges of forgery and larceny in North Carolina. Thereafter, the defendant entered into a plea agreement with the State of North Carolina. At the scheduled hearing on June 26, 1979, the District Attorney for North Carolina announced that the State did not wish to proceed on the warrant for extradition.

In August, 1979, the defendant began serving his sentence in North Carolina for crimes committed there. On September 18, 1979, the fugitive warrant pending against the defendant was ordered dismissed. As a reason for the dismissal, the dismissal form states, "Defendant is serving active sentence. Authorities notified to file detainer with Department of Corrections." The fugitive from justice warrant, however, was apparently never officially dismissed.

The defendant was paroled in North Carolina in February, 1982. Subsequently, the defendant was again arrested in August, 1983, on the fugitive from justice warrant on the West Virginia charge. At a court appearance in North Carolina on November 18, 1983, he was ordered to be returned to West Virginia to face charges on the original warrant issued in February, 1979. He was released on bond on November 23, 1983, after a hearing in the Circuit Court of Monongalia County. On January 5, 1984, the defendant was indicted by a Monongalia County grand jury on the felony charge of issuing a worthless check. As earlier noted, the court denied his motion to dismiss the indictment because of the failure to accord him a speedy trial. The defendant's trial was held in the circuit court on February 14, 1985. Upon conviction, he was placed on five years probation and ordered to make restitution.

The defendant does not rely on the three-term rule, W.Va. Code, 62-3-21, because its provisions were not triggered until his indictment in West Virginia in 1984. ¹ Instead, he contends that he was denied a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article III, Section 14 of the West Virginia Constitution. He argues that the issuance of a felony arrest warrant in West Virginia and his subsequent arrest in North Carolina in 1979 on a fugitive from justice warrant triggered his right to a speedy trial.

Initially, it is important to recognize that the United States Supreme Court has fashioned speedy trial rights under both the Sixth Amendment to the United States Constitution, where the term "speedy trial" is used, ² and also under the Due Process Clause of the Fifth Amendment to the United States Constitution. ³

The reason for utilizing these two different constitutional provisions is that the Sixth Amendment speedy trial right begins with the actual arrest of the defendant and will also be initiated where there has been no arrest, but formal charges have been brought by way of an indictment or information, as indicated by United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 478-79 (1971):

"To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina [386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) ]; see also Smith v. Hooey, 393 U.S. 374, 377-378, 89 S.Ct. 575, 576-577, 21 L.Ed.2d 607 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.

"Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge." (Footnote omitted).

In those situations where there has been no arrest or indictment, the Sixth Amendment right to a speedy trial is not implicated. Yet, the prosecution may have substantially delayed the institution of criminal proceedings causing prejudice to the defendant by way of loss of witnesses or other evidence. In this situation, the Fifth Amendment due process standard is utilized, as the Supreme Court indicated in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

However, it appears that the Supreme Court is reluctant to accord relief under the Due Process Clause because some of the factors underlying the right to a speedy trial are not present when there has been no arrest or formal charge made against the defendant. In Lovasco, 431 U.S. at 791, 97 S.Ct. at 2049, 52 L.Ed.2d at 760, the Supreme Court emphasized, citing from Marion, supra, that one of the substantial reasons for according Sixth Amendment speedy trial relief was that once the defendant was arrested this may " 'interfere with ... [his] liberty, ... disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.' 404 U.S., at 320, 30 L.Ed.2d [at 478], 92 S.Ct. [at 463]." These considerations do not exist when there have been no formal charges placed against a defendant. The Supreme Court also pointed out that the criminal statute of limitations will come into play where no charges are made as a prosecution may be barred if charges are not timely filed.

Furthermore, the Supreme Court in Lovasco offered a number of reasons why it was reluctant to force a prosecutor to file charges, i.e., possible hampering of further investigation as to additional charges or other defendants and the possibility of filing doubtful cases rather than enabling mature consideration to prosecute. It concluded in Lovasco that it was unable to formulate a test under the Due Process Clause for delay prior to the bringing of formal charges. ⁴

On the other hand, once formal charges are brought and the Sixth Amendment speedy trial right has attached, the Supreme Court has formulated a balancing test in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17 (1972), to determine whether a defendant has been deprived of his speedy trial right:

"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right....