State v. Gill

• Decision Date: 17 August 2012
• Docket Number: No. 106,388.,106,388.
• Citation: 283 P.3d 236
• Parties: STATE of Kansas, Appellant, v. David Allen GILL, II, Appellee.
• Court: Kansas Court of Appeals

283 P.3d 236

STATE of Kansas, Appellant,
v.
David Allen GILL, II, Appellee.

No. 106,388.

Court of Appeals of Kansas.

Aug. 17, 2012.

[283 P.3d 239]

Syllabus by the Court

1. When a district court's decision on whether a defendant's constitutional right to a speedy trial was violated is based entirely on documents in the record and arguments made by the parties, then an appellate court is in the same position as the district court to determine the issue. Accordingly, the appellate court will review the constitutional speedy trial issue independently without any required deference to the district court.

2. The Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a public and speedy trial. The constitutional speedy trial right attaches at the formal charging or arrest, whichever occurs first.

3. In determining whether a defendant's Sixth Amendment right to a speedy trial has been violated, courts should consider the following factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) prejudice to the defendant. None of the factors are controlling in determining whether a defendant's constitutional right to a speedy trial has been violated, but the factors must be considered together with such other circumstances as may be relevant.

4. In applying the four factors relevant to a determination of whether a defendant's Sixth Amendment right to a speedy trial has been violated, the length of delay in bringing a defendant to trial acts as a “triggering mechanism” for applying the remaining three factors. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. There is no set time period, however, that is considered presumptively prejudicial. Instead, each delay must be

[283 P.3d 240]

examined in the context of the facts in that particular case. The tolerable delay for an ordinary crime is less than for a complex one.

5. Under United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), once the State dismisses charges against a defendant, the Sixth Amendment's speedy trial guarantee is no longer applicable. Thus, if the State dismisses charges against a defendant and then later refiles charges, the time period during which no charges were pending against the defendant generally will not be considered as part of the delay in bringing a defendant to trial for constitutional speedy trial purposes.

6. The Court in United States v. MacDonald, 456 U.S. 1, 10 n. 12, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), indirectly suggested that bad faith on the part of the State in dismissing and refiling charges against a defendant could result in the time period between dismissal and refiling being considered as part of the delay in bringing a defendant to trial for speedy trial purposes. The State acts in bad faith when it dismisses charges in order to evade the Sixth Amendment's speedy trial guarantee.

7. When the State dismisses a charge against a defendant but later files another charge, the constitutional speedy trial clock will start anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed. If, however, the first case was not dismissed because of necessity and the charge in the second case is identical to the charge previously dismissed, then the dismissal of the first case will be construed as merely tolling the constitutional speedy trial clock. Accordingly, the time period before dismissal and the time period after the charge was reinstated will constitute the applicable length of delay for constitutional speedy trial purposes.

8. Different weights should be assigned to different reasons for the delay in bringing a defendant to trial. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the State. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the State rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

9. In determining whether a defendant was prejudiced by the State's delay in bringing him or her to trial, courts should consider that the Sixth Amendment right to a speedy trial was designed to (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused; and (3) limit the possibility the defense will be impaired.

10. Any undue delay by the State in filing or refiling charges against a defendant must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.

11. In United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court recognized that a relationship existed between the requirements of due process under the Fifth Amendment to the United States Constitution and inordinate delay in charging a defendant with a crime. The Marion case rests on the proposition that due process rights may be said to have been denied by reason of preaccusation delay where it is shown that the defendant suffered actual prejudice to his or her defense and the government intentionally delayed prosecution to gain a tactical advantage over the defendant.

12. Two questions must be considered in assessing whether a defendant's due process rights have been violated by the State's delay in bringing a criminal charge against him or her: (1) Has the delay prejudiced the defendant's ability to defend against the criminal charge? (2) Was the delay in charging the defendant a tactical device used by the State to gain advantage over the defendant? Both questions must be answered affirmatively before criminal charges will be dismissed based upon a violation of due process rights.

13. The mere possibility that the defendant was prejudiced by the State's extended delay in filing charges against him or her is not sufficient to demonstrate that the defendant cannot receive a fair trial.

[283 P.3d 241]

Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.

STANDRIDGE, J.

The district court dismissed a felony theft charge against David Allen Gill, II, based on its finding that the State violated Gill's right to a speedy trial under the Sixth Amendment to the United States Constitution. On appeal, the State argues the facts in this case do not support the district court's decision in this regard. We are persuaded by the State's argument and therefore reverse the order of dismissal and remand with directions to reinstate the felony theft charge against Gill.

Facts

On July 11, 2008, Kirstin Nelson complained to Topeka police that her ex-boyfriend, Gill, stole several items from her while he was babysitting their children inside her residence. Specifically, Nelson told the responding officer, Officer Michael Isaman, that Gill had taken a Playstation 2, a Kodak digital camera, an iPod, and a Sony laptop computer. In his offense report, Isaman noted that the value of each of these items was $129, $100, $250, and $750, respectively, for a total value of $1,229.

That same day, Officer Isaman executed an affidavit requesting that an arrest warrant be issued for Gill for felony theft. In this affidavit, Isaman failed to mention the value of the items Nelson claimed Gill stole from her.

On April 21, 2009, the State filed a misdemeanor theft charge against Gill. Gill was eventually arrested on June 7, 2009, and posted bail the next day. He was later arraigned on June 24, 2009. Although his case was set for trial on November 10, 2009, it was continued to November 18, 2009, for an unknown reason. On November 12, 2009, Gill requested a continuance in order to allow time to obtain evidence from the State and to subpoena witnesses. The State did not object, and the trial was moved to February 3, 2010.

On February 3, 2010, the State moved to dismiss the case against Gill in order to refile the theft charge as a felony. The court granted the request.

On December 3, 2010, the State filed a felony theft charge against Gill. He was subsequently arrested on February 22, 2011, and posted bail that same day. Gill was arraigned on May 18, 2011.

On May 24, 2011, Gill filed a motion to dismiss the felony theft charge based upon alleged violations of his Sixth Amendment and statutory rights to a speedy trial. Notably, Gill argued that the time period during which the misdemeanor charge was pending and the time period during which no charges were pending should be considered as parts of the delay in bringing him to trial for constitutional and statutory speedy trial purposes. On June 2, 2011, the district court conducted a hearing on the motion. The court heard testimony from Alicia Caleb, Gill's probation officer in two unrelated cases, who stated that in November 2010, Gill notified her that he had changed addresses in Topeka. This was the extent of Caleb's testimony.

After receiving Caleb's testimony and documentary evidence from Gill reflecting the procedural history of the misdemeanor case, Gill's arrest for the felony theft charge, and Gill's release on bail, the district court heard arguments from the parties. Defense counsel again argued that the 10–month time period when no charges were pending against Gill should be considered as part of the delay in bringing Gill to trial for speedy trial purposes. Defense counsel also argued that there was no reason to justify the State's 10–month delay in filing the felony theft charge against Gill....