State v. Hughes, 90-445
Decision Date | 25 March 1992 |
Docket Number | No. 90-445,90-445 |
Citation | 605 A.2d 1062,135 N.H. 413 |
Parties | The STATE of New Hampshire v. Kevin HUGHES. |
Court | New Hampshire Supreme Court |
John P. Arnold, Atty. Gen. (David S. Peck, Sr. Asst. Atty. Gen., on the brief and orally), for State.
Kinghorn & Maynard P.A., Nashua (Steven L. Maynard, on the brief and orally), for defendant.
This is an interlocutory appeal from the Superior Court's (Hampsey, J.) denial of the defendant's motion to dismiss a misdemeanor charge for possession of marijuana. The issue presented in this case is whether the earlier dismissal of a felony indictment against the defendant under the rule enunciated in State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980), bars this subsequent misdemeanor prosecution initiated by an information and alleging a lesser-included offense of the felony. For the reasons stated herein, we affirm the trial court's ruling.
The State urges that we reconsider the sixty-day rule set forth in Hastings, and has repeatedly pressed this argument in all recent Hastings issues before this court. In Hastings, we announced a rule requiring the State to bring an indictment against an accused within sixty days from the date of his arrest or show that any delay beyond that period was reasonable. Hastings, 120 N.H. at 455-56, 417 A.2d at 8. For the reasons set forth below, we decide that reconsideration is appropriate and, after considering the genesis and history of the rule, its administration, and its propriety under present conditions, we revoke the sixty-day rule.
On October 17, 1989, the State brought an indictment against the defendant for possession of marijuana with intent to sell. Because seventy-four days had elapsed between the date of the defendant's arrest on August 3, 1989, and the date of this indictment, and because the State was unable to demonstrate the reasonableness of this delay, the Superior Court (Gray, J.) dismissed the indictment pursuant to Hastings. This dismissal occurred on April 13, 1990. Four days later the county attorney's office filed an information against the defendant. The information stemmed from the same incident but charged the defendant only with the misdemeanor of possession of a controlled drug in violation of RSA chapter 318-B. The misdemeanor offense constituted a lesser-included offense of the felony alleged in the earlier indictment.
On June 1, 1990, the defendant filed a motion to dismiss the misdemeanor charge. The trial court denied the motion on the ground that the Hastings dismissal of the indictment was a procedural matter and, hence, did not bar a subsequent prosecution by means of a misdemeanor information. In a later-filed motion for reconsideration and clarification, the defendant asserted that, although the Hastings rule was based technically upon a sixty-day procedural period, its underlying purpose was to protect an accused's substantive right to a speedy trial under the Federal and State Constitutions. See U.S. CONST. amend. VI; N.H. CONST. pt. I, art. 14. The defendant further contended that the Hastings dismissal was with prejudice and, therefore, any subsequent prosecution would violate his right to be free from double jeopardy. See U.S. CONST. amend. V; N.H. CONST. pt. I, art. 16. Consequently, the defendant argued, the second prosecution, even though for a lesser-included offense and initiated by information rather than indictment, skirted the substantive bar created by the earlier dismissal and nullified the protection afforded by the Hastings rule. On August 30, 1990, the trial court denied the defendant's motion for reconsideration and clarification, but granted leave to initiate the interlocutory appeal presently before us. We address each of the defendant's arguments in turn.
The defendant first asserts that Hastings sets forth a procedural period of sixty days during which the State must indict a defendant in order that his substantive right to a speedy trial will not be violated. We disagree. In Hastings itself, we found that despite more than sixty days of pre-indictment delay, no constitutional violation arose because the delay had "not yet violated the right to speedy trial." Hastings, 120 N.H. at 455, 417 A.2d at 8. Later cases made it even more clear that the Hastings sixty-day limit is a judicially created rule, derived solely from our rule-making authority under part II, article 73-a of the New Hampshire Constitution, and that it is without independent constitutional dimension. See, e.g., State v. Brown, 125 N.H. 346, 348, 480 A.2d 901, 903 (1984); State v. Preston, 124 N.H. 118, 119, 467 A.2d 243, 244 (1983). Clearly, a violation of the Hastings rule does not presuppose an automatic violation of the right to speedy trial. Since the defendant has failed to present any independent evidence, aside from the Hastings violation, to show that his speedy trial rights were violated, we find no speedy trial violation.
We next address whether a dismissal under the sixty-day rule, standing alone, necessarily acts as a substantive bar to further prosecution. The sixty-day rule is apposite only to the period between arrest and indictment. See, e.g., State v. Adams, 133 N.H. 818, 822, 585 A.2d 853, 854-55 (1991) (Hastings inapplicable where the defendant was never arrested or bound over to the grand jury); State v. Moses, 128 N.H. 617, 618-19, 517 A.2d 839, 840 (1986) ( ). Its purpose is to lessen the adverse consequences of pre-indictment arrest. Adams, 133 N.H. at 822, 585 A.2d at 854-55. The rule is simply an objective standard by which the court may grant relief to an accused who has been burdened by the incidents of arrest, even though there may be no violation of the speedy trial clause. When the State violates the sixty-day rule, the indictment must be dismissed unless the State is able to demonstrate that the delay was reasonable. Hastings, 120 N.H. at 455-56, 417 A.2d at 8. The dismissal of the indictment removes the burdens of the incidents of arrest; it does not insulate the defendant from the consequences of the criminal act charged. Also, the rule has never been stated to include an absolute bar to subsequent prosecution. We hold, therefore, that the Hastings rule was not intended to limit the type of subsequent prosecution utilized by the State in this case.
The defendant also argues that we should exercise our power under part II, article 73-a of the New Hampshire Constitution and extend the Hastings rule to bar further prosecution under the circumstances of this case. We decline to adopt such an extension.
The State proposes that we overturn Hastings. A reasonably prompt testing in the grand jury crucible should be afforded to every arrested defendant, because burdens incident to arrest can be lifted if the grand jury refuses to indict. The question we frame for reconsideration is whether the arbitrary sixty-day time limit imposed by Hastings is appropriate at this time.
The Hastings rule arose from the common perception that arrested parties frequently bore the adverse consequences of arrest for inordinately long periods of time without indictment. It gave fair warning to the prosecution that indictments must be procured in a timely manner and it provided the trial court with a valuable tool to enforce prompt indictment. As with any fixed time limit, the sixty-day rule resulted in cases with varying levels of merit. Today's reconsideration of Hastings is based on the history, administration, and interpretation of the sixty-day rule and its propriety under present circumstances.
In the years since Hastings was decided, we have had many occasions to apply the sixty-day rule. Our application of the rule has been quite tolerant of State error. We have explained that the sixty-day rule "should not be mechanically applied so as to dismiss an indictment whenever there is a short delay in bringing the indictment." State v. Berger, 125 N.H. 83, 91, 480 A.2d 27, 31 (1984). Also, in reviewing Hastings claims, we have utilized the highly deferential abuse of discretion standard. State v. Hughes, 123 N.H. 66, 67, 455 A.2d 1069, 1070 (1983). As the following review of the cases decided under Hastings indicates, in almost every instance where a Hastings claim has been advanced, we have found, albeit for different reasons, that the State's grounds for the delay were reasonable or that the sixty-day rule did not apply. But see State v. Wellman, 128 N.H. 340, 348-49, 513 A.2d 944, 950 (1986) ( ).
In the cases set forth below, we upheld the trial court's determination that the State's asserted reason for the delay in bringing the indictment was reasonable. In Hughes, 123 N.H. at 67, 455 A.2d at 1070, the defendant was not indicted until sixty-eight days had elapsed from the date of her arrest. The county attorney explained that the delay was caused by the need to engage in further investigation. Id. We found that the record supported the trial court's determination that the delay was reasonable. Id. We again found in Berger, 125 N.H. at 90, 480 A.2d at 31, that an indictment brought seven days beyond the sixty-day limit due to the State's efforts to complete an undercover investigation and assess the "quality of the police investigation of the defendant" was reasonable. In State v. Perez, 134 N.H. 667, ----, 597 A.2d 73, 74 (1991), we upheld the trial court's determination that a nine-day delay due to clerical error "was short and not unreasonable." We also recently held that an indictment returned eighty-three days after arrest due to administrative error was reasonable. State v. Dodier, 135 N.H. 134, ----, 600 A.2d 913, 917-18 (1991). Particularly, the State explained that a requested analysis of drugs pertinent to the case was not accomplished in a timely manner by the State laboratory due to tardiness on the part of...
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