State v. Johnson
| Decision Date | 21 January 1991 |
| Docket Number | No. 11852,11852 |
| Citation | 113 N.M. 192,824 P.2d 332,1991 NMCA 134 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Robert JOHNSON, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
The state appeals the order of the district court dismissing the indictment against defendant on speedy trial grounds. We affirm the decision of the trial court.
On September 30, 1986, defendant and his codefendant were arrested and charged with murder stemming from an incident that had occurred during the previous month. Defendant was released on his own recognizance after six and one-half hours of incarceration. This release included restrictions placed on defendant's liberty.
Defendant was subsequently indicted for manslaughter and aggravated battery on September 4, 1987. Defendant filed a motion to dismiss the charges on November 30, 1987. A hearing on this motion was held on February 3, 1988. The trial court dismissed the manslaughter charge but refused to dismiss the aggravated battery charge. At the hearing, defendant presented evidence to show that, due to the preindictment delay, he was suspended from his job, suffered stress and depression, and suffered marital difficulties and financial difficulties that affected his children. Defendant's motion to dismiss was later granted by a different judge who was subsequently assigned to the case. This appeal followed that decision.
This case is related to the recent case of State v. Garcia, 110 N.M. 419, 796 P.2d 1115 (Ct.App.1990), in that the defendant in Garcia and this defendant were arrested at the same time for the same activity. Speedy trial analysis involves application of the balancing test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under the Barker test, we consider four factors, namely, the length of the delay, the reason for the delay, defendant's assertion of his speedy trial right, and prejudice to the defendant caused by the delay.
For purposes of speedy trial analysis, the facts in Garcia relating to the first three factors in the Barker test are identical to the facts in this case. The delay in the instant case was over nineteen months and was presumptively prejudicial. See Salandre v. State, 111 N.M. 422, 806 P.2d 562 (1991). The reason for delay, as observed in Garcia, was attributable to further investigation of the case, inadequate staffing, a busy trial schedule on the part of the prosecutor, and attempts of the prosecutor to meet with defense counsel to discuss a possible plea bargain. We weigh this factor against the state, but not heavily. Defendant asserted his right to a speedy trial by filing a motion to dismiss for delay on November 30, 1987. This factor is also weighed in favor of defendant, but not heavily. See Work v. State, 111 N.M. 145, 803 P.2d 234 (1990). In weighing the length of the delay, the reason for the delay, and the assertion of the right to a speedy trial, similar to the weighing of these factors by the court in Garcia, we determine that the first three factors should be balanced in defendant's favor, but not heavily. See id. 110 N.M. at 423-24, 796 P.2d at 1119-20.
However, in weighing the prejudice factor of the Barker test, we find that the balance tips substantially in favor of defendant. In reference to this factor, this court in Garcia stated that the defendant had shown minimal prejudice caused by the delay. The defendant in Garcia claimed that she had lost visitation time with her daughter and the esteem of her co-workers; that she had endured emotional suffering and lost weight; that she was unable to plan her future; and that she lived in fear. This showing was held to be not sufficiently different from the showing any criminal defendant could make to justify dismissal on speedy trial grounds. Id. Garcia concluded that the defendant's minimal showing of prejudice was insufficient to support her claim that the state had denied her the right to a speedy trial.
Many of the reasons cited by defendant to show prejudice fall in the same category as those claimed by the defendant in Garcia. However, unlike the result in Garcia, considering the problems suffered by defendant herein, which were similar to those suffered by the co-defendant, plus the suspensions of defendant from his employment, the problems attending such suspensions, and the psychological stress resulting therefrom, we are persuaded that defendant has established that he suffered substantial prejudice as a result of the delay herein. See, e.g., State v. Kilpatrick, 104 N.M. 441, 722 P.2d 692 (Ct.App.1986) (). See also State v. Lujan, 112 N.M. 346, 815 P.2d 642 (Ct.App.1991). In the instant case, defendant was employed as a juvenile probation officer for the state. After his arrest, defendant was suspended without pay for two and one-half months and then reinstated to a position behind a desk. Upon reassignment to the desk job, defendant's employee benefits were different than those available to him prior to his arrest. During the initial suspension, defendant was forced to work on a part-time basis, creating financial difficulties for defendant and his family. Restrictions on defendant's travel prevented him from leaving the state, and as a result of the pending charges, defendant was required to seek help for psychological problems and marital difficulties, and he was suspended from his job on two occasions.
The state does not rebut defendant's claim of prejudice resulting from his suspensions. The state merely suggests that the anxiety described by defendant be given little weight. Defendant has the burden of production in showing that he was prejudiced by the delay, but the state has the burden of persuasion to show that defendant's right to a speedy trial was not violated. See Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990). The state has not met its burden in this case. Weighing each of the speedy trial factors, we determine defendant's right to a speedy trial was violated.
For the foregoing reasons, the decision of the trial court is affirmed.
IT IS SO ORDERED.
I would reverse the district court's ruling that Defendant's right to a speedy trial was violated.
The remedy for a violation of the constitutional right to a speedy trial is dismissal of the charges. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973). We should heed the warning that "overzealous application of this remedy [will] infringe 'the societal interest in trying people accused of crime, rather than granting them immunization because of legal error * * * *.' " Barker v. Wingo, 407 U.S. 514, 522 n. 16, 92 S.Ct. 2182, 2188 n. 16, 33 L.Ed.2d 101 (1972), quoting United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966).
Defendant suffered no prejudice to his defense and no significant restraint on his liberty; he made no effort to seek a speedy resolution of the charges against him; and the sole cause of any improper delay was lack of prosecutorial resources. In these circumstances the delay here was not long enough to deprive the state of the right to try Defendant on the charge against him. The result reached by the majority is not compelled by controlling New Mexico precedent and ignores some of the central teachings of Barker.
To explain my views requires a more expansive summary of the facts and procedural posture of this case than the majority opinion provides. After summarizing the background, I will discuss the four factors set forth in Barker and what I believe is the proper analysis of the speedy trial claim.
On August 9, 1986, Defendant and his Co-defendant, Bernice Johnson Garcia, had an altercation with Alfred H. Garcia. Mr. Garcia suffered a fractured leg. On September 28 Mr. Garcia died, perhaps as a result of his August injuries.
Two days later, Defendant and Co-defendant were arrested on warrants charging murder. Both were released on their own recognizance, with conditions. They were not indicted by a grand jury until September 4, 1987. The indictment charged them with voluntary manslaughter and aggravated battery inflicting great bodily harm. On October 27 the court set trial for March 7, 1988. A month later, on November 30, Defendant and Co-defendant moved to dismiss the charges on the ground that they had been denied their right to a speedy trial. The court conducted a hearing on February 3, 1988. Judge James Blackmer orally granted the motion to dismiss the manslaughter charges but not the battery charges. The oral ruling was followed by a written order with findings and conclusions filed on May 25, 1988, the date trial began on the battery charges.
Co-defendant was convicted of aggravated battery with great bodily harm. The jury was unable to reach a verdict on the charge against Defendant. The state appealed the dismissal of the manslaughter charges. This court dismissed the appeal after the state failed to respond to our calendar notice proposing to dismiss the appeal on double-jeopardy grounds. On December 28, 1988, Judge Blackmer vacated his dismissal of the voluntary manslaughter charges. (Because of double-jeopardy concerns, Co-defendant has not been tried on the manslaughter charge.)
Thereafter, Judge Joe Castellano was assigned to the case. On Defendant's oral motion, Judge Castellano reconsidered Defendant's speedy-trial claim. He did not take any further testimony but relied on the record from the hearing before Judge Blackmer. On October 18, 1989, Judge Castellano entered an order dismissing the battery...
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