State v. Moran, 20050244.

• Decision Date: 29 March 2006
• Docket Number: No. 20050244.,20050244.
• Citation: 711 N.W.2d 915,2006 ND 62
• Parties: STATE of North Dakota, Plaintiff and Appellee v. William J. MORAN, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 915

711 N.W.2d 915

2006 ND 62

STATE of North Dakota, Plaintiff and Appellee v. William J. MORAN, Defendant and Appellant.

No. 20050244.

Supreme Court of North Dakota.

March 29, 2006.

COPYRIGHT MATERIAL OMITTED

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Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.

Julie Ann Lawyer, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

SANDSTROM, Justice.

[¶ 1] William Moran appeals his jury conviction for driving under the influence of an intoxicating liquor ("DUI"). He argues the district court should have dismissed the charge because his right to a speedy trial was violated and the conviction should be reversed because the State's closing argument contained improper statements. Holding that Moran's speedy trial rights have not been violated and the State's closing argument did not contain obvious errors, we affirm.

I

[¶ 2] Moran was cited for DUI in May 1996. He was ordered to appear in municipal court. He did not appear, and a bench warrant was issued for his arrest. The municipal court dismissed the case in August 1996, and the case was referred to the Burleigh County State's Attorney for prosecution. On October 1, 1996, the State filed a criminal complaint against Moran in state district court, and a warrant for his arrest was issued eight days later.

[¶ 3] On October 8, 1999, the warrant was served on Moran. He signed a promise to appear in court on October 19, 1999. That appearance was changed to October 26. He did not appear on October 26, and his court appearance was rescheduled for November 9. When he failed to appear in November, a bench warrant was issued for his arrest.

[¶ 4] Moran was not arrested until February 2005. Moran moved to dismiss the case under N.D.R.Crim.P. 48(b), article I, section 12 of the North Dakota Constitution, and the Sixth Amendment of the United States Constitution, claiming he was not afforded his right to a speedy trial. His motion was denied. In July 2005, he was tried before a jury and found guilty of DUI.

[¶ 5] On appeal, Moran argues that he was not afforded his right to a speedy trial and that the State's closing argument contained improper statements. The State argues the delay in prosecution was caused by Moran's evasion of law enforcement and its closing argument was proper.

[¶ 6] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 7] Moran argues the delay between October 1, 1996, when the criminal complaint was filed, and October 8, 1999, when the warrant was served, violated his right to a speedy trial. He concedes the delay from October 8, 1999, until trial in 2005 was attributable to him and cannot support a speedy trial claim.

[¶ 8] The right to a speedy trial is guaranteed in the Sixth Amendment of the United States Constitution and article 1, section 12 of the North Dakota Constitution. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court developed a four factor test to decide whether a defendant's right to a speedy trial has been violated: (1) the length of the delay, (2) the reason for the delay, (3) the accused's assertion of his right to a speedy trial, and (4) the prejudice to the accused. State v. Bergstrom, 2004 ND 48, ¶ 15, 676 N.W.2d 83. No single factor is controlling, and all factors must be weighed. Id. (quoting Barker, at 533, 92 S.Ct. 2182). For speedy trial issues, appellate courts review the district court's decision de novo, with the district court's findings of fact reviewed under a clearly erroneous standard of review. See State v. Cham, 680 N.W.2d 121, 124 (Minn.Ct.App.2004) ("Because appellate courts review constitutional questions de novo and Cham's claim raises a constitutional question, we conclude that the district court's speedy trial determination is subject to de novo review."); United States v. Cardona, 302 F.3d 494, 497 (5th Cir.2002) ("We review for clear error a district court's factual findings in applying the elements of this balancing test."). Rule 48(b), N.D.R.Crim. P., grants the district court authority to dismiss a criminal case when there has been unnecessary delay:

If there is unnecessary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint.

N.D.R.Crim.P. 48(b) (N.D.R.Crim.P.48(b) was amended on March 1, 2006).

[¶ 9] The length of the delay is a triggering factor. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). If the delay is longer than the delay usually allowed for criminal prosecutions, the delay is "presumptively prejudicial," and a court must complete a speedy-trial analysis. Id. Traditionally, a delay of one year or more is considered presumptively prejudicial, triggering the analysis. See United States v. Titlbach, 339 F.3d 692, 699 (8th Cir.2003) (citing Doggett, at 652 n. 1, 112 S.Ct. 2686; United States v. Walker, 92 F.3d 714, 717 (8th Cir.1996)). A presumptively prejudicial delay alone does not create a speedy-trial violation, and the other factors must still be weighed. Barker, 407 U.S. at 530-31, 92 S.Ct. 2182. The delay Moran complains of was just over three years. The total delay was approximately nine years. The State concedes the delay is well past the presumptively-prejudicial point, requiring analysis of the other Barker factors.

[¶ 10] The second factor, the reason for the delay, is closely related to the first factor. Barker, 407 U.S. at 531, 92 S.Ct. 2182. The factor weighs against the State if the State engages in intentional or dilatory tactics that delay trial. Id. The factor also weighs against the State if the State is negligent by not diligently pursuing prosecution. Id. Delays caused by the defendant weigh against him. State v. Ochoa, 2004 ND 43, ¶ 35, 675 N.W.2d 161. The government must actively try to serve a warrant, or it risks being negligent for not diligently pursuing the accused. See Doggett, 505 U.S. at 652-53, 112 S.Ct. 2686 (the Government's assumption that the defendant absconded from the country, rather than actively pursuing him, was negligence, weighing against the Government).

[¶ 11] The district court stated, "This Court concludes that the extensive delay involved in bringing this case to trial cannot be attributable to the State, as claimed by the defendant; that the October 1996 warrant was active demonstrated by virtue of its execution, albeit three years later." The court also stated, however, "no facts have been presented to the Court to establish efforts to serve the warrant or reasons for the delay in executing the warrant over the three year period." Although the court's analysis is ambiguous, the court apparently believed each party bore some responsibility for the total delay.

[¶ 12] On May 13, 1996, Moran failed to appear as ordered in municipal court, and a bench warrant was issued. The district court noted Moran caused this initial delay in municipal court. He knew he had been charged with DUI in municipal court, and he could not rationally believe the charge had been dismissed or otherwise disposed of without being notified by the municipal court. Therefore, the court correctly found this delay was caused by Moran.

[¶ 13] The municipal case was dismissed and referred to the Burleigh County State's Attorney. A complaint was filed and an arrest warrant issued, but the warrant was not served until October 1999. Moran claims he knew nothing of the district court charge. The district court correctly found that the record contains no evidence of measures taken by law enforcement to serve the warrant. At the hearing for the motion to dismiss, the State argued that merely issuing the warrant shows it was diligently pursuing Moran. Under Doggett, however, the State's inactive approach to serve the warrant for three years constitutes negligence. 505 U.S. at 652-53, 112 S.Ct. 2686. Therefore, the State bears responsibility for the delay between October 1996 and October 1999 by not actively pursuing Moran.

[¶ 14] Finally, neither party disputes Moran caused the final delay, lasting approximately six years. The district court correctly noted when referencing the final six year delay, "There is no dispute that most of the delay in bringing the matter to trial has been brought about by the defendant's failure to respond, and, in effect, avoiding prosecution by failing to appear after posting bond or signing promises to appear." Therefore, each party shares some responsibility for the delay.

[¶ 15] The third factor is the defendant's proper assertion of his right to a speedy trial. Barker, 407 U.S. at 531, 92 S.Ct. 2182. "[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532, 92 S.Ct. 2182. When a defendant does not know of the charge against him, not asserting the right until after arrest cannot weigh against him. Doggett, 505 U.S. at 654, 112 S.Ct. 2686.

[¶ 16] The district court did not address this factor, so we do not know if the court considered it. Regardless, we conclude the third factor weighs against Moran. He argues he asserted his right in due course by moving to dismiss in 2005, even though he did not assert his right in 1999 when he was first arrested. He claims, and the district court agreed, he did not know of the charge against him until his arrest in 1999. Assuming Moran did not know of the charge against him, he still did not timely assert his right to a speedy trial. Rather than asserting his right in 1999 when he first could have, he evaded law enforcement for more...