State v. Otero, 46717

• Decision Date: 04 November 1972
• Docket Number: No. 46717,46717
• Citation: 502 P.2d 763,210 Kan. 530
• Parties: STATE of Kansas, Appellee, v. Frank R. OTERO, Appellant.
• Court: Kansas Supreme Court

Page 763

502 P.2d 763

210 Kan. 530

STATE of Kansas, Appellee, v. Frank R. OTERO, Appellant.

No. 46717.

Supreme Court of Kansas.

Nov. 4, 1972.

Syllabus by the Court

1. No right is more inviolable than the right to a speedy trial guaranteed by the Sixth Amendment to the Constitution of the United States and § 10 of the Bill of Rights of the Kansas Constitution.

2. A defendant's right to a speedy trial cannot be established by any fixed inflexible rule but is to be determined by the balancing of a number of factors in which the conduct of both prosecution and defendant is weighed.

3. The prejudice resulting to an accused from long delay in bringing criminal charges to trial is not limited to, but may be quite apart from that which impairs his ability to present his defense.

4. The oppressive impact of long standing unresolved charges upon a prisoner already serving time may have a damaging effect upon his mental and physical health, his chances for rehabilitation and the conditions under which he is serving his current sentence.

5. The record is examined and for reasons stated in the opinion it is held the defendant was deprived of his right to a speedy trial.

Jim L. Lawing, of Jim L. Lawing, Chartered, Wichita, argued the cause and was on brief for appellant.

David P. Calvert, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on brief for appellee.

FONTRON, Justice:

This appeal involves but one issue; the constitutional right to a speedy trial.

On November 13, 1962, a Wichita home was burglarized and valuable items of jewelry were stolen therefrom. On March 12, 1963, charges of burglary and larceny were filed against the defendant, Frank R. Otero, in connection with the break-in.

Sometime in the month of May, 1963, the defendant was picked up in Florida and released to California where he was tried on charges of conspiring to commit robbery and kidnapping. He was convicted of those charges and was sentenced to serve a term of from one year to life. He is still incarcerated on the California sentence.

In April of 1964, Otero became aware of the charges pending against him in Sedgwick County and requested a copy of the complaint from the county attorney. On being supplied with a copy of the charges against him, the defendant wrote the county attorney demanding that he be returned for trial. This letter was written April 22, 1964, and on April 27 it was received in the county attorney's office where it languished for a substantial number of years.

It is not clear when efforts may have been started to return Otero to Kansas, but it appears from the state's brief that on May 25, 1971, Sedgwick County requested temporary custody of the defendant in order to return him to Kansas for trial. On August 3, 1971, the defendant was released to a Sedgwick County officer who returned him to Kansas. At the time of his preliminary hearing, Otero moved for a dismissal of the charges because of the state's failure to accord him a speedy trial. This motion was overruled and the defendant was bound over for trial. On September 16, 1971, an amended information was filed. Trial was commenced October 18, after a second motion to dismiss the charges had been overruled by the trial court, and the defendant was convicted on both charges. Sentence was pronounced November 29, 1971, after which Otero was returned to California authorities.

The concept of a speedy trial is threaded throughout this nation's entire history. It has been given expression not only in the Sixth Amendment to the Constitution of the United States, but in § 10 of the Bill of Rights of the Kansas Constitution, as well. No constitutional precept is more inviolable, no right of an accused more precious, than that one who is accused of crime be tried promptly and with due dispatch.

No long litany of modern judicial pronouncements focusing on the federal right to a speedy trial is believed to be necessary in this opinion. However, three decisions may properly be noted briefly at this time. In Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1, the Federal Supreme Court specifically held that the Sixth Amendment guarantee of the right to a speedy trial was enforceable against the states through the medium of the Fourteenth Amendment, as 'one of the most basic rights preserved by our Constitution.'

In a somewhat later case, Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed.2d 607, the high court held that the imprisonment of an accused in a penal institution of one jurisdiction (being a federal penitentiary in that case) did not per se deprive him of the right to a speedy trial on charges pending in another jurisdiction but that upon a demand by the accused the state in which the untried charges were pending 'had a constitutional duty to make a diligent, good-faith effort' to bring the accused before the proper court for trial.

Soon after Smith was handed down, the nation's supreme tribunal adhered to the rationale of that decision and in Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 26 L.Ed.2d 26, the court directed the vacation of a judgment of conviction which had been entered against Dickey predicated on charges which had originated some eight years before he was tried. As was true in Smith, the petitioner in the Dickey case had been held in 'durance vile' by federal penal authorities during the long interval which elapsed between the filing of the state charges and their ultimate disposition. As in Smith, also, timely demands had been made for a prompt and speedy trial on the charges. In ordering dismissal of the state proceedings, the supreme court tersely observed that no valid reason existed for the delay; that it was exclusively for the convenience of the state; and that on the record the delay, with its consequent prejudice, was 'intolerable as a matter of fact and impermissible as a matter of law.' A concurring opinion authored by Mr. Justice Brennan delved more deeply into the matter of prejudice.

The most recent pronouncement from the Olympian heights finds its earthly embodiment in the pages of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, which was decided after the briefs in the instant appeal were filed. In that case the supreme court fathered the thought that there is more than one criterion for determining whether an accused has been deprived of or has been accorded a speedy trial; that the true test rests not alone on the length of time transpiring after charges have been filed or on whether demand for trial has been made. Rather, opined the august court, the approach to the problem is a balancing test in which the conduct of both prosecution and accused is to be weighed. This approach suggests an ad hoc basis in which various factors are to be taken into account.

Barker identifies four factors entitled to consideration, although the list is obviously not intended to be exclusive: Length of the delay, reason for the delay, the defendant's assertion of his rights and prejudice resulting to the defendant. A discussion by the court of the four factors named by it is to be found in Barker but the same need not be repeated here. The opinion is readily accessible to every reader who may be interested in the reasoning on which the decision rests.

Applying the criteria set forth in Barker v. Wingo, supra, for this common-sense opinion gives flesh to the rule which we are to follow, this court inclines to the view that the defendant was not accorded his constitutional right to a speedy trial and that his motion for discharge should have been sustained by the trial court.

In the first place, the delay itself was lengthy, extending somewhat more than eight years from the filing of charges to eventual date of trial. Thus it spanned nearly a decade, a far greater time than was the case in either State v. Stanphill, 206 Kan. 612, 481 P.2d 998, or State v. Brooks, 206 Kan. 418, 479 P.2d 893, both cited in the state's brief. We believe, in strict fact, the delay was inordinate.

Secondly, the delay cannot be attributed to the defendant. He did not court delay nor did he assent to any sort of continuance. For seven long years, so far as the record shows, the state simply did nothing to bring the charges to trial; it made no demand upon or inquiry of California authorities concerning the custody of Otero for purposes of trial.

It is quite true that Kansas did not become a party to the Interstate Agreement on Detainers (K.S.A.1971 Supp. 22-4401) until 1969, when it was adopted by the legislature to become effective July 1 of that year. That compact was 'far down the road' when the defendant demanded he be returned for trial, and the procedures set out therein were not available either to him or to the state. But, as we said in State v. Stanphill, supra, 'A constitutional right is not to be limited or denied simply because of the lack of implementing legislation.' (p. 615, 481 P.2d p. 1001.)

Moreover, we think it worthy of note that the state exerted no effort to secure the defendant's presence by means of a writ of habeas corpus ad prosequendum, a writ well known to the common law, nor did the state attempt to use the avenues...