State v. Polsky

• Decision Date: 05 February 1971
• Docket Number: No. 522,522
• Citation: 1971 NMCA 11,82 N.M. 393,482 P.2d 257
• Parties: STATE of the New Mexico, Plaintiff-Appellee, v. Mike POLSKY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 257

482 P.2d 257

82 N.M. 393

STATE of the New Mexico, Plaintiff-Appellee, v. Mike POLSKY, Defendant-Appellant.

No. 522.

Court of Appeals of New Mexico.

Feb. 5, 1971.

Certiorari Denied March 9, 1971.

H. Gregg Privette, Privette & Privette, Las Cruces, for appellant James A. Maloney, Atty. Gen., John A. Darden, Asst. Atty. Gen., Santa Fe, for appellee

OPINION

OMAN, Judge.

Defendant appeals from his conviction of unlawfully selling a narcotic drug, to wit, heroin, in violation of § 54--7--14, N.M.S.A.1953 (Repl. 8, pt. 2, 1962). We affirm.

Defendant relies upon four stated points and numerous sub-points for reversal. We shall consider them in the order of their presentation in his brief in chief.

He argues his first two points together under two sub-points, or divisions, which he has entitled 'Speedy Trial' and 'Denial of Discovery.' His contention, in his brief in chief under 'Speedy Trial,' is that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States, made applicable to the states through the Due Process clause of the Fourteenth Amendment (Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)), and Art. II, § 14, Constitution of New Mexico. However, in his reply brief he asserts that if the prejudice he claims to have suffered was not a deprivation of his right to a speedy trial, then it was a denial of due process as guaranteed by Amendment XIV, § 1, Constitution of the United States, and Art. II, § 18, Constitution of New Mexico.

The substance of his complaint, pertinent to his argument under 'Speedy Trial,' is that he was prejudiced by the intentional delay of the State in not arresting him until May 5, 1969, for the offense he was charged with having committed on March 26, 1969, when the State had all its evidence against him as of the date of the commission. He contends that by reason of this delay he was deprived of the testimony of certain witnesses at his preliminary hearing on June 16, 1969, which would have been available to him had his arrest not been delayed to coincide with the arrest of some twenty-seven other persons also charged with narcotic drug violations.

His position is that the State had planned undercover narcotic investigations at New Mexico State University from September 1968, and had planned to make mass arrests in May of 1969. These mass arrests were referred to as the 'May bust.' Defendant and some of the others arrested were students at the University, and others of them apparently just associated with students and spent time about the University. The spring semester at the University terminated some time during the latter part of May or first part of June. The exact date of this termination does not appear in the record, but it was after May 5, the date of the arrests, and before June 9, the date of the preliminary hearing of one of the others arrested, and at which preliminary hearing were present the witnesses defendant contends were lost to him. He claims immediately after the preliminary hearing on June 9 the witnesses began to scatter and he was unable to locate them or get them as witnesses on his behalf at his preliminary hearing on June 16.

It appears from the record that defendant's contention in the trial court related solely to his claimed denial of a speedy trial, and, as already stated, in his brief in chief he relies entirely upon this constitutional right. In the trial court and in this appeal he has consistently taken the position that his '* * * argument is not with the time which elapsed between date of arrest and the trial, * * *' but with the time which elapsed between the date of the commission of the alleged offense, to wit, March 26, 1969, and the date of the filing of the criminal complaint in the magistrate court and his arrest, to wit, May 5, 1969.

The State takes the position the constitutional guarantee of a speedy trial has no application until after the formal institution of the prosecution, which in this case was May 5, by the filing of the complaint and the arrest of defendant. It relies upon the following cases in which it was held the right of a speedy trial arises, or comes into application, only upon the initiation of the formal prosecution proceedings, and with which holdings we agree. McConnell v. United States, 402 F.2d 852 (5th Cir. 1968), cert. denied, 394 U.S. 933, 89 S.Ct. 1208, 22 L.Ed.2d 464 (1969); Foley v. United States, 290 F.2d 562 (8th Cir. 1961), cert. denied, 368 U.S. 888, 82 S.Ct. 139, 7 L.Ed.2d 88 (1961); State v. French, 104 Ariz. 359, 453 P.2d 505 (1969); State v. Trotter, 203 Kan. 31, 453 P.2d 93 (1969). See also the following cases which have so held: Parker v. United States, 252 F.2d 680 (6th Cir. 1958), cert. denied, 356 U.S. 964, 78 S.Ct. 1003, 2 L.Ed.2d 1071 (1958); Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963), cert. denied, 379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178 (1964); State v. Saiz, 103 Ariz. 567, 447 P.2d 541 (1968); People v. Jordan, 45 Cal.2d 697, 290 P.2d 484 (1955); State v. LeVien, 44 N.J. 323, 209 A.2d 97 (1965); Click v. Eckle, 174 Ohio St. 88, 186 N.E.2d 731 (1962). Therefore, the State urges that since defendant complains only of the delay in initiating the prosecution on May 5, and since the constitutional guarantee of a speedy trial has no application to the time and events prior thereto, defendant must fail.

There is merit to the State's position, but because of the nature of defendant's claim and his arguments in support thereof, we are inclined to consider his claim as raising a due process issue, which we feel is more properly the area within which an issue such as presented by him properly falls. See Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965); Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966); United States v. Deloney, 389 F.2d 324 (7th Cir. 1968); United States v. Evans, 385 F.2d 824 (7th Cir. 1967); United States v. Lee, 413 F.2d 910 (7th Cir. 1969); United States v. Stanley, 422 F.2d 826 (9th Cir. 1969).

However, we recognize there are authorities which have held, or seem to suggest, the right to a speedy trial has application to, or embraces, times and events which precede the initiation of formal charges by the State. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); State v. Baca, (Ct.App.), 82 N.M. 144, 477 P.2d 320, decided November 13, 1970; United States v. Rivera, 346 F.2d 942 (2d Cir. 1965); Scott v. State, 84 Nev. 530, 444 P.2d 902 (1968); United States v. Capaldo, 402 F.2d 821 (2d Cir. 1968).

As already stated, we agree with the jurisdictions which have clearly and expressly passed upon this question, and which have held the constitutional right to a speedy trial arises, or becomes applicable, only upon the initiation of formal prosecution proceedings. Pre-arrest, or pre-formal prosecution, delays may, however, constitute a denial of due process. State v. Baca, supra; Ross v. United States, supra; Woody v. United States, supra; United States v. Lee, supra; United States v. Deloney, supra; United States v. Evans, supra; United States v. Jones, 403 F.2d 498 (7th Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1280, 22 L.Ed.2d 480 (1969); United States v. Feinberg, 383 F.2d 60 (2d Cir. 1967); Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705 (1965).

The trial court, in denying defendant's motions directed toward his claim of prejudice, observed that the State had a substantial public interest in the effectiveness of undercover police work and was not bound to immediately arrest defendant after his commission of the offense on March 26, and thereby destroy the effectiveness of its planned police work in apprehending a number of other narcotics law violators. The undercover police investigation was apparently concluded in late April or early May, and defendant was arrested very shortly thereafter.

Certainly the delay of forty days between the commission of the offense and the arrest was not in itself suggestive of prejudice. State v. Baca, supra. There is not here involved any questionable identification of defendant, or any question of incapacity on the part of defendant, the undercover agent, or the police officer, who accompanied the undercover agent until shortly before the agent made the purchase of heroin from defendant, to recall the time, place and events surrounding the sale by defendant. Defendant denied making the sale, but he testified clearly and without hesitation concerning his meeting with the undercover agent at the time and place of the consummation of the sale. The undercover agent and the other officer also testified clearly as to the events on the evening of the sale.

As already stated, defendant relies entirely upon his claim of prejudice because the 'May bust' closely coincided with the termination of the spring semester at the University, and his claim that he was thereby deprived of the presence of witnesses at his preliminary hearing on June 16. The circumstances here are not such as to bring defendant within the principles announced in either Ross v. United States, supra, or Woody v. United States, supra, upon which he primarily relies.

Certainly, after he was charged and arrested on May 5, he knew he would be called upon to resist the charges. He employed an attorney within two or three days after his arrest to represent him in resisting the charges. Although the date when the semester ended is not shown by the record, defendant testified his arrest and subsequent incarceration for four or five days preceded the week of final examinations. The record reflects in one of his tenders of proof that he was arrested two weeks before the semester ended, and there are references in the record to the semester having ended in the latter part of May or first part of June. In any event, it is conceded all the witnesses he claims were unavailable to him on June 16...