Work v. State , 111 N.M. 145 ( 1990 )

OPINION

MONTGOMERY, Justice.

We granted certiorari to consider this case in connection with the then pending case of Zurla v. State. We recently decided Zurla, 109 N.M. 640, 789 P.2d 588 (1990), holding that in the circumstances of that criminal case the defendant’s right to a speedy trial was violated. We now reach the same result in this case and take the opportunity it affords to explain one of the aspects of our decision in Zurla: the function of the presumption of prejudice arising from a finding that there has been a lengthy delay in bringing the defendant to trial.

I.

Defendant John Work was arrested and charged in magistrate court on April 24, 1986 with criminal solicitation. On September 22, 1986, the magistrate dismissed the charge without prejudice, noting that “[t]his matter will be presented to the Santa Fe County Grand Jury.” On December 17, 1987, defendant was indicted on four counts of criminal solicitation and one count of aggravated battery. Jury trial was scheduled for August 22, 1988. On July 11, 1988, defendant moved to dismiss the indictment on speedy trial grounds. After a hearing, the trial court granted the motion and dismissed the indictment with prejudice.

The state appealed to the court of appeals, which reversed the trial court and held that defendant was not denied his right to a speedy trial. The court of appeals ruled that, although there was a “presumptively prejudicial” delay preceding defendant’s motion to dismiss the indictment, an independent balancing of the four factors described in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), led to the conclusion that defendant’s right to a speedy trial was not violated. The principal basis for this conclusion was that defendant had not established prejudice from the delay, as contemplated by the fourth Barker factor. The court of appeals held that defendant had the “burden of proof” to show prejudice and that there was no such showing in this case. Thus, although the court found in favor of defendant on the first and third Barker factors (length of the delay and assertion of the right, respectively), it ruled for the state on the second and fourth factors (reasons for the delay and prejudice) and held that, on balance, defendant’s speedy trial right was not violated.

II.

Length of the Delay. The trial court, relying on Kilpatrick v. State, 103 N.M. 52, 702 P.2d 997 (1985), had analyzed the delay in this case as covering the entire time period from defendant’s arrest on April 24,1986, to the date of the hearing on the motion to dismiss the indictment, August 18, 1988. This was a period of twenty-eight months. The court of appeals held that it was error to include the period of preindictment delay following dismissal of the magistrate court charges because there were no charges pending against defendant during this time and he was not subject to any restraints on his liberty. Excluding the fifteen-month period between magistrate court dismissal and grand jury indictment, the court held that the remaining thirteen-month period was nevertheless sufficient to give rise to a presumption of prejudice which required an inquiry into the remaining three Barker factors.

We agree with the court of appeals that the delay between time of arrest and dismissal of the indictment, even excluding the fifteen months between dismissal of the magistrate charges and filing of the indictment, was sufficiently lengthy to give rise to a presumption of prejudice. See United States v. Martinez, 776 F.2d 1481, 1483 (10th Cir.1985) (only prejudice shown to trial court was “the presumption arising out of the length of the delay itself.”). Because of our holding on the other Barker factors, we find it unnecessary to review the court of appeals’ holding with respect to the intervening fifteen-month period or the trial court’s contrary holding; the delay was presumptively prejudicial in any event, and this first Barker factor should be weighed against the state.

Reason for the Delay. We note, as did the court of appeals, that several periods of delay before dismissal of the magistrate charges and following the indictment were attributable to defendant, and agree with the court of appeals that primary responsibility for these delays should not be weighed against the state. We thus find the reason for the delay to be neutral or, as the court of appeals implicitly held, somewhat in favor of the state. Although we recognize that if the preindictment period were considered this factor would weigh strongly against the state, as the trial court found, we do not consider it further since any such holding would only strengthen our determination that the trial court reached the right result.

Assertion of the Right. The court of appeals found that defendant had timely asserted his right to a speedy trial and weighed this factor in his favor. This was based on the fact that defendant had filed his speedy trial motion on July 11, 1988, about seven months after the indictment and about five weeks before trial was scheduled to begin. We agree with the court of appeals’ analysis on this factor.

III.

Prejudice to the Defendant. The point over which we disagree with the court of appeals is its analysis of the issue of prejudice to the defendant. The court held that “the presumption of prejudice due to a lengthy delay is merely a ‘triggering mechanism’ that necessarily brings into play an inquiry of the other three Barker factors” and that the presumption does not carry forward into the analysis of the fourth factor. Relying on State v. Tartaglia, 108 N.M. 411, 773 P.2d 356 (Ct.App.), cert. denied, 108 N.M. 318, 772 P.2d 352 (1989), the court held that the defendant had the burden of proving that the delay prejudiced him; the court held that he failed to meet this burden. Defendant argues that, upon a finding of presumptively prejudicial delay, the burden shifts to the state to establish lack of prejudice.

In Zurla we held that:

Once the defendant has demonstrated presumptively prejudicial delay and thus triggered the Barker v. Wingo analysis, the presumption of prejudice does not disappear. Rather, the burden of persuasion rests with the state to demonstrate that, on balance, the defendant’s speedy trial right was not violated. To the extent it suggests the state does not have this burden, Tartaglia is overruled.

Zurla v. State, 109 N.M. at 646, 789 P.2d at 594.

Here there was a presumption that defendant had been prejudiced by the delay. This, as the court of appeals held, is not by itself sufficient to resolve the separate factor of prejudice. However, contrary to the court of appeals’ rulings in Tartaglia, in Zurla, and in this case, the presumption of prejudice does not simply vanish once the court proceeds to analyze the other Barker factors; it “carries forward” and serves to shift to the state the burden to demonstrate that, on balance, the defendant’s speedy trial right has not been violated.

As the Supreme Court held in Barker, the state can discharge this burden in a variety of ways. It can show that one or more of the following circumstances exist:¹ There were good reasons for the delay; the defendant did not timely assert his right and acquiesced in the delay; or the defendant was not actually prejudiced by the delay. The Supreme Court made it clear that none of these factors is either a necessary or a sufficient condition to a finding that there has been a deprivation of the right to a speedy trial; none of them has any “talismanic quality,” and each can be assigned different significance or different weight in the “difficult and sensitive balancing process” that must take place in deciding whether the right has been violated. See Barker, 407 U.S. at 533, 92 S.Ct. at 2193. Because no factor is indispensable to a finding of violation and because each must be evaluated on a spectrum of significance, it is a mistake to think that a simple finding of, for example, “prejudice” or “no prejudice” will suffice to resolve the issue and can be made merely by assigning the “burden of proof” to one party or the other. See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).

On the question of prejudice, the delay may be so lengthy that the presumption of prejudice becomes well-nigh conclusive and proof of actual prejudice is unnecessary. See United States v. Avalos, 541 F.2d 1100, 1116 (5th Cir.1976) (where first three Barker factors weigh heavily in favor of accused, accused need demonstrate no prejudice at all; prejudice becomes totally irrelevant), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). In another case, the presumption standing by itself may be entitled to very little or no weight. See Zurla, 109 N.M. at 646, 789 P.2d at 594; State v. Holtslander, 102 Idaho 306, 313, 629 P.2d 702, 709 (1981) (where defendant does not attempt to show actual prejudice, presumption of prejudice should be given very little, if any, weight). Either party may offer evidence on the issue, defendant to corroborate the presumption and the state to rebut it by showing an absence of prejudice. If neither party comes forward with facts, the “probability of prejudice” (see Dickey v. Florida, 398 U.S. 30, 56, 90 S.Ct. 1564, 1578, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring))² will remain just that — a probability; but it may have greater or lesser significance in the balancing process depending on the length of the delay and the weights assigned to the other factors.

In this case the state did not attempt to rebut the presumption of prejudice. Defendant, on the other hand, reinforced it by showing that his defense was potentially impaired through weakness of a witness’s memory and the witness’s consequent inability to corroborate defendant’s version of the events surrounding the alleged offense. Defendant also demonstrated that the state’s consideration of first degree murder charges against him caused him humiliation and embarrassment and affected his reputation in Santa Fe. Although the court of appeals found that these latter circumstances (under the rubric “anxiety and concern of the accused”) did not entail stress exceeding that attending most criminal prosecutions, the existence of such anxiety and concern is nonetheless a subfactor to be considered in the analysis. We conclude that this factor, prejudice to the defendant, weighs in his favor.

IV.

Summarizing, we find that the reason for the delay, if the period between dismissal of the magistrate charges and indictment by the grand jury is excluded from the analysis, weighs slightly in favor of the state. The other three factors — lengthy delay, assertion of the right, and actual prejudice to the defendant — weigh in defendant’s favor. The strength of these latter factors is not overwhelming, but on balance we conclude that the trial court reached the correct result³ — that the defendant’s right to a speedy trial had been violated, and that the state had not carried its burden of persuasion to show that the lengthy delay should be excused.

The court of appeals is reversed, and the cause is remanded to the trial court with instructions to dismiss the indictment with prejudice.

IT IS SO ORDERED.

SOSA, C.J., concurs. RANSOM, J., concurs specially. BACA and WILSON, JJ., dissent.

1 . As indicated in Barker, this list is not all-inclusive; other circumstances excusing the delay or militating against a finding that the defendant’s right to a speedy trial has not been violated are possible.

2 . "In essence ... there is little difference between [Justice Brennan’s] approach [in Dickey ] and the one we adopt today.” Barker v. Wingo, 407 U.S. at 530 n. 30, 92 S.Ct. at 2192 n. 30.

3 . See State v. Holtslander, 102 Idaho at 309 n. 2, 629 P.2d at 705 n. 2: "It should be noted that each of the Barker factors involves primarily factual inquiries, so that the decision of the trial court granting a dismissal is entitled to great weight.”