State v. Tartaglia , 109 N.M. 801 ( 1990 )

OPINION

CHAVEZ, Judge.

The state appeals the dismissal of the indictment against defendant on the ground that defendant’s right to a speedy trial was violated. This case is here, after remand to the district court, to allow defendant to present evidence of prejudice. The third calendar notice proposed summary affirmance of the dismissal. The state has timely filed a memorandum in opposition to the proposal. Not being persuaded, we affirm.

The facts of this case are set out in State v. Tartaglia, 108 N.M. 411, 773 P.2d 356 (Ct.App.1989), overruled in part, Zurla v. State, 109 N.M. 640,789 P.2d 588 (1990). In analyzing a defendant's claim that his right to a speedy trial has been violated, we consider the four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are the length of the delay, the reason for the delay, the assertion of the right to a speedy trial, and the prejudice to defendant resulting from the delay. Id.; see also Zurla v. State. We weigh these factors independently on appeal, taking into account the particular facts and circumstances of the case. State v. Grissom, 106 N.M. 555, 746 P.2d 661 (Ct.App.1987). These four factors are interrelated and must be evaluated in light of other relevant circumstances in the particular case. Barker v. Wingo; Zurla v. State. No one factor constitutes either a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Zurla v. State. These factors have no talismanic qualities and we do not tally the factors favoring one party or the other. Rather, we must “engage in a difficult and sensitive balancing process” in which the conduct of both the prosecution and the defendant is weighed. Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193; Zurla v. State.

LENGTH OF DELAY

Defendant claimed, and the state agreed, that the relevant time period was twenty-four months from defendant’s indictment until his arrest and arraignment. A two-year delay in a relatively simple drug case is presumptively prejudicial, thereby triggering an examination of the other factors. See State v. Kilpatrick, 104 N.M. 441, 722 P.2d 692 (Ct.App.1986). A twenty-four month delay in a simple drug case weighs somewhat heavily against the state. Zurla v. State. Although both the state and defendant agree that the length of delay was twenty-four months running from the date of the indictment to the date of the arraignment, it should be noted that the hearing on the speedy trial motion took place five months after the date of the arraignment. The length of the delay could arguably be twenty-nine months rather than the twenty-four months agreed to by the parties.

REASON FOR THE DELAY

The reason for the delay is also undisputed. The district attorney’s office did not know that defendant had been incarcerated on a probation revocation at the time of his indictment. Although the evidence does not show that the delay was intentional, the state is presumed to know a defendant’s whereabouts when he is in its custody. Raburn v. Nash, 78 N.M. 385, 431 P.2d 874 (1967). Although the reason for the delay could be termed negligent rather than intentional, this is not sufficient to fix the weight to be given this consideration. Zurla v. State. The extent to which the state’s negligence is weighed against it is increased by the length of time during which no attempt was made to locate defendant. Bureaucratic indifference rather than simple case overload will weigh more heavily against the state. Id. The reason for the delay will weigh heavily against the state, where the state fails to make an effort to locate a defendant who is imprisoned in its own corrections facilities.

ASSERTION OF THE RIGHT

Defendant timely asserted his right by filing a motion to dismiss shortly after his arrest on the indictment. An early assertion of the speedy trial right weighs in defendant’s favor.

PREJUDICE

After the remand for an evidentiary hearing on prejudice to defendant resulting from the delay, the trial court found that defendant had suffered no prejudice. The issue here is whether the first three factors weigh so heavily in defendant’s favor that, even though he has shown no prejudice, the indictment must be dismissed for violation of defendant’s right to speedy trial. A showing of prejudice is not required in order for a defendant to be entitled to a dismissal. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).

The state argues, however, that the showing of prejudice or absence of prejudice should be weighed more heavily than the other factors. See State v. Leslie, 147 Ariz. 38, 708 P.2d 719 (1985) (In Banc); Sheriff, Clark County v. Berman, 99 Nev. 102, 659 P.2d 298 (1983). It is true that the prejudice factor focuses most directly on the goals of the speedy trial clause, and that prejudice can be the determining factor when the other factors do not weigh heavily in favor of defendant. See United States v. Henry, 615 F.2d 1223 (9th Cir. 1980). However, undue emphasis should not be placed on whether the defendant is able to produce evidence of identifiable prejudice. Zurla v. State. If the other three factors weigh heavily in defendant’s favor, the fact that he cannot show prejudice is not dispositive.

Two years passed between the time of defendant’s indictment and his arrest for possession of a controlled substance. During that time, defendant was in the state’s custody serving time in the penitentiary on a parole violation. For two years, the state made no attempt to locate him. Almost immediately after he was arrested, defendant asserted his right to a speedy trial. We find that in this case the length of the delay, the reasons for the delay, and the timely assertion of the right weigh so heavily in defendant’s favor that the dismissal for a speedy trial violation must be affirmed.

The dismissal of the indictment with prejudice is affirmed.

IT IS SO ORDERED.

ALARID, J., concurs. HARTZ, J., dissents.