State v. Holtslander

629 P.2d 702, 102 Idaho 306, 1981 Ida. LEXIS 342

• Court: Idaho Supreme Court
• Decided: June 5, 1981
• Docket: 13264
• Status: Published

Opinions

DONALDSON, Justice.

This is an appeal by the State of Idaho from a district court’s granting of defendant’s Motion to Dismiss the charge of unlawful delivery of a controlled substance, marijuana, in violation of I.C. § 37-2732. The Motion to Dismiss was granted on the ground that the defendant was denied his constitutional right to a speedy trial. We reverse and remand.

An undercover detective alleges that on April 26, 1977, that the defendant was introduced to him as “Lloyd” at Harry’s Tavern in Boise. From Harry’s Tavern, the detective accompanied the defendant to an apartment where the defendant allegedly sold him marijuana. Following standard undercover procedure, the detective did not ask the defendant for his last name.

On July 20, 1977, a criminal complaint was filed charging “JOHN DOE AKA LLOYD, a white male adult” with delivery of a controlled substance pursuant to I.C. § 37-2732. After securing a warrant for defendant’s arrest, the detective made several unsuccessful attempts to locate the defendant or obtain his last name including attempting to contact his roommate, returning four or five times to the apartment where the alleged sale occurred, and checking with the power and phone companies. Although the detective saw the defendant driving around town at various times, he was unable to stop him to execute the warrant.

Being unable to locate the defendant, the detective, whose normal duties did not include serving warrants, turned the warrant over to the warrant division of the sheriff’s office. In April 1978, approximately nine months after the filing of the complaint, the detective recognized and arrested the defendant.

During the twelve months between the date of the alleged sale and defendant’s arrest, defendant lived in Ada County but moved four times. Defendant testified that from April through July, 1977, he lived at 655 White Cloud Drive # 1, Boise, the scene of the alleged sale. Furthermore, the defendant testified that he was continuously present in Ada County during this entire period with the exception of four or five days during the Christmas vacation. During this twelve-month period, defendant received three traffic citations, spending a night in jail for one of them.

On June 19, 1978, Holtslander appeared before a magistrate for preliminary hearing and was bound over to district court. Following three continuances granted to provide Holtslander more time to obtain private counsel, trial date was set for October 27, 1978. The trial was continued until December 8, 1978, due to conflicts in the court’s schedule and lack of contact between defendant and his counsel. On November 29, 1978, defendant moved to dismiss on the ground that his right to - a speedy trial had been violated by the nine-month delay between the filing of the complaint and his arrest. His motion was heard on December 18, 1978, and granted by a memorandum opinion of the district court filed December 21, 1978. The State of Idaho appeals and the only question presented is whether defendant-respondent was deprived of his constitutional right to a speedy trial by the nine-month delay between the filing of the complaint and his arrest.

Idaho’s Constitution, art. 1, § 13, provides in part:

“In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; * * * ”¹

This Court in State v. Lindsay, 96 Idaho 474, 475, 531 P.2d 236, 237 (1975) stated:

“The right of speedy trial as guaranteed by a state constitution or statute cannot be said to be necessarily identical to that right to speedy trial guaranteed in the Constitution of the United States. We find, however, that the ‘balancing test’ laid down in Barker v. Wingo, 407 , 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) is consistent with decisions of this court stating that whether one has been deprived of his right to a speedy trial must be decided by reference to considerations in addition to the mere passage of time. Hadlock v. State, 93 Idaho 915, 478 P.2d 295 (1970); Ellenwood v. Cramer, 75 Idaho 338, 272 P.2d 702 (1954).

“In Barker, the U.S. Supreme Court recognized that speedy trial cases must be dealt with on an ad hoc basis, held that a balancing test was the appropriate method to approach speedy trial questions and set forth four factors [²] determinative of whether a speedy trial had been denied. Those factors were — length of delay, reasons for the delay, the accused’s assertion of his right, and prejudice to the accused occasioned by the delay. It was also stated in Barker that the length of delay is said to be a ‘triggering mechanism’ for the invocation of judicial scrutiny.”

LENGTH OF DELAY

In Barker, supra 407 U.S. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 117, the U.S. Supreme Court stated:

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” (footnote omitted).

It is apparent that length of delay serves a dual role in the analysis of the right to a speedy trial. First, the length of delay is used as a screening device to dispose summarily of frivolous claims. Second, the length of delay is one of the factors to be considered when the balancing process has been triggered by a delay that causes actual prejudice or is long enough to be presumptively prejudicial.

The initial question in analyzing length of delay for either of its roles is how to measure the delay. Both the U.S. and the Idaho Constitutions indicate that the right of speedy trial arises for an “accused.” U.S.Const. amend. VI, Idaho Constitution, art. 1, § 13; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The U.S. Supreme Court in Marion, supra, focused its attention on the use of the word “accused” as used in the Sixth Amendment. The Court stated:

“[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” Id. at 320, 92 S.Ct. at 463, 30 L.Ed.2d at 479.

Although the language quoted above appears straight forward enough, courts have disagreed over its exact meaning. This language may reflect only a dissimilarity in language between jurisdictions. But the phrase “holding to answer” is generally accepted to refer in a technical sense to the decision of a magistrate to bind a defendant over for trial following a preliminary hearing. People v. Hannon, 19 Cal.3d 588, 138 Cal.Rptr. 885, 564 P.2d 1203 (1977). Therefore, the U.S. Supreme Court may have been holding that the filing of a complaint is by itself insufficient to trigger the protection of the right to a speedy trial under the federal constitution.

It is an elemental principle of our system of federalism that ultimate responsibility for interpretation of the federal constitution rests with the U.S. Supreme Court. Thus, the holding in Marion delineating the scope of protection afforded by the Sixth Amendment’s guarantee of the right to a speedy trial is binding on this Court as it is on all other state and federal courts of this nation. However, the U.S. Supreme Court’s decision in Marion did not, and indeed could not, determine the constitutional requirements of the right to a speedy trial guaranteed by the Idaho Constitution.

This Court has held that the Idaho speedy trial constitutional protection is riot “necessarily identical to that right guaranteed in the Constitution of the United States” and comes into play no later than the time at which the complaint is filed, herein July 20, 1977. State v. Lindsay, supra, 96 Idaho at 475, 531 P.2d at 237. Therefore, accusation for the Idaho speedy trial constitutional provision occurs either when formal charges are filed or when the defendant is arrested, whichever occurs first. See State v. Lindsay, supra; State v. Wilbanks, 95 Idaho 346, 509 P.2d 331 (1973); Jacobson v. Winter, 91 Idaho 11, 415 P.2d 297 (1966).³

Although Lindsay, supra, indicates that the period of delay starts with accusation and ends with trial, it does not clarify how defense-caused delay should be used in the calculation of length of delay. In the case at bar, the trial court held that defendant’s motion was based solely on the approximately nine-month delay between the complaint and arrest. The pre-accusatory delay and the delay following arrest were not asserted by defendant as an infringement of his rights or relied upon by the trial court as a basis of its opinion. The post-arrest delay was primarily a function of four continuances. The first three continuances were granted to defendant so that he could obtain private counsel. The fourth continuance was granted due to conflicts in the court’s schedule and to provide defendant time to confer with his counsel.

The exclusion of defense-caused delay may have the advantage of making the balancing test less complex by reducing the amount of information to be considered. But it also has the disadvantage of shortening the length of delay and, therefore, weakening the presumption of prejudice for the triggering mechanism. The greater the length of delay, the greater the presumption of prejudice for triggering the balancing test. Since the trial court found the nine months to be presumptively prejudicial, the disadvantage did not arise in this case. Normally, the best approach to avoid this disadvantage is to count defense-caused delays in the period of delay and then to weigh the factor of reason for delay against the defendant for that portion of delay that is defense-caused. This approach has the advantage of insuring that no defendant’s right to a speedy trial will be infringed without triggering the balancing of the appropriate factors. At the same time, it maintains the appropriate weight on length of delay in the balancing process.

Another length of delay question is the application of the “presumptively prejudicial” language of Barker. The usefulness of the presumption of prejudice is primarily limited to the “triggering” role of length of delay. The presumption serves a purpose in the length of delays triggering role by providing a means for screening frivolous cases. Without a showing of actual prejudice or a presumption of prejudice, further inquiry into the infringement of a defendant’s right to a speedy trial is cut off. However, the usefulness of the presumption is considerably more limited in the balancing process. The role of the presumption in the factor of prejudice is discussed infra.

REASON FOR DELAY

In Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117, the U. S. Supreme Court stated:

“[Different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” (Footnote omitted.)

The U. S. Supreme Court in Barker has drawn a distinction between neutral reasons for delay, valid reasons for delay, and deliberate delays aimed at hindering a defendant’s defense. In the case at bar, there is no contention by Holtslander (and we find no evidence) that the delay was caused by dilatory tactics or deliberately caused to hinder Holtslander’s defense. Instead, the nine-month delay was due to a reason that is either “more neutral” or “valid” according to the Barker standards. The reason for delay in this case was that the police were unable to locate the accused because they did not know his full name even though they had made several attempts to locate the defendant and obtain his name.

An issue raised in this case in determining whether or not this factor is to be weighed against the state is what standards should be used to evaluate the police efforts to locate the defendant. The trial court stated that since it was not persuaded that the police used its “best efforts” in obtaining the defendant’s true name or in determining his whereabouts, the delay was unreasonable. Therefore, this factor was weighed against the state. Implied in the trial court’s standard is the requirement that the police perform to its highest degree and take all of the most desirable actions possible in locating the defendant. We hold that the “best efforts” standard is too rigorous. Instead, the state’s duty is to make a diligent, good-faith effort to bring the defendant to trial. See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Richerson v. State, 91 Idaho 555, 428 P.2d 61 (1967). This standard only requires the police to take reasonable actions to locate the defendant.

In applying this standard, we recognize that it is ultimately the state’s burden to provide a speedy trial while the accused’s responsibility for procuring a speedy trial is limited to his assertion of his right⁴ and his responsibility not to obstruct the orderly processes of justice. At the same time, we recognize with the diligent, good-faith standard that there are reasonable limits on the state’s responsibilities. These considerations can be fully assessed with the balancing test, in which the conduct of both the state and the defendant are weighed.

ASSERTION OF THE RIGHT

In Barker, supra, 407 U.S. at 531-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18, the U. S. Supreme Court stated:

“Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”

This factor also relates directly to the “second difference between the right to a speedy trial and the accused’s other constitutional rights” recognized by Barker, supra at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 111. That difference is that deprivation of the speedy trial right may work to the accused’s advantage by the state’s witnesses becoming unable to testify because of fading memories or unavailability. Rather, a defendant’s assertion of his right to a speedy trial may reflect whether or not a defendant actually wanted a speedy trial.

In the case at bar, the defendant became aware of the charge against him by virtue of his arrest in April, 1978, and did not file his motion until November 29,1978, approximately seven months later. At least part of this delay occurred while the defendant was locating counsel to represent him. The trial court held that under these circumstances that the defendant did not wait an undue length of time before asserting his right. We recognize that an accused not represented by counsel may not even be aware of his right to a speedy trial or the procedure for obtaining one and, in those circumstances, the defendant’s failure to demand a speedy trial should not weigh against him. We also recognize that this is a difficult factor to analyze and should be given weight according to the circumstances of the case. For example, an aware defendant, who desires to delay his trial in hopes of creating an inability of the state’s witnesses to testify because of a fading memory or unavailability, may also delay obtaining counsel in hopes of improving his chances to obtain relief through a motion to dismiss for denial of speedy trial.⁵ Defendant’s delay in obtaining counsel in such a case should be weighed against him.

PREJUDICE

In Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118, the U..S. Supreme Court stated:

“Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” (footnote omitted).

In the case at bar, the nine-month delay includes no pretrial incarceration time. Likewise, the second consideration is of little or no effect since the accused was not even aware of the complaint until the delay period expired at his arrest. Therefore, our main concern becomes a determination as to whether or not appellant’s defense was impaired by the delay. At the hearing on the Motion to Dismiss, Holtslander testified that he was not aware of any defense witnesses that had died or moved away and that his presentation of his defense was not affected by the delay. There is no evidence that Holtslander’s ability to present the defense was impeded by the delay.

The trial court stated that Holtslander’s testimony was “helpful but not determinative.” Then the trial court cited Olson v. State, 92 Idaho 873, 452 P.2d 764 (1969) and Richerson v. State, 91 Idaho 555, 428 P.2d 61 (1967) for the proposition that prejudice could be presumed if the defendant can show an unreasonable delay in prosecution. Based on its application of the “best efforts” standard, the trial court held that an unreasonable delay had occurred between the filing of the complaint and Holtslander’s arrest. Therefore, prejudice was presumed.

While we agree that “[l]oss of memory ... is not always reflected in the record because what has been forgotten can rarely be shown,” Barker, supra at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118, we also caution against the use of a presumption of prejudice in cases such as the one at bar where there is no indication of prejudice nor claim of prejudice by the defendant. The delay in this case does not, of itself and in comparison with other cases, appear to be inordinate, particularly in view of the reason for delay. In the instant case, any possible prejudice by the nine-month delay is speculative at best. This speculativeness' warrants the limiting of the weight, if any, given to the presumption. The balancing test allows enough flexibility in considering the various factors without presuming prejudice from circumstances like those of this case. A defendant’s constitutional right to a speedy trial cannot be established by any inflexible rule but can be determined only on an ad hoc balancing basis, in which the conduct of the prosecution and that of the defendant are weighed. Barker, supra at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17.

We take note that the U. S. Supreme Court in Moore v. Arizona, supra, 414 U.S. at 26, 94 S.Ct. at 189, 38 L.Ed.2d at 185, held that Barker expressly rejected “the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” We agree that in cases where inquiry into impairment of defenses is necessary as here, it would be harsh to require proof with certainty. However, we also recognize that prejudice is a central factor in analyzing the right to speedy trial. We hold that where a defendant does not even attempt to make a showing of a reasonable possibility of prejudice, then this factor should be given a very light weight, if any, for the defendant.

BALANCING

We agree with the U. S. Supreme Court in Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118-19, that:

“We regard none of the four factors identified above [length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant] as either a necessary or sufficient condition to the finding'of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” (footnote omitted).

Since each of the factors considered involves primarily a factual inquiry, it is appropriate in this case that we reverse and remand to the trial court to reassess the Motion to Dismiss under the standards as herein expressed.

Reversed and remanded.

McFADDEN, J., and SCOGGIN, J. Pro Tern., concur.

1 . The Sixth Amendment to the United States Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, * * * ”

This Sixth Amendment right to a speedy trial is applicable to and binding upon the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

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.

3 . This Court in State v. Powers, 100 Idaho 614, 615, 603 P.2d 569, 570 (1979), stated that “the guarantee of a speedy trial does not extend to the period prior to arrest.” However, Powers, supra, was not concerned with a delay between the filing of a complaint and the arrest since the defendant in that case was arrested the day after the complaint was filed. Instead, the Court’s attention in Powers, supra at 615, 603 P.2d at 570, was focused on a “six month delay between the occurrence of the alleged sale and the filing of the complaint....” Powers, supra, did not intend to and does not change the law as to when a person becomes an “accused” for the Idaho speedy trial constitutional provision.

4 . We agree with the U. S. Supreme Court’s position stated in Barker, supra, 407 U.S. at 528, 92 S.Ct. at 2191, 33 L.Ed.2d at 118-17:

“We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application.” (footnote omitted).

5 . Although we are aware of procedural safeguards to minimize such attempts, we also recognize as the U. S. Supreme Court did in Barker, supra at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 111, that sometimes the prosecution’s case may be seriously weakened by delays in spite of such safeguards. The record before us does not indicate whether or not this example is applicable in the case at bar.