 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. White6/27/1994
PICKARD, Judge.
Defendant appeals from convictions for two counts of vehicular homicide and one count of great bodily injury by vehicle. He contends that (1) he was deprived of his right to a speedy trial by the ten and one-half months between arrest and trial, and (2) he was deprived of due process of law when the district court instructed the jury on a mandatory presumption. Issues raised at earlier stages of the appeal but not briefed are deemed abandoned. ), cert. denied, 115 N.M. 795, 858 P.2d 1274 (1993). We disagree with Defendant's speedy-trial issue, and we find his due process issue to be without a factual basis in the record of this case. Accordingly, we affirm.
SPEEDY TRIAL
Although the nature of the charges in this case could make for a case of intermediate complexity, the parties do not dispute on appeal that the facts of this particular homicide and great bodily injury by vehicle case were relatively simple. Thus, the ten-and-one-half-month delay from Defendant's arrest, when he was held to answer to the charges and was restrained by bail conditions, to trial was sufficient to trigger the balancing of the speedy-trial factors outlined in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). . Those factors are the length of the delay, reasons for the delay, defendant's assertion of the right, and prejudice to the defendant.
The length of delay is ten and one-half months, barely a month and a half over the minimum length of time that the Supreme Court indicated could ever be presumptively prejudicial so as to trigger further inquiry. See . Thus, this factor will not have a large practical effect on the balancing. See
The reasons for the delay include: (1) one month of delay caused by both Defendant and the State excusing a magistrate and another magistrate's recusal; (2) three months of delay for the new magistrate to set the preliminary hearing; (3) one month of delay for the State to choose to indict Defendant and for arraignment; (4) four and one-half months of delay prior to the first trial setting, caused by the Judge's impending surgery, recovery time, and resultant backlog in his docket; and (5) one month of delay caused by defense counsel's realization that he had a conflict of interest, his motion to withdraw, and new counsel's need for extra time to prepare for trial.
Some of this delay was attributable to Defendant and thus is not weighed against the State. This includes some of the delay at the beginning of the case when magistrates were being excused, as well as the delay at the end of the case when Defendant himself sought and received new counsel who needed more time to prepare. See , cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991); ), cert. denied, 106 N.M. 439, 744 P.2d 912 (1987), and criticized on other grounds in . Most of the remainder of the delay appears to have been caused by normal caseload pressures, which weighs less heavily against the State, see , or by the Judge's surgery and recovery time, which does not weigh against either side. See ), cert. denied, 112 N.M. 77, 811 P.2d 575, and cert. denied, 116 L. Ed. 2d 332, 112 S. Ct. 381 (1991). See generally Kristine C. Karnezis, Illness or Incapacity of Judge, Prosecuting Officer, or Prosecuting Witness as Justifying Delay in Bringing Accused Speedily to Trial--State Cases, 78 A.L.R.3d 297 (1977).
Defendant specifically asserted his right to a speedy trial two days before trial. While assertion at this late date is timely under , it is not entitled to much weight. ) (when right to speedy trial is not asserted until most of the delay has passed, this factor i
Page 1 2 3 4 5 6 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|