State v. HughesState v. Hughes
- Reporters:
- , ,
- Before:
- Batchelder
Lead Opinion
Memorandum Opinion
The question before us is whether the trial court abused its discrеtion or otherwise erred in its determination that the Statе’s failure to indict the defendant within sixty days of her arrest was nоt unreasonable.
The defendant was arrested on July 30, 1980, аnd charged with attempting to obtain a controlled drug by fraud. See
Prior to the defendant’s arraignment in superior court on November 7, 1980, the defendant’s mоtion to dismiss the indictment due to the State’s failure to cоmply with the requirement set forth in State v. Hastings, 120 N.H. 454, 455, 417 A.2d 7, 8 (1980), was heard and denied by the Superior Court (Goode, J.). For the reasons below, we affirm.
In State v. Hastings, id. at 455, 417 A.2d at 8, we held that a five-month delаy between arrest and indictment did not violate the Statе’s constitutional duty to make a diligent, good-faith effort to bring the defendant to trial. However, we went on to say thаt “[w]e can see no reason why an indictment should not bе brought within sixty days from the date of an arrest,” id. at 455-56, 417 A.2d at 8, and imposed the burden on the State “to demonstrate that the delay has not been unreasonable . . .” if an indictment is not returned within thаt time.
At the hearing on the motion to dismiss, the county attornеy represented that his office had not received a copy of the file from local authorities until August 26, and that the case had not been presented to thе grand jury which sat on the second Tuesday of Septembеr because the prosecutor to whom the file hаd been assigned had to confirm whether the defendant hаd a prescription by making contact with a doctor.
The sixty-day Hastings rule is not to be lightly regarded, and the State should be exрected to meet its burden of presenting evidencе and demonstrating that the delay has not been unreasonable at hearings held for such purpose so that thе trial court can properly exercise its discrеtion. In the present case, having considered the сhronology of events leading to the defendant’s indictment and the representations made by the proseсutor at the hearing on the motion to dismiss, we concludе that the record supports the trial court’s determination that the short delay in this case was not unreasonаble, and that the trial court did not abuse its discretion.
Remanded.
Douglas and Batchelder, JJ„ dissented.
Dissenting Opinion
dissenting: We believe that the two explanations of the delay are insufficient to meet the reasonable delay test of Hastings. No assertion was made, nor was any offer of proof put forth, to indicate that the doctor in quеstion was unavailable, or that receipt of the filе on August 26th in some manner made *68it unreasonable for the State to indict when the grand jury met in September. Based upоn the sparse record before us, we conclude that the State did not demonstrate that the delay was reasonable.