State v. NowellState v. Nowell
Defendant Lance T. Nowell was charged by bill of information on March 15, 1978 with the commission of an aggravated battery,
On June 24, 1977, defendant pleaded guilty to the offense of simple escape. Pursuant to a plea bargain, the companion charge of unauthorized use of а movable was dropped and defendant received a sentence of six months imprisonment, with credit for time served. At that time defendant had been incarcerated for eight months and would have been released but for the pending attempted murder and attempted aggravated escape charges.
In February of 1978 defendant, not yet charged by bill of information or indictment and still unrepresented by counsel, wrote to the district court in East Baton Rouge Parish complaining of his plight. On March 2, 1978, in response to defendant‘s letter, the court appointed Stewart Thomas to represent defendant. Thomas promptly asserted the deprivation of defendant‘s right to a speedy trial.1
The right to a speedy trial is guaranteed by both the federal and state constitutions.
In determining whether or not a defendant‘s right to a speedy trial has been violated, this Court has not attempted to set any fixed time period. Rather, this Court has adopted the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the United States Supreme Court weighed the conduct of both the prosecutor
In the present case almost twelve months elapsed between the defendаnt‘s arrest and the date counsel was appointed to represent him. It is true that in some cases in which the defendant was represented by counsel this Court has held that even greater delays do nоt constitute a denial of the right to a speedy trial. See, State v. Kemp, supra; State ex rel. Miller v. Craft, 337 La. 1191 (La.1976); State v. Neyrey, 341 So.2d 319 (La.1976); State v. Moore, 300 So.2d 492 (La.1974). However, the length of delay which will be tolerated depends entirely on the circumstances of the individual case. Barker v. Wingo, supra. Because the lack of counsel effectively deprived the defendant of the ability to assert his right to a speedy trial, and because he has been incarcerated since his arrest, the length of the delay in the present case was sufficiently great to warrant examination of the other Barker factors.
The delay in the present case apparently was due to the State‘s inability to secure the testimony of several inmаte witnesses. At the hearing on the motion to quash the prosecutor explained that without their testimony it would be impossible to evaluate the State‘s case against the defendant.3 There was no shоwing that the State deliberately postponed the trial in order to gain a tactical advantage over the defendant. Nevertheless, as between the defendant and the State, the ultimate burden rests on the State to bring the defendant to trial or otherwise dispose of the case. Barker v. Wingo, supra; State ex rel. Miller v. Craft, supra.
The third factor to be considered under Barker v. Wingo is whether or not the defendant asserted his constitutional right to a speedy trial. The record does not reflеct that the defendant made any assertion of his right or otherwise attempted to speed up the trial proceedings. However, this cannot be weighed very heavily against the defendant in the prеsent case. Defendant was seventeen years old, incarcerated, indigent, and, most significantly, unassisted by counsel.4 Under these circumstances the defendant‘s failure to effectively assert his rights did not constitute a voluntary, knowing and intelligent waiver of his constitutional guarantee to a speedy trial.
Finally, we must consider whether or not the defendant was prejudiced by the delay. The trial court found that thе defendant had shown no prejudice because he had not proved that his defense would be impaired by the lapse of time. In our opinion the trial court erred in failing to consider whether defendant had suffered any other type of prejudice. Undoubtedly, the impairment of a defendant‘s ability to prepare his case is the most serious form of prejudice normally experienced by an accused whose trial is delayed. However, in State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976), this Court noted that prejudice can also occur in other ways:
“Inordinate delay may interfere with a defendant‘s liberty, disrupt his employment, subject him to рublic obloquy, and create anxiety in him, his family and his friends. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).” Id. 1195.
While the defendant in this case did not offer any evidence of this sort of prejudice at the hearing on the motion to quash, it has been pointed out that “[t]hese factors. . . are inevitably present in every
Upon a careful consideration of the above factors as they apply to the circumstances of the present case, we conclude that defendant Lance Nowell was denied his constitutional right to a speedy trial. The only remedy available in this case is dismissal of the charges pending against the defendant. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); State v. Bullock, 311 So.2d 242 (La. 1975).
For the foregoing reasons, the ruling of the trial judge denying the motion to quash the bill of information is reversed, and the case is remanded to the Nineteenth Judicial District Court with instructions to the trial judge to dismiss the bill of information charging the defendant with aggravated battery.
SANDERS, C. J., and SUMMERS, J., dissent.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
Defendant was in jail nine months from the time he could have been released from incarceration except for this charge. In weighing the conduct of both the prosecution and the defense in view оf the length of delay, reasons for delay, assertion of the right, and actual prejudice to the defendant, I do not believe that defendant‘s right to a speedy trial has been violated. Accordingly, I respectfully dissent.