Opinion
No. 78-1110
Decided March 15, 1979.
City sought reversal of an order granting relief in the nature of prohibition to defendant who claimed that his right to speedy trial had been violated.
Reversed
1. CRIMINAL LAW — Municipal Court Rules — Right to Speedy Trial — Continuances — No Violation — Constitutional Right. Where a crowded trial docket necessitated two continuances, defendant's counsel refused to go to trial on the reset dates, and no undue prejudice resulted to the defendant, who was free on bond, a third continuance setting trial for a date beyond the time limit provided by the Municipal Court Rules did not violate defendant's constitutional right to a speedy trial.
2. Crowded Trial Docket — Valid Reason — Continuance. A crowded trial docket constitutes a valid reason for a continuance under municipal court speedy trial rule.
Appeal from the District Court of the City and County of Denver, Honorable George McNamara, Judge.
Norton, Frickey Associates, Donna Salmon, for petitioner-appellee.
Max P. Zall, City Attorney, Gerald Himelgrin, Assistant City Attorney, for respondents-appellants.
Contending that his right to speedy trial under both the constitution and C.M.C.R. 248(b) had been violated, petitioner Freed, who was the defendant in a county court prosecution, obtained relief in the nature of prohibition from the district court. We reverse.
On May 16, 1977, Freed was arrested and charged with an ordinance violation relating to carrying a concealed weapon. He was arraigned on May 21 and entered a plea of not guilty. Trial was set for July 6, 1977. Because the court's docket was overcrowded and there were other cases that had been filed earlier set for trial on that date, the trial date was vacated over Freed's objections, and reset for August 11, 1977. On that date, a similar situation existed, but the trial court offered to set the case for trial on the next day, August 12. Freed's counsel refused, stating, "I can't try it." Thereupon the case was set for trial on September 8, 1977. On September 8, an automobile accident delayed the judge's arrival at court, and upon his arrival, he first took up arraignments and other routine matters. As a result, he did not call Freed's case for trial until 10:35 a.m. Freed's counsel told the court that he had a noon appointment in Colorado Springs and also that he wanted to be heard on two pending pre-trial motions. Therefore the case was not heard on that date. Freed then filed this action in the nature of prohibition in the district court. The city seeks reversal of the order entered therein.
I.
[1] Relying upon Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Freed asserts that his constitutional right to a speedy trial has been violated by the People. We do not agree.
In Barker the Supreme Court held that in determining whether a defendant's right to speedy trial has been impinged upon requires a balancing of the conduct of the prosecution and the defendant. In so doing, the factors to be considered are the "length of delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant." Barker v. Wingo, supra.
Applying these factors to this case we conclude that the length of delay, 115 days from the filing of charges, was not per se indicative of a constitutional violation. With respect to the second factor, the reason for delay not being the fault of the prosecutor, this factor "should weigh less heavily against the prosecution." Barker v. Wingo, supra.
The third factor to be considered under Barker is Freed's "assertion of his right." While Freed's attorney asserted his readiness for trial on July 6, and again on August 11, we deem it significant that he turned down the proffered trial date of August 12, and because of another appointment on September 8, he was unable to go to trial that afternoon.
Finally, we consider the factor of "prejudice to the defendant" under Barker. In this regard, we must determine whether there was oppressive pre-trial incarceration, whether anxiety and concern of the accused were unduly extended, and whether the defense was impaired in any way by the continuances.
There was some inconvenience to Freed, as well as financial detriment to him through allegedly lost income from his work, when he appeared at the two aborted trial dates, but the record discloses no undue anxiety or concern on his part. See People v. Buggs, 186 Colo. 13, 525 P.2d 421 (1974). And, it is important to note that Freed was on bond. See People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973). Furthermore the record gives no indication that evidence or testimony that might have been available to Freed was lost through these continuances as was the case in Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974).
While the overcrowded docket situation encountered here is an unfortunate one, having considered all of the factors set out in Barker v. Wingo, supra, we conclude that Freed's constitutional right to a speedy trial was not violated.
II.
Freed also asserts that C.M.C.R. 248(b) was violated because he was not tried within 90 days from the date of filing of charges against him. That rule provides:
"If there is unnecessary delay in the trial of a defendant, the court may dismiss the case. If the trial of a defendant is delayed more than ninety days after the filing of the complaint or summons and complaint, unless the delay is occasioned by the action or request of the defendant, the court may dismiss the case and the defendant shall not thereafter be tried for the same offense; except that if on the day of a trial set within the last ten days of the above time limit a necessity for a continuance arises which the court in the exercise of sound judicial discretion determines would warrant an additional delay, then one continuance, not exceeding thirty days, may be allowed, after which the dismissal shall be entered as above provided if trial is not held within the additional time allowed." (emphasis supplied)
[2] The question becomes whether a crowded trial docket constitutes "a necessity for a continuance . . . which . . . would warrant an additional delay" so that the county court's action in continuing the trial for less than 30 days was proper. We conclude that under this rule a crowded trial docket is a valid reason for such a continuance. Indeed, it is difficult to envision a better reason for application of this portion of Rule 248(b).
Here, the first trial date was July 6, 51 days after the filing of charges, and the second trial date was August 11, 1977, 87 days after the filing of charges. At the time, when Freed was unwilling to accept an August 12 trial date, the matter was set over to September 8, which was 115 days after the filing of charges. This action of the county court on the 87th day, being within the last 10 days of the 90-day period, and continuing the case for a period less than 30 days comports with the time requirements of Rule 248(b).
Freed's reliance on Bachicha v. Municipal Court, 41 Colo. App. 198, 581 P.2d 746 (1978), is misplaced. There, in contrast to the situation here, the court was not dealing with a continuance of less than 30 days granted in the last 10 days of the 90-day period. Likewise, Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975), is inapposite. There the Supreme Court held that chronic trial congestion does not excuse the failure to bring a criminal case to trial within the six month time limit mandated by § 18-1-405, C.R.S. 1973 (1978 Repl. Vol. 8). In the instant case, the rule permits a continuance beyond the time limit, and, in any event, this case would have been tried within six months had not Freed procured the writ of prohibition.
The judgment is reversed and the cause remanded with directions to reinstate the charge and remand to the county court for trial.
JUDGE SMITH and JUDGE RULAND concur.