Opinion
May 13, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Thomas J. Tomazin, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, Carol L. Gerstl, Deputy State Public Defender, Denver, for defendant-appellant.
ENOCH, Judge.
Plaintiff was convicted for violation of s 18--8--203, C.R.S.1973 (C.R.S.1963, 40--8--203), possessing a knife while confined in the Colorado State Penitentiary. He now appeals on the basis that he was denied a speedy prosecution. We affirm.
On March 26, 1973, while engaged in searching inmates of the state penitentiary, a correctional officer recovered a knofe which he alleged had been dropped by the defendant. Three days later a prison administrative committee sentenced defendant to ten days of special confinement with limited privileges. On September 26, a complaint was prepared charging defendant with the crime of which he was subsequently convicted. The complaint was filed on October 10 in the county court for Fremont County.
The defendant was arraigned November 2, 1973, and a preliminary hearing was held January 11, 1974, at which defendant was ordered bound over to the district court. On February 13, defendant pleaded not guilty. On March 20, defendant's motion to dismiss for lack of speedy prosecution was heard and denied, and trial to a jury was held May 6. Defendant was found guilty and took this appeal.
It is defendant's contention that the six month delay between the incident when the knife was recovered and the dates when the complaint was prepared and filed made it impossible for him to locate certain witnesses who might have aided him in preparing a defense. This, he argues, amounts to such prejudice to his defense as to violate his constitutional right to due process of law.
The right to a speedy trial attaches ordinarily where a defendant is held to answer to criminal charges or suffers the actual restraints of arrest, but where there is delay prior to that point which results in actual prejudice to a defendant, there may be a violation of his right to due process. People ex rel. Coca v. District Court, Colo., 530 P.2d 958; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. The question raised by the defendant is whether the alleged prejudice resulting from delay prior to the preparation and filing of the complaint, amounts to a violation of due process and fundamental fairness. People ex rel. Coca v. District Court, Supra.
At the hearing on defendant's motion to dismiss there was testimony that the witnesses sought unsuccessfully by the defendant were inmates who were standing in a corridor at the time the correctional officer confronted the defendant. However, the testimony further reveals that the knife was recovered in a bathroom off of that corridor where the only parties present were the correctional officer and defendant. Defendant admits there is no way of knowing what these witnesses saw. He testified that when he was sentenced to special confinement, only three days after the incident, he was informed that information on the incident would be forwarded to the district attorney's office for consideration of whether charges should be filed.
The court found that defendant had not shown that the witnesses were unavailable, only that neither the defendant nor the correctional officer could identify the witnesses. The court further found that defendant had an opportunity only 13 days after the incident to locate the witnesses but failed to do so, and that in any event defendant had not shown that testimony of these witnesses, even if identified, would benefit defendant's case. The court concluded that defendant had not been prejudiced by the delay. There is ample evidence in the record to support these findings and we will not upset them on review. Muhe v. Mitchell, 166 Colo. 108, 442 P.2d 418; American National Bank v. First National Bank, 28 Colo.App. 486, 476 P.2d 304.
Since defendant failed to show that he was actually prejudiced by the delay in his prosecution, we find no violation of his due process rights.
Judgment affirmed.
SMITH and KELLY, JJ., concur.