Opinion
DOCKET NO. A-2026-13T2
01-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN R. McGUIRE, Defendant-Appellant.
Nicole D. Josko argued the cause for appellant (Drinker Biddle & Reath, attorneys; Ms. Josko, on the brief). Laura M. Kotarba, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Kotarba, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2013-01. Nicole D. Josko argued the cause for appellant (Drinker Biddle & Reath, attorneys; Ms. Josko, on the brief). Laura M. Kotarba, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Kotarba, of counsel and on the brief). PER CURIAM
Defendant, Kevin McGuire, appeals from his convictions for driving under the influence, N.J.S.A. 39:4-50, and an improper lane change, N.J.S.A. 39:4-88(b). Defendant argues that his convictions should be vacated because his Sixth Amendment right to a speedy trial has been violated. We affirm.
We limit our discussion of the facts and procedural history to that which is relevant to the point raised on appeal.
Defendant was arrested on Route 295 by New Jersey State Troopers on July 26, 2010. The first appearance was listed for August 3, 2010 in Hamilton Municipal Court. Thereafter, there were multiple adjournments. On September 8, 2010, a pretrial conference was held. Discovery was noted as outstanding. On September 22, 2010, another conference was held. A disk requested in discovery by defendant remained outstanding. On October 6, 2010, the discovery status remained unchanged. On November 30, 2010, a pretrial conference was adjourned due to the unavailability of a State's witness, a State Police Officer.
On January 6, 2011, a final pretrial conference was held. A trial date was set for May 18, 2011. The trial was adjourned as the State's laboratory technician was unavailable. The trial took place on November 2, 2011.
After completion of the trial, the judge noted the time remaining in the court day was short and he wanted to review the testimony, listen to the tapes and the video, and render a decision within the next two weeks. However, the decision was not rendered until January 10, 2013; fourteen months after the conclusion of the trial.
The court accounted for the decision's length of time by noting that the proceedings were captured on a "tape" by antiquated machinery with difficulties and not a hard-drive. The machinery at some point was either fixed or set up in chambers to allow the judge to review the testimony.
On January 25, 2013, defendant filed a motion to dismiss, claiming his right to a speedy trial. Defendant also appealed his conviction. The motion to dismiss requested a stay of defendant's sentence. On February 14, 2013, the municipal court determined it lacked jurisdiction due to defendant's appeal pending in the Superior Court. On February 22, 2013 the Superior Court remanded the motion to dismiss to the municipal court for a ruling on the merits and also stayed defendant's sentence.
On April 16, 2013, defendant argued his motion to dismiss. On April 23, 2013, the municipal court judge denied the motion. The judge concluded, after balancing the Barker factors, that the lack of prejudice outweighed the length of the delay.
The judge held:
There were multiple adjournments from that point in time [initial appearances] until the trial date of November 2, 2011. On September 8, 2010 was a first pretrial conference. There were still outstanding discovery. Noted in the court's file was an issue with regard to the disk. On September
22nd again that disk was still outstanding. On October 6, 2010 the disk was outstanding. At that point in time it was received before the next pretrial conference on November 30, 2010. That was scheduled without the Trooper [being] involved. There were two troopers involved here.
It was then set for final pre-trial conference on January 6, 2011. At that point in time it was set for trial. Trial date was set for May 18, 2011. The State requested an adjournment because the lab tech was unavailable at that point in time. This court requested that the staff coordinate a trial date with all experts, both State and defense, both troopers, and counsel. That was set for November 2, 2011 as a special session. On November 2, 2011 the trial took place and was tried to its conclusion on that date.
In an appeal from a de novo hearing on the record, we consider only the action of the Law Division and not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). We cite to the municipal court judge's decision to provide procedural context.
The defendant appealed to the Superior Court. On November 20, 2013, Judge Mark J. Fleming conducted a trial de novo. On that same date the judge rendered an eleven-page written opinion rejecting defendant's speedy trial assertion. The judge then imposed the same sentence as imposed by the municipal court.
On appeal, defendant argues the delay was "without justifiable reason," and "warrant[s] reversal of the Law Division's decision and dismissal of the charges." We disagree.
A determination by a trial judge regarding whether defendant was deprived of his right to a speedy trial should not be overturned unless clearly an abuse of discretion. State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977); State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009). This standard is highly deferential to the trier of fact. In other words, we will only reverse the decision below if it is shown to be so erroneous that no reasonable analysis could have produced it. 40 New Jersey Practice, Appellate Practice and Procedure § 4.5 (Edward A. Zunz, Jr. & Edward F. Chociey, Jr.) (rev. 2d ed. 2011).
The Sixth Amendment of the United States Constitution affords a defendant the right to a speedy trial on criminal charges; through the Due Process Clause of the Fourteenth Amendment, that right is applicable in state prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7 (1967); see State v. Szima, 70 N.J. 196, 200-01 (discussing the speedy-trial right pursuant to Article I, paragraph 10 of the New Jersey Constitution and the federal constitution, as construed in Klopfer), cert. denied sub nom. Szima v. New Jersey, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).
The speedy-trial right protects a defendant's interest in minimizing "pretrial incarceration," the accused's pretrial "anxiety and concern," and delay that impairs ability to present a defense. Barker v. Wingo, 407 U.S. 514, 532-33, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101, 118 (1972). Alleged violations of the speedy-trial right are assessed by balancing four factors set forth in Barker. Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118-19; State v. Townsend, 186 N.J. 473, 487 (2006). Barker "requires the court to consider: (1) the length of the delay, (2) the reasons for the delay, (3) whether and how defendant asserted his speedy-trial right, and (4) the prejudice to defendant caused by the delay." Townsend, supra, 186 N.J. at 487.
In applying the four-part test, "[n]o single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Tsetsekas, supra, 411 N.J. Super. at 10 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). "Rather, the factors are interrelated," and a fact-sensitive analysis is necessary so that each factor is "considered in light of the relevant circumstances of each particular case." Ibid. Under Barker, the analysis is always fact-sensitive. Szima, supra, 70 N.J. at 201-02. The significance of the length of delay will depend upon the factual circumstances of the particular case, including the nature of the proceedings. Barker, supra, 407 U.S. at 530-31, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.
The Supreme Court reassessed the Barker factors in precisely this context. In State v. Cahill, 213 N.J. 253 (2013), the Court commenced its discussion with the caution that each application for dismissal based on speedy trial principles is fact-sensitive, and requires "a case-by-case analysis rather than a bright-line time limitation." Id. at 270. Fairness calls for varying timelines depending on individual circumstances — delays as long as 344 days between arrest and resolution were unacceptable in some cases, while in others, a thirty-two-month delay was justifiable. Id. at 271.
In Cahill, defendant was involved in an automobile accident and charged with driving while intoxicated, reckless driving and aggravated assault, among other offenses. Id. at 257-59. The motor vehicle offenses were remanded from the Law Division to municipal court without action taken for sixteen months between the sentence date for the indictable offense and notice of trial in municipal court. Id. at 257. No explanation was provided for the delay, although the State argued such delays were not uncommon. Id. at 259. The municipal court judge held that the delay was lengthy, attributable to negligence or carelessness of court or prosecutor personnel, but dismissed defendant's motion to dismiss. Cahill, supra, 213 N.J. at 259-60.
We consider the Barker factors in light of the particular circumstances presented herein. The first inquiry is into the length of delay, which, from defendant's arrest to sentencing, was about twenty-nine months. Although this period of time triggers consideration of the other Barker factors, the length of delay is not dispositive, in and of itself, of defendant's speedy trial argument. Ibid. The appropriate inquiry is whether this length of time "is reasonable or whether it violated defendant's right to a speedy trial." Id. at 273.
This time period encompasses the time expended for the court's post-trial decision.
We initially note defendant did not assert his speedy trial right until after the conclusion of the trial. Although a defendant is not required to do so, defendant's lack of assertion can be viewed as acquiescence to the scheduling of the trial and properly considered as part of the Barker calculus.
Another Barker factor is prejudice. "Prejudice, of course, should be assessed in the light of the interests of defendants[,] which the speedy trial right was designed to protect." Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. The Court in Barker identified three such interests:
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
[Ibid. (footnote omitted).]
"[P]rejudice can be found from a variety of factors[,] including 'employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like.'" State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999) (quoting State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976)).
Insofar as prejudice to the defendant, we are mindful of the language in Cahill that "any person who has had limited involvement with the criminal justice system would experience some measure of anxiety by the existence of a pending and long unresolved change." Cahill, supra, 213 N.J. at 275. Here, defendant did not suffer prejudice in the form of a reduced ability to defend on the merits, the "most serious" form of prejudice as articulated in Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Moreover, defendant did not testify that he incurred excessive costs due to any delays or suffered from any type of humiliation, anxiety, loss of employment, or inability to perform his normal daily activities. On appeal, defendant claims, without more, the delay caused him emotional distress. We conclude defendant's bare claim, when considered with his failure to assert his speedy trial right, does not support a finding of prejudice insofar as defendant "live[d] under a cloud of anxiety." Cahill, supra, 213 N.J. at 275. (internal quotation marks omitted).
We also note and contrast this matter with prior holdings regarding the reason for the pre-trial delay. In Tsetsekas, the 344-day delay was occasioned by the municipal prosecutor's lack of preparedness and resulting inability to proceed to trial on scheduled dates, despite the matter being listed every six months. There, dismissal based on speedy trial was warranted as the State's delays appeared unjustified. Tsetsekas, supra, 411 N.J. Super. at 11-12 In Cahill, the delay was attributed to "negligence or carelessness of personnel in either the municipal court's or county prosecutor's office." Cahill, supra, 213 N.J. at 260. Here, while there were multiple adjournments, reasons for the delay were provided, i.e., awaiting discovery and unavailability of essential witnesses, as cited by Judge Fleming in his opinion.
We add that the delayed discovery included a laboratory analysis which was potentially "exculpatory." In the absence of the results of the analysis the trial could not proceed without violation of defendant's right to obtain discovery and the State's obligation to provide exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 219 (1963); State v. Long, 119 N.J. 439, 488-89 (1990).
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While we do not condone the length of time it took for the trial to commence and for the decision to be delivered, after considering Barker and Cahill, we agree with Judge Fleming that defendant failed to establish grounds sufficient to support the sanction of dismissal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION