DISTRICT COURT,
EL PASO COUNTY, STATE OF COLORADO
270 S. Tejon
Colorado Springs, CO 80903
719-448-7700
THE PEOPLE OF THE STATE OF COLORADO,
Plaintiff,
v.
^ Court Use Only ^
XXXXXXXX,
Defendant.
Attorney For The Defendant
Xxxxxxxx
Xxxxxxxx
Xxxxxxxx
Case No.: 05CR
Div.4 Ctrm. 403
MOTION TO DISMISS FOR DELAY RESULTING IN A VIOLATION OF THE
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AND THE DUE PROCESS
OF LAW
COMES NOW, xxxxxx, by and through counsel, xxxxx and hereby
respectfully requests this Honorable Court dismiss this case as the proper sanction
for the delay resulting in a violation of his constitutional right to a speedy trial and
the due process of law. As grounds herein states as follows:
1.
The constitutional right to speedy trial derives from both the Sixth
Amendment to the United States Constitution and Article II, Section 16, of the
Colorado Constitution. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993); People v.
Gallegos, 926 P.2d 156, 159-60 (Colo. App. 1996). The federal and state constitutions
provide separate and independent sources for this right.
2.
The constitutional right to a speedy trial attaches at the time a defendant is
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formally accused by a charging document, such as a criminal complaint, information,
or indictment. United States v. Marion, 404 U.S. 307, 320, 30 L.Ed.2d 468, 92 S. Ct.
455 (1971); Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993); People v. Bost, 770
P.2d 1209, 1216 (Colo. 1989).
3.
The charges in this case were filed
4.
The charges have been pending for
5.
There have been five delays in the proceedings, all occasioned through no
fault of the defendant.
6.
7.
A defendant who contends that this right has been infringed bears the
burden of proving the alleged violation. People v. Bost, 770 P.2d at 1216; People v.
Chavez, 779 P.2d 375, 376 (Colo. 1989).
8.
To assess such a contention, the court should apply an ad hoc balancing
test employing the following four factors: the length of the delay, the reasons for the
delay, the defendant's assertion of the right, and the prejudice to the defendant. Barker
v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972); People v. Bost,
770 P.2d at 1216; People v. Chavez, 779 P.2d at 376.
9.
"None of [these] four factors is indispensable to a finding that speedy trial
has been denied. Nor is any one of them ipso facto sufficient to require such a finding.
Rather all are interrelated and must be considered together with any other relevant
circumstances." People v. Small, 631 P.2d at 154 (quoting Gelfand v. People, 196
Colo. at 489-90, 586 P.2d at 1332); see also Barker v. Wingo, 407 U.S. at 533, 92 S.Ct.
at 2193. However, "[u]nless the [length of the] delay is at least presumptively
prejudicial to the defendant, no extended inquiry need be made into the other factors
which complete the test." People v. Small, 631 P.2d at 154; accord Barker v. Wingo,
407 U.S. at 530, 92 S.Ct. at 2192.
10. There is no established time period that automatically constitutes undue
delay. See Barker v. Wingo, 407 U.S. at 521, 92 S.Ct. at 2187 ("[w]e cannot definitely
say how long is too long in a system where justice is supposed to be swift but
deliberate"); Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir.1986) (same), cert, denied,
479 U.S. 936, 107 S.Ct. 413, 93 L.Ed.2d 364.
11.
Compliance with the statutory speedy trial requirements does not
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automatically satisfy constitutional speedy trial demands. Williams v. Lockhart, 772
F.2d 475, 478 (8th Cir. 1985) (compliance with state speedy trial law does not
necessarily mean that the sixth amendment has been satisfied); Barela v. People, 826
P.2d 1249, 1255 n.5 (Colo. 1992) (fact that defendant was accorded his statutory right
to speedy trial did not necessarily establish that his constitutional speedy trial and due
process rights were upheld).
12. In this case, these charges have been pending for xxx months. People v.
Bost, 770 P.2d at 1216-17 (twenty-nine month delay considered “extensive” and
sufficiently inordinate to trigger inquiry into other factors); People v. Small, 631 P.2d
148, 154 (Colo. 1981) (forty-nine month delay between initial indictment and trial
required analysis of other factors); Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993)
(eight years is sufficiently lengthy to warrant an inquiry into the other three factors).
13. The Defendant has not personally done anything to delay these
proceedings. Even if this Court ultimately finds some of the delay may be attributed to
XXXX or his counsel, a “defendant's contribution to a delay does not render him unentitled to this Sixth Amendment protection”. Moody v. Corsentino, 843 P.2d 1355,
Fn 13 (Colo. 1993) (Even in circumstances where a defendant escapes from custody or
otherwise precludes the prosecution from fulfilling its speedy trial obligation, courts
will consider the defendant's claim of speedy trial violation pursuant to the analysis set
forth in Barker).
14. Mr. XXXXX has consistently maintained his desire to have a speedy trial
and is asserting this right as soon as practicable in this case.
15. Mr. XXXXXX’s only “waiver” of a speedy trial was coerced when he
was forced to choose between a speedy trial and a fair trial.
16. Mr. XXXX has been prejudiced by this delay. Mr. XXXXX has been
forced to make multiple court appearances, suffered excessive expense in defending
himself and been placed under the cloud of undetermined criminal charges for an
indeterminate and unreasonable period of time.
17. In Doggett v. United States, 112 S. Ct. 2686 (1992), the Court held that an
extraordinary delay will presumptively impair the defense even absent any proof of any
particular proof of prejudice to the defendant other than the delay in brining the matter
to trial. An unreasonable delay between formal accusation and trial threatens to
produce more than one sort of harm including oppressive pretrial incarceration, anxiety
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and concern of the accused, and the possibility that the defense will be impaired by
dimming memories and loss of exculpatory evidence. Doggett at 2692.
18. Mr. XXXXX has been prejudiced by the problems inherent with any
extended delay: that memories will dim, witnesses become inaccessible, and evidence
lost. For example,
19.
Further argument will be presented, if needed, at a hearing on this motion.
20. Should the court find that analysis under the constitutional right to speedy
trial is not triggered by the arrest and following delay, then the proper inquiry is
whether the delay amounts to a due process violation. Moody v. Corsentino, 843 P.2d
at 1364.
21. An accused's right to be treated with fundamental fairness is implicit in
the concept of due process of law and is more expansive in its scope than the specific
constitutional guarantee of the right to a speedy trial. Barela v. People, 826 P.2d 1249
(Colo. 1992).
22. Certain efforts by the district attorney to maintain a criminal case,
although procedurally within the law, violate the requirements of due process and
fundamental fairness to the defendant, and demand dismissal. People v. Aragon, 643
P.2d 43, 47 (Colo. 1982); People v. Abrahamsen, 176 Colo. 52, 58, 489 P.2d 206, 209
(1971).
23. Whether an individual's rights to due process and fundamental fairness
have been violated by prosecutorial misconduct to an extent warranting dismissal
depends on the circumstances of each case. People v. Aragon, 643 P.2d 43, 46 (Colo.
1982). Certain key factors, among others, are whether defense witnesses have become
unavailable by reason of the delay; whether the delay was purposeful and intended to
prejudice the defendant; the kind of evidence and the quantum which is available to
prove the prosecution's case; and whether justice dictates that the case be dismissed.
People ex rel. Coca v. District Court, 187 Colo. 280, at 284-85, 530 P.2d 958, 960-61
(1975); See Barela v. People, 826 P.2d 1249 (Colo. 1992); People v. Melanson, 937
P.2d 826 Colo. App. 1996).
24. The trial court should hold an evidentiary hearing to determine whether
the failure to make a speedy arrest in this case resulted in such prejudice to the
defendant that dismissal is necessary in the interest of fundamental fairness. See United
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States v. Parrish, 468 F.2d 1129 (D.C. Cir. 1972); Godfrey v. United States, 358 F.2d
850 (D.C. Cir. 1966).
WHEREFORE, the Defendant respectfully requests this Honorable Court
dismiss this case as the proper sanction for the delay resulting in a violation of his
constitutional right to a speedy trial and the due process of law.
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CERTIFICATE OF SERVICE
I hereby certify that on this
day of December, 2006, a true and correct
copy of the forgoing MOTION TO DISMISS FOR DELAY RESULTING IN A
VIOLATION OF THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
AND THE DUE PROCESS OF LAW was deposited in the First Class U.S. Mails,
postage prepaid, addressed as follows:
District Attorney’s Office
El Paso County
105 E. Vermijo Ave, Suite 500
Colorado Springs CO 80903
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