February 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
KENNETH RITTMAN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-07-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued February 10, 2011
Before Judges Grall and LeWinn.
The trial judge found a speedy trial violation and dismissed, without prejudice, an indictment charging defendant Kenneth Rittman and his co-defendant James Christos with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); and third-degree possession of a weapon with the purpose of using it unlawfully against the person of another, N.J.S.A. 2C:39-4d. The State appeals. Because the judge did not make factual findings relevant to the legal criteria or provide the remedy appropriate for a speedy trial violation, we reverse.
Early on the morning of February 19, 2009, defendant was arrested and
charged with repeatedly striking Mark Brabant's face and body with a
lump hammer. The assault occurred on February 18, 2009, after
defendant, Christos and Brabant spent the night drinking.*fn1
The grand jurors indicted defendant and Christos on July 7,
2009. Defendant was arraigned on August 21, 2009.
Between defendant's arrest and arraignment, he pled guilty to charges not related to this incident and was awaiting sentencing when he was arraigned on this indictment. In addition, he had filed two motions related to this case. He moved for a trial date pursuant to Rule 3:25-2, and because he wanted to file a complaint charging Brabant with assaulting him on February 18, 2009, he requested a probable cause hearing authorizing him to do so.*fn2
The judge held a status conference on November 10, 2009. Defense counsel asked the judge to postpone defendant's sentencing on the unrelated charges to which he had pled guilty until his pending requests for a trial date and the probable cause hearing authorizing his complaint against Brabant were resolved. The judge set trial for April 13, 2010, and scheduled the probable cause hearing for December 8, 2009.
On December 8, 2009, the judge sentenced defendant on his guilty plea and agreed to decide the question of probable cause for a complaint charging Brabant after he reviewed the police reports and grand jury testimony. On February 2, 2010, the judge issued an order stating, "The court finds sufficient probable cause on the complaint filed by [defendant]." The prosecutor took no action on defendant's complaint charging Brabant, R. 3:25-1, and defendant did not move to dismiss the indictment based on the prosecutor's failure to present exculpatory evidence. State v. Hogan, 144 N.J. 216, 225-26 (1996).
Trial was scheduled for April 13, 2010, but no notices were sent. A few days before April 13, defendant's attorney called to advise the court that he would be unavailable to try the case during the week of April 13 because he had surgery that was more complicated than anticipated and required a greater recovery period than expected. Thereafter, neither defense counsel nor the assistant prosecutor heard anything from the court about a trial date.
A status conference was held on May 14, 2010. Defendant's co-defendant was undergoing chemotherapy and unavailable, and the prosecutor was not present when the judge reached this case. The matter was re-listed for June 25, 2010.
On May 27, 2010, defendant filed a motion to dismiss the indictment for violation of his right to a speedy trial. On June 25, 2010, the judge granted the request.
In granting defendant's motion for a speedy trial, the judge focused on responsibility for the delay in filing defendant's complaint against Brabant and the relevance of that complaint to defendant's trial. He asked whether the statute of limitations had run and whether a dismissal on speedy trial grounds would bar a new presentation to the grand jurors.
Ultimately, the judge concluded that a dismissal with prejudice was not warranted because justice would not be done, but he reasoned that the grand jurors should be permitted to revisit the matter with the benefit of evidence that would allow them to look at the episode as one involving "three drunken guys."
The judge's legal reasoning was flawed because his underlying assumptions about the law were incorrect in several respects. First, an order of dismissal without prejudice for a speedy trial violation is improper because dismissal with prejudice "is the only possible remedy." Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d 101, 112 (1972). Second, the judiciary's authority to direct presentation of charges to the grand jury is quite limited. Indeed, Rule 3:25-1(a) recognizes the prosecutor's authority to dismiss a complaint prior to indictment; approval of the court is required but the prosecutor's decision is reviewable only for "arbitrariness or abuse," State v. Ward, 303 N.J. Super. 47, 58 (App. Div. 1997). Third, the remedy for a defendant aggrieved by the prosecutor's presentation of a case to the grand jurors is a motion to dismiss the indictment. See, e.g., Hogan, supra, 144 N.J. at 225-26. Fourth, although a prosecutor may obtain a superseding indictment within the limitations period, State v. Ochmanski, 216 N.J. Super. 240, 247 (Law Div. 1987), the filing of a complaint does not compel the prosecutor to present a matter to the grand jury, In re Grand Jury Appearance Request by Loigman, 183 N.J. 133, 144 (2005) (noting that Rule 3:25-1(a) provides oversight and transparency with respect to the prosecutor's decision to dismiss a criminal complaint).
Despite the fact that the question before the judge was a violation of defendant's speedy trial right, the judge's decision rests on his opinion about the prosecutor's grand jury presentation and his mistaken belief that the State could re-indict a defendant whose right to a speedy trial was violated. The judge simply did not address the factors relevant to dismissal for failure to provide a speedy trial or understand the significance of the determination.
The law the judge ought to have considered is clear. 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, 225-26, 87 S. Ct. 988, 993-95, 18 L. Ed. 2d 1, 7, 9 (1967); see State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976) (discussing the speedy trial right under Article I, paragraph 10 of the New Jersey Constitution and the Sixth Amendment of the U.S. Constitution as construed in Klopfer). The speedy trial right protects a defendant's interest in minimizing "pretrial incarceration," pretrial "anxiety and concern" due to a pending accusation and delay that impairs his or her ability to present a defense. Barker, supra, 407 U.S. at 532-33, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. However, there are no hard and fast rules. Id. at 522-30, 92 S. Ct. at 2188-92, 33 L. Ed. 2d at 113-115.
This personal constitutional right to a speedy trial is "necessarily relative," i.e., dependent upon the circumstances of the case, because that right secures the defendant's interests without precluding "the rights of public justice."
Id. at 522, 92 S. Ct. at 2188, 33 L. Ed. 2d at 112. Accordingly, alleged violations of the speedy trial right are assessed by balancing four factors set forth in Barker. Id. at 519-20, 533, 92 S. Ct. at 2186-87, 2193, 33 L. Ed. 2d at 110-11, 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." Ibid. Delay is assessed from the date the defendant is arrested and charged. Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 303-04, 46 L. Ed. 2d 205, 207 (1975); Szima, supra, 70 N.J. at 199-201.
Because the judge did not address the Barker factors or find the relevant facts and because the judge entered an order that permits the State to re-indict defendant, which is impermissible after a dismissal based on a speedy trial violation, we vacate the order of dismissal and remand for consideration of defendant's application de novo. We express no opinion as to the proper balance of the Barker factors in this case. To avoid repetition of the errors on remand, we provide additional guidance on two points relevant to the delay in this case under the second Barker factor: 1) allocation of the shared responsibility for delay attributable to confusion about the significance of defendant's request to file a complaint against Brabant is relevant; and 2) delay attributable to the volume and management of the prosecutor's and court's calendars is weighed less heavily against the State than intentional delay but it is not irrelevant. Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.
Reversed and remanded. We do not retain jurisdiction.