Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2019-0503

January 11, 2022

Affirmed

 

  • Whether the trial court erred in denying defendant’s pretrial motions to dismiss his drug enterprise leader (DEL) charge for (1) lack of speedy trial and (2) violation his right to due process.

 

In 2016, defendant was the leader of a drug-dealing entity in Manchester.  Defendant supplied drugs sold by the gang and its members.  A dispute arose with a rival gang, and defendant directed his associates to conduct shootings against the rival gang supplying his associates with weapons and compensating them for carrying out the shootings. Police executed a warrant to search an apartment that served as the gang’s headquarters, where they found illegal drugs and arrested several gang members. Defendant was arrested, charged, plead guilty to one count, and served an approximately three month sentence.

In June 2017, defendant was arrested again after the police executed a search warrant for a different apartment where defendant was present, and in which they found illegal drugs.  Between September 2017 and June 2018, defendant was charged in four separate indictments on numerous counts of drug offenses, assault, human trafficking, witness tampering, charges related to shootings, and the DEL charge.  Prior to trial, the dockets were severed, and the State ultimately proceeded with the docket containing the shooting charges first.  The State eventually nolle prossed the charges in the third docket and chose to proceed to trial on the charges in the second docket, which contained the DEL charge.  The State sought to continue the trial date, but defendant objected, and the trial court denied the State’s motion.  The State nolle prossed the charges on the second docket.

In January 2019, the State reindicted the defendant on some of the charges from the third docket and secured another DEL indictment.  Seventy-two indictments, including the DEL charge, were combined into one docket and trial was scheduled for May 2019. Two weeks before trial, defendant moved to dismiss the DEL charge, citing a violation of his speedy trial rights.  The trial court determine his speedy trial rights were not violated.  Defendant filed a second motion for dismissal of the DEL charge as violating his due process rights since it arose out of the same transaction related to his November 2016 plea agreement.  The trial court denied that motion, ruling that his DEL charge did not arise from a single criminal episode and a discrete set of facts, but rather a broad-ranging conspiracy.  Defendant was convicted of fifty-three of the charges, including the DEL indictment.  Defendant appealed.

The Court applied the four-part test from Baker, 407 U.S. at 530, to analyze defendant’s speedy-trial claim: (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his rights to a speedy trial, and (3) prejudice to defendant caused by the delay.  The Court found that the sixteen-month delay was presumptively prejudicial and moved on to analyze the remaining three factors.  Analyzing the second factor, the trial court had found that there was an informal agreement between the parties as to the delay.  The Court disagreed but still found the defendant partially responsible for the delay due to his preference to sever the dockets.  The Court also found that defendant failed to assert his speedy trial rights in response to the State not setting the DEL charge for trial.

Analyzing the third factor, the Court found that because defendant had waited to assert his speedy trial rights until the eve of trial on that charge, while that factor weighed in his favor, it did not do so heavily.  Analyzing the fourth factor, the Court found that the prejudice suffered by defendant, including oppressive pretrial incarceration, anxiety, or an impaired defense, did not weigh in his favor because he was incarcerated on numerous open criminal dockets, and given his preference to sever the dockets, he would have waited for many months for all charges to be resolved.  Because defendant did not demonstrate actual prejudice, and because the factors did not weigh heavily in his favor, the Court affirmed the trial court.

Relying on Lordan, 116 N.H. 479, defendant argued his due process rights were violated when the State reindicted him on the DEL charge, as the charges arose from the same facts underlying his 2016 plea agreement.  The Court disagreed, as the facts underlying the DEL indictment included criminal conduct not related to his 2016 plea and was linked to all the charges joined against him for trial in May 2019.  The Court concluded that defendant’s due process rights were not violated.

 

John M. Formella, attorney general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, Concord (on the brief and orally), for the defendant.