{
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  "name": "Johnie Louis KILPATRICK, Petitioner, v. STATE of New Mexico, Respondent",
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    "judges": [
      "FEDERICI, C.J., SOSA, Senior Justice, and RIORDAN, J., concur.",
      "STOWERS, J., dissents."
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    "parties": [
      "Johnie Louis KILPATRICK, Petitioner, v. STATE of New Mexico, Respondent."
    ],
    "opinions": [
      {
        "text": "OPINION\nWALTERS, Justice.\nDefendant Kilpatrick was convicted of aggravated assault. The Court of Appeals affirmed the conviction and defendant petitioned this Court for a writ of certiorari. We reverse the Court of Appeals.\nThe sole issue raised in defendant\u2019s petition is whether the time period between his arrest and his indictment and trial must be considered in evaluating his speedy trial claim under the Sixth Amendment to the United States Constitution. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the United States Supreme Court answered that question affirmatively. \u201cThe speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nonetheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. \u201d Id. at 8, 102 S.Ct. at 1502 (emphasis added).\nIn the instant case, defendant posted a surety bond of $2500 on the day he was arrested, and lived under its \u201cimpairment of liberty\u201d and the cloud of \u201cunresolved criminal charges\u201d for almost a year before the indictment was filed. The indictment was later dismissed and he was reindicted two months later. Without stating any reasons, the trial court denied defendant\u2019s motion to dismiss the new indictment.\nMacDonald, which relies on a line of cases holding that the protections of the Sixth Amendment become applicable when \u201cthe putative defendant in some way becomes an \u2018accused\u2019____\u201d (United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971)), declares unequivocally, in repetition of Lovasco v. United States, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); and Marion, that the time between defendant\u2019s arrest and indictment must be considered.\nIn affirming defendant\u2019s conviction, the Court of Appeals focused first on dates of indictment and reindictment rather than upon the time between arrest and indictment, and then applied the \u201cactual restraint\u201d test outlined in State v. Tafoya, 91 N.M. 121, 570 P.2d 1148 (Ct.App.1977). Tafoya, because defendant had made no showing of actual restraint following his arrest, held that there had been no denial of the right to a speedy trial. In the instant case, defendant showed that he had been required to post a bond and bear the restrictions imposed upon one \u201caccused.\u201d Kilpatrick, therefore, carried the burden of showing \u201csubstantial impairment of liberty ... while released on bond,\u201d MacDonald, and of \u201csubjection to public obloquy ... and anxiety,\u201d Dillingham, for more than 15 months before he went to trial.\nDefendant correctly points out in his petition that Tafoya was based upon a misunderstanding of the facts of Marion. The Marion defendants were arrested and indicted on the same day. Their speedy trial objection was grounded on the three-year delay between the time of the crime and the date of \u201carrest and indictment. \u201d Thus, the Marion language quoted in Tafoya (91 N.M. at 123, 570 P.2d 1150) was meant to recognize a distinction between the time before the putative defendant became an \u201caccused,\u201d which is not to be considered, and the time after arrest and accusation, which MacDonald, 456 U.S. at 7, 102 S.Ct. at 1501; Lovasco, fn. 8 at 431 U.S. 789, 97 S.Ct. at 2048 fn. 8; Dillingham, 423 U.S. at 64-65, 96 S.Ct. at 303-304; and Marion, 404 U.S. at 320-321, 92 S.Ct. at 463-464, all insist shall be counted. Marion emphasized that the purpose of the Sixth Amendment was not intended, as commonly believed, solely to limit possibilities that delay would prevent, impair or prejudice the accused\u2019s ability to present a defense. Rather, \u201cmajor evils\u201d intended to be protected by the Sixth Amendment were to minimize interference that public arrest may cause \u201cwith the defendant\u2019s liberty, whether he is free on bail or not,\u201d and to avoid disruption of his employment, curtailment of his associations, subjection of defendant to obloquy, and creation of anxiety in him, his family and his friends. Marion, 404 U.S. at 320, 92 S.Ct. at 463.\nFinally,' contrary to the expression of the Court of Appeals, Tafoya cannot survive MacDonald untouched. Based as Tafoya presumably was on Marion and Lovasco, that case must be affected by the MacDonald ruling to the same extent Marion and Lovasco were. Although individual states may provide broader rights under state constitutions than those required by similar provisions of the United States Constitution, states are not free to restrict those rights to something less than as guaranteed under the federal charter. State ex rel. Serna v. Hodges, 89 N.M. 351, 356, 552 P.2d 787, 792 (1976).\nThe Court of Appeals is reversed and the matter is remanded to that court for reinstatement and assignment to the limited calendar, to determine whether defendant was prejudiced, or otherwise unduly subjected to Marion -listed interferences and disruptions, by the delay between arrest and indictment so as to warrant dismissal of the charges.\nIT IS SO ORDERED.\nFEDERICI, C.J., SOSA, Senior Justice, and RIORDAN, J., concur.\nSTOWERS, J., dissents.",
        "type": "majority",
        "author": "WALTERS, Justice."
      }
    ],
    "attorneys": [
      "Paul J. Kennedy, Albuquerque, for petitioner.",
      "Paul G. Bardacke, Atty. Gen., Santa Fe, for respondent."
    ],
    "corrections": "",
    "head_matter": "702 P.2d 997\nJohnie Louis KILPATRICK, Petitioner, v. STATE of New Mexico, Respondent.\nNo. 15673.\nSupreme Court of New Mexico.\nJuly 11, 1985.\nPaul J. Kennedy, Albuquerque, for petitioner.\nPaul G. Bardacke, Atty. Gen., Santa Fe, for respondent."
  },
  "file_name": "0052-01",
  "first_page_order": 90,
  "last_page_order": 92
}