State of New Hampshire v. Nathan Souther

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0465, State of New Hampshire v. Nathan
Souther, the court on April 2, 2020, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Nathan Souther, appeals an order of the Circuit Court
(LeFrancois, J.) denying his motion to dismiss the misdemeanor charges
against him because he was denied his right to a speedy trial under the New
Hampshire and Federal Constitutions. We first address the defendant’s claim
under the State Constitution and rely on federal law only to aid in our analysis.
State v. Ball, 124 N.H. 226, 231-33 (1983).

The defendant was arrested on September 10, 2017 and tried over four
separate days. He represents that the first two days, May 22, 2018 and August
23, 2018, were devoted to his motion to suppress his field sobriety tests. The
State represents, and the defendant does not contest, that the testimony from
these hearings was “adopted” into the trial record. The defendant represents
that the second two days, March 21, 2019 and May 28, 2019, constituted his
trial. The trial court took the matter under advisement after the last day of
trial so it could review the evidence. It found the defendant guilty of driving
under the influence on June 18, 2019, by clerk’s notice dated June 24, 2019.

To determine whether a defendant’s right to a speedy trial has been
violated under the State Constitution, we balance four factors: (1) the length of
the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right
to a speedy trial; and (4) the prejudice to the defendant caused by the delay.
State v. Brooks, 162 N.H. 570, 581 (2011). The length of the delay must be
presumptively prejudicial to trigger consideration of the other factors. Id.; see
State v. Allen, 150 N.H. 290, 294 (2003) (stating that when defendant is
charged with misdemeanor and not jailed, pre-trial delay of six months is
presumptively prejudicial). We place substantial emphasis on the last two
factors. Brooks, 162 N.H. at 582. We defer to the trial court’s factual findings,
unless those findings are clearly erroneous, and consider de novo the court’s
conclusions of law. Id. at 581.

In this case, approximately 21 months elapsed between the defendant’s
arrest on charges of driving under the influence, see RSA 265-A:2 (2014), and
reckless driving, see RSA 265:79 (Supp. 2019), and his conviction, following a
bench trial, of driving under the influence. Neither the State nor the defendant
sought or engendered continuances; the cause of this delay was “the
vicissitudes of scheduling” in an overburdened court, which does not weigh
heavily against the State. See Allen, 150 N.H. at 294.

The defendant asserted his right to a speedy trial twice, but did not do so
frequently or consistently. Cf. State v. Langone, 127 N.H. 49, 55 (1985)
(stating that defendant consistently asserted right to speedy trial when, in
space of three months, he objected to two of State’s requests for continuance
and moved to dismiss for lack of speedy trial). At the outset of the case, the
defendant’s attorney “asserted” the defendant’s right to a speedy trial in a cover
letter to the court transmitting his appearance.

The record does not reflect that the defendant objected: (1) when his
trial, which was scheduled for three hours, received only one hour of the
court’s time; or (2) when, after the defendant waited approximately four more
months for another trial date, the trial court sua sponte rescheduled his trial
for six months later and did not specially assign it. Similarly, when the trial
court ordered the parties to notify it immediately if they required more than one
hour for trial, the record does not reflect that the defendant responded.
However, the trial was continued for approximately two months after that
hearing date because it was not completed in that time. The record reflects
that the defendant asserted his right to a speedy trial for a second time when
he moved to dismiss approximately two weeks before the trial was scheduled to
commence and approximately 18 months after his arrest.

The defendant argues that: (1) “excessive delay presumptively
compromises the reliability of a trial in ways that neither party can prove or, for
that matter, identify,” State v. Locke, 149 N.H. 1, 9 (2002) (addressing 55
month delay from arrest to start of trial); and (2) “the delays and piecemeal
presentation of trial evidence [ ] caused [the] memories of parties, including the
Court, to be detrimentally affected.” However, we typically require a defendant
to demonstrate actual prejudice from a delay to prevail on a speedy trial claim.
Id. at 8.

The defendant does not address whether the length and reason for the
delay weigh so heavily in his favor that he need not demonstrate specific
prejudice. Id. Instead, he merely asserts a general impediment to memory, but
“the dimming of memories alone is insufficient to constitute prejudice for
purposes of a speedy trial claim.” Id. at 10 (quotation omitted). Furthermore,
in this case, any concern regarding the fact-finder’s memory was resolved when
the trial court took time to review the evidence before convicting the defendant.
When the State pursues a defendant with “reasonable diligence,” then a speedy
trial claim is likely to fail, regardless of the length of delay, as long as the
defendant, like here, cannot show specific prejudice to his defense. Id. at 9.

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 Upon this record, after balancing the requisite factors, we conclude that
the defendant was not denied his right to a speedy trial. See Brooks, 162 N.H.
at 581. Because the Federal Constitution is no more protective of the
defendant’s rights than the State Constitution under these circumstances, see
id. at 584, we reach the same conclusion under the Federal Constitution.

Affirmed.

Hicks, Bassett, and Hantz Marconi, JJ., concurred.

Timothy A. Gudas,
Clerk

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