First, the fact that the trial court had known Ladner for a longer period of time than it had known defense counsel is not very helpful. The record fails to show that the court used this information to make a credibility determination between Ladner and defense counsel's testimony. The record is absent of an explicit finding concerning Ladner and defense counsel's credibility. Moreover, the court stated that it had no reason to question defense counsel's forthrightness.
Second, the trial court's finding that Ladner was very conscientious about the allocation of speedy trial time is not helpful either. For example, Ladner testified that when she set two or more trials to start on the same date, the case that would be given preference would be the one that was close to violating a speedy trial rule. Because the State did not try Gore on November 14, 2005, this would imply, at least based on Ladner's preference in trying cases, that Ladner did not believe Gore's case was close to a speedy trial violation. In fact, the record indicates that on November 14, 2005, the State would have been responsible for 88 days of the speedy trial period after Gore's arraignment. Consequently, on November 14, 2005, the State still had 92 days in which to bring Gore to trial within the 180-day speedy trial rule.
Third, what Ladner would have done had the State requested the continuance is a supposition–not a fact.
Fourth, the trial court's finding that defense counsel appeared in court and requested the continuance is also not determinative based on the record of the proceedings. For example, one record stated that the continuance should be attributed to Gore and another record stated that the continuance should be attributed to the State. Since the record of the proceedings is inconclusive as to whether Gore or the State caused the delay, the trial court's findings are inadequate to conclude that Gore had caused the delay.
The State booked Gore's trial for aggravated criminal sodomy and aggravated indecent liberties with a child for November 14, 2005. Yet, the State chose instead to try another case. The obligation is upon the State and the court to commence the trial within the statutory period, unless a clear record is made showing that the delay in bringing a defendant to trial was caused by the fault of the defendant. The record, however, fails to show who was clearly responsible for Gore's rain check, i.e., the continuance on November 14, 2005. Although one of Gore's defense attorneys accepted the January 9, 2006, trial setting, his acceptance is neither an acquiescence to a continuance nor the equivalent of a waiver of Gore's statutory right to a speedy trial.
Our 180-day speedy trial rule operates like a statute of limitations. The State, not Gore, was responsible for ensuring that Gore was tried before the statutory speedy trial deadline expired. Gore had no duty to bring himself to trial.These are sort of odd cases, because the appellate courts usually review de novo, but that review in many case is based upon a factual record. Where there is a poorly developed record, as in this case, the appellate court correctly held it against the state.
Nice to see a Gore get justice from an appellate court.
[Update: the state filed a PR on July 3, 2008].
[Further update: on April 9, 2009, the KSC granted the state's PR and remanded to the COA for reconsideration in light of State v. Vaughn, No. 98,840 (Jan. 30, 2009), which itself remanded a case to the district court for factual determinatins on whether defendant had acquiesced to a critical continuance.]
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