
    THE PEOPLE OF THE TERRITORY OF GUAM v. JOHN C. DELA ROSA, Defendant
    Criminal Case No. 116F-78
    Superior Court of Guam
    August 16, 1978
   ABBATE, Presiding Judge

DECISION

This matter comes before the Court on defendant’s Motion to Dismiss, which is based upon his Sixth Amendment right to a speedy trial and upon § 80.60(a)(2) of the Criminal Procedure Code of the territory of Guam. Section 80.60(a) (2) states that:

(a) Except as otherwise provided in Subsection (b), the court shall dismiss a criminal action if: * * * (2) The trial of a defendant, who is in custody at the time of his arraignment, has not commenced within forty-five days after his arraignment. . . .

Defendant was arraigned on June 9,1978, and trial commenced on August 10, 1978. There was thus a sixty-two-day period between arraignment and trial. However, dismissal of a criminal action under § 80.60(a)(2) is not mandatory. Rather, it is qualified by § 80.60(b), which provides in pertinent part:

(b) A criminal action shall not be dismissed pursuant to Subsection (a) if: * :|: * (3) Good cause is shown for the failure to commence the trial within the prescribed period. (Emphasis added.)

This court finds that there was good cause for not commencing the trial within the period prescribed by § 80.60(a)(2), in that a key prosecution witness, Ms. Yamato, was unavailable to testify due to injuries she suffered as a victim of the alleged crime. This being the case, defendant’s motion must be denied insofar as it is based upon § 80.60(a) (2) of the Criminal Procedure Code.

The delay occasioned by Ms. Yamato’s unavailability also causes defendant’s Sixth Amendment challenge to fail. The U.S. Supreme Court, in Barker v. Wingo, 407 U.S. 381, 92 S.Ct. 2182 (1972), clearly stated:

[A] valid reason, such as a missing witness, should serve to justify appropriate delay. 92 S.Ct. at 2192 (emphasis added).

For the aforementioned reasons, defendant’s motion is hereby denied.

SO ORDERED.  