State v. Holtslander

¶1dissenting.

¶2The issue before us, as acknowledged by the Court’s opinion, is whether the trial court’s granting of the motion to dismiss1 was an abuse of discretion to the point of reversible error. The Court, so it seems to me, goes to great length in finding fault with the district court’s application of the Barker factors in only two instances: (1) with that court’s statement that the police did not use their “best efforts” to locate the defendant, and (2) with that court’s analysis of the prejudice factor. I find no error in either.

¶3One who reads the Court’s opinion without access to the trial court’s memorandum opinion might conclude that the trial court was totally unaware of Barker v. Wingo and the meaning and application of its four balancing factors. An examination of the trial court’s opinion shows not only that the trial court fully understood these factors, but also that it did not act improperly in granting the motion to dismiss.

¶4The trial court first dealt with the length of the delay, finding that under the circumstances of this case the nine month delay between the filing of the complaint and the arrest was sufficient “to trigger judicial inquiry and scrutiny of the defendant’s right to speedy trial.” This was primarily a factual question for the trial court, and one with which an appellate court ought not interfere. See e. g., Paine v. McCarthy, 527 F.2d 173 (9th Cir. 1975), cert. denied 424 U.S. 957, 96 S.Ct. 1437, 47 L.Ed.2d 363 (1976) (ten month delay); United States v. Fay, 505 F.2d 1037 (1st Cir. 1974) (nine month delay); State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977) (ten and a half month delay); State v. Willingham, 13 Or.App. 504, 510 P.2d 1339 (1973) (seven month delay).

¶5*316As to the reason for the delay, the trial court made well reasoned findings:

“The reason for the delay was disclosed by the testimony of Officer Cortez at the hearing on the motion to dismiss. The officer simply did not know the accused’s full name and was unable to locate him personally until in April, 1978. The defendant himself did nothing to occasion that delay.

“... Iam not persuaded that the officers used their best efforts in obtaining the true name of the defendant, nor determining his whereabouts, in light of his testimony that he remained in the general area. I find that the delay was unreasonable and not justified.”

¶6The prosecutor, in arguing a motion to reconsider, stated:

“Your Honor, I thought some of the things pointed out by the court in the memorandum opinion, I think the bottom line was that it felt that the police did not make reasonable efforts to locate and arrest Mr. Holtslander.” (Emphasis added.)

¶7In denying the state’s motion, the court noted the following:

“I realize that the factual situation here where the officer wanted to stay undercover and not let Mr. Holtslander know they were really looking for him was to their advantage because they could continue on with their narcotic surveillance and arrest without becoming known. It is just one of those gambles that they took in this particular case and it resulted in prejudice to Mr. Holtslander.

“One thing I didn’t mention in the opinion, Mr. Dutcher, and that was a curious situation. I believe it was Officer Carr (sic — Cortez) testified that he knew Mr. Holtslander by the name of “Lloyd” quite well. Perhaps this was because they had seen him a number of times at the same bar where they finally made the buy from him and then decided to get the warrant for his arrest, and. this was never answered in the evidence, it was just a matter of something curious in my mind. I wondered why, if they knew an individual frequented a certain location long enough that they would get to know him and buy some narcotics from him that, they weren’t able to go back to that same location and find him again. I just couldn’t quite believe that Mr. Holtslander after he made this sale stopped going to the same neighborhood bar that he was used to going to when he was not aware that anyone was going to arrest him.

“I did give this a considerable amount of thought, Mr. Dutcher, and I certainly31 am not trying to throw road blocks in the way of the police in this area in trying to curtail the narcotics activities, but I think in this particular case they just didn’t go about it in a proper enough fashion to also accord the defendant some sort of a semblance of defense in being able to prepare his own case, so I’m going to deny the motion to reconsider.” (Emphasis added.)

¶8The Court’s statement that “[ijmplied in the trial court’s standard is the requirement that the police perform to its highest degree and take all of the most desirable actions possible in locating the defendant” is not substantiated, as the statement by the prosecutor well shows. To the contrary, read in context, the trial court imposed only a requirement of due diligence, a requirement it found the police did not meet. It simply cannot be said that the trial court was imposing the highest degree of diligence on the police. The police did have an address (an address which appeared on Holtslander’s driver’s license), they did talk to his roommate, they did know the bar he frequented, but they were unable to get a last name and locate him. As noted by the trial court, Holtslander made no attempt to conceal his whereabouts. An examination of cases from other jurisdictions that have held the delay to be unjustified, e. g., Jones v. Superior Court, 3 Cal.3d 734, 91 Cal.Rptr. 578, 478 P.2d 10 (1970); State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977); State v. Willingham, 13 Or.App. 504, 510 P.2d 1339*317(1973), and justified, e. g., People v. Hannon, 19 Cal.3d 588, 138 Cal.Rptr. 885, 564 P.2d 1203 (1977); People v. McDaniels, 53 Misc.2d 611, 279 N.Y.S.2d 574 (County Ct.1967); Petschauer v. Sheriff, 89 Nev. 328, 512 P.2d 1325 (1973), shows only that the circumstances of each case so differ one from the other that each case must be decided on its own facts. Perhaps the facts of this case present a close question, upon which a different trial judge might have ruled otherwise. Even so, it cannot be said that this trial court, which was the finder of fact, erred in finding that the delay was not reasonable.

¶9The third factor considered by the trial court is the assertion by the defendant of his right to a speedy trial. Here the trial judge was well aware that seven months had elapsed before defendant asserted his right, but observed also that part of that time passed while defendant was acquiring counsel: “[u]nder the circumstances I cannot find that the defendant waited an undue length of time before testing the speedy trial issue .... ” This was a trial court’s factual determination. See Estrada v. State, 611 P.2d 850 (Wyo.1980) (failure to assert right largely mitigated by fact that counsel was not appointed for eight months).

¶10The final factor to be considered is that of prejudice. The court, after noting that defendant did not assert any actual prejudice, stated the following:

“Here the defendant was arrested one year after the alleged offense. No doubt the law enforcement personnel had the State’s case prepared at the time the complaint was filed, less than three months after the incident. Now in all fairness, can we expect the defendant, in light of a years delay caused by the officers, to properly prepare his defense at the time of his arrest, locating and interviewing witnesses, attempting to recall facts, times, dates, places and people, a year after the commission of the crime? I think not, this hindrance could result in nothing but prejudice to the defendant.”

¶11In so holding, the court cited three cases for the proposition that prejudice may be presumed where there is an unreasonable delay. Olson v. State, 92 Idaho 873, 452 P.2d 764 (1969); Richerson v. State, 91 Idaho 555, 428 P.2d 61 (1967); Jones v. Superior Court, 3 Cal.3d 734, 91 Cal.Rptr. 578, 478 P.2d 10 (1970). As stated in Jones, and quoted by the trial court:

“Petitioner was clearly prejudiced. The most obvious prejudicial effect of the long prearrest delay was to seriously impair his ability to recall and to secure evidence of his activities at the time of the events in question. ‘Delaying the arrest of the accused may hinder his ability to recall or reconstruct his whereabouts at the time the alleged offense occurred. As stated by the dissent in Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705, 710, “The accused has no way of knowing, to say nothing of proving, where he was at the time and on the day the policeman says his diary shows he made a sale of narcotics to the policeman” ’ (People v. Wright, supra, 2 Cal.App.3d 732, 736, 82 Cal.Rptr. 859, 861.) Although petitioner knew in June 1968 that the police suspected him of a narcotics offense, he did not know when or how they believed the crime was committed, and since at this state of the proceedings the case has not been tried and he must be presumed to be innocent, we cannot assume that he knew the details of the crime charged from his commission of it.... Petitioner was not in hiding and his whereabouts could have been discovered by a routine, uncomplicated investigation. In far less time than 19 months he could have reasonably assumed that the police no longer had an interest in him.

“The delay was clearly unreasonable. It advanced no proper police purpose. The ‘buy program’ was completed and formal charges had been filed. No additional witnesses were being sought, and petitioner could have readily been promptly located and arrested.” Id.478 P.2d at 14.

¶12*318Justice Brennan expressed similar sentiments in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970):

“Although prejudice seems to be an essential element of speedy-trial violations, it does not follow that prejudice— or its absence, if the burden of proof is on the government — can be satisfactorily shown in most cases. Certainly, as the present case indicates, it can be established in some instances. It is obvious, for example, if the accused has been imprisoned for a lengthy period awaiting trial, or if the government has delayed in clear bad faith. But concrete evidence of prejudice is often not at hand. Even if it is possible to show that witnesses and documents, once present, are now unavailable, proving their materiality is more difficult. And it borders on the impossible to measure the cost of delay in terms of the dimmed memories of the parties and available witnesses. As was stated in Ross v. United States, 121 U.S.App.D.C. 233, 238, 349 F.2d 210, 215 (1965): ‘[The defendant’s] failure of memory and his inability to reconstruct what he did not remember virtually precluded his showing in what respects his defense might have been more successful if the delay had been shorter. … In a very real sense, the extent to which he was prejudiced by the Government’s delay is evidenced by the difficulty he encountered in establishing with particularity the elements of that prejudice.’ ....

“Despite the difficulties of proving, or disproving, actual harm in most cases, it seems that inherent in prosecutorial delay is ‘potential substantial prejudice,’ United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926 [1932] 18 L.Ed.2d 1149 (1967), to the interests protected by the Speedy Trial Clause. The speedy-trial safeguard is premised upon the reality that fundamental unfairness is likely in overlong prosecutions. We said in Ewell, supra, 383 U.S. [116] at 120, 86 S.Ct. [773] at 776 [15 L.Ed.2d 627] that the guarantee of a speedy trial ‘is an important safeguard … to limit the possibilities that long delay will impair the ability of an accused to defend himself,’ and Judge Frankel of the District Court for the Southern District of New York has stated that ‘prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years.’ United States v. Mann, 291 F.Supp. 268, 271 (1968).

“Within the context of Sixth Amendment rights, the defendant generally does not have to show that he was prejudiced by the denial of counsel, confrontation, public trial, and impartial jury, knowledge of the charges against him, trial in the district where the crime was committed, or compulsory process. Because potential substantial prejudice inheres in the denial” of any of these safeguards, prejudice is usually assumed when any of them is shown to have been denied. Because concrete evidence that their denial caused the defendant substantial prejudice is often unavailable, prejudice must be assumed, or constitutional rights will be denied without remedy. Prejudice is an issue, as a rule, only if the government wishes to argue harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). When the Sixth Amendment right to speedy trial is at stake, it may be equally realistic and necessary to assume prejudice once the accused shows that he was denied a rapid prosecution.” Id.398 U.S. at 53-55, 90 S.Ct. at 1576-1577. (Brennan, J., concurring).

¶13Although some courts indulge in the sport of requiring a defendant to show actual prejudice, see, e. g., State v. Knapp, 123 Ariz. 402, 599 P.2d 855 (Ariz.App.1979); Jones v. State, 595 P.2d 1344 (Okl.Cr.App.1979), I would agree with that written in Jones v. Superior Court, supra,and Dickey v. Florida, supra.Where the delay is unreasonable, a defendant should not be saddled with the task of demonstrating actual prejudice.

¶14I do agree with this Court’s philosophy that where no attempt is made to demon*319strate any prejudice, that factor should not be given undue weight. Yet nothing in the record before us today indicates in the slightest that the trial court unduly weighted the prejudice factor any more than by observing that “this hindrance could result in nothing but prejudice to the defendant.” The trial court sufficiently explained its reasoning, and I find nothing to be gained by now requiring that it be done a second time.

¶15Finally, then, it is necessary to consider whether the trial court incorrectly balanced the pertinent factors. The trial court stated:

“Considering this matter ad hoc and balancing all of the pertinent factors, I find that the defendant has been denied his constitutional right to speedy trial and his motion is well taken.”

¶16It is thus obvious that the length of the delay, the reason for the delay and the prejudice to the defendant were all considered, properly weighed, and the state did not prevail. That the decision went against the state ought not to be viewed as grounds for reversal.