State v. Whiting

[This opinion has been published in Ohio Official Reports at 

.]




            THE STATE OF OHIO, APPELLEE, v. WHITING, APPELLANT.
                      [Cite as State v. Whiting, 

.]
Criminal law—Indictment properly dismissed by trial court when defendant
        presents evidence establishing substantial prejudice resulting from
        preindictment delay and state fails to produce evidence of a justifiable
        reason for the delay.
    (No. 97-2162–Submitted October 13, 1998–Decided December 30, 1998.)
       APPEAL from the Court of Appeals for Miami County, No. 96-CA-13.
                                  __________________
        {¶ 1} Deborah L. Prince was found dead in an Ohio cemetery in 1981.
Though the police investigation pointed to Terry Lee Whiting, Prince’s live-in
boyfriend, he was not indicted for the murder until fourteen years later.
        {¶ 2} Whiting moved to dismiss the indictment, arguing that the fourteen-year preindictment delay substantially prejudiced his defense and that the state had
no justifiable reason for the delay. At the hearing on the motion, Whiting offered
evidence that the loss of crucial exculpatory physical evidence prejudiced his ability
to defend against the charge. Whiting also argued that potential defense witnesses
had died, had suffered mentally debilitating illnesses, or could not be located. The
state cross-examined witnesses and offered two exhibits on the issue of prejudice,
but neither the state nor Whiting presented evidence about the reason for the
fourteen-year delay.
        {¶ 3} The trial court permitted both parties to file posthearing memoranda
regarding the motion to dismiss. In his memorandum, Whiting contended that his
motion should be granted because he had demonstrated substantial prejudice arising
from the delay and the state had failed to offer any justification for its delay in
indicting him. The state, however, argued that the burden was on Whiting to show
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that the period of delay was unjustifiable and that Whiting had “presented
absolutely no evidence as to the reasons for the delay in the indictment.”
         {¶ 4} The trial court overruled Whiting’s motion to dismiss, holding that
Whiting bore the burden of going forward not only to show substantial prejudice
from the delay, but also to show negligence or bad faith on the part of the state.
The trial court found that, although Whiting had demonstrated actual substantial
prejudice, he had presented no evidence to establish the state’s negligence or bad
faith.
         {¶ 5} At the ensuing trial, the jury failed to return a verdict, and the trial
court declared a mistrial. At that juncture, the trial court agreed to reconsider
Whiting’s motion to dismiss.
         {¶ 6} On reconsideration, with the benefit of the testimony from the
hearing, the evidence from trial, and the parties’ memoranda, the trial court granted
Whiting’s motion to dismiss. This reconsidered decision set forth a different
burden-shifting scheme than the court used for its initial decision when it denied
the motion to dismiss. Citing cases from the United States Supreme Court and the
Supreme Court of Ohio, the trial court determined that after a defendant establishes
actual prejudice, the state has the burden to submit a justifiable reason for a delay.
The trial court found that Whiting had produced evidence demonstrating actual
substantial prejudice as a result of the delay and that the state had failed to produce
any evidence to explain the delay.
         {¶ 7} On appeal, the state argued that the trial court erred in dismissing the
indictment because the burden of producing evidence that the delay was
unjustifiable was on Whiting. The state argued alternatively that, even if the burden
was on the state, the state justifiably relied, to its detriment, on the trial court’s
contrary decision earlier in the case that Whiting had the burden, and the state
therefore should have another chance to explain the delay on remand for a new trial.




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       {¶ 8} The Miami County Court of Appeals determined that the only point
in dispute on appeal was which party bears the burden to demonstrate a justifiable
reason for a delay between the commission of an offense and an indictment and
concluded that the state, in fact, does have the burden. The court of appeals,
however, additionally decided that, because the trial court led the state to
understand that the burden was Whiting’s, the matter should be remanded to
provide the state an opportunity to meet its burden. The court of appeals, therefore,
reversed the trial court’s judgment and remanded the case, stating: “On rehearing,
the State will have the burden of producing evidence showing why the preindictment delay occurred, but the burden remains on Whiting to persuade the court
that the delay was unjustifiable.”
       {¶ 9} The cause is now before this court upon the allowance of a
discretionary appeal.
                                     __________________
       James D. Bennett, Miami County First Assistant Prosecuting Attorney, for
appellee.
       Sirkin, Pinales, Mezibov & Schwartz, Martin S. Pinales and John
Feldmeier, for appellant.
                                     __________________
       COOK, J.
       {¶ 10} We confirm today our earlier pronouncement in State v. Luck (1984),

, 15 OBR 296, 

, that where a defendant moves
to dismiss an indictment and presents evidence establishing substantial prejudice
resulting from preindictment delay, the state bears the burden of producing
evidence of a justifiable reason for the delay. According to the Luck burden-shifting analysis, the trial court here erred when it denied defendant’s motion to
dismiss. Because the evidence presented at the hearing on the motion entitled the
defendant to a dismissal of the indictment, the later proceedings in this case do not




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support a reversal and remand to allow the state another opportunity to submit
evidence to the court of a justifiable reason for the fourteen-year delay.
        {¶ 11} In Luck, this court used the test set forth in United States v. Marion
(1971), 

, 

, 

, and United States v. Lovasco
(1977), 

, 

, 

, to determine when an
indictment should be dismissed due to an unreasonable preindictment delay. Luck,

, 15 OBR at 299, 302-303, 

. The Lovasco court burdened the defendant with establishing actual
prejudice from the delay and charged the government with the burden of producing
evidence of a justifiable reason for the delay. Accordingly, Luck requires first that
the defendant produce evidence demonstrating that the delay has caused actual
prejudice to his defense. Luck, 

, 15 OBR at 302-303, 

. Then, after the defendant has established actual prejudice,
the state must produce evidence of a justifiable reason for the delay. 

, 15
OBR at 303, 

. “[T]he prejudice suffered by the defendant must
be viewed in light of the state’s reason for the delay.” 

, 15 OBR at 299,

, citing Lovasco, 

, 

,

. This court has not disturbed the test utilized in Luck, and it
is well-settled law in Ohio courts.1
        {¶ 12} Despite the teachings of Luck, the state did not present any evidence
at the hearing of a justifiable reason for its delay in indicting Whiting. In its
posthearing memorandum, the state argued, against established law, that Whiting
had the burden to explain the delay. It was at that point that the trial court should


1. See, e.g., State v. Ellis (May 30, 1997), Montgomery App. No. 15963, unreported, 

; State v. Davis (Apr. 15, 1997), Richland App. No. 96-CA-78, unreported, 

; State v. Glazer (1996), 

, 

; State v. Doksa (1996), 

, 

; State v. Stickney (Dec. 7, 1994), Montgomery App. No. CA
14232, unreported, 

; State v. Burrell (Apr. 28, 1989), Portage App. No. 1948,
unreported, 

; State v. Smith (Feb. 19, 1985), Franklin App. No. 84AP-785,
unreported, 

.




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have dismissed the indictment because it found, in accordance with Luck, that
Whiting had demonstrated actual substantial prejudice. With that finding and with
no evidence from the state explaining the delay, the defendant was entitled to a
dismissal. Because the court eventually properly dismissed the indictment, albeit
after a mistrial, that dismissal should be affirmed.
       {¶ 13} The state persuaded the court of appeals, however, that the initial
erroneous ruling by the trial court regarding the burden of going forward misled the
state in the succeeding proceedings and that the trial court’s judgment therefore
should be reversed and the case remanded for a new hearing. But since the state’s
misstep on the production of evidence occurred before the trial court expressed its
view that the state had no burden of going forward, the state may not claim to have
been misled by the court’s erroneous ruling. The state rested at the hearing without
offering the evidence required by Luck to counterbalance defendant’s showing of
prejudice resulting from the delay.
       {¶ 14} Accordingly, we reverse the judgment of the court of appeals and
reinstate the trial court’s dismissal of Whiting’s indictment.
                                                                 Judgment reversed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
                               __________________




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