Scott v. State

¶1dissenting.

¶2My dissent, unlike Gaul, is divided into two parts. First, the application of the speedy trial balancing test enunciated in Barker v. Wingo, (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, requires an affirmance of the trial court’s denial of Scott’s motion to dismiss1 because there is no legal basis for altering the well-settled principle that the defendant must bear the burden of proof of any prejudice accruing to his defense. Second, there is no legal basis for transforming the admittedly valid presumption that prejudice is not inherent in the mere passage of time into a directly contrary presumption.

¶3It is true that the seven-year delay between the issuance of the warrant and Scott’s arrest triggers a Barkertype analysis. So Scott’s failure to assert his speedy trial right before his arrest is of no moment inasmuch as his uncontradicted testimony shows that he was unaware of the pending charge. And, as the majority concedes, though the State was lax in following up on the warrant issued for Scott, no bad faith is evidenced on the part of the State.

¶4The majority would shift the burden of proof of prejudicial delay to the State. The law is well settled that the burden of showing prejudicial delay is upon the defendant. McKrill v. State, (1983) Ind., 452 N.E.2d 946; Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745; Terry v. State, (1980) Ind.App., 400 N.E.2d 1158, trans. denied. In Terry, supra,the defendant’s speedy trial claim was rejected, despite a two and one-half-year delay between the issuance of the warrant and his arrest, because there was no showing that the defendant was actually prejudiced by the delay. The mere passage of time is not the crucial factor. The critical consideration is whether prejudice to the defense accrues as a result of a delay. Indeed, there is a general presumption against the mere passage of time prejudicing a defendant. Yet, the majority now concludes that a delay may be so long that a new presumption of prejudice arises full-blown to replace the general presumption of nonprejudice. Our inquiry under Barker, supra,must be concerned with the qualitative prejudice resulting from delay, not the quantity of delay involved.

¶5The majority utilizes the statute of limitations as a benchmark for establishing when prejudice may be presumed. But the legislature has eliminated any such borrowing by the specific language used. The time period ceases to run at “the date of filing of an indictment, information, or complaint before a court having jurisdiction.” Ind.Code 35-41-4-2(e)(l) (1976) (emphasis supplied).

¶6The Supreme Court has identified the concerns which should confront a tribunal attempting to assess prejudice caused by delay:

“This Court has identified three such interests: (i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. *147There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.”

¶7Barker, supra,407 U.S. at 532, 92 S.Ct. at 2193 (emphasis supplied).

¶8Mindful of these cautions, it is my assessment that Scott has failed to prove any actual prejudice to his defense. He has not shown that his defense was in any manner impaired. His motion to dismiss raised two allegations of prejudice. They are that the victim would be unavailable for trial and that he could not recall or reconstruct the events of the day of the offense. Both assertions were groundless. The victim, S.G.W., appeared at the hearing on the motion to dismiss and affirmed her willingness to appear at trial. S.G.W. did, in fact, appear at trial and was subjected to vigorous cross-examination by Scott’s attorney. Though he claims he could not remember the specific events of the day in question, Scott was able to recall that he owned a blue and white pickup truck with a white camper shell, that his brother had an identical truck, that he and his brothers had a scheme to use one license plate (the number of which matched the number copied by S.G.W.) for several trucks, and that he was employed. The comments of Judge Sullivan, addressing a speedy trial claim in Springer v. State, (1978) 175 Ind.App. 400, 372 N.E.2d 466, are pertinent:

“No facts are set forth supporting the assertion that ... [his] defense was impaired or that he was otherwise prejudiced. The record does not contain the names of allegedly missing witnesses nor the probable substance of their testimony. Indeed, a review of the transcript of testimony reveals but few lapses of memory, none of which related to an essential issue of the charge. We conclude that the delay in this case did not affect ‘the integrity of the fact finding process’.”

¶9Id. at 407, 372 N.E.2d at 471. Scott has failed to carry his burden of showing any actual prejudice to his defense.

¶10So, I conclude the majority’s application of a reversed presumption of prejudice and an altered burden of proof is without support in case law or statute. My analysis of the relevant factors under Barker, including Scott’s failure to prove any demonstrable prejudice to his defense, leads to a conclusion opposite that reached by the majority. I would affirm the decision of the trial court.2