Harrell v. State

• Decision Date: 02 June 1993
• Docket Number: No. 10A01-9208-CR-268,10A01-9208-CR-268
• Citation: 614 N.E.2d 959
• Parties: Danny HARRELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 959

614 N.E.2d 959

Danny HARRELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 10A01-9208-CR-268.

Court of Appeals of Indiana First District.

June 2, 1993.

Rehearing Denied Sept. 3, 1993.

William L. Francis, Medlock & Francis, Salem, Steven A. Gustafson, Fox & Cotner, New Albany, for appellant-defendant.

Pamela Carter, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

This is an interlocutory appeal from a criminal case. The operative facts show that Danny Harrell was charged with a criminal information in four felony counts on October 26, 1986. Harrell was arrested on February 29, 1992. Harrell subsequently moved to have the information dismissed pursuant to the Sixth Amendment speedy trial provisions. The trial court's denial of that motion is the basis of this appeal. The issue which requires reversal of the trial court ruling is stated as:

Whether the State denied Harrell his right to a speedy trial, where Harrell was arrested in February of 1992 but the information was filed in October of 1986.

We reverse.

This case comes to us as an interlocutory appeal from a pretrial motion, specifically a motion to dismiss. Our supreme court does not favor pretrial appeals in criminal cases. See Engle v. State (1984), Ind., 467 N.E.2d 712, 715. This court may, however, decide such appeals under certain circumstances. See Ind.Appellate Rule 4(B)(6). See e.g., Moran v. State (1985), Ind.App., 477 N.E.2d 100. Our docket shows that we accepted jurisdiction of this interlocutory appeal on September 21, 1992. ¹ We will The Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an "accused." United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. It is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of the speedy trial provisions of the Sixth Amendment. Id. Harrell became an "accused," for purposes of the speedy trial provisions, when the State filed the information against him on October 28, 1986. The State arrested Harrell on February 29, 1992, some five years and four months later.

now decide this case in order to address the impact of Doggett v. United States (1992), --- U.S. ----, 112 S.Ct. 2686, 120 L.Ed.2d 520, upon Harrell's claim that the events below denied him his federal constitutional right to a speedy trial. We do so because the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment and because that right applies to the states by virtue of the Fourteenth Amendment. Moore v. Arizona (1973), 414 U.S. 25, 27-28, 94 S.Ct. 188, 190, 38 L.Ed.2d 183 (quoting Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1); Smith v. Hooey (1969), 393 U.S. 374, 375, 89 S.Ct. 575, 576, 21 L.Ed.2d 607 (citing Klopfer, 386 U.S. 213, 87 S.Ct. 988).

When this Court considers a speedy trial claim based upon the delay between the filing of the information and the arrest of the accused, it applies the balancing test set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Kristek v. State (1989), Ind.App., 535 N.E.2d 144, 145 (citing Stewart v. State (1976), 170 Ind.App. 696, 354 N.E.2d 749). That test includes such factors as the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. In this balancing test, the conduct of both the prosecution and the defendant are weighed. Id. None of the four factors is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. Id. at 533, 92 S.Ct. at 2193.

I.

The length of the delay is, to some extent, the triggering mechanism; and the length of the delay that will provoke an inquiry into the other factors is necessarily dependent upon the peculiar circumstances of the case. Id. at 530, 531, 92 S.Ct. at 2192, 2192. To simply trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold which divides ordinary from "presumptively prejudicial" delay. Doggett, --- U.S. at ----, 112 S.Ct. at 2690. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Id.

In Barker, a murder case in which the government delayed the trial because the co-defendant, who was sought as a defense witness, had to be tried first, it was "clear that the length of the delay between arrest and trial--well over five years--was extraordinary." Barker, 407 U.S. at 533, 92 S.Ct. at 2193. In the present

case, the delay was also over five years. Moreover, the nature of the evidence is Harrell's word against the victim's word about what did or did not occur. There appears to be no evidence which corroborates the alleged victim's claims apart from her own statements. While such evidence would not be required to sustain a conviction to the charges, the absence of such evidence in this case supports our conclusion that the "extraordinary" length of the delay favors Harrell's claim and triggers the inquiry into the other factors. The extent to which the delay stretches beyond the minimum needed to trigger our examination will be implicitly included below in our examination of the other Barker factors.

II.

Closely related to the length of the delay is the reason the government assigns to justify the delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Here, the State claims it was unable to serve the arrest warrant because Harrell had moved around and was absent from the state for considerable periods of time. This does not appear to be a deliberate, bad faith attempt on the State's part to delay trial in order to hamper the defense; but it also does not appear to be a "valid reason" for delay, such as a missing witness. See id.

In support of his motion to dismiss, Harrell testified that he had moved from Indiana to California in 1985. The State had then filed the information against him in 1986. Harrell then had both returned to Indiana and moved back to California in 1986. He subsequently had returned to Indiana, had lived in Kentucky for a while, and had moved to Florida. He then had moved to North Carolina, and he had traveled back to Indiana at least twice since 1990 to visit family in New Albany and planned to continue to do so. Harrell presented evidence that he had not known about the 1986 charges until his arrest in 1992; and, therefore, he has initially shown that none of this delay is attributable to him. Although the record does not show that the State ever was aware of Harrell's presence in Indiana between the time it filed the information and arrested Harrell, the State also presented no evidence that it had attempted, with reasonable diligence, to serve the warrant or to find Harrell. We consider this reason for the delay a more neutral reason, which

should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Id. at 531, 92 S.Ct. at 2192. See also, Scott v. State (1984), Ind.App., 461 N.E.2d 141, 143 (The State's negligence in proceeding with the prosecution is a factor that must be considered along with the prejudice to the defendant). In short, the government is more to blame for the delay. See Doggett, --- U.S. at ----, 112 S.Ct. at 2690.

III.

Harrell asserted his right to a speedy trial shortly after his arrest. At the hearing on his motion to dismiss, Harrell stated that he had not known about the charges before his arrest. The State did not introduce evidence contrary to these positions. The State acknowledges that the third Barker factor, the defendant's assertion of his right, should be considered in Harrell's favor.

IV.

Prejudice should be assessed in the light of the interests of the defendant which the speedy trial right was designed to protect. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The Barker court identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Id. 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. Id. Further, the only one of these interests that applies in the present case is the last because Harrell was not subjected to pretrial incarceration and, inasmuch as he did not know about the charges, could not We first note the problem this case presents due to its procedural posture. Harrell appeals from the denial of his motion to dismiss the information. As mentioned, interlocutory appeals of denials of pretrial motions are not generally permitted. We believe this should especially be true of a motion to dismiss an information on speedy trial grounds because an interlocutory appeal necessarily interrupts the pretrial proceedings so that a speedy trial is even further delayed. The Supreme Court of the United States has declined to exacerbate pretrial delay in federal cases by intruding upon accepted principles of finality to allow a defendant whose speedy trial motion has been denied before trial to obtain interlocutory appellate review. United States v. MacDonald (1978), 435 U.S. 850, 863, 98 S.Ct. 1547, 1554, 56 L.Ed.2d 18. The resolution of a speedy trial claim necessitates a careful assessment of the particular facts of the case. Most speedy trial...