Scott v. State

• Decision Date: 28 March 1984
• Docket Number: No. 2-383A92,2-383A92
• Citation: 461 N.E.2d 141
• Parties: Calvin Jearle SCOTT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 141

461 N.E.2d 141

Calvin Jearle SCOTT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-383A92.

Court of Appeals of Indiana,

Second District.

March 28, 1984.

Sheila Suess Kennedy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Defendant-appellant, Calvin Jearle Scott (Scott), appeals his jury conviction of rape ¹ alleging the trial court erred in its denial of his motion to dismiss and its rejection of his tendered instructions, and claiming insufficiency of the evidence. ²

We reverse.

The facts most favorable to the State reveal that on September 19, 1974, S.G.W. was hitchhiking along an Indianapolis street. Scott and two other men in a blue pickup truck with a white camper shell offered S.G.W. a ride. Despite their promise to drive S.G.W. to her home, the men took her to a secluded wooded area in northern Marion County and raped her. The men then drove S.G.W. to her neighborhood and released her.

Within one week of the incident, S.G.W. was contacted through the phone number she had given her assailants upon their demand after the rape. A meeting was arranged where Marion County Sheriff's Department Detective John Ashton (Ashton) confronted the caller, Hobart Davidson (Davidson). Davidson was not one of the rapists, but testified he obtained the phone number from one of Scott's brothers.

An information charging Scott with rape was filed on February 26, 1975. Scott was arrested on June 1, 1982. The court held a hearing on Scott's motion to dismiss the charge on July 6, 1982. At the hearing, Scott testified he had lived in the Indianapolis area for eighteen years, he could not recall specific events of the date in question but he did not commit the crime charged, ³ and he was arrested when he went to pay a fine, as he had done numerous times over the last year. S.G.W. appeared and testified she was ready and willing to appear on behalf of the prosecution at trial. Scott's motion to dismiss was denied. The case was tried to a jury, Scott was convicted of rape, and was sentenced to two years imprisonment. ⁴

Indiana courts have followed the line of authority that holds the right to speedy trial attaches when a person is arrested or when he is formally charged by indictment or information, whichever occurs earlier. See Terry v. State, (1980) Ind.App., 400 N.E.2d 1158 trans. denied; Stewart v. State, (1976) 170 Ind.App. 696 354 N.E.2d 749. ⁵ The speedy trial protection of the sixth amendment attached to Scott upon the filing of the information against him.

Once a defendant's right to speedy trial is placed in issue, the next step is to apply the ad hoc balancing test announced in Barker v. Wingo, (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. In determining whether the defendant has been deprived of his right to a speedy trial, the relevant factors are length of delay, the defendant's assertion of his right, the government's reason for the delay, and the prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. Indiana has applied the Barker analysis to speedy trial claims made under our state constitution. Wade v. State, (1979) 270 Ind. 549, 387 N.E.2d 1309; Terry.

A. Length of Delay

The delay of more than seven years between the issuance of the warrant and Scott's arrest is sufficient to trigger an inquiry into other Barker factors under any set of circumstances. See Terry, (Barker inquiry triggered with a delay of two and one half years between filing of formal charges and further proceedings).

B. Assertion of Right by Defendant

Scott's failure to assert his right before arrest is of no consequence because he was not made aware of the pending charges prior to his arrest in June 1982.

C. Reasons for Delay

The State failed to offer any specific reasons for the seven year delay. Sergeant Ashton testified he attempted to locate Scott for approximately one week. Unsuccessful in his efforts, Ashton turned the warrant over to the Marion County Sheriff's Department because he believed Scott had fled to the State of Kentucky. It may be surmised the matter was placed in the Kentucky authorities' hands and subsequently forgotten. In any event, the State's failure to proceed with the case was not a deliberate attempt to delay the trial in order to hamper the defense. However, it is not only prosecutorial maneuvers in bad faith that are considered in the Barker balance. In Barker, the Court noted more neutral reasons "such as negligence or overcrowded courts 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." Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Here, the State's negligence in proceeding with the prosecution is a factor that must be considered along with the prejudice to the defendant.

D. Prejudice to Defendant

The Barker Court's comments concerning prejudice preface the discussion of this factor.

"Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has 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. 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. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown."

407 U.S. at 532, 92 S.Ct. at 2193. (emphasis added)

There is a general presumption against the mere passage of time as prejudicing a defendant. United States v. Marion, (1971) 404 U.S. 307, 321-22, 92 S.Ct. 455, 463-64, 30 L.Ed.2d 468. It is for this reason Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation. Wade; Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745; Terry. However, a delay may be so prolonged the general presumption must fail and be replaced by a presumption of prejudice. The basis for this contrary presumption of prejudice is the prolonged delay itself deprives the defendant of the ability to prove prejudice. If an accused's trial does not begin until years after the crime, not only may a memory fade, it may be entirely lost, neither of which is susceptible to proof other than a statement to the effect, "I do not remember." Indeed, the difficulty a defendant encounters in establishing with particularity the elements of his prejudice reflects the extent to which he was prejudiced by the government's delay. Ross v. United States, (D.C.Cir.1965) 349 F.2d 210. The defendant cannot identify the alleged missing witnesses or articulate the probable substance of their testimony if he does not know of their existence because he does not have a memory of the day. This is particularly true where, as here, the delay is between the crime and arrest rather than between arrest and trial. In the latter situation the defendant is aware he must face a charge of committing a crime on a particular date and, therefore, has the opportunity to avoid the particular prejudice of a memory fade or loss by making notes, identifying witnesses and memoralizing their recollection, etc. Thus, the comments of Judge Sullivan in Springer v. State, (1978) 175 Ind.App. 400, 372 N.E.2d 466, cited by the dissent, are appropriate up to the point in time where the State's delay has effectively deprived the defendant of the ability to prove prejudice.

At some point, then, we presume the defendant suffered actual prejudice, but the point in time is not easily quantified into a number of months or years. However, the policy reasons behind the statute of limitations and the ease of its application to each set of facts lends itself as a practical measure of time beyond which prejudice to the defendant resulting from a delay may be presumed, at least as to those crimes which have a statute of limitations.

The statute of limitations period represents a pervasive legislative judgment that it is unjust to fail to put a person on notice to defend within a specified period of time and, therefore, justice requires exposure to criminal prosecution be limited to a fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Toussie v. United States, (1970) 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156. The underlying rationale of the statutes is to afford the State sufficient time to present its case, and yet protect the defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death, or disappearance of witnesses or documents, or fading memories. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468. The most important limitations policy is insurance against the inevitable prejudice to the defendant occasioned by the delay.

In Indiana, the period of limitations commences the date of the crime's commission. I.C. 35-41-4-2(a) (Burns Code Ed., Repl.1979). In the instant case, the statute began to run the date of the rape, September 19, 1974. The limitations period is tolled once the prosecution against the defendant is commenced, i.e., the earliest of these dates:

(1) the date of filing of an indictment, information, or complaint before a court having jurisdiction;

(2) the date of issuance of a valid arrest warrant;

(3) the date of arrest of the accused without a warrant, if the officer has authority to make the arrest.

I.C....