State ex rel. Leonard v. Hey, 14712

• Decision Date: 14 July 1980
• Docket Number: No. 14712,14712
• Citation: 269 S.E.2d 394
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Will M. LEONARD v. John HEY, Judge, etc., et al.

Page 394

269 S.E.2d 394

STATE ex rel. Will M. LEONARD v. John HEY, Judge, etc., et al.

No. 14712.

Supreme Court of Appeals of West Virginia.

Decided July 14, 1980.

Concurring Opinion Aug. 4, 1980.

Syllabus by the Court

1. A delay of eleven years between the commission of a crime and the arrest or indictment of a defendant, his location and identification having been known throughout the period, is presumptively prejudicial to the defendant and violates his right to due process of law, U.S.Const. Amend. XIV, and W.Va. Const. art. 3, § 10. The presumption is rebuttable by the government.

2. The effects of less gross delays upon a defendant's due process rights must be determined by a trial court by weighing the reasons for delay against the impact of the delay upon the defendant's ability to defend himself.

Steptoe & Johnson, and Wayne A. Sinclair, Hanna & Elliott and Gregory E. Elliott, Charleston, for relator.

James E. Roark, Pros. Atty., Kanawha County, Pamela Dawn Tarr, Asst. Pros. Atty., Kanawha County, Charleston, for respondents.

HARSHBARGER, Justice:

Henry Russell was murdered and Ada Russell was severely wounded while being robbed in December, 1967. In January, 1968, Will M. Leonard and John Wayne Ford were indicted in Kanawha County for robbing Mr. and Mrs. Russell and murdering Mr. Russell, but not for injuring Mrs. Russell. At his arraignment, accompanied by court-appointed counsel, Leonard pled guilty to first degree murder. The agreement which resulted in his plea required the prosecutor to nolle the robbery indictments, and he did.

Leonard was sentenced to life in the penitentiary without recommendation of mercy on March 26, 1968, and was imprisoned. In December, 1974, the then Governor of our state commuted his sentence to life with mercy, and thereby he became eligible for parole in 1979. In 1979 he was indicted for maliciously wounding Mrs. Russell during the 1967 criminal episode. Defendant's motion that the trial court quash the indictment because it violated his double jeopardy, speedy trial and due process rights was denied. We have no statute of limitations affecting felony prosecutions.

The government offered no reason for delaying Leonard's indictment eleven years. We may only suppose that the timing of the indictment reflected a prosecutorial decision that Leonard should not be paroled.

The state apparently has had all the evidence upon which to proceed. The criminal actor was available securely so in the state's penitentiary. We assume no incapacity existed that prevented prosecution (either in the prosecutor's office or in defendant). With these facts, it would be difficult for us to apply the Michigan court's absolutist statement that "(m)ere delay between the time of the commission of an offense and arrest is not a denial of due process." People v. Anderson, 88 Mich.App. 513, 276 N.W.2d 924 (1979). A decade is not "mere".

We have found no state precedent anywhere that even approaches the time lapse here present between a criminal act and commencement of accusation-trial process (assuming identity and whereabouts of the person to be accused and his criminal complicity is known or reasonably should have been known to the government; and assuming his competency). See Oregon v. Harris, 37 Or.App. 431, 587 P.2d 498 (1978) (three and one-half months); State v. Roundtree, 118 N.J.Super. 22, 285 A.2d 564 (1971) (four months); People v. Duran, 188 Colo. 420, 535 P.2d 505 (1975) (en banc) (four months); People v. Anderson, supra, (four and one-half months); People v. White, 59 Mich.App. 164, 229 N.W.2d 357 (1975) (four and one-half months); Dixon v. State, Alaska, 605 P.2d 882 (1980) (five months); State v. Davis, Mo.App., 585 S.W.2d 60 (1979) (six months); People v. Hutchinson, 192 Colo. 204, 557 P.2d 376 (1976) (en banc) (six months); State v. Royal, 217 Kan. 197, 535 P.2d 413 (1975) (six months); State v. Torres, 116 Ariz. 377, 569 P.2d 807 (1977) (In banc) (seven months); State v. Cuevas, Iowa, 282 N.W.2d 74 (1979) (eight and one-half months); People v. Dunn, 7 Ill.Dec. 879, 49 Ill.App.3d 1002, 365 N.E.2d 164 (1977) (nine months); People v. Park, 36 Ill.Dec. 386, 81 Ill.App.3d 108, 400 N.E.2d 966 (1980) (ten months); State v. Griffin, 347 So.2d 692 (Fla.App.1977) (eleven months); Tolliver v. United States, 378 A.2d 679 (D.C.App.1977) (eighteen months); State v. Redding, Mo.App., 573 S.W.2d 371 (1978) (eighteen months); Hovee v. State, Wyo., 596 P.2d 1127 (1979) (twenty months); Terry v. State, Ind.App., 400 N.E.2d 1158 (1980) (two years); Commonwealth v. Imbruglia, --- Mass. ----, 387 N.E.2d 559 (1979) (two years); People v. Nichols, 60 Ill.App.3d 919, 18 Ill.Dec. 330, 377 N.E.2d 815 (1978) (four years); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978) (six and three-quarter years).

In Daniels, supra, the Court stated that the time period was nearly seven years between a homicide victim's death and Daniels' arrest. Defendant did not protest denial of Sixth Amendment speedy trial rights but, relying on United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), objected that due process of law does not admit of such a long delay between the criminal act and accusation by complaint or indictment. There was no statute of limitations affecting murder prosecutions in Pennsylvania, which fact made "particularly apposite" questions in Marion about whether there was substantial prejudice to defendant caused by the delay, and whether the state by delaying was intentionally attempting to get tactical advantage over an accused.

The Pennsylvania Court admired United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), rehearing denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164. It mentioned that Daniels' "argument here is largely . . . that there was sufficient evidence in the hands of the Wayne County Coroner in 1971 and the Pennsylvania State Police in 1972 to justify . . ." his arrest. "But the passage of time since these dates does not, without more, provide a basis for accepting appellant's due process claim." ¹ Then the court denied defendant relief.

The United States Supreme Court has held that claims of denial of constitutional speedy trial rights do not arise until a defendant is arrested or indicted. United States v. Marion, supra. Pre-arrest or pre-accusatory delays are usually governed by statutes of limitations, but even if there are such statutes, a defendant's due process rights can be violated by a prosecution initiated within the statute but unjustifiably delayed by the government.

(I)t is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. United States v. Marion, supra 404 U.S., at 324, 92 S.Ct., at 465 (emphasis added).

This text from Marion establishes what is often called the Marion test. Some courts attempting to apply it have held that a violation of due process only occurs if there is actual, substantial prejudice and intentional prosecutorial misconduct; others, that the existence of one of the factors can deny a defendant due process. ² We do not understand Marion to establish any universally applicable tests: it only recognizes a concession made by the government. The Court's conclusion was:

To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. Id. 404 U.S., at 325, 92 S.Ct., at 465.

In United States v. Lovasco, supra, the Court dealt with an eighteen-month pre-indictment delay by indicating that a defendant is obliged to prove prejudice to sustain a claim of due process violation. It decided that Lovasco's showing of prejudice was insufficient to justify dismissal of his indictment and that the government had justified its delay. Justice Stevens, dissenting, wrote:

We may reasonably infer that the prosecutor was merely busy with other matters that he considered more important than this case.

The question presented by those facts is not an easy one. Nevertheless, unless we are to conclude that the Constitution imposes no constraints on the prosecutor's power to postpone the filing of formal charges to suit his own convenience, I believe we must affirm the judgment of the Court of Appeals. A contrary position "can be tenable only if one assumes that the constitutional right to a fair hearing includes no right whatsoever to a prompt hearing. . . ." United States v. Lovasco, supra, 431 U.S., at 799, 97 S.Ct., at 2053 (Stevens, J., dissenting).

Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), is more on point. A state warrant for Dickey's arrest was issued in July, 1960. In September, he was convicted on unrelated federal charges and sent to prison. Florida authorities knew where he was and lodged a formal detainer with a United States Marshal. Dickey made several attempts to obtain a speedy trial. An information was finally filed seven years later. Although the Court speaks of violation of his Sixth Amendment speedy trial rights by the pre-information delay, its analysis and Justice Brennan's concurrence seem applicable to a claim of due process violation because of pre-indictment delay.

Stale claims have never been favored by the law, and far less so in criminal cases. Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial . . . Here,...