State v. Dykast

• Decision Date: 17 December 1985
• Citation: 712 P.2d 79,300 Or. 368
• Parties: STATE of Oregon, Respondent on Review, v. David E. DYKAST, Petitioner on Review. CC 8301-0185, 8301-0186, 8301-0187, CA A30963, A30964, A30965 and SC S31757.
• Court: Oregon Supreme Court

Page 79

712 P.2d 79

300 Or. 368

STATE of Oregon, Respondent on Review, v. David E. DYKAST, Petitioner on Review.

CC 8301-0185, 8301-0186, 8301-0187, CA A30963, A30964,

A30965 and SC S31757.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 10, 1985.

Decided Dec. 17, 1985.

James M. Brown, Salem, argued the cause for petitioner on review. With him on the petition for review were Harold S. Harding, and Enfield, Guimond & Brown, Salem.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response to the petition for review were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

PETERSON, Chief Justice.

The question is whether the defendant's rights to a speedy trial were violated where 560 days elapsed between his original arrest and the trial. We hold that the defendant's rights were not violated and affirm his conviction. 73 Or.App. 98, 697 P.2d 578.

The chronology of events is:

March 30, 1982 The defendant was indicted on two charges of delivery of a controlled substance. ORS 475.992.

March 31, 1982 The defendant was arrested.

April 1, 1982 The defendant was released on bail.

April 6, 1982 The defendant was charged with two more violations under ORS 475.992.

April 22, 1982 Arraignment.

May 20, 1982 The defendant filed a motion to suppress.

July 7, 1982 The state moved to set for trial.

July 15, 1982 The court sent a notice setting the case for trial on August 23, 1982.

August 2, 1982 The state moved to postpone the trial due to absence of a witness.

August 23, 1982 The state's motion to postpone was denied. The defendant moved for a dismissal, and the motion was granted.

January 25, 1983 The defendant was again indicted for the same crimes. ¹

February 2, 1983 The defendant voluntarily appeared for arraignment and was released on his own recognizance.

February 11, 1983 The defendant moved to dismiss on the ground that he has been denied a speedy trial in violation of the Constitution of Oregon, Article I, section 10, and the United States Constitution, Amendment VI and Amendment XIV. ²

March 10, 1983 Motion to dismiss denied. In a memorandum opinion, the trial judge stated:

"The background of the case is undisputed and I accept the historical facts of record as set out in defendant's memorandum on his motion to dismiss as being accurate. The defendant was indicted on March 30, 1982. A trial date was established on August 23, 1982. The State moved on two occasions for a continuance at that time and on August 23, 1982, the State's motion to continue was denied and both indictments were dismissed without prejudice. On January 25, 1983, the defendant was re-indicted.

"The defendant testified at the time of hearing regarding the inconveniences he has experienced, his inability to firmly establish a direction in life until the criminal charges have been concluded.

" * * *.

"I have reviewed this matter as requested by the defendant applying the speedy trial criteria as set out under the federal cases and the cases found in the State of Oregon.

"The question becomes whether a delay from March 30, 1983, [sic] to January 25, 1983, violates the defendant's rights and deprives him of speedy trial.

"The delay is the sole result of the conduct of the State. It results from the State's inability to provide a witness and thereafter from its inability to re-indict at an earlier date. I do not find that this delay was the result of any effort on the part of the State to deprive the defendant of a fair trial or as a strategic effort to give the State a more favorable position at trial.

"The court recognizes that any criminal defendant is adversely affected by a pending trial. This was certainly the case in Mr. Dykast's situation. I do not find that this is, however, sufficient basis to deprive the State of proceeding.

"Under these circumstances the court must next determine whether the defendant has been in some way prejudiced in his ability to defend himself. The Oregon Supreme Court in State vs. Ivory (278 Or. 499 ) declared the defendant must only prove a reasonable possibility of prejudice. The State may argue this requirement has been altered by later cases and this may be correct. This is immaterial in this instance because the defendant has not attempted to show prejudice. The defendant's motion to dismiss is denied. * * *."

July 26, 1983 The state moved to set the case for trial

October 12, 1983 Trial. The defendant was convicted of all charges

In his brief, the defendant states:

"The defendant does not contend that the delay prejudiced his defense; nor was there pre-trial incarceration. It is the defendant's contention that given the State's unjustified conduct, and the prejudice to him personally, the Sixth and Fourteenth Amendments require dismissal." ³

I

One of the issues addressed by the parties is whether the delay is to be measured from the date of the reindictment or the date of the original indictment. We need not reach this issue because, under our precedents, the delay from the original indictment to trial was not so long or attended by circumstances so as to require dismissal because of a violation of the defendant's constitutional rights to a speedy trial.

As stated, the defendant's claims are based upon the provisions of the Oregon and federal constitutions. Article I, section 10, of the Oregon Constitution provides that "justice shall be administered openly and without purchase, completely and without delay." The related provision in the federal constitution is found in the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial * * *."

The Oregon constitutional provision is a directive to judges to administer all proceedings, not just criminal prosecutions, without delay. In Haynes v. Burke, 290 Or. 75, 80, 619 P.2d 632, 637 (1980), we stated:

" * * * [U]nlike the sixth amendment, article I, section 10, states not a 'right' of the accused but a mandatory directive not within the disposal of the parties, a difference that can bear on the enforcement of the constitutional command. * * *."

Courts have management and legal responsibility "for the pace of litigation, actively monitoring or directing the scheduling of events in the life of a case." Attacking Litigation Costs and Delay, Final Report of the Action Commission to Reduce Court Costs and Delay, American Bar Association 7-8 (1984). "The court, from the outset, must take and maintain control over each case." Id. at 8. ⁴

ORS 135.747 (quoted in footnote 3) requires a defendant to be brought to trial "within a reasonable period of time." Ordinarily, we would first examine the question under ORS 135.747. However, the defendant has opted not to invoke ORS 135.747 (possibly because a finding that ORS 135.747 was violated would allow reprosecution by the state, State v. Ivory, 278 Or. 499, 503, 564 P.2d 1039, 1042 (1977)). A defendant who seeks outright dismissal with prejudice may opt to claim that his constitutional rights to a speedy trial have been violated, and not invoke the statute. Accordingly, we make no determination whether a violation of ORS 135.747 has been established. ⁵

In this case, the total time between arrest and trial was about 18 2/3 months. The trial court found that the delay between dismissal and reindictment was due to conduct of the state. We thus attribute the total delay from the date of the first scheduled trial, August 23, 1982, to the trial, October 12, 1983, to the state. This is a period of 13 1/2 months.

The resolution of this case is governed by two recent decisions. In State v. Ivory, supra, we adopted the speedy trial calculus enunciated by the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as "consistent with the 'free from vexatious, capricious and oppressive delays' test which we have historically used." State v. Ivory, supra, 278 Or. at 504-05, 564 P.2d at 1042 (citing, e.g., State v. Clark, 86 Or. 464, 168 P. 944 (1917)). Ivory states this test:

" * * * [u]nder Barker, to determine whether defendant's 14th amendment rights (incorporating the 6th amendment right to a speedy trial) have been denied, a court must balance four factors:

"(1) The length of the delay,

"(2) Whether defendant asserted his right to a speedy trial,

"(3) The reasons for the delay, and

"(4) Prejudice to the defendant." 278 Or. at 501, 564 P.2d at 1041. ⁶

In Haynes v. Burks, supra, a habeas corpus case, the plaintiff was arrested on March 13, 1978, and indicted on March 16, 1978, on a charge of murder. To the time of her habeas corpus petition in this court she had been in custody for two and one-half years and had not been tried. We discussed the constitutional standards as follows:

"The constitutional standards governing trial delay are found in article I, section 10, of Oregon's Constitution and in the 'speedy trial' guarantee of the federal sixth amendment, part of the due process required of states under the fourteenth amendment. In some respects these provisions are not identical. The Oregon Constitution commands that 'justice shall be administered * * * without delay' in all proceedings, not only in criminal prosecutions. See Hooton v. Jarman Chevrolet Co., 135 Or. 269, 293 P. 604, 296 P. 36 (1931). * * * But the conditions of an unconstitutional 'delay' in a criminal prosecution do not differ materially from the denial of a 'speedy trial' under the sixth amendment. State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977).

"As stated in Ivory, a decision under either standard involves consideration of a number of circumstances or 'factors' which have been identified in past decisions of this court and of the United States Supreme Court under the sixth amendment. As brought together in Barker v. Wingo, 407 US 514, 92 S Ct 2182, 33 L Ed 2d 101 (1972), for purposes of that am...