State v. Harman

• Decision Date: 20 February 2002
• Citation: 179 Or. App. 611,40 P.3d 1079
• Parties: STATE of Oregon, Respondent, v. Halray M. HARMAN, Appellant.
• Court: Oregon Court of Appeals

40 P.3d 1079

179 Or. App. 611

STATE of Oregon, Respondent, v. Halray M. HARMAN, Appellant.

932917; A105876

Court of Appeals of Oregon.

Argued and Submitted April 5, 2001.

Decided February 20, 2002.

Jennelle Hall, Deputy Public Defender, argued the cause for appellant. With her on the brief was David Groom, Public Defender.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.

WOLLHEIM, J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants. ORS 813.010. He claims that the five-year, seven-month delay between his arraignment and trial violated his statutory and constitutional entitlements to a speedy trial. We conclude that, while the delay did not violate the speedy trial provisions of either the Oregon or United States Constitutions, the trial court erred in denying defendant's statutory speedy trial claim under ORS 135.747. Accordingly, we reverse and remand. The facts are undisputed. Defendant was arrested for DUII on June 24, 1993, and subsequently arraigned in July 1993. The trial court set over defendant's original trial date from December 1993 to April 1994 because of a change in the court's scheduling procedure. With trial approaching, defendant filed a discovery request in February 1994, seeking police personnel records of the arresting officer. In March 1994, both sides requested a continuance. The state was having problems obtaining the requested discovery, and defendant would not be available for the April trial date because of a medical appointment. The court granted the continuance and set the trial for early July 1994.

In March 1994, defendant filed a motion to compel discovery. After a hearing on April 12, 1994, the court issued an order on June 14, 1994, compelling the state to provide the requested discovery materials. On June 20, 1994, the state filed a motion to reconsider. The trial court held a hearing on the motion on July 20, 1994, and subsequently took the matter under advisement. After that hearing, nothing happened on the case for over ten months until May 23, 1995, when the state apparently sent the trial court a letter inquiring about the status of its motion to reconsider. On June 10, 1995, the trial court affirmed its original discovery order. Between June 1995 and September 1995 there was communication between the parties and the court regarding the extent of the discovery order, with the court ultimately issuing a revised and expanded discovery order.

In late September 1995, the state, in a collateral proceeding, sought a writ of mandamus for relief from the discovery order. On motion of the state, the trial court stayed the proceedings pending the outcome of the mandamus action, which was dismissed in March 1996. The proceedings were again stayed in April 1996 for the state's appeal of the writ's dismissal. The mandamus action was argued in this court in June 1997 and decided in September 1997. We ruled in the state's favor, holding that the trial court had exceeded its authority in issuing the discovery order. State ex rel Glode v. Branford, 149 Or.App. 562, 945 P.2d 1058 (1997), rev. den. 326 Or. 389, 952 P.2d 62 (1998). After the Supreme Court denied defendant's petition for review, the case was remanded to the trial court in May 1998.

Thereafter, the case sat for five months until defendant telephoned the court in October 1998 and inquired about his case. Defendant moved to dismiss the case on speedy trial grounds, but the trial court denied defendant's motion. In March 1999, approximately five years and seven months after defendant's arraignment, the case went to trial on stipulated facts and defendant was convicted of DUII.¹

On appeal, defendant argues that the trial court erred by denying his motion to dismiss because the five-year, seven-month delay between arraignment and trial violated his statutory right to a speedy trial under ORS 135.747, as well as the speedy trial provisions of Article I, section 10, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. Because a constitutional violation would result in more complete relief (dismissal with prejudice) than a statutory violation (dismissal without prejudice), we begin with defendant's constitutional claims. State v. Harberts, 331 Or. 72, 81, 11 P.3d 641 (2000).

In State v. Vasquez, 177 Or.App. 477, 485-86, 34 P.3d 1188 (2001), we summarized the Article I, section 10,² speedy trial analysis:

"First, the court must consider the length and cause of the delay. If the delay, under the circumstances, is so long that it is `manifestly excessive' so as to `shock the imagination and the conscience,' then the court must dismiss the charges against the defendant without further inquiry. Similarly, if the delay was purposefully caused by the state to hamper the defense, further inquiry is again unnecessary. Barring either of those extreme circumstances, however, it is essential that the court assess all of the relevant considerations—length of delay, reasons for delay, and prejudice to the defendant—to determine if the circumstances warrant dismissal under Article I, section 10." (Citations and footnotes omitted.)

The state concedes, and we agree, that the five-year, seven-month delay here was sufficient to require inquiry into the remaining two factors. State v. Mende, 304 Or. 18, 23-24, 741 P.2d 496 (1987) (if delay is "substantially greater than the average, inquiry into the remaining two factors is triggered"). However, the delay in this case was not so shockingly long that dismissal is required without further inquiry. See Harberts, 331 Or. at 89,

11 P.3d 641 (pretrial delay of five years "not so manifestly excessive that we may ignore the other factors"). Accordingly, we turn to the reasons for the delay.

Much of that delay is attributable directly to resolution of the discovery dispute and particularly the mandamus action in which the state prevailed. That portion of the total delay was reasonable and justified. Id. at 90, 11 P.3d 641. In Harberts, the court concluded that the portion of the total delay dedicated to resolving the state's interlocutory appeal addressing the admissibility of the defendant's inculpatory statements was justified for speedy trial purposes:

"We accept the trial court's finding that the state filed and pursued its first appeal with reasonable diligence and that defendant was required to seek review of the Court of Appeals' decision or lose his opportunity to challenge that ruling in the future. Under those circumstances, we conclude that the decision to take, and the time devoted to the resolution of, the state's first appeal was consistent with the state's constitutional duty to exercise reasonable diligence in bringing defendant to trial." Id. at 90, 11 P.3d 641.

That same reasoning is equally applicable here. Here, as in Harberts, the state's initial decision to oppose defendant's discovery request, and ultimately to pursue the mandamus action and subsequent appeal, constituted a legitimate justification for that portion of the total delay.³

There were, however, two portions of the total delay for which there is no good explanation. In particular, the state offers no justification for the ten months after the state's motion for reconsideration of the discovery order and the five months after issuance of the appellate judgment in the mandamus action. While there is no indication that either of those periods of delay was intentionally caused by the state, it is delay that weighs in defendant's favor. As the United States Supreme Court explained in Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):

"Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay."

That reasoning, which was cited favorably by the Oregon Supreme Court in Harberts, is applicable to the circumstances of this case. See331 Or. at 84,11 P.3d 641. In particular, the first period of unjustified delay—the ten months that the state's motion for reconsideration languished before the trial court— weighs in defendant's favor. The second period of unjustified delay—the five months following the Supreme Court's denial of defendant's petition for review in the mandamus proceeding—also weighs in defendant's favor. That is so because, as the court explained in Harberts, it is incumbent on the state to make a case plagued by delay— justified or unjustified—its highest priority. Id. at 93, 11 P.3d 641. The state's failure to do so, and the resultant accumulation of additional months of unnecessary delay, weighs in favor of defendant. See id. ("Added to what by then had become almost five years of delay in bringing this incarcerated defendant to trial, those additional months of delay also weigh heavily in defendant's favor.").

In sum, while much of the total delay here was justified, more than a year of delay— some of which was after final resolution of the mandamus action—occurred as a result of the state's apparent negligence. On balance, therefore, the reasons for delay weigh in defendant's favor.

We turn, thus, to prejudice. There are three types of prejudice a defendant can claim: (1) excessive pretrial detention, (2) anxiety and concern, and (3)...