State v. Harris, C

• Decision Date: 11 December 1978
• Docket Number: No. C,C
• Parties: STATE of Oregon, Respondent, v. Joseph HARRIS, III, Appellant. 77-12-17003; CA 10456.
• Court: Oregon Court of Appeals

Page 498

587 P.2d 498

37 Or.App. 431

STATE of Oregon, Respondent, v. Joseph HARRIS, III, Appellant.

No. C 77-12-17003; CA 10456.

Court of Appeals of Oregon.

Argued and Submitted Sept. 25, 1978.

Decided Dec. 11, 1978.

S. Randall Johnson, Certified Law Student, Salem, argued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and Marianne Oswald, Deputy Public Defender, Salem.

Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and LEE, RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

Defendant appeals his conviction for robbery in the first degree. He claims a violation of his constitutional guarantee to a speedy trial and in the alternative that his due process rights were violated by the delay in his indictment. Failing those arguments defendant seeks resentencing.

On August 16, 1977, an armed robbery occurred in a pharmacy in Portland. A description of the getaway vehicle was dispatched and shortly thereafter police officers noticed defendant's car, which fit the description, and followed it. They requested further description of the driver of the getaway car and were radioed that the driver was wearing a red warmup suit with blue gym shorts over the pants. Defendant parked the vehicle and left. The officers had begun to examine the vehicle and when defendant returned, they noted he was dressed in a red warmup suit with blue shorts. The officers told him that he matched the description they had been given of a participant in an armed robbery and asked him if he would return with them to the scene of the incident. He agreed. In the police car he was read the Miranda ¹ warnings.

At the pharmacy, defendant was identified by a witness as one of the men involved. He was then taken to the police station for an interview. He told the detective that the police could search his car and home, and that he had been playing basketball at a local park when the incident occurred. He stated that he was new to the area and he did not know the identity of the other participants in the game. At this point the investigating detective concluded there was insufficient evidence to hold defendant and he was released. He had not been booked or charged with any offense, but was told that he was a suspect in the robbery.

Defendant was indicted December 1, 1977. He moved to dismiss the charge on December 22, 1977, alleging denial of his right to a speedy trial. His motion was denied and he was tried January 9, 1978, and found guilty of first degree robbery by a jury on January 10, 1978. He was sentenced to imprisonment for a maximum 12 years. The court imposed a minimum term of six years under ORS 144.110(1).

Defendant argues that his right to speedy trial under the Sixth Amendment to the United States Constitution and article I § 10 of the Oregon Constitution, ² or in the alternative his right to due process granted under the Fourteenth Amendment, was violated. The basis of his claim is that in the four and one-half month delay between the incident and his trial, his alleged alibi witnesses became unavailable, and his ability to present his defense was unconstitutionally impaired.

Initially we must delineate those cases which are pre-accusatory from those which are post-accusatory, for the protections to be afforded in each instance are quite different. Broadly stated, the due process clause protects a person from unjust governmental delay in bringing the criminal action, while the speedy trial guarantee only protects those accused of a crime, and requires a delicate balancing of the factors set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The threshold question then becomes what event triggers the right to speedy trial.

Defendant argues this right attached at the time he was first taken into custody. In support of this position he cites Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975), which held that for purposes of speedy trial, defendant's rights vested at arrest. Dillingham was a Per curiam opinion founded on United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The court in Marion, when faced a period of three years between the offense and indictment, rejected defendant's speedy trial claim and stated " * * * (I)t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed By arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.

"Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant Who has been arrested and held to answer. * * * " (Emphasis added.) 404 U.S. at 320-21, 92 S.Ct. at 463.

See also, State v. Serrell, 265 Or. 216, 219, 507 P.2d 1405 (1973); State v. Carter, 24 Or.App. 829, 831, 547 P.2d 194 (1976).

Under the present facts defendant's reliance on Dillingham, is misplaced. From a careful reading of Marion and its progeny, we conclude the essence of those decisions is that defendant was "held to answer" upon arrest, which was equivalent to an accusation of the crime. Such was not the circumstance here. ³

Defendant was taken into custody and during the time he was questioned there was an interference with his liberty. As a result there may have been some element of anxiety and public obloquy. He was released without any obligation to return such as would be imposed by a release on bail or recognizance. There was no disruption of his employment, his finances were not drained and he was not held out to the public as an accused man. These temporary effects are not sufficient in themselves to bring the speedy trial provisions of the Sixth Amendment into play. Obviously being questioned as a suspect and then being released is not the type of arrest with which the court was concerned in United States v. Marion, supra.

In this case the material facts are essentially the same as those in United States v. Costanza, 549 F.2d 1126 (8th Cir. 1977). There, FBI agents acting under a search warrant accosted defendant, searched his automobile and then in the privacy of his home strip searched him, read him his Miranda Rights and released him. In denying defendant's Sixth Amendment claim under Dillingham, the court stated that he was not under arrest, charged, or held to...