State v. Ivory

• Decision Date: 31 May 1977
• Citation: 564 P.2d 1039,278 Or. 499
• Parties: STATE of Oregon, Respondent, v. Marshall IVORY, Petitioner.
• Court: Oregon Supreme Court

Page 1039

564 P.2d 1039

278 Or. 499

STATE of Oregon, Respondent, v. Marshall IVORY, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 7, 1977.

Decided May 31, 1977.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

LENT, Justice.

Defendant petitioned for a review of the decision of the Court of Appeals in State v. Ivory, 27 Or.App. 685, 557 P.2d 698 (1976). The trial court had dismissed the case upon Federal constitutional grounds for failure to provide defendant a speedy trial, and the State had appealed. In reversing, the Court of Appeals found no denial of defendant's speedy trial rights. We granted review.

Defendant allegedly sold cocaine to an undercover police officer on October 31 1974. At that time defendant was a student at the University of Oregon. Shortly afterward, defendant withdrew from school for financial reasons and moved to his family's home in Portland.

On January 30, 1975, defendant was secretly indicted by the Lane County Grand Jury for the crime of illegal sale of narcotics. ORS 167.207. Defendant was not arrested on this charge until December 14, 1975, ten and one-half months later.

The Court of Appeals analyzed the speedy trial factors enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under 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. In its decision, the Court of Appeals found: (1) the delay 'longer than should be tolerated without further inquiry'; (2) the motion to dismiss was timely; (3) the delay resulted from negligence but was 'not intentionally caused' by the State. 'Easily available avenues of investigation,' such as checking with the Department of Motor Vehicles or the University Registrar, would have disclosed the location of defendant's Portland residence.

As to the fourth factor under Barker, the Court of Appeals found, however, insufficient showing of prejudice to the defendant to warrant dismissal. Defendant testified in the hearing on the motion to dismiss that three key witnesses vital to his defense of entrapment had disappeared a few months after the date of the indictment. He claimed one witness could testify as to the initial conversation defendant had with a police agent to show lack of predisposition to commit the alleged crime. This witness was seen in Eugene as late as June 1975. Attempts by a private investigator to locate her subsequently were unfruitful.

Another witness, a student working with the police, would testify, according to defendant, that he solicited defendant to sell cocaine on several occasions over an extended period of time. Defendant asserted that this witness was working with the police as late as March 1975 but could not be located subsequent to defendant's arrest.

The third witness was the supplier of cocaine, who purportedly could testify that defendant was not a dealer and did not profit from the transaction in controversy. As to this witness, the Court of Appeals found it to be:

'* * * unlikely that he could be persuaded to waive his privilege against self-incrimination and to give the testimony which defendant expects. Therefore, there is no reasonable possibility that defendant has been prejudiced by his unavailability.' ¹ 27 Or.App. 685, 690, 557 P.2d 698, 701 (1976).

As to the other two witnesses, the Court of Appeals found defendant's estimate of their testimony to be conclusory and nonfactual. Therefore, the Court of Appeals concluded that no actual prejudice had been shown, and the Barker balance was not struck in defendant's favor.

We need not reach a constitutional issue if a controversy can be adequately resolved through resort to an applicable statute. State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977). The Oregon speedy trial statute is codified at ORS 135.747:

'If a defendant charged with a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed.'

Under the provisions of ORS 135.753(2), such a dismissal will not bar reprosecution for the same crime if the crime is a felony, as in this case.

Resolution of this issue solely by resort to ORS 135.747 would not adequately resolve this case. Defendant's motion to dismiss was based on constitutional provisions, not on the statute. A finding that ORS 135.747 was violated would allow reprosecution by the state. On the other hand, if it is found that defendant's constitutional entitlement to a speedy trial has been denied, the remedy is dismissal, which is a bar to further prosecution for the same offense. In Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), the Supreme Court held that dismissal with prejudice was 'the only possible remedy' for violation of the 6th Amendment right to a speedy trial.

Implicit in the order of dismissal entered by the trial court is the conclusion that defendant's speedy trial rights under the United States Constitution had been denied. The motion was grounded on federal constitutional provisions, and evidence at the hearing was directed to each of the Barker factors. Because of this, not only is the propriety of dismissal before us for review, but also the effect of dismissal in this case.

Initial inquiry should concern the applicability of Article I, Section 10, of the Oregon Constitution, which provides:

'No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay * * *.'

In State v. Clark, 86 Or. 464, 168 P. 944 (1917), this provision was held to require 'a trial conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays, created by the ministers of justice * * *.' (86 Or. at 471, 168 P. at 946.) Accord: State v. Evans, 249 Or. 314, 319, 432 P.2d 175 (1967); State v. Vawter, 236 Or. 85, 92, 386 P.2d 915 (1963); State v. Jackson, 228 Or. 371, 365 P.2d 294 (1961); and State v. Kuhnhausen, 201 Or. 478, 513, 266 P.2d 698, 272 P.2d 225 (1954).

We have in the past treated the guarantee of a speedy trial granted by Article I, Section 10, as equivalent to the right to a speedy trial provided in the 6th Amendment to the United States Constitution. In State v. Vawter, supra, we commented that:

'* * * No different measure of protection of the rights of persons accused of crime can reasonably be said to have been in the minds of the framers of our constitution.' (236 Or. 85, 91, 386 P.2d 915--918 (1963)).

Similarly, in State v. Evans, supra, it was held that the state constitutional provision 'should be given the same construction as the guarantee of a speedy trial contained in the 6th Amendment * * *.' (249 Or. at 317, 432 P.2d at 176.) See also State v. Serrell, 265 Or. 216, 507 P.2d 1405 (1973).

There are some differences between the requirement that 'justice * * * be administered * * * without delay' and that 'the accused shall enjoy the right to a speedy * * * trial.' The Oregon provision applies to both civil and criminal proceedings, State v. Kuhnhausen, supra 201 Or. at 512, 266 P.2d 698, 272 P.2d 225; the federal guarantee only protects a person 'accused' of a crime.

We are convinced, however, that the analysis used by the Supreme Court in Barker is appropriate to test the guarantee of Article I, Section 10, of our Constitution. It is consistent with the 'free from vexatious, capricious, and oppressive delays' test which we have historically used. Similarly, the remedy available for a violation of the Article I, Section 10, guarantee should be equivalent to the federal remedy under Strunk (dismissal with a bar to reprosecution). ² Having identified the Barker factors as the appropriate criteria, we turn to the facts of this case to see if the correct balance was struck.

We agree with the analysis of the Court of Appeals as to the first three factors. The length of the delay, ³ the negligence of the state in causing the delay, and defendant's timely assertion of his speedy trial rights, all weigh against the state in this proceeding.

Before examining the prejudice factor, however, we note that in some cases prejudice need not be shown as part of the speedy trial calculus. As the Court noted in Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973):

'Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial * * *.'

This is so because Barker commands A balancing of all four criteria. The length of the delay in some cases may be presumptively prejudicial, and, assuming that it was not caused by the defendant and that defendant desired a speedy resolution, proof of prejudice may be unnecessary. As we observed in State v. Vawter, supra, 236 Or. at 96, 386 P.2d at 920:

'When the period of time that has elapsed after the defendant is held to answer is of such length as to be manifestly excessive and unreasonable, it may be incumbent upon the state, in order to avoid dismissal of the indictment, to justify the delay * * *.' ⁴

Similarly, if the delay were purposely caused by the government in order to hamper the defense, dismissal may be the appropriate remedy even if no prejudice were shown. In the present case the delay was not manifestly excessive or purposely caused. In these...