State v. Mouser

• Decision Date: 15 February 1991
• Docket Number: No. A-3279,A-3279
• Citation: 806 P.2d 330
• Parties: STATE of Alaska, Petitioner, v. Dennis MOUSER, Respondent.
• Court: Alaska Court of Appeals

Page 330

806 P.2d 330

STATE of Alaska, Petitioner, v. Dennis MOUSER, Respondent.

No. A-3279.

Court of Appeals of Alaska.

Feb. 15, 1991.

David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for petitioner.

Rex Lamont Butler, Anchorage, for respondent.

Before BRYNER, C.J., COATS, J., and ANDREWS, District Court Judge. ^*

OPINION

BRYNER, Chief Judge.

After being charged with one count of sexual abuse of a minor in the first degree and three counts of sexual abuse of a minor in the second degree, Dennis Mouser moved to dismiss, alleging violations of his rights to due process and speedy trial. Superior Court Judge John Reese granted Mouser's motion and ordered the case dismissed. We granted the state's petition for review of the superior court's order of dismissal and directed the parties to submit briefs on the merits. We now reverse.

FACTS

The essential facts are undisputed. In May of 1986, the Anchorage Police Department received a report that Dennis Mouser had sexually abused his stepdaughter. Police interviewed the stepdaughter and confirmed the report. They also attempted to interview Mouser but learned that he was out of town.

Mouser returned to Anchorage at the end of summer. An officer interviewed him on October 15, 1986. In the course of the interview, the officer informed Mouser of the allegations that his stepdaughter had made. Mouser said he did not recall any specific act of abuse with his stepdaughter, but he admitted entering her room while naked, acknowledged that he had probably done some of the things she accused him of, and expressed "deep guilt" about his conduct.

Mouser was not taken into custody during this interview. In December of 1986 the police referred Mouser's case to the Anchorage District Attorney's office. The district attorney's office, in turn, asked for several follow-up interviews, which were completed in March of 1987.

Nothing further happened in the case until September, 1987, when Mouser telephoned the Anchorage Police Department to ask about the status of his case. The officer assigned to the case told Mouser that the district attorney's office had not yet made a decision whether to prosecute. Mouser proceeded to discuss the case with the officer, and, for the first time, he admitted several specific instances of sexual touching with his stepdaughter.

After the interview, the investigating officer called the district attorney's office and requested immediate action on the case. As a result, the state filed an information on September 16, 1987, charging Mouser with one count of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor. On September 28, the court issued a summons for Mouser to appear for arraignment on October 14, 1987. On that date, however, the summons was returned unserved, and the court issued a warrant for Mouser's arrest. The arrest warrant remained unserved until May 25, 1989--more than nineteen months after its issuance--when Mouser was arrested on an unrelated matter in Whittier, Alaska.

Mouser eventually moved to dismiss, arguing that the delay in filing and serving him with charges violated his constitutional rights to due process and speedy trial. In a supporting affidavit, Mouser stated that, during the months immediately following his stepdaughter's report of abuse, he became concerned about the pending investigation and asked about the possibility of obtaining a public defender. He was told, however, that he could not receive a public defender until after he had been arrested and charged. According to Mouser, he then contacted and spoke with the police in an effort to expedite the investigation, so that he would be afforded an opportunity to consult with an attorney. Mouser's affidavit further stated that, when "[n]othing seemed to be done after my giving of the first statement," he went to the police and gave another statement. Mouser averred that, "from there, the matter seemed to just drop."

Mouser's affidavit went on to relate that, from August of 1987 through May of 1989, Mouser lived and worked openly in Anchorage, primarily at his ex-wife's residence, and that he did nothing to conceal his identity or whereabouts from the police. Mouser claimed that, during this time, no police officer ever contacted him, and he received no notice of the outstanding charges or arrest warrant.

In the memorandum of law accompanying his affidavit and motion to dismiss, Mouser generally asserted that the delay between the inception of the investigation and his arrest had caused prejudice to his case:

Defendant contends that the excessive amount of time between the act alleged and the accusation will work prejudice on any attempt on his part to defend against such accusation in that it will be a practical impossibility to identify potential witnesses. Further, such delay would render it impossible to expect that any witnesses, if identified, could be expected to remember the circumstances of the days and times in question. Defendant frankly states that he, himself, cannot even be certain of his whereabouts and actions on said dates and at such times after so extended a period of delay.

Mouser asserted that the extensive nature of the delay violated his rights under the speedy trial and due process clauses of the United States and Alaska Constitutions.

The state opposed Mouser's motion to dismiss, contending that the delay in bringing him to trial violated no constitutional prohibitions. The state argued, first, that Mouser had failed to establish a violation of his due process right to be protected against unreasonable preaccusation delay because the delay in his case was justified and Mouser had advanced only a conclusory allegation of prejudice. Second, the state argued that Mouser had not been deprived of his constitutional right to a speedy trial because, in the state's view, that constitutional right did not attach until Mouser was actually arrested.

Judge Reese conducted a hearing on Mouser's motion. Mouser presented no evidence at the hearing. The state called two witnesses. Anchorage Police Officer Karen Rhodes described the investigative efforts involved in Mouser's case and explained the period of delay from the initial report of abuse in May of 1986 until the filing of the information against Mouser in September of 1987. Warrant Officer David Daniel also testified, describing the efforts made to serve Mouser with the summons to appear for arraignment during the weeks between the filing of the information and the issuance of the arrest warrant of October 14, 1987, when the summons was returned unserved.

The state called no witnesses to justify the ensuing delay in serving Mouser with the arrest warrant. Nor did the state attempt to discredit Mouser's claim that he was openly living and working in Anchorage during the period of almost nineteen months when the arrest warrant was outstanding.

At the conclusion of the evidentiary hearing, Judge Reese granted Mouser's motion to dismiss. In declaring his reasons for dismissing the case, the judge focused on the delay of almost twenty months between the filing of charges and Mouser's arrest. Judge Reese noted that the state had failed to present any evidence of due diligence in serving Mouser with the arrest warrant during this period. For this reason, Judge Reese found the period of delay unreasonable.

Turning to the issue of prejudice, Judge Reese found that the prospect of lost witnesses and failed memories, coupled with the anxiety that the pending investigation must have caused Mouser, amounted to "a colorable amount of prejudice, real, not de minimus and not theoretical ... not enormous but real." Balancing this prejudice against the almost two years of unexplained delay, Judge Reese concluded that the charges against Mouser should be dismissed.

Shortly after the hearing, Judge Reese issued a written order further specifying his reasons for dismissing the case: "[E]xcessive, unexplained delay in giving notice of [the] charge to defendant ... violat[ed] his right to speedy trial and due process of law.... The nearly two years delay in serving of the warrant after [Mouser] was charged substantially prejudiced his rights."

The state later moved for reconsideration of the dismissal order. In its motion, the state reiterated the arguments that Mouser's right to a speedy trial did not attach until after he was arrested and that his conclusory allegation of lost witnesses and faded memories was inadequate to support dismissal on due process grounds for unreasonable preaccusation delay. The state also submitted an affidavit executed by the prosecutor who was assigned to the case at the trial level. The affidavit described a conversation between counsel and William Hughes of the Alaska State Troopers' Anchorage warrant section. According to the affidavit, Hughes indicated that his review of trooper records established that the troopers had apparently made several efforts to serve the arrest warrant on Mouser but had been unsuccessful. Based on this information, the state argued that Mouser was not readily available during the period when his arrest warrant was outstanding and, indeed, may have been intentionally avoiding service of process.

Judge Reese denied the state's motion for reconsideration, finding that, even given the new information, the state had failed to establish due diligence in serving the arrest warrant on Mouser. The state then petitioned this court for review, claiming that Judge Reese erred in dismissing Mouser's charges. We granted the state's petition and directed the parties to submit briefing on the merits. ¹

DISCUSSION

On review to this court, the state renews its challenge to the superior court's dismissal order. As we have indicated, the court's written order specifies two constitutional violations: a violation of Mouser's right to due...