State v. Oppelt

Decision Date11 August 2011
Docket NumberNo. 84573–5.,84573–5.
Citation257 P.3d 653,172 Wash.2d 285
CourtWashington Supreme Court
Parties STATE of Washington, Respondent, v. David A. OPPELT, Jr., Petitioner.

Sarah McNeel Hrobsky, Washington Appellate Project, Seattle, WA, for Petitioner.

Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.

CHAMBERS, J.

¶ 1 David A. Oppelt Jr. was accused by his stepdaughter in 2001 of sexually abusing her. The police investigated but, without justification for the delay, Oppelt was not charged until 2007. Oppelt argued that his due process rights were violated by the preaccusatorial delay of over six years, and that the charges against him should therefore be dismissed. The trial court disagreed, and Oppelt was convicted of child molestation. Oppelt appealed, arguing that the trial court had misapplied the preaccusatorial delay test for determining whether due process was violated by the delay. Due process may be violated by a preaccusatorial delay even if the charges are ultimately filed within the statute of limitations. The core question a court must answer is whether fundamental conceptions of justice would be violated by allowing the prosecution. We have developed a three-pronged analytical framework to assist the court in answering this question. We reject the State's contention that negligent delay can never violate due process. We reject the defendant's contention that any delay without justification demands an automatic dismissal. We conclude that the trial court engaged in the proper balancing test, and on de novo review we affirm the trial court and the Court of Appeals' denial of Oppelt's motion to dismiss for preaccusatorial delay. Finally, we find no violation of CrR 8.3(b). We affirm the Court of Appeals and the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2001, A.R. was living with her great-grandparents. For about a week in May of that year, A.R. stayed with her mother and her stepfather, Oppelt. According to A.R., Oppelt sexually assaulted her twice during her stay by rubbing her genitals with his fingers. She returned to her great-grandparents' house the same day the last incident of abuse occurred, and she told her great-grandmother what had happened and that she was in pain. Her great-grandmother gave her some lotion to apply to her vagina and later took A.R. to be examined by a nurse, who observed redness and swelling of the genitalia. Another exam a week later revealed that the swelling and redness had decreased significantly.

¶ 3 A few days after A.R. told her great-grandmother about the abuse, the police were notified. Officer Jonathan Jensen was assigned to the case. According to Jensen, he completed and filed his investigation report on August 2, 2001. The report never made it to the prosecutor's office. Nearly six years later, a Child Protective Service (CPS) worker asked the prosecutor's office about the case.1 Charges were finally filed on November 26, 2007.

¶ 4 Oppelt moved to dismiss the charges against him on grounds of preaccusatorial delay and government misconduct under CrR 8.3(b). At a pretrial hearing in the Snohomish County Superior Court, the judge found actual prejudice to Oppelt because the great-grandmother could no longer remember what kind of lotion she gave to A.R., thus precluding Oppelt from arguing definitively that the redness and swelling was caused by a reaction to a particular brand of lotion. Despite also finding that the government's delay was negligent, the judge denied both motions because, in essence, the prejudice to Oppelt was not severe enough to warrant dismissal. After a jury trial, Oppelt was convicted and sentenced to 90 months in prison and three to four years of community custody. The Court of Appeals affirmed his conviction in an unpublished opinion. State v. Oppelt, noted at 155 Wash.App. 1021, 2010 WL 1433480. We granted review. State v. Oppelt, 169 Wash.2d 1017, 238 P.3d 502 (2010).

PREACCUSATORIAL DELAY
A. Due Process

¶ 5 In United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the United States Supreme Court held that a preaccusatorial delay can result in a due process violation even where the statute of limitations has not expired. Although the statute of limitations provides a definitive legislative limit, due process may also be implicated by preaccusatorial delay. Id. (citing United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ). The court said its role was circumscribed:

We are to determine only whether the action complained of—here, compelling respondent to stand trial after the Government delayed indictment to investigate further—violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions," and which define "the community's sense of fair play and decency."

Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (citations omitted). Lovasco also stated that "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and [ ] the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Id.

¶ 6 This court first interpreted Lovasco 's preaccusatorial delay requirements in Calderon:

The defendant must show that he was prejudiced by the delay and, in making its due process inquiry, the court must consider the reasons for the delay as well as the prejudice to the accused.
....
Simply establishing prejudice is not enough, however. To find a due process violation, the court must also consider the State's reasons for the delay. If the State is able to justify the delay, the court must undertake a further balancing of the State's interest and the prejudice to the accused. Ultimately, the test suggested by the U.S. Supreme Court is "whether the action complained of violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions'.["]

State v. Calderon, 102 Wash.2d 348, 352–53, 684 P.2d 1293 (1984) (second alteration in original) (citations omitted) (quoting Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935) )). Our next case to address preaccusatorial delay articulated an analytical framework in the form of a three-part test to assist a court in determining whether a delay violates fundamental conceptions of justice:

[T]he Calderon court established a 3–prong test for determining when preaccusatorial delay violates due process. (1) The defendant must show he was prejudiced by the delay; (2) the court must consider the reasons for the delay; and (3) if the State is able to justify the delay, the court must undertake a further balancing of the State's interest and the prejudice to the accused. ....
The ultimate test is "‘whether the action complained of ... violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions'."

State v. Alvin, 109 Wash.2d 602, 604–05, 746 P.2d 807 (1987) (alteration in original) (quoting Calderon, 102 Wash.2d at 353, 684 P.2d 1293 (quoting Lovasco, 431 U.S. at 790, 97 S.Ct. 2044) ). Most recently, in State v. Salavea, 151 Wash.2d 133, 86 P.3d 125 (2004), we articulated the test slightly differently:

First, the defendant must show the charging delay caused prejudice. If the defendant shows prejudice, the court then examines the State's reasons for the delay. Finally, the court balances the delay against the defendant's prejudice to decide if the delay violates the "fundamental conceptions of justice."

Id. at 139, 86 P.3d 125 (citing Lovasco, 431 U.S. at 790, 97 S.Ct. 2044; Calderon, 102 Wash.2d at 352–53, 684 P.2d 1293; State v. Dixon, 114 Wash.2d 857, 858–59, 792 P.2d 137 (1990) ).

¶ 7 Whether due process rights are violated by a preaccusatorial delay is a question we review de novo. Id. at 138–39 (citing State v. Warner, 125 Wash.2d 876, 883, 889 P.2d 479 (1995) ). Because our review is de novo, we examine the entire record to determine prejudice and to balance the delay against the prejudice. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 514 n. 31, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (court reviewing de novo makes original appraisal of all evidence).

B. Negligent Delay

¶ 8 The State argues, in accord with several jurisdictions outside Washington, that only intentional delay in bad faith can violate due process, while merely negligent delay can never result in a due process violation.2 See United States v. Crouch, 84 F.3d 1497, 1511–12 (5th Cir.1996). This court, however, has never made a definitive statement on the issue. See Calderon, 102 Wash.2d at 353, 684 P.2d 1293 ("It has been suggested that negligently failing to bring charges promptly may also establish a constitutional violation."); Salavea, 151 Wash.2d at 139 ("[I]f the delay only is negligent, due process may or may not be violated.").

¶ 9 Circuits holding that negligent delay alone can never violate due process explicitly reject a balancing or weighing approach like the one adopted by this court. E.g., Crouch, 84 F.3d at 1514 ("we reject the ... balancing test and hold that for preindictment delay to violate the due process clause it must not only cause the accused substantial, actual prejudice, but the delay must also have been intentionally undertaken by the government ... for some ... bad faith purpose" (citation omitted)). Instead, those circuits that have rejected balancing invariably require the defendant to show (1) actual prejudice and (2) intentional bad faith by the government.3 Id. at 1511–12 (reviewing the various formulations of the test in the various circuits).

¶ 10 Circuits that apply a balancing test similar to ours, on the other hand, have held that negligence can result in a due process violation.4 Howell v. Barker, 904 F.2d 889, 895 (4th Cir.1990) (adopting a balancing approach and finding a due process violation where the...

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