State v. Robinson
| Decision Date | 23 April 1979 |
| Docket Number | No. C,C |
| Citation | 39 Or.App. 619,593 P.2d 1179 |
| Parties | STATE of Oregon, Appellant, v. Larry ROBINSON, Respondent. 76-11-16267; CA 11946. |
| Court | Oregon Court of Appeals |
Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on brief, were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Alex Christy, Portland, argued the cause and filed brief, for respondent.
Before SCHWAB, C. J., and THORNTON and LEE, JJ.
The state appeals from the trial court's dismissal of the indictment upon defendant's motion. The sole issue is whether the trial court correctly determined that defendant's right to a speedy trial had been denied. 1
Defendant was secretly indicted for second degree robbery on November 19, 1976. He was arrested on November 26. Defendant was found guilty January 25, 1977, but moved for a new trial. The motion was granted, and the order was entered March 4, 1977. Defendant reported for docket call in April.
The state, wishing to contest the granting of a new trial but not allowed to appeal such orders by statute, See ORS 138.060, on May 10 petitioned the Supreme Court for an alternative writ of mandamus directing the trial court to vacate the new trial order. The Supreme Court issued a writ but dismissed it on March 28, 1978. State ex rel. Redden v. Van Hoomissen, 281 Or. 647, 576 P.2d 355 (1978). The state sought rehearing, which was denied May 23, 1978. State ex rel. Redden v. Van Hoomissen, 282 Or. 415, 579 P.2d 222 (1978). On June 27, 1978, the case was set for trial on July 27. Defendant served the motion to dismiss on July 19. The new trial was removed from the docket and a hearing on the motion was set for July 31, 1978. At the conclusion of the hearing, the trial court granted defendant's motion.
The criteria for determining whether defendant's right to a speedy trial has been violated are enumerated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the Supreme Court found no constitutional basis for setting a certain length of time during which a defendant must be tried, 407 U.S. at 523, 92 S.Ct. 2182, and declined to require that defendant demand trial, 407 U.S. at 528, 92 S.Ct. 2182. 2 Rather, the court found the burden for bringing defendant to trial to be on the state, not the defendant, See 407 U.S. at 527, 92 S.Ct. 2182, and set out a balancing test requiring the consideration of four factors: "Length of delay, the reason for the delay, the defendant's assertion of (the) right and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. at 2192. (Footnote omitted.)
The length of delay has importance in two respects. First, the delay is examined to determine whether it is so long as to be "presumptively prejudicial," thereby triggering consideration of the other factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182. Second, the length of the delay is a factor to be balanced in determining whether the right to speedy trial was violated. 407 U.S. at 533, 92 S.Ct. 2182. 3
The state strenuously argues that the length of the delay was insufficient to trigger the speedy trial analysis. It claims that the delay was less than four months: two months and six days between the order granting a new trial and the state's petition for mandamus, plus one month and three days for the period between the final denial of mandamus and the date originally set for retrial. Thus, the state asks us to disregard the period from indictment to the order granting a new trial, and the period during which it sought mandamus. Barker, however, requires that the length of delay and the reasons be considered along with the assertion of the right to speedy trial by defendant and the prejudice engendered by the delay; it does not provide for a two-step process examining reasons and length of delay initially, and considering only unjustified delays in conjunction with prejudice and defendant's assertion of the right to a speedy trial. 4 See Rudstein, The Right to a Speedy Trial: Barker v. Wingo in the Lower Courts, U.Ill.L.F. 11, 20-21 (1975).
The period of delay from indictment to the date on which the case was scheduled for retrial was longer than 20 months. As the state concedes, such a lengthy period is sufficient to trigger the full four-factor analysis. Cf., e. g., State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977) ().
The second factor to be examined is the reason for the delay. The initial period, from indictment to the entry of the order for a new trial, was less than four months and not inordinate for prosecution of a robbery. As the state persuasively argues, the first 30 days of the period between the entry of the order granting a new trial and the time the state petitioned for an alternative writ of mandamus are relatively neutral, as that is the period allowed for appeals.
The state argues less persuasively that we should not hold it responsible for the 37 days it further delayed before filing and the time the Supreme Court spent deliberating on the petition for an alternative writ. In Barker, the court noted that even nondeliberate delays caused by prosecutorial negligence or overcrowded courts are chargeable to the responsible party, the government. 407 U.S. at 531.
The state's petition for an alternative writ of mandamus is a substitute for, and analogous to, an appeal. See State ex rel. Redden v. Van Hoomissen, supra, 281 Or. at 649, 576 P.2d 355.
The Court of Appeals for the Fifth Circuit enumerated three factors to be considered in assessing the justification for an appeal: " * * * (N)ecessity of the appealed question to the government's case, the strength of the government's position on that issue, and the seriousness of the crime." United States v. Herman, 576 F.2d 1139, 1146 (5th Cir. 1978). 5 We have noted that state attempts by motion and petition for writ of mandamus for change of judge should weigh heavily against the state, since the issue does not involve the defendant. State v. Jenkins, 29 Or.App. 751, 756, 565 P.2d 758 (1977).
Here, all we are told is that the petition for alternative writ of mandamus contested the trial court's granting of defendant's motion for a new trial. We have no way of determining whether the state's position was strong, although the necessity to its case and the seriousness of the crime are clear. Furthermore, the grounds on which the alternative writ was dismissed and rehearing denied suggest that the state was, at best, negligent. While the Supreme Court could find no cases or rules governing the period within which a petition for a writ must be filed, State ex rel. Redden v. Van Hoomissen, supra, 281 Or. at 649, 576 P.2d 355, the state was much less diligent in filing the petition than it would have been in filing an analogous appeal, and the state attempted to excuse its late filing by arguing that it needed time to acquire a transcript found unnecessary by the Supreme Court, State ex rel. Redden v. Van Hoomissen, supra, 282 Or. at 417, 579 P.2d 222.
The remaining period is discussed below.
The third factor is defendant's assertion of the right to a speedy trial. The defendant appeared at docket call the month after the court entered its order granting a new trial. Defendant, however, did not move to dismiss on the grounds that he had been denied a speedy trial until several weeks had passed following the final decision of the Supreme Court denying the state's challenge to the grant of the new trial. The state implies that we should weigh against the defendant his failure to press his right to a speedy trial during the period the state was attempting to obtain an alternative writ of mandamus. We see no reason to do so since the decision of the Supreme Court would determine whether there would be a second trial. Cf., State v. Jenkins, supra, 29 Or.App. at 757, 565 P.2d 758 (). Defendant was not aware of the possibility that a witness in the first trial had become impeachable until shortly before he filed the motion. Defendant sufficiently asserted his right to a speedy trial.
Finally, the parties argue at length over whether defendant was prejudiced by the delay in impairment of the presentation of his case. 6 The relevant sequence of events is as follows:
June 27 trial set for July 27
July 11 defendant's witness convicted
July 19 defendant files motion to dismiss
July 27 date originally set for trial
July 31 hearing on defendant's motion to dismiss
August 14 date set for sentencing defendant's witness
Defendant's witness testified at the first trial that the defendant was at band practice when the robbery of the school lunchroom took place. Defendant contends that in a second trial the witness would have given a description of the person who actually committed the robbery, and the description would have indicated that the culprit was someone other than defendant. Defendant's testimony implies that another witness could testify similarly.
Defendant's witness was convicted of assault and first degree manslaughter. The deputy district attorney first admitted that he would use the conviction to impeach the witness, but later claimed that he would not, if the trial took place prior to entry of a judgment order and sentence, since it is not until such time that a conviction may be used for impeachment. State v. Bouthillier, 4 Or.App. 145, 476 P.2d 209, 479 P.2d 512 (1970), Rev. den. (1971). Since defendant had been granted a hearing on his motion to dismiss and the case had been taken off the trial docket, it became highly unlikely that the trial could be completed before the conviction became usable for impeachment purposes. Hence, the state argues, defendant could have forestalled the prejudice...
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State v. Meikle, T77-4293
...deprived of his right is to be given weight in determining whether defendant's speedy trial right was violated. State v. Robinson, 39 Or.App. 619, 622 n. 2, 593 P.2d 1179 Rev. den. This defendant asserted his right only after a trial date was set, 22 months after the complaint. One who is c......