State v. Rohlfing

• Decision Date: 15 July 1998
• Citation: 155 Or.App. 127,963 P.2d 87
• Parties: STATE of Oregon, Respondent, v. David L. ROHLFING, Appellant. 87-12-37357; CA A94743.
• Court: Oregon Court of Appeals

Page 87

963 P.2d 87

155 Or.App. 127

STATE of Oregon, Respondent, v. David L. ROHLFING, Appellant.

87-12-37357; CA A94743.

Court of Appeals of Oregon.

Argued and Submitted Jan. 29, 1998.

Decided July 15, 1998.

Diane L. Alessi, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, P.J., DEITS, C.J., ^* and HASELTON, J.

De MUNIZ, Presiding Judge.

Defendant appeals his conviction for burglary in the first degree. ORS 164.225. He claims that the eight-year delay between his indictment and arrest denied him his statutory and constitutional right to a speedy trial. We reverse.

On November 2, 1987, defendant was seen running away from a house that had been burglarized and was later identified by the victim during a show-up identification while being questioned regarding another matter. During the questioning, the police obtained defendant's address and phone number. On December 17, 1987, defendant was indicted for burglary in the first degree, and an arrest warrant was issued. Six weeks after the indictment was returned, the police attempted to arrest him. However, defendant had moved, and the police were not able to serve the indictment and warrant on him. Although defendant had moved from the address he had given during questioning, he remained in the state for the next 18 months. He then moved out of state, and, for at least two years before his arrest in December 1995, he lived in Vancouver, Washington. Throughout the delay between his indictment and his arrest, defendant or a family member could have been reached at the telephone number given to the police in 1987.

Before trial, defendant moved to dismiss the indictment, asserting a violation of his right to a speedy trial under ORS 135.747 and the Oregon and Federal Constitutions. The trial court denied defendant's motion, defendant then waived a jury, and the court found him guilty.

On appeal, defendant assigns error to the trial court's refusal to dismiss the indictment under ORS 135.747, Article I, section 10, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. Under each provision, whether defendant was brought to trial within a reasonable time is a question of law. State v. Green, 140 Or.App. 308, 310-11, 915 P.2d 460 (1996). We begin with the statutory claim. State v. Ivory, 278 Or. 499, 503, 564 P.2d 1039 (1977).

The speedy trial statute, ORS 135.747, provides:

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

The statute applies to delay between indictment and arrest, as well as to delay between arrest and trial. Green, 140 Or.App. at 310 n. 1, 915 P.2d 460. Under ORS 135.747, "the proper inquiry is limited to whether defendant caused or consented to the delay and, if not, whether the lapse of time between indictment and trial was 'reasonable.' " Green, 140 Or.App. at 313, 915 P.2d 460. ORS 135.747 provides a " 'housecleaning' mechanism triggered by the length of time that a particular case has been in the system, rather than by the effect of the delay on a particular defendant." State v. Emery, 318 Or. 460, 467, 869 P.2d 859 (1994).

Essentially, the state contends that, because defendant moved after his initial contact with the police, and the state could not locate him after he was indicted, the delay between indictment and arrest was defendant's fault or, in any event, was not unreasonable under the circumstances. In support of both propositions, the state relies on our analysis in State v. Pirouzkar, 98 Or.App. 741, 780 P.2d 802 rev. den. 309 Or. 333, 787 P.2d 888 (1990). In Pirouzkar, there was more than a four-year delay between the state's unsuccessful attempt to serve the indictment on the defendant in Oregon and her eventual arrest in California. We held that the delay was not unreasonable under the circumstances, pointing out that the defendant had left the state after the indictment, and the state "did not know where she lived before her arrest." Id. at 744, 780 P.2d 802.

The state argues that, although the delay between indictment and arrest is longer here than in Pirouzkar, the other factors in Pirouzkar are identical and compel the same result. We disagree with the state's reading of Pirouzkar. There, the state took an additional step to bring the defendant to trial that is not present here. It took "action to further the prosecution," id. at 744 n. 2, 780 P.2d 802, by entering the arrest warrant information in "local, regional and national law enforcement computer systems that are intended to inform any officer running a routine records check that warrants for [the] defendant's arrest are outstanding." Id. at 743, 780 P.2d 802.

Here, the record does not reveal that the state took any action to "further the prosecution" after its one unsuccessful attempt to serve defendant at his former residence six weeks after he had been indicted. Although defendant had moved before that arrest attempt, and ultimately moved out of state, there is no evidence that he was aware that he had been indicted or that he moved or left the state to avoid arrest. The evidence does establish that defendant was arrested in Vancouver, Washington. However, there is no evidence in the record about the circumstances of that arrest, and no inference can be drawn that defendant was arrested because the state had entered the arrest warrant information into law enforcement computer systems intended to alert law enforcement of the outstanding arrest warrant for defendant or, if it did, when that was done. Additionally, during the entire eight-year delay, defendant or a family member was available at the telephone number that defendant had given to the police in 1987.

We conclude that, under these circumstances, defendant cannot be deemed to have consented to or caused the delay and that, in the absence of any effort by the state "to further the prosecution," the eight-year delay between defendant's indictment and his arrest is unreasonable. Accordingly, defendant was denied his right to a speedy trial under ORS 135.747, and the trial court erred in not dismissing the indictment on that ground.

Our analysis does not, however, end with consideration of ORS 135.747. The remedy for a violation of ORS 135.747 is dismissal without prejudice, leaving the state free to reindict defendant. However, a constitutional violation of defendant's speedy trial right requires dismissal of the indictment with prejudice. We therefore must address defendant's claim that his speedy trial right under the Oregon Constitution was violated. ¹ Article I, section 10, of the Oregon Constitution provides that "no court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay." "Without delay" has been equated with the right to a speedy trial. State v. Jackson, 228 Or. 371, 377, 365 P.2d 294 (1961). In determining whether a speedy trial violation of constitutional dimension has occurred, we look at the length of the delay, the reasons for delay, and the resulting prejudice to the accused. Ivory, 278 Or. at 507, 564 P.2d 1039; Emery, 318 Or. at 468, 869 P.2d 859. We do not balance the elements one against the other. Instead, we examine the relevance of each in giving effect to the constitutional guarantee of a speedy trial. State v. Mende, 304 Or. 18, 22, 741 P.2d 496 (1987). The length of delay is the threshold element that triggers examination of the other elements. Id.; Green, 140 Or.App. at 314, 915 P.2d 460.

Drawing from our analysis of defendant's statutory speedy trial claim, we conclude, without further discussion, that the eight-year delay is "substantially greater than average," thereby triggering our examination of the two remaining factors: the reason for the delay and the prejudice resulting to defendant from the delay.

The state contends, as it did under ORS 135.747, that the delay between defendant's indictment and his arrest is not unreasonable because

"the state attempted to arrest defendant roughly six weeks after it issued the indictment. Defendant moved soon after the crime, he left the state altogether within roughly eighteen months, and the state did not know where he was. Defendant presented no evidence suggesting that additional efforts by the state could have reduced the time lag between indictment and arrest."

We reject the state's efforts to blame defendant for the delay between his indictment and arrest. On his initial contact with the police, defendant gave the police both his address and his telephone number. Throughout the entire eight-year delay, either defendant or a member of his family could have been reached through that telephone number. Nevertheless, the state made no effort to locate defendant through the telephone number after its one unsuccessful effort to serve defendant six weeks after he was indicted. As we stated above, defendant was unaware of his indictment, and there is no evidence that defendant moved or left the state to avoid arrest and prosecution. Under these circumstances, the delay cannot be attributed to defendant. Instead, because the state made no subsequent effort to locate defendant either through the telephone number in its possession or through law enforcement computer systems available to it, we assign responsibility for the delay to the state. However, in the absence of intentional misconduct, it does not weigh heavily in defendant's favor. Green, 140 Or.App. at 316, 915 P.2d 460; see also State v. Loynes, 154 Or.App. 1, 9, 960 P.2d 388 (1998).

As with...