State v. Vasquez

• Decision Date: 31 October 2001
• Citation: 34 P.3d 1188,177 Or. App. 477
• Parties: STATE of Oregon, Respondent, v. Daniel Orozco VASQUEZ, aka David Orozco, Appellant.
• Court: Oregon Court of Appeals

34 P.3d 1188

177 Or. App. 477

STATE of Oregon, Respondent, v. Daniel Orozco VASQUEZ, aka David Orozco, Appellant.

CF97-0282; A105506

Court of Appeals of Oregon.

Argued and Submitted April 30, 2001.

Decided October 31, 2001.

James N. Varner, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, State Public Defender.

Katherine H. Waldo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

HASELTON, P.J.

Defendant appeals from a judgment of conviction for one count of murder, ORS 163.115, and assigns error to the trial court's denial of his motion to dismiss on speedy trial grounds. In particular, defendant argues that, pursuant to the speedy trial protections of Article I, section 10, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, he was entitled to dismissal, with prejudice, of the indictment against him. We conclude that defendant's entitlement to a speedy trial attached with the filing of the complainant's information in September 1987, and that the delay of roughly 11 years between that information and defendant's October 1998 motion to dismiss requires dismissal of the indictment against defendant. Accordingly, we reverse.

The relevant facts are as follows: On September 11, 1987, Isidro Servin Torres was killed outside the Rest-A-Bit motel in Umatilla. Following the shooting, the Umatilla Police began an investigation. That investigation revealed that defendant had been present at the time of the killing, yelled "yahoo" as he ran away from the crime scene, and was suspected in another homicide that had occurred on September 9, 1987, in Yakima, Washington, two days before the Umatilla incident. Consequently, on September 21, 1987, Umatilla Police Officer Tolliver filed two documents with the Umatilla County district court.

The first document, styled as an "information," named defendant and stated:

"The above-named defendant is accused by this information of the crime of Murder committed as follows: The defendant, on or about September 11, 1987, in Umatilla County, State of Oregon[,] did unlawfully and intentionally cause the death of another human being, to-wit: Isidro Servin Torres, by shooting him with a pistol, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

That document also bore Tolliver's notarized signature, a stamp and signature from the Umatilla County trial court administrator indicating that the document was filed on September 21, 1987, and a signature of Umatilla County Deputy District Attorney David D. Gallaher.

The second document, entitled "Affidavit in Support of Arrest Warrant," consisted of Tolliver's signed and notarized assertion that there was probable cause to arrest defendant for murder. Tolliver's affidavit, which was supported by his crime investigation report, also bore a filing stamp and signature from the Umatilla County trial court administrator. In response to those representations by Tolliver, a warrant for defendant's arrest was issued on September 21, 1987.

Defendant was never arrested on that warrant. Rather, following the murder, defendant traveled to California, where he was arrested on a separate murder charge in that state.² As early as September 1988, the Umatilla County District Attorney's Office was aware of defendant's incarceration in California. Despite that knowledge, the state made no effort to proceed against defendant.

At some point in the early 1990s, much of the evidence relevant to the case was destroyed in a fire at the Umatilla Police Department. In particular, of the 24 items of evidence seized by the state during its initial investigation, only six remained at trial. The evidence that was destroyed included several blood samples, bullets, an ammunition cartridge, a box spring mattress from the Rest-A-Bit motel, and items of clothing belonging to the victim. The only evidence that remained at trial was two rounds of ammunition seized from a vehicle connected with the murder, some photographs of the crime scene and from the victim's autopsy, and several statements made by two witnesses regarding the murder.

It was not until May 1997, well after the evidence was destroyed, that the state sought and obtained a Umatilla County grand jury indictment charging defendant with murder for Torres's death. The September 1987 information was subsequently dismissed on June 2, 1997, and on January 26, 1998, the Umatilla County Circuit Court issued a warrant for defendant's arrest. Based on that warrant, and pursuant to a detainer lodged against defendant in California, in July 1998 defendant was returned to Oregon for trial.³ Before his trial, which began on December 1, 1998, defendant moved to dismiss the indictment with prejudice on the ground that his constitutional right to a speedy trial had been violated. The trial court denied that motion, and on December 9, 1998, the jury convicted defendant of murder.

On appeal, defendant assigns error to the trial court's denial of his motion to dismiss, arguing principally that the speedy trial protections afforded by Article I, section 10, and the Sixth Amendment were triggered by the September 1987 information and arrest warrant, and that those constitutional provisions, given the more than 11-year lapse of time, require dismissal. Defendant also argues that that delay violated ORS 135.747, which requires that a defendant charged with a crime be brought to trial "within a reasonable period of time." We begin by addressing defendant's constitutional claims. See State v. Harberts, 331 Or. 72, 81, 11 P.3d 641 (2000) (it is appropriate to deviate from usual practice of addressing statutory claims first where constitutional claims could result in more complete relief of dismissal with prejudice).

Defendant's constitutional argument hinges on the premise that his constitutional entitlement to a speedy trial attached in September 1987. We start by assessing that premise under the Oregon Constitution. State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (court will reach federal constitutional arguments only if questions of state law are not dispositive).

Pursuant to Article I, section 10, of the Oregon Constitution:

"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

Section 10, and particularly its "without delay" language, has long been held to afford Oregon litigants, both civil and criminal,⁴ with an absolute protection against the delayed administration of justice. See State v. Breaw, 45 Or. 586, 587, 78 P. 896 (1904) ("Section 10 of article I of the state constitution declares that justice shall be administered without delay, which is substantially the same as guarantying to a defendant in a criminal action a speedy trial.").

The question of what triggers section 10's speedy trial protections in criminal proceedings was first addressed in substance in State v. Vawter, 236 Or. 85, 386 P.2d 915 (1963). There, the court considered the effect of a delay of seven-and-one-half months between the filing of an "information of felony" against the defendant and his motion to dismiss the allegations against him. In rejecting the defendant's speedy trial argument, the court sought to identify the point in a criminal proceeding at which section 10's speedy trial protections attach:

"We think * * * that the requirement of Article I, section 10 of the Constitution that `justice shall be administered * * * without delay' means that there shall be no unreasonable delay after a formal complaint has been filed against the defendant. This is the construction placed upon the Sixth Amendment by the United States Court of Appeals for the Ninth Circuit, Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 350 (9th Cir., 1951) and by the Supreme Court of California upon the guarantee of a speedy trial in the constitution of that state, People v. Jordan, 45 Cal.2d 697, 290 P.2d 484 [(1955)]; People v. Godlewski [, 22 Cal.2d 677, 140 P.2d 381 (1943)]. While Article I, section 10, of the Constitution of this state does not contain the word `accused,' as do the comparable provisions in the Constitutions of the United States and of California, still, we think that the same construction should be given to the constitution of this state. 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." Vawter, 236 Or. at 90-91,386 P.2d 915 (emphasis added; footnotes omitted).

Thus, Vawter identifies the filing of a "formal complaint" as the event triggering constitutional speedy trial protections. Oregon courts have since consistently endorsed and applied that principle. See Harberts, 331 Or. at 83, 11 P.3d 641 (citing Vawter's "formal complaint" standard with approval); see also State v. Boots, 94 Or.App. 713, 715, 767 P.2d 450, rev'd on other grounds 308 Or. 371, 780 P.2d 725 (1989) (indicating that Article I, section 10, "is directed only to unreasonable delay after a charge has been formally made" and that precharge delay is necessarily addressed under a due process analysis). Accord State v. Serrell, 265 Or. 216, 219, 507 P.2d 1405 (1973) ("[T]he time elapsing prior to an arrest or formal charge is not taken into consideration in determining whether a defendant has been given a speedy trial.").⁵ Before the filing of a "formal complaint," the speedy trial protections afforded by Article I, section 10, are inapplicable.⁶ However, once such a complaint has been filed in a criminal proceeding, an accused has an...