Terry v. State

• Decision Date: 26 February 1980
• Docket Number: No. 3-379A71,3-379A71
• Citation: 400 N.E.2d 1158
• Parties: John TERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1158

400 N.E.2d 1158

John TERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-379A71.

Court of Appeals of Indiana, Third District.

Feb. 26, 1980.

Robert L. DeLoney, Gary, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Richard A. Alford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

Appellant Terry was tried by jury and was convicted of robbery. See IC 35-13-4-6 (Repealed). His appeal presents three assertions of error. ¹

Of principal concern is Terry's contention that the trial court should have granted his pretrial motion to dismiss because of delay in arresting him for the offense.

The record discloses that on March 19, 1975, an information was filed charging Terry with a robbery that had been committed on or about March 5, 1975. Although an arrest warrant was promptly issued, Terry was not arrested until mid-November, 1977. He then appeared in court on November 14, 1977. ²

Terry argues that a delay of approximately two and one half years between the filing of the information and his arrest was so prejudicial that it was impossible for him to receive a fair trial. Thus, he contends this delay violated his constitutional rights to a speedy trial under both the sixth amendment to the United States Constitution and article I, section 12 of the Indiana Constitution.

We agree of course, that the protections afforded by these provisions attached to Terry upon the filing of the information. See, e. g., United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Cooley v. State (1977), Ind.App., 360 N.E.2d 29.

In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the Supreme Court rejected a mechanical assessment of speedy trial claims in favor of a balancing test. Indiana has applied the Barker analysis to claims made under our state constitution. Wade v. State (1979), Ind., 387 N.E.2d 1309; Collins v. State (1975), 163 Ind.App. 72, 321 N.E.2d 868.

Barker identified four relevant factors: length of delay, the reason for delay, the defendant's assertion of his speedy trial right, and prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2191.

We believe that on the facts presented a delay of two and one half years between the filing of the formal charge and further proceedings is of sufficient presumptive prejudice to trigger a Barker inquiry into the other factors. ³

It appears that during the time in question Terry was unaware of the pending charge or outstanding warrant. He resided in Gary throughout the period and worked for at least two local employers, including the Gary Housing Authority. According to Terry he was acquainted with several Gary police officers who had seen him and with whom he had exchanged conversation during the period. In short, it does not appear from the record that he was incarcerated elsewhere, had left the area, or was attempting to evade discovery. Moreover, while there is no evidence that the state acted in bad faith to delay Terry's trial, neither is there evidence of diligence and reasonable effort in procuring his arrest. The record is silent upon these matters and is susceptible to the inference that the state was negligent. Thus, it does not appear that the delay was occasioned by good cause. Moreover, Terry suffers no adverse inference from his failure to assert his rights since he was unaware of the pendency of the charge.

We must turn then to a consideration of the prejudice to Terry. As the Court stated in Barker,

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.

407 U.S. at 532, 92 S.Ct. at 2193. The first two factors are inapplicable since Terry was not incarcerated nor even aware the charge was pending. What then of the impairment of his defense? Terry makes no showing of any actual impairment. There are no factual contentions that witnesses died or were unavailable or were unable to remember. Instead, it is his position that the burden of proof rested with the state to establish he was not prejudiced (Appellant's brief, pp. 12, 13). Thus, he contends that because the state failed to produce evidence to show no prejudice, he was entitled to discharge.

We disagree. The burden was upon Terry to show that he had been actually prejudiced by the delay. Wade v. State (1979), Ind., 387 N.E.2d 1309, 1310; Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745, 749. See also the Indiana cases analogous to the situation in United States v. Marion, supra, where the accused complains of delay prior to arrest or the initiation of a prosecution. Indiana imposes the burden of establishing actual prejudice upon the accused. McMorris v. State (1979), Ind.App., 392 N.E.2d 820; Burress v. State (1977), Ind.App., 363 N.E.2d 1036.

Thus, we are constrained to find that since Terry demonstrated no actual prejudice to his defense, his claim must fail.

Terry next asserts error in the trial court's refusal to grant a mistrial. The basis for this contention is that he impeached the prosecuting witness' identification by showing that he and the witness had not attended high school together as the witness had testified. This evidence went to the weight and credibility to be given the identification. As such it was for the jury's consideration. It was not a ground for mistrial.

Finally, Terry objects to the introduction of a photograph of him as part of the state's case on rebuttal. The only objection at trial was a general one. Such objections are insufficient to preserve error. Dorsey v. State (1976), Ind.App., 357 N.E.2d 280.

Affirmed.

HOFFMAN, J., concurs.

STATON, J., dissents and files separate opinion.

STATON, Judge, dissenting.

I dissent.

The Sixth Amendment of the United States Constitution provides, in part, that:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . ."

This protection should not be stripped from an individual without due consideration and close scrutiny.

On March 19, 1975, the Lake County prosecutor filed a probable cause affidavit and information charging John Terry with the robbery of $83 from Arthur Baker, while Baker was working as an attendant at a Clark service station in Gary. After determining that probable cause existed to arrest Terry, the court issued a warrant for his arrest on March 19, 1975. Terry was not arrested on this warrant until mid-November of 1977 approximately two and one-half years after the information had been filed and the warrant issued. Terry contends that this delay so hindered him in preparing his defense that it was impossible for him to receive a fair trial. I wholeheartedly agree.

As the majority noted, the protections afforded by the Constitutional right to a speedy trial attached to Terry upon the filing of the information. In analyzing whether this right has been violated, the United States Supreme Court, in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, instructs us to use a balancing test which weighs the conduct of both the defendant and the prosecution. The Court explained, 407 U.S. at 530, 92 S.Ct. at 2192:

"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

(Emphasis supplied).

Our Court in Collins v. State (1975), 163 Ind.App. 72, 321 N.E.2d 868 deemed this Barker test applicable to Ind.Const. Art. 1, § 12.

I agree with the majority in its position that this two and a half year delay is sufficiently "presumptively prejudicial" as to necessitate further inquiry, pursuant to Barker, supra. In searching the record for a reason to explain this lengthy delay, I find none. Terry was unaware of both the pending information and the outstanding arrest warrant. During this period, he went about his life in a normal fashion. He and his wife lived at 1978 Roosevelt Place until sometime in 1978 when, after separating from his wife, he moved to 595 West 20th Avenue. Both residences were located in Gary, Indiana. Terry worked at the Bud Plant in Gary for a time, and then took a job with the Gary Housing Authority. He testified that he had worked at his job with the City of Gary every day for nearly two years prior to the trial date. It is clear that this two and one-half year delay was not attributable to Terry's being incarcerated elsewhere, his use of an alias, his being a fugitive or his evading arrest. Rather, this lengthy delay was due to inadvertence, negligence or a purposeful act on the part of the State in failing to effect Terry's arrest. Even when the State finally arrested him, it was not on the basis of the pending information and the outstanding warrant. Rather, it was because the safety sticker on his car had expired.

In Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, the United States Supreme Court addressed the issue of a State's delinquency in bringing an accused to trial. It concluded that the State, upon a defendant's demand ¹, must make a "diligent, good-faith effort" to bring him before the court to trial. This Constitutionally-imposed duty was reemphasized by the Indiana Court of Appeals in Springer...