Yarbor v. State

• Decision Date: 23 February 1976
• Docket Number: No. 2397,2397
• Citation: 546 P.2d 564
• Parties: James C. YARBOR, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 564

546 P.2d 564

James C. YARBOR, Appellant, v. STATE of Alaska, Appellee.

No. 2397.

Supreme Court of Alaska.

Feb. 23, 1976.

H. John DeNault, III, of Rice, Hoppner & Hedland, Fairbanks, for appellant.

Harry L. Davis, Acting Dist. Atty., Patrick J. Gullufsen, Asst. Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.

CONNOR, Justice.

This appeal constitutes a challenge to a criminal conviction on the ground that there was delay in initiating formal proceedings against the defendant.

James Yarbor was indicted and subsequently convicted for the offense of lewd and lascivious acts toward a child. ¹ Prior to trial Yarbor moved to dismiss the indictment against him because of prejudicial delay in commencing prosecution. The motion was denied. From that ruling Yarbor appeals.

The events giving rise to the indictment occurred on August 11, 1973. Yarbor took J. E., then ten years old, and his seven-year-old daughter to his place of employment, which was unoccupied at the time. After directing his daughter to wait, Yarbor took J. E. outside to a pickup truck. There, despite J. E.'s resistence, Yarbor unfastended her trousers, attempted to touch her vaginal area, and attempted to induce her into sexual intercourse by promising her money and a cap gun.

The incident was first reported to the Fairbanks Police Department on the following Tuesday, August 14, 1970. Yarbor was questioned two days later, ² after being given a Miranda warning. The police investigation of the incident was completed on August 21, and the case was reviewed by at least three members of the District Attorney's Office between August and December of 1973. In December a formal complaint was prepared for J. E.'s mother to sign. J. E.'s mother was notified 'several times a month thereafter' that the complaint was ready for her signature. She finally signed it on March, 4, 1974, and Yarbor was served two days later.

Yarbor first contends that this delay resulted in a denial of his constitutional right to a speedy trial. ³ We disagree.

The United States Supreme Court has held that the federal ⁴ right to a speedy trial does not attach until a defendant has been formally accused. In United States v. Marion, 404 U.S. 307, 321-22, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971), the court observed:

'Invocation of the speedy trial provision . . . need not await indictment, information or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusations: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case.'

Yarbor would have us interpret the Alaska Constitution as providing a right to a speedy trial that would attach when the state has acquired sufficient evidence to charge an individual with a crime. The difficulties in administering such a test are manifest. An enormous burden would be placed upon the district attorney's office. Moreover, such a test would have an adverse impact on defendants. They have much to lose by a rule which would prompt district attorneys to initiate prosecutions without waiting for more than the minimum evidence to establish probable cause-a quantum of evidence which falls far short of the amount necessary to support a criminal conviction. Exculpatory evidence often follows closely in the footsteps of incriminating evidence. Moreover, it is foreseeable that prosecuting attorneys, in their haste to file charges upon determining that probable cause exists, would act on cases which, given time to carefully reflect on the merits, would not be brought. When the potential harm which results from reasonable delay is weighed against the anxiety and concern accompanying public accusation, it is clearly in the citizens' best interests to allow district attorneys some latitude in filing criminal cases. Each case would have to be reviewed constantly to determine whether a court might subsequently find that 'probable cause' had existed at a given instant. To guess wrong might be fatal to the case: an arrest without probable cause, and a further investigation when probable cause exists, could be equally disatrous. We prefer to allow the investigating and prosecuting authorities more time in order to ensure proper arrests, rather than stampeding them into hastily accusing the wrong person, or filing a case on a inadequate factual basis.

The case at bar indicates that there may be emotional factors which cause delay even after 'probable cause' clearly exists. Especially in rape and in child molestation cases such as the one at bar, the delay may not be due to the procedures in the prosecutor's office but rather to the understandable reluctance of the victim or victim's parents to sign a complaint or otherwise press charges.

We note that the legislature has already put certain limitations on pre-accusation delay, in the form of a statute of limitations. ⁵ Furthermore, any prejudicial delay within the limitations period caused by police misconduct or the like can be attacked on 'due process' ⁶ grounds. See United States v. Marion, supra, 404 U.S. at 324-26, 92 S.Ct. 455.

For these reasons, we now ⁷ join our sister states ⁸ in holding that the right to a speedy trial does not attach before the defendant becomes formally accused-that is, the subject of a filed complaint or an arrest.

Yarbor also asserts that the delay in his case violated his due process rights. We have stated that 'both the absence of a valid reason for pre-accusation delay and the fact of prejudice must be established in order to support a due process claim.' ⁹ We conclude that Yarbor has established neither.

The total period between the conclusion of the police investigation and service of the signed complaint was from August 1973 to March 1974. The delay between August and December apparently resulted in part from repeated review of the case by various members of the district attorney's office, and a further interview with J. E.'s mother. Because of the particularly inflammatory nature of the charge, it does not appear to us at all unreasonable ¹⁰ that the decision to prosecute was carefully weighed and reviewed over this time period; certainly Yarbor has no cause for complaint that this was done. As for the period between December and March, appellant accepts as valid the inference that 'the victim's mother had not decided whether or not she wanted the state to prosecute the case.' The trial court, in denying appellant's motion, believed it important that the 'private sector' and not the police were responsible for this delay. We find that in a child molestation case of this sort, it was not unreasonable for the state to wait this amount of time on a hesitant mother's decision whether to press charges. Possible emotional effects to the child, injury to the child's reputation, and family disruption, ¹¹ all had to be considered in making her decision.

Yarbor assigns several grounds of prejudice to his defense. First, he contends that Officer Strickfaden and J. E. had faded recollections of the circumstances by the time of trial. He argues that because of theis situation his right to engage in effective cross-examination...