State v. Moylett

860 P.2d 886, 123 Or. App. 600, 1993 Ore. App. LEXIS 1672

• Court: Court of Appeals of Oregon
• Decided: October 6, 1993
• Docket: D890539M; CA A77510
• Status: Published

Opinions

LEESON, J.

Defendant appeals his convictions for assault in the fourth degree and criminal mischief in the second degree. ORS 163.160; ORS 164.354. The issue is whether the trial court erred by denying defendant's motion to dismiss the charges for lack of a speedy trial. We hold that it did not.

The underlying facts are not in dispute, and are fully explained in State v. Moylett, 101 Or App 86, 789 P2d 677 (1990). For convenience, we briefly review them. On December 23, 1988, defendant, a sheriff’s detective, drove his car after drinking alcohol at an office party. He collided with another car, injuring himself and another person. He was taken to a hospital. Defendant refused to consent to giving a blood sample for a blood alcohol test. Nonetheless, an investigating officer asked hospital personnel to draw a sample, which they did. The officer then obtained a warrant to search defendant’s blood for alcohol. Pursuant to that warrant, two subsequent blood samples were taken at one hour intervals from the first sample.

On February 14, 1989, defendant was charged with assault, criminal mischief and driving under the influence of intoxicants (DUII). Trial was set for April 20,1989. On April 4, defendant moved to suppress evidence of the three blood samples. He argued that the first sample was taken without a warrant, probable cause or exigent circumstances, and that the warrant purporting to authorize the second and third samples was not supported by probable cause. The trial court granted the motion to suppress in its entirety, and the state appealed.

In an opinion issued March 28, 1990, we affirmed the suppression of the first blood sample, and reversed the trial court’s suppression of the second and third blood samples. State v. Moylett, supra, 101 Or App at 91. Both the state and defendant petitioned the Supreme Court for review. It granted review, and issued its opinion on July 16, 1992. State v. Moylett, 313 Or 540, 836 P2d 1329 (1992). The court held that, with regard to the DUII charge, all three blood samples should be suppressed. 313 Or at 547. With regard to the assault and criminal mischief charges, it held that the first sample should be suppressed, 313 Or at 551, but that the second and third samples were admissible. 313 Or at 552. The case was remanded to the trial court.

Trial was scheduled for November 6, 1992. On September 29,1992, defendant filed a motion to dismiss for lack of speedy trial. The trial court denied that motion. Its written order stated, in relevant part:

“10. That despite a delay of almost 46 1/2 months since the date of the alleged incident, the defendant has not suffered any actual prejudice such as the destruction of evidence or the disappearance of a witness;

“11. That the defendant has not been held in custody at any time in regards to the case at bar;

“12. That it is apparent that the defendant is emotionally stressed. It is similarly apparent that the defendant has been severely impacted [sic] as a result of the charges pending against him. Not all of the defendant’s anxiety, however, is attributable to the defendant’s pending criminal case.

“Based on the above findings, the Court makes the following conclusions of law:

“ 1. That while a delay of almost 461/2 months is on its face extreme, most of the delay in this case was the result of pre-trial appeals. It has been recognized by the appellate court’s [sic] in this state that pre-trial appeal is the most benign basis for delay;

“2. That more than one-half of the delay, approximately 26 months, was the result of the case being on appeal to the State Supreme Court. Since both the defendant and the State requested review, this period cannot be attributed to either side;

“3. That one-quarter of the delay, approximately 10 months, was caused by the State’s appeal of the trial court’s pre-trial suppression of evidence. This delay is attributable to the State. As noted above, pre-trial appeal is the most benign basis for delay. The State’s appeal was well founded, as evidenced by the fact that the State was successful in large measure. Further, there is no evidence that the State’s appeal was pursued for purposes of delay or to obtain an unfair advantage;

“4. That the remaining period of delay * * * is not an impermissible period considering the nature of the charges and the complexity of the issues involved in this case.” (Emphasis supplied.)

Defendant was convicted of assault and criminal mischief.

Defendant contends that his motion to dismiss should have been granted pursuant to ORS 135.747,¹ Article I, section 10, of the Oregon Constitution,² and the Sixth Amendment to the United States Constitution.³

The analysis of whether a trial delay requires dismissal is the same under ORS 135.747 and under the Oregon Constitution. State v. Emery, 115 Or App 655, 840 P2d 95 (1992), mod 117 Or App 565, 842 P2d 467, rev allowed 317 Or 396 (1993). We consider three factors in determining whether there has been a violation of a defendant’s right to a speedy trial: (1) the length of the delay; (2) the reasons for the delay; and (3) the prejudice to the defendant. State v. Dykast, 300 Or 368, 377, 712 P2d 79 (1985). A substantially longer than average delay is required to trigger an inquiry into the other two factors. State v. Emery, supra, 115 Or App at 657. In this case, the delay of almost 45 months is more than enough to trigger such an inquiry.

The bulk of the delay involved resolution of defendant’s pretrial motion to suppress. The state was entitled to appeal the trial court’s order granting that motion, ORS 138.060(3), and it did. Following our decision, both parties petitioned the Supreme Court for review. It granted review, and issued an opinion. Resolution of defendant’s pretrial motion, at the trial court and at both levels of appeal, accounts for all but six months of the delay in this case.

Defendant contends, nonetheless, that the state is responsible for the delay resulting from the appellate process. He does not argue that the state’s appeal or petition for review was frivolous or filed in bad faith. He maintains, instead, that the judiciary failed to expeditiously process the case on appeal. He characterizes this case as involving “misdemeanor charges that could have been disposed of much faster than a felony.”

We noted in State v. Meikle, 44 Or App 91, 95, 605 P2d 301 (1980), that

“a court is not an adversary to a defendant and a delay by the court is not necessarily for purposes [that] are adverse to defendant’s interest. The judicial task is to impartially, fairly and expeditiously resolve the dispute between the parties. Moreover, the judiciary’s responsibility to safeguard the rights of the parties at times may of necessity override the * * * expeditious administration of justice. Consideration of a court’s attention to this responsibility must be taken into account when assessing the weight to be given the reason for the delay.” (Citation omitted.)

The delay defendant complains of was caused by the judiciary carrying out its responsibility to safeguard his right to have improperly obtained evidence suppressed.

We do not, and cannot, know why defendant’s case was before the Supreme Court for more than two years. We do know that, even though the case involved misdemeanor charges, the Supreme Court found that it raised “important issues.” State v. Moylett, supra, 313 Or at 545. A concurring opinion found one issue in the case “very close” and “troubling.” 313 Or at 553. We are in no position to say that the Supreme Court’s extended consideration of the merits of defendant’s motion to suppress unreasonably delayed his trial. The workings of the appellate process to resolve defendant’s pretrial motion constitute a valid explanation for the delay in this case. As in State v. Meikle, supra, “the reason for the delay does not benefit” defendant’s argument that he was denied a speedy trial. 44 Or App at 95.

We turn to the third factor to be considered, prejudice to defendant. Three types of prejudice are relevant in the context of speedy trial claims: (1) oppressive pretrial incarceration; (2) impairment of the ability to defend; and (3) anxiety. State v. Dykast, supra, 300 Or at 378.

The trial court found that defendant suffered no actual prejudice, because he was never incarcerated and the delay did not cause him to lose evidence or in any other way affect his ability to defend against the charges. In State v. Mende, 304 Or 18, 23, 741 P2d 496 (1987), the Supreme Court noted that “our prior cases all have required in effect that there be some degree of actual prejudice to the ability to prepare a defense to the charge in order to establish a constitutional violation of sufficient magnitude to justify dismissal of the criminal charge.”

The only prejudice defendant alleges is that he suffered anxiety. It is the nature of a criminal prosecution to cause “stress, discomfort and interference with a normal life. Delay adds to the problem.” State v. Dykast, supra, 300 Or at 378. As the court implied in Dykast, no small part of the anxiety that a criminal defendant is likely to feel is simply the result of being charged with a crime, irrespective of any delay. In this case, although the trial court found that defendant was “emotionally stressed,” it also found that not all of his anxiety was attributable to the pending criminal case.

Although there was a long delay in bringing defendant to trial, we agree with the trial court that a “pretrial appeal [relating to defendant’s motion to suppress] is the most benign basis for delay.”⁴ Defendant was never incarcerated, and was not prejudiced by the delay in his ability to defend the case. Whatever anxiety defendant experienced that was attributable to the trial delay must be viewed in light of the reason for that delay — resolution of defendant’s pretrial motion to suppress.

Considering all of the relevant factors, we hold that the trial court did not err in denying defendant’s motion to dismiss.

Defendant’s federal claim fails for the same reasons. Barker v. Wingo, 407 US 514, 92 S Ct 2182, 33 L Ed 2d 101 (1972).

Affirmed.

1 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.”

2 Article I, section 10, provides:

“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay * * *.”

3 The Sixth Amendment provides:

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

4 In State v. Robinson, 3 Or App 200, 214, 473 P2d 152 (1970), we cited favorably a note in the Stanford Law Review: “ ‘A defendant cannot complain of delays attributable to himself, such as delays resulting from his pretrial motions.’ ”