State v. Grant , 103 Ohio App. 3d 28 ( 1995 )

I respectfully dissent. The Supreme Court of the United States, in Doggett v. United States (1992), 505 U.S. 647,112 S.Ct. 2686, 120 L.Ed.2d 520, held that an eight-and-one-half-year delay between the defendant's indictment and arrest constituted a violation of the Sixth Amendment's right to a speedy trial. The Supreme Court stated not only that such an extraordinary delay constitutes presumptive prejudice, thereby triggering the four-factored inquiry of Barker v. Wingo (1972), 407 U.S. 514,92 S.Ct. 2182, 33 L.Ed.2d 101, but that the defendant need not specify how he was prejudiced by the delay absent extenuating circumstances or rebuttal evidence. Doggett, 505 U.S. at 657-658,112 S.Ct. at 2693-2694, 120 L.Ed.2d at 532.

While the Doggett opinion controls our decision, I disagree with the majority's interpretation and application ofDoggett to the facts of this case. Specifically, I do not agree that "Grant has made the threshold showing that the seventeen-month delay between indictment and service was presumptively prejudicial" so as to trigger the four-pronged inquiry under Barker. Although the Doggett court recognizes in a footnote that some cases have held a year to be a sufficient postaccusation delay to raise a presumption, it does so without approval or disapproval. See id., 505 U.S. at 652,112 S.Ct. at 2691, 120 L.Ed.2d at 528, fn. 1. I do not believe thatDoggett is precedent for a one-year bright-line test.

The Barker court stated:

"Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Barker,407 U.S. at 530-531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

The circumstances in Doggett included a substantially greater delay than in this case — eight and one-half years compared to seventeen months. I cannot agree that seventeen months should be considered such an extraordinary delay that prejudice should be presumed without examination of other circumstances.

Under the particular circumstances of this case, a seventeen-month delay does not raise a presumption of prejudice. The evils that the Sixth Amendment was designed to protect against were discussed in United States v. MacDonald (1982),456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696, 704:

"The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges."

In light of these protections, the fact that Grant was incarcerated on other unrelated matters for the entire period of delay militates against a presumption that he was prejudiced by the delay. In addition, while negligence for failure to promptly secure service of an indictment cannot be condoned, Grant's incarceration in Ohio prisons suggests the absence of any urgency in service of the indictment. I would hold that a seventeen-month delay in the service of an indictment under these circumstances does not implicate the Sixth Amendment's speedy trial clause.

Finally, I do not believe that Grant demonstrated sufficient particularized actual prejudice to justify the remedy of dismissal of the indictment against him. I cannot agree with the majority's conclusion that the loss of an opportunity to have an independent test so prejudiced Grant that "he was unable to meet the state's case." This court has previously held that the destruction of evidence by the state does not necessitate dismissal of the charges in the absence of bad faith on the part of the state. See State v. Smith (Mar. 16, 1994), Lorain App. No. 93CA005585, unreported at 6-8, 1994 WL 78610.

Based upon the foregoing, I would overrule Grant's first assignment of error. The decision of my colleagues to reverse the conviction renders it unnecessary to address the remaining assignments of error; however, in consideration of the speedy trial issue alone, I would affirm the conviction.