State v. DavisState v. Davis
R. Tracy Hoover, The Hoover Law Group, LLC, Portsmouth, Ohio, for appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Danielle M. Parker, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
SADLER, J.
{¶ 1} Defendant-appellant, Teah Davis nka Broughton, appeals from a judgment of the Scioto County Court of Common Pleas convicting her of attempted endangering children, a felony of the fourth degree, in violation of
I. BACKGROUND
{¶ 2} On August 23, 2010, appellant was indicted on five counts of felonious assault, each felonies of the second degree, in violation of
{¶ 3} Appellant filed a motion to dismiss on December 14, 2011, arguing her statutory right to a speedy trial, pursuant to
{¶ 4} In overruling the motion, the trial court found “a lack of actual prejudice against the Defendant thus no constitutional violation of her due process rights.” (July 12, 2012 Judgment Entry.) The trial court further found “[d]efendant neglects to include in her calculation her filing of May 27, 2011, a request for a more specific bill of particulars.” (July 12, 2012 Judgment Entry.) Finally, the trial court found the request for a more specific bill of particulars is a tolling event, and appellee had 51 days remaining to bring appellant to trial.
{¶ 5} On August 16, 2012, appellant withdrew her not guilty plea and entered a plea of no contest to the amended charge of attempted endangering children. Pursuant to her plea of no contest, appellant was found guilty of one count of attempted endangering children and sentenced accordingly. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶ 6} Appellant brings the following assignment of error for our review:
The trial court erred in denying the Defendant‘s Motion to Dismiss the charges against her because the State of Ohio violated her constitutional and statutory rights to a speedy trial.
{¶ 7} A defendant‘s constitutional right to a speedy trial, “a more vague concept than other procedural rights,” arises from the Sixth and Fourteenth Amendments to the United States Constitution. Barker v. Wingo, 407 U.S. 514, 521 (1972). A defendant‘s statutory right to speedy trial arises from
{¶ 8} Our review of a trial court‘s decision regarding a motion to dismiss for an alleged constitutional and statutory speedy trial violation involves mixed questions of law and fact. State v. Davis, 4th Dist. No. 10CA3188, 2011-Ohio-1747, ¶ 13, citing State v. Alexander, 4th Dist. No. 08CA3221, 2009-Ohio-1401, ¶ 15. Due deference is accorded to the trial court‘s findings of fact if they are supported by competent, credible evidence. Id. However, we must determine independently whether the trial court properly applied the law to the facts of this case. Id.
A. Constitutional Speedy Trial Analysis
{¶ 10} We first address appellant‘s claim of a constitutional speedy trial violation. The Sixth Amendment to the United States Constitution and
{¶ 11} The first of these factors, the length of the delay, “is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker at 530; Doggett v. United States, 505 U.S. 647, 651 (1992). Therefore, the Barker analysis is only triggered once a “presumptively prejudicial” delay is shown. Doggett at 651-52; Alexander. “[C]ourts generally find post-accusation delay to be ‘presumptively prejudicial’ as it approaches one year.” Id. at ¶ 34. Here, appellant was found guilty almost two years after her indictment. Assuming without deciding that a presumptively prejudicial delay has been shown, we will consider the other Barker factors to determine if appellant‘s speedy trial rights have been violated.
{¶ 12} The second factor focuses on the reasons for delay. This factor is concerned with whether the government or the defendant is more to blame for the delay. Doggett at 651. “Delay ‘to hamper the defense’ weighs heavily against the prosecution while delay caused by the defense weighs against the defendant.” Vermont v. Brillon, 556 U.S. 81, 82 (2009), quoting Barker at 531. A review of the record reveals appellant was responsible for a substantial amount of delay. Throughout the course of the proceedings, appellant filed 12 motions, as opposed to the six filed by appellee. In response to appellee‘s motion to consolidate, appellant filed three responses as well as a separate motion. Said action necessarily prolonged the trial court‘s ability to resolve the
{¶ 13} Appellant argues there was no acceptable reason for a delay and argues appellee did not give the case “prosecutorial priority.” On the contrary, the record shows appellee timely responded when appellant‘s motions required action on behalf of appellee. Nor do we find any delay caused by appellee‘s motions to be delay “to hamper the defense.” In consideration of the aforementioned, we find appellant was more responsible than appellee for a delay in the proceedings. Hence, this factor does not weigh in appellant‘s favor.
{¶ 14} The next factor concerns appellant‘s assertion of her right to a speedy trial. Appellant first asserted a violation of her constitutional right to a speedy trial on July 3, 2012, almost two years subsequent to the commencement of this case. We have previously held that a complete failure to assert a speedy trial right should be “assign[ed] little or no weight.” State v. Remy, 4th Dist. No. 96CA2245 (June 27, 1997); Alexander at ¶ 38 (third factor weighed only slightly against defendant when failure to assert speedy trial right occurred several months after arraignment with significant pre-indictment delay). We, therefore, find the third factor weighs only slightly against appellant.
{¶ 15} The final factor is prejudice. The trial court found “a lack of actual prejudice against the Defendant thus no constitutional violation of her due process rights.” (July 12, 2012 Judgment Entry.) In assessing prejudice, we consider the specific interests the right to a speedy trial was designed to protect: (1) oppressive pretrial incarceration, (2) anxiety
{¶ 16} Appellant does not argue that her defense of this case was impaired by the passage of time or that there was oppressive pretrial incarceration. Rather, appellant argues the delay has prejudiced her because she has not been able to visit with the minor child involved in this matter, as a condition of her bail, and, further, the paternal grandparents have started an adoption action in probate court. However, anxiety alone is insufficient to establish prejudice. State v. Eicher, 8th Dist. No. 89161, 2007-Ohio-6813; Barker at 533-34. Accordingly, having considered all aforementioned interests of appellant, we find this factor weighs against appellant.
{¶ 17} Carefully balancing these factors, we conclude appellant did not suffer a violation of her constitutional right to a speedy trial.
B. Statutory Speedy Trial Analysis
{¶ 18} Appellant next argues her statutory speedy trial right was violated. “[W]hen reviewing the legal issues presented in a speedy trial claim, we must strictly construe the relevant statutes against the State.” State v. Staffin, 4th Dist. No. 07CA2967, 2008-Ohio338, ¶ 6, citing Brecksville v. Cook, 75 Ohio St.3d 53, 57 (1996).
{¶ 20} Pursuant to
{¶ 21} When computing how much time has run against appellee under
{¶ 22} Appellee bears the burden to prove events chargeable to appellant have sufficiently tolled enough time so appellant was tried within the speedy trial period. As
{¶ 23} An independent review of the record reveals the following motion activity relevant to this case:
| Relevant Events: | Date: |
|---|---|
| Defendant‘s Request for Discovery Defendant‘s Motion to Modify Conditions of Bond | 09/15/10 |
| Defendant‘s Motion to Continue | 09/22/10 |
| Judgment Entry granting motion to continue pretrial hearing until 10/14/10 | 09/30/10 |
| State‘s response to Defendant‘s Request for Discovery and Reciprocal Request for Discovery | 10/13/10 |
| Defendant‘s Supplemental Motion to Modify Conditions of Bond | 11/10/10 |
| Judgment Entry on Defendant‘s Motion to Modify Bond | 12/14/10 |
| Defendant‘s Motion to Declare Defendant Indigent Defendant‘s Motion for Fees for Expert Witness & Fees for Transcript Preparation | 01/19/11 |
| Judgment Entry on Defendant‘s 01/19/11 motions | 04/06/11 |
| Defendant‘s Motion Requesting a More Specific Bill of Particulars2 | 05/27/11 |
| Defendant‘s Discovery Response to State3 | 07/07/11 |
| Defendant‘s Motion to File Supplemental Motion in Opposition to State‘s Motion to Consolidate Under Seal | 09/07/11 |
| Defendant‘s Motion to Dismiss | 12/14/11 |
| Judgment Entry on Defendant‘s Motion to Dismiss | 03/30/12 |
| Judgment Entry on Motion to Consolidate and Defendant‘s 09/07/11 motion | 04/05/12 |
| Defendant‘s Motion to Dismiss | 07/03/12 |
| Judgment Entry on Defendant‘s Motion to Dismiss | 07/12/12 |
| Defendant‘s Motion to Continue Trial | 07/13/12 |
| Judgment Entry on Defendant‘s Motion to Continue Trial | 07/13/12 |
| Defendant‘s Motion for Funds and Defendant‘s Motion for Written Report of Experts | 07/20/12 |
| Judgment Entry on Defendant‘s 07/20/12 motions | 07/26/12 |
| Judgment Entry Accepting Defendant‘s Guilty Plea | 08/21/12 |
(Judgment Entries in bold.)
{¶ 24} Appellant avers three arguments for our consideration in opposition to appellee‘s calculations. Appellant‘s first argument takes issue with the trial court and appellee‘s tolling calculations. According to appellant, because appellee filed a motion to consolidate on April 8, 2011, her motion requesting a more specific bill of particulars filed on May 27, 2011 did not toll the speedy trial clock because it was filed within in a time
{¶ 25} Although “[t]he State bears the burden to show that actions or events chargeable to the defendant have tolled enough time so that the defendant is tried within the speedy-trial period,” Staffin at ¶ 8, citing Whitt at ¶ 16, ”
Sanchez at ¶ 26. The date a motion was filed is not counted unless the date was also the date an order was entered resolving the motion. Staffin at fn. 1, citing State v. Webb, 4th Dist. No. 01CA32, 2002-Ohio-3552, fn. 3, citing United States v. Thomas, 49 F.3d 253, 256 (6th Cir. 1995).
{¶ 26} Appellant has cited no authority for her argument that, because she filed a request for a more specific bill of particulars while the state‘s motion to consolidate was pending, the filing of the defendant‘s request does not itself become a tolling event. Nor does our research reveal support for this assertion. To adopt appellant‘s argument would require this court to conclude that, once the state files a motion requiring court action, the
{¶ 27} Appellant next argues the trial court‘s reliance on State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, for the proposition that a motion for a bill of particulars is a tolling event, is incorrect. According to appellant, the Brown decision only held that discovery requests were tolling events. We disagree.
{¶ 28} The Supreme Court of Ohio in Brown was faced with the following certified question: “Whether the defendant‘s filing of a request for discovery or for a bill of particulars, and the state‘s response thereto, extends that time within which the defendant must be brought to trial under the Ohio speedy trial statute,
{¶ 30} Appellant‘s final argument asserts the trial court‘s failure to rule upon her motion requesting a more specific bill of particulars caused an unreasonable delay and violated her rights to a speedy trial.
{¶ 31} “The Ohio Supreme Court has noted that ‘[a] strict adherence to the spirit of the speedy trial statutes requires a trial judge, in the sound exercise of his judicial discretion, to rule on these motions in as expeditious a manner as possible.’ ” State v. Brummett, 4th Dist. No. 03CA5, 2004-Ohio-431, ¶ 22, quoting State v. Martin, 56 Ohio St.2d 289, 297 (1978). Although there is no strict time limit in which a trial court must rule on a motion,
{¶ 32} “However, ‘an unreasonable or excessive delay in determining such a motion may violate a defendant‘s speedy trial rights.’ ” Staffin at ¶ 16, quoting Hurst. “What constitutes a reasonable time ’ “depends on the particular facts and circumstances of a particular case.” ’ ” Id. at ¶ 15, quoting State v. Monroe, 4th Dist No. 05CA3042, 2007-Ohio-1492, ¶ 34, quoting State v. Saffell, 35 Ohio St.3d 90, 91 (1998). This includes taking into account the particular circumstances of the case, including the factual
{¶ 33} Here, there was a delay of 201 days between appellant‘s filing of her motion requesting a more specific bill of particulars and a subsequent tolling event. We must determine whether such a delay is reasonable under the circumstances of this case.
{¶ 34} In Hurst, we determined a period of 147 days to rule upon a defendant‘s motion to dismiss was not unreasonable and did not deprive the defendant of his speedy trial rights. Conversely, in Brummett and Staffin, we determined 318 days and 364 days respectively to decide a motion was unreasonable. Essential to our decision in Staffin was our conclusion there was 148 days of inactivity in the trial record subsequent to a hearing on the motion, and the motion neither presented a legally complex issue, nor one requiring a great deal of legal research. Using the Rules of Superintendence as a guide and taking into consideration the above factors, we only tolled 120 days, as opposed to the full 364 days, for speedy trial purposes.
{¶ 35} In this case, the 201 days of delay falls somewhere in the midst of what we faced in Hurst, Brummett, and Staffin, but notably closer to the delay experienced in Hurst. Strikingly similar is the Seventh District Court of Appeals decision in State v. Driver, 7th Dist. No. 03 MA 210, 2006-Ohio-494, wherein the defendant was charged with murder and an accompanying firearm specification. Similar to this case, the defendant argued a 204-day delay in ruling on his motion to suppress was unreasonable. In ruling on the reasonableness of the delay, the Driver court considered the legal and factual complexity of the case, the trial court‘s activity in the case, as well as other pending matters on the trial court‘s docket.
{¶ 37} Here, appellant‘s motion tolled the speedy trial clock for 201 days before a new tolling event took its place. Like Driver, we find the trial court was confronted with a legally and factually complex case, and the record demonstrates an active trial court and counsel. Appellant was indicted with five counts of felonious assault and ten counts of felony child endangerment. On April 8, 2011, appellee filed a motion to consolidate, eliciting a response from appellant on April 20, 2011. On April 28, 2011, appellee filed a memorandum in support of its motion to consolidate, again eliciting a response from appellant on May 26, 2011. On May 27, 2011, while the court was considering multiple filings on appellee‘s motion to consolidate, appellant filed the request for a more specific bill of particulars.
{¶ 38} On June 2, 2011, appellee filed a motion contra appellant‘s supplemental memorandum. On July 5, 2011, appellee filed a memorandum contra appellee‘s request for a more specific bill of particulars. The trial court issued a judgment entry on August 19, 2011 on the issue of consolidation. Appellant then filed a motion to file a
{¶ 39} Based on the foregoing, we find the trial court was faced with complex issues, both legally and factually, as demonstrated by the multiple, and sometimes overlapping, filings of the parties, and the court was active in resolving multiple issues. After review of the record, we cannot conclude the trial court‘s delay in ruling on appellant‘s motion requesting a more specific bill of particulars was unreasonable.
{¶ 40} Accordingly, as shown in the chart and consistent with appellee‘s calculations, we find 255 days of speedy trial time passed between the day after defendant‘s arrest and the date she entered a not guilty plea. Thus, appellant‘s statutory speedy trial rights were not violated.
{¶ 41} Because we have found no violation of appellant‘s constitutional or statutory speedy trial rights, we overrule appellant‘s sole assignment of error.
{¶ 42} Having overruled appellant‘s sole assignment of error, the judgment of the Scioto County Court of Common Pleas is hereby affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
*Klatt, P.J., & Dorrian, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Lisa. L. Sadler, Judge*
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
*Lisa L. Sadler, William A. Klatt, and Julia L. Dorrian, from the Tenth Appellate District, sitting by assignment of the Supreme Court of Ohio in the Fourth Appellate District.