State v. SerrellState v. Serrell
Defendant was convicted of the illegal sale of narcotics and his conviction was affirmed by the Court оf Appeals,
The only issue we will consider on review is the claim by defendant that he was denied a speеdy trial. The indictment alleged that the illegal sale of narcotics was made on September 27, 1971. Defendаnt was indicted on February 15,1972, and tried on March 24, 1972. He does not complain of the lapse of time betweеn indictment and trial. He does complain, however, of the 141 days between the time he made the allegеd sale to an undercover agent and the time he was indicted. Defendant argues that the state had all information concerning his guilt on the day of the crime which he is alleged to have committed, and that its delay in returning the indictment prejudiced him because his memory during the interim failed him concerning his whereabouts on the day of the crime.
The Court of Appeals, in its opinion in this case, stated at
“The trial judge did not err in denying defendant’s mоtion to dismiss for lack of a speedy trial. The time interval involved (141 days), between the sale of heroin chаrged in the indictment and the return of the indictment, was not excessive. Defendant failed to establish that he had been prejudiced thereby.”
*218
In
State v. Griffin,
“We are persuaded that under certain circumstances the Sixth Amendment spеedy trial right may apply to the period after the prosecution decides to proceed and has sufficient evidence for arrest or indictment * * (Footnote omitted.) 93 Adv Sh at 764.
It is thus apparent that the Court of Appeals believes that the time between the state’s knowledge of a violation of the law by a dеfendant and its charging him with that violation may be taken into consideration in determining whether he has been given а speedy trial. The Court of Appeals is in error in this respect. The right of a speedy trial is given by the Sixth Amendment оf the United States Constitution and by Article I, section 10, of the Constitution of the State of Oregon.
①
Concerning the Sixth Amendmеnt, the Supreme Court of the United States held in
United States v. Marion,
“* * * [I] t is readily understandable that it is either a formal indictment or informatiоn or else the actual restraints imposed by arrest and holding to answer a criminal charge that engagе the particular protections of the speedy trial provision of the Sixth Amendment.”404 US at 320 .
In
State v. Vawter,
“* * * We think, however, that the requirement of Article I, section 10 of the Constitution that ‘justice shall be administered * * * without delay’ means that therе shall be no unreasonable delay after a formal complaint has been filed against the defendаnt. * * * While Article.I, see *219 tion 10, of the Constitution of this state does not contain the word ‘accused,’ as do the comparablе provisions in the Constitutions of the United States * * * still, we think that the same construction should be given to the constitution оf this state. No different measure of protection of the rights of persons accused of crime cаn reasonably be said to have been in the minds of the framers of our constitution.”
From the foregoing, it is plain thаt the time elapsing prior to an arrest or a formal charge is not taken into consideration in detеrmining whether a defendant has been given a speedy trial. Since defendant made no complaint concerning the lapse of time between his indictment and trial, there is no question in this case involving a speedy trial. ②
However, although the right to be charged promptly with a crime is not protected by the constitutional provisions entitling a defendant to a speedy trial, his right to due process under the Fifth Amendment may so protect him, depending upon the circumstances. The primary guarantee against bringing overly stale criminal charges is the statute of limitations. However, in United States v. Marion, supra, the Court said:
“* * * [I]t is appropriate to note here that the statute of limitations dоes not fully define the appellees’ rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice *220 to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Cf. Brady v. Maryland,373 US 83 ,10 L Ed 2d 215 ,83 S Ct 1194 (1963); Napue v. Illinois,360 US 264 ,3 L Ed 2d 1217 ,79 S Ct 1173 (1959). However, we need not, and could not now, determine when and in what cirсumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and mоst necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to thе rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances in each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.”404 US at 324-25 .
In any event, the accused has the burden of proving that his right to due process was prejudiced by preindictment delay. It is our opinion that he does not carry his burden by claiming he does not remember where he was on the day the crime was alleged to have been committed.
The judgment of conviction is affirmed.