In this criminal case, defendant moved to dismiss charges against him for first-degree manslaughter, third-degree assault, and driving under the influence of intoxicants (DUII), arguing that the state had violated his right to a speedy trial under former ORS 135.747 (2011), repealed by Or Laws 2013, ch 431, § l,
We are bound by the trial court’s findings of historical fact when evidence in the record supports them, and we review the trial court’s legal conclusions for legal error. See State v. Johnson,
The state filed an indictment on December 17, 2009, charging defendant with one count of first-degree manslaughter, two counts of third-degree assault, and one count of DUII. The charges stemmed from an incident in the early morning of October 31, 2009. While defendant was driving home after watching a band perform at a bar, the car he was driving collided with another car at an intersection in Lebanon, Oregon, killing a passenger in defendant’s vehicle, Spinney, and injuring both passengers in the other vehicle. Defendant was arraigned on December 19, 2009. He posted bail and remained out of custody while his case was pending.
The trial court held a pretrial conference on February 8, 2010, when defendant appeared with counsel for the first time. The court set another pretrial conference for March 8, 2010. That conference, along with conferences set in April, May, and June, were continued at defendant’s request.
On the day of the next scheduled pretrial conference, July 12, 2010, defendant filed nine separate pretrial motions.
At the October 14, 2010, hearing, the court heard evidence on defendant’s motions, including testimony from defendant. The hearing could not be completed that day, however, so the court set December 9, 2010, as a second hearing day. The hearing was later rescheduled to January 25, 2011.
On February 18, 2011, the trial court heard testimony from three witnesses: an Oregon State Police forensic scientist, a forensic consultant, and a sheriffs deputy. By the close of the hearing, the trial court had ruled on all of defendant’s motions but three, which the court took under advisement.
On May 26, 2011, the court issued an 18-page letter opinion, denying defendant’s motion to suppress evidence of the hospital’s analysis of his blood and urine, denying the
The trial did not go forward on that date, however, because of a discovery issue relating to one of the state’s trial witnesses, Goad. Goad had seen defendant and Spinney at the bar on October 30, 2009, where they were all watching a band perform. A police officer interviewed Goad on or about November 14, 2009. Goad, who had been watching his wife sing in the band, recalled seeing defendant and Spinney in the bar and recounted what he remembered of defendant’s conduct. He also mentioned that he was focused on videotaping the band, using a tripod-mounted camera pointed toward the stage. Goad had not watched the video when interviewed by police and told police that he would watch the video and contact law enforcement if it showed defendant. Goad never communicated with law enforcement about the video, and the prosecutor prepared the state’s case without it.
A few days before the December 12 trial date, however, Goad contacted the prosecutor. He informed her that he had recently watched the video footage, which lasted well over three hours, and discovered that it captured a conversation between defendant and Spinney shortly before they left the bar. In that conversation, as the prosecutor described it to the trial court, defendant and Spinney discussed whether, given their alcohol consumption, either of them should drive. The prosecutor immediately informed defendant about the video.
By the time the parties appeared for trial on December 12, as scheduled, however, defense counsel had not been able to view the footage because of the way the video was formatted. Defendant objected to its introduction. The trial court ruled that the state had timely produced the video to defendant but concluded that defendant would be deprived of his right to confront and meaningfully
Given the trial court’s crowded docket, the first date that the trial could be rescheduled was in early February 2012. Murder trials were already scheduled for January and February, the court had week-long trials scheduled in March and April, and the court was facing mandatory furlough days and reduction of staff. The parties and the court agreed that the trial would begin February 6, 2012. On December 13, 2011, however, defendant asked to reschedule the trial to the following week in February to accommodate one of his expert witnesses. Because the court’s docket was already full for that week, the parties and court staff exchanged several emails in an attempt to set the trial sometime between March and June 2012; they finally arrived at June 26, 2012, as a trial date that worked for the court, the attorneys, and the witnesses.
Before that date, however, defendant filed a motion to dismiss, arguing that the state had violated his statutory and constitution rights to a speedy trial. In its ruling on that motion, the trial court determined that the delay “attributable to the State’s requests for continuances, scheduling, and delays for decisions” was over 26 months. As relevant to the parties’ arguments on appeal, the court attributed the entire period from July 2010 (when defendant filed his pretrial motions) to May 2011 (when the court ruled on those motions) to the state, except for a 24-day delay when defendant requested to reset a hearing in January 2011.
In assessing the “reasons for the delays,” the court did not identify any particular delay that was unjustified or unreasonable. The court noted that the “motions for continuances were all made for good reasons and in good faith.”
The trial court also concluded that defendant had established the prejudice required to sustain his constitutional speedy trial claims. Defendant argued that the delay had impaired his ability to present a defense because witnesses from the bar, who defendant’s investigator had previously interviewed, could no longer recall certain details about defendant when he was at the bar. Defendant also argued that those witnesses, had their memories not faded, may have helped defendant’s investigator identify the not-yet-identified individuals who were heard or seen on the video; those individuals, defendant argued, may have served as favorable defense witnesses. As explained in greater detail below, the trial court determined that defendant was prejudiced by “the evaporation of evidence” and noted “the concern, anxiety, and stress that this action waged on [defendant’s] life.” Accordingly, the court dismissed the manslaughter and assault charges under Article I, section 10, and the Sixth Amendment. The state now appeals, asserting that the court misapplied the legal standards under former ORS 135.747 and the speedy trial provisions of the state and federal constitutions.
We start with the dismissal of the DUII charge under former ORS 135.747. Our analysis under that statute begins with a determination of the period of total delay— here, the 952 days from the indictment to the last date set for trial. See State v. Coulson,
In determining those periods of delay that defendant requested or consented to, we need only consider one period of delay in detail — the period starting July 12, 2010, when defendant filed 10 pretrial motions, to May 26, 2011, when the trial court ruled on those motions. We have explained that, by filing pretrial motions, which require resolution before a trial can be held, a defendant applies for or consents to “a postponement for some reasonable period of time for the trial court to consider and decide them.” State v. Blevins,
The motion hearing was not held as scheduled, however, and was not completed for several months because (1) the state requested a continuance of the initial hearing date, which was reset for October 14, 2010; (2) the hearing was only partially completed on October 14, so it was set over twice, from October 14 to December 9, and then to January 25, 2011; and (3) defendant requested a continuance of the January 25 date, so the hearing was reset (and completed) on February 18. There is no dispute about the first and last of those delays: defendant did not consent to the delay from September 8 to October 14, but he did consent to the 24-day delay from January 25 to February 18.
Once the hearing was completed, the trial court took the motions under advisement and issued an 18-page letter opinion on May 26, 2011. We conclude that, given the complexity of the evidence presented and the distinct issues raised in defendant’s various motions,
We can quickly dispense with allocating the remaining delays between the parties. The only other delay to which defendant consented is the 126-day delay from March 8, 2010 to July 12, 2010, which was the result of continuances requested by defendant. All other delays are attributable to the state:
• First, two short delays at the beginning of the case are attributable to the state: (1) the 53-day delay between the indictment and the first pretrial conference on February 8, 2010, was not the product of defendant’s consent; and (2) another 28 days of delay, from February 8, 2010, to March 8, 2010, is attributable to the state.8
*96 • Second, the delay from May 26, 2011, the date the court ruled on defendant’s motions, to the trial date scheduled for December 12, 2011, is attributable to the state. That delay was the product of efforts by court staff to set a date for trial (predicted to last longer than a week) that met the needs of the court, counsel, and witnesses.
• Third, the over-seven-month delay between the scheduled trial date, December 12, 2011, and the last set trial date, July 26, 2012, is attributable to the state. The trial date was initially rescheduled to February 6, 2012, at the state’s request; the state acknowledges that it is responsible for that delay. Defense counsel then requested that trial be rescheduled to February 13 to accommodate one of his expert witnesses, but the next date that worked for the parties and the court was July 26, 2012. The state argues that defendant consented to the 171-day delay between February 6 and July 26; defendant responds that, at most, he should be responsible for a one-week delay. Given our ultimate resolution of defendant’s statutory speedy trial claim, we need not attempt to mark the point, under former ORS 135.747, where a delay that defendant initiates becomes so long (or is otherwise affected by matters for which defendant is not responsible, like an overcrowded docket) that it should be considered unreasonable, i.e., beyond the reasonable amount of time to which defendant consented. For the purposes of this appeal, we attribute the 171-day delay to the state.
In total, then, defendant consented to 305 of the total delay of 952 days. The total unconsented delay is 647 days — roughly 21.5 months. Because that delay is longer than to be expected in the prosecution of felony charges, Ellis,
• First, the short unconsented delays leading up to defendant’s pretrial motions — the delay between indictment and arraignment and the time it took for defendant to retain and appear with counsel— were routine, justified delays at the start of the case. See State v. Dixon,224 Or App 66 , 75,197 P3d 1106 (2008), rev den,346 Or 10 (2009) (routine delays included “one month from indictment to arraignment, a one-month delay to appoint substitute counsel, and a four-month delay from the first court appearance to the first scheduled trial date”); State v. Hall,265 Or App 279 , 284,335 P3d 311 (2014) (concluding that scheduling delays like those in Dixon and other cases “are routine in the early part of a case” and are justified).
• Second, the two setovers requested by the state were justified. The first continuance (from September to October 2010) that delayed the first day of the evidentiary hearing was caused by the unavailability of one of the state’s witnesses. The second (from December 2011 to February 2012) was the result of the prosecutor’s decision to seek a continuance so that defendant could examine the video disclosed to the prosecutor just before the December trial date. The trial court imposed that continuance as a condition for allowing the state to present that evidence at trial, and the prosecutor made a reasonable choice in requesting a short continuance.9
• Third, the unconsented delays in scheduling and completing the evidentiary hearing on defendant’s pretrial motions (from September 8, 2010 to January 25,*98 2011) and in scheduling the trial (from May 26, 2011 to July 26, 2012) were “reasonable because [they were] ‘the product of the type of scheduling issues that courts and litigants face regularly — delays due to scheduling conflicts by the court and counsel, the unavailability of witnesses.’” State v. Peterson,252 Or App 424 , 430,287 P3d 1243 (2012) (quoting State v. Allen,205 Or App 219 , 228,134 P3d 976 (2006)).
• Fourth, to the extent that docket congestion contributed to the difficulty in scheduling the evidentiary hearing or the trial dates, the trial court offered a detailed explanation of the resource reduction that contributed to the crowded docket and explained that particular pressing matters (e.g., a four-week civil trial in late 2011 and multiple murder trials in early 2012) were taking up space on the docket. See Hall,265 Or App at 285 (explaining that the record must demonstrate how an overcrowded docket contributes to delay). Defendant does not argue otherwise on appeal.
The only remaining question under former ORS 135.747 is whether, even though all of the individual delays were justified, the total unconsented delay is so long that it should be deemed unreasonable. As the Supreme Court has explained, “ [a] t some point, the focus must shift away from whether the various postponement requests and decisions individually are justifiable to whether the overall period of time to bring the defendant to trial is ‘reasonable’ in toto.” State v. Adams,
Where there are multiple charges pending against a defendant, the relevant statute of limitations, for purposes of in toto comparison under Adams, is that of the most serious charge against the defendant.
We turn to the dismissal of the manslaughter and assault charges under Article I, section 10. Our analysis under that provision follows a similar path to our statutory speedy trial analysis, with a few important detours. We again start with the total delay — the delay between indictment and the last date set for trial — which serves as a “triggering mechanism” for analysis of other factors. State v. Mende,
That further inquiry requires weighing the length of delay with other “factors”: the reasons for the delay and the prejudice to the defendant created by the delay. Harberts,
Defendant’s constitutional speedy trial claim, then, rests on his claim that he was prejudiced by the delay. Under
The trial court agreed that defendant had shown that the delay impaired his defense:
“Defendant argues that he has been prejudiced by the evaporation of evidence. After the prosecutor presented the video tape, [defendant] explained that witnesses identified on the tape can no longer be found. In addition, the recollections of those witnesses who can be found have most assuredly faded with time. The tape, therefore, takes on an unhealthy significance in the minds of those who are aware of it. The ability of Defendant’s counsel to confront and cross examine these witnesses has been materially and adversely affected by the passage of time caused by the State’s delay in the prosecution of the case.
“While this court does not agree with all of these arguments, there are serious concerns about the reliance of jurors on statements which have the effect of absolute certainty without the testimony which might have mitigated the effect of the video if the case had been timely tried. To this extent, Defendant’s arguments are well taken.”
On appeal, the parties offer different interpretations of the trial court’s conclusion that, because of the delay, defendant was left without “testimony which might have mitigated the effect of the video.”
We start with defendant’s contention that the delay prevented him from identifying additional favorable witnesses. That argument, as we understand it, rests on the factual theory that (1) if the trial date had been set earlier, Goad could have turned over the video sooner;
On that point, State v. Tiner,
Here, defendant presents the same kind of speculation that the court rejected in Tiner and Johnson. The unidentified individuals on the video are potential defense witnesses only because they were at the bar at some point over a three-hour period on October 30, 2009. But defendant had already identified several witnesses from the bar — the bar staff, members of the band, and other bar patrons who defendant talked to — as part of his investigation. Defendant made no showing that others (who could be seen or heard on the video but had not yet been identified) had any interaction with defendant on the night in question. Nor did defendant show that those individuals otherwise would have observed defendant closely enough to provide relevant testimony, let alone testimony that would be helpful to defendant. Even if we assume that the delay prevented defendant from locating additional individuals at the bar, defendant’s assertion that those individuals would provide favorable testimony rests on speculation and is therefore insufficient to establish a reasonable possibility that his defense was impaired.
Defendant’s alternative argument — that previously identified witnesses, “had their memories not faded significantly, could have corroborated details of Defendant’s testimony” — fares no better. Although the witnesses at the bar generally stated that they did not remember that anyone at the bar was intoxicated, defendant claims that, without the delay, those witnesses “could have confirmed that Defendant was only served two drinks that night,” “that Defendant did not drink on an empty stomach,” or that
Ultimately, all defendant established is what is “[undoubtedly” true in every case where there has been pretrial delay: “witnesses could have remembered events more clearly at a time nearer to [when defendant was charged].” Emery,
That degree of anxiety and concern, though real, is not enough to support dismissal in a case such as this, where defendant did not demonstrate impairment of his defense, the delays in this case were reasonable, and defendant was not incarcerated pretrial. See, e.g., Emery,
In sum, none of the factors that come into play under our Article I, section 10, analysis support the conclusion that the state violated defendant’s right to a speedy trial.
Reversed and remanded.
Notes
Former ORS 135.747 provided:
“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.”
In 2013, the legislature passed a law that provides, in part, “ORS 135.747 is repealed on April 1, 2014.” Or Laws 2013, ch 431, § 1. The repeal provision does not apply to appeals pending in cases in which the trial court granted the defendant’s motion to dismiss under former ORS 135.747. State v. Ellis,
Although felonies and Class A misdemeanors ordinarily were dismissed without prejudice under former ORS 135.747, State v. Harberts,
Article I, section 10, provides, in part, “[Jjustice shall be administered, openly and without purchase, completely and without delay!.]” The Sixth Amendment provides, in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial!.]”
Defendant filed (1) a motion requesting an omnibus hearing; (2) a motion to exclude evidence, which sought exclusion of 22 types of described evidence; (3) a motion to exclude the hospital’s analysis of his blood and urine; (4) a motion
On appeal, the state asserts that defendant requested to continue the hearing from December 9, 2010 to January 25, 2011. The state apparently relies on a notation in the Oregon Judicial Information Network (OJIN) report, “Set-Over Aty”; that notation was used elsewhere to signify setovers requested by defense counsel for other hearing dates, including the January 25, 2011, hearing. The trial court stated that the delay between December 9, 2010 and January 25, 2011, was attributable to the state and “appeared] to be partly neutral because of the court’s heavy docket,” and the trial court found that “defendant asked for a continuance of the hearing set for January [25], 2011” and concluded that the delay was attributable to defendant.
In light of those rulings, we conclude that the trial court implicitly found that defendant did not request the setover from December 2010 to January 2011. To the extent the state, on appeal, argues that that implicit finding is not supported by the evidence in the record, we need not address that contention. As explained below, even if the delay from December 9, 2010 to January 25, 2011, is attributable to the state, as we assume for purposes of appeal, that delay was not unreasonable under former ORS 135.747 — either alone or in combination with other unconsented delay.
In a separate letter opinion, the court later ruled that the video “was timely disclosed when the prosecutor came into possession [of it] on Thursday, December 8, 2011.” The court concluded that the requested continuance by the prosecutor “resolved the issues of confrontation and cross examination.”
In its ruling, the trial court noted that it had ruled on several of defendant’s motions in a previous order, but three issues remained: (1) whether evidence of retrograde extrapolation of defendant’s blood alcohol content met the standards of admissibility for scientific evidence under both State v. Brown,
On appeal, the state argues that the delay from February 8,2010 to March 8, 2010, should be attributed to defendant because the OJIN report and a hearing transcript show that defense counsel requested a continuance on February 8. In the trial court, however, the state argued that that one-month delay was attributable to the state. In its response to defendant’s motion to dismiss, the state noted that February 8, 2010, was the first date that defendant was given “to return” and noted that “defendant appeared with his attorney” for the first time on that date. The trial court, in its letter opinion, specifically relied on the state’s allocation of time in attributing that delay to the state. To the extent that allocation reflects legal error, we conclude that the state invited the error. See State v. Ferguson,
Although the trial court noted that the prosecutor’s request for a continuance was a “tactical choice,” the court did not state that the prosecutor’s choice was unreasonable, such that the delay caused by his request for continuance should be deemed unreasonable. The trial court did not otherwise determine that the delay caused by the prosecutor’s requested continuance was unreasonable because the prosecutor should he faulted for not discovering the evidence on the video sooner.
See State v. Lee,
The trial court specifically related the loss of witness testimony to the video that Goad presented in December 2011. We understand the trial court to mean that the video was important evidence of defendant’s condition at the bar, and defendant could not combat that evidence with testimony from witnesses at the bar whose memories had faded. We note that the prosecutor sought to introduce the conversation between defendant and Spinney — not statements from others heard on the video.
The parties’ trial preparation in December 2011 apparently caused Goad to review the video. The trial court noted that “Apparently” a conversation between Goad and defendant’s investigator just before trial “prompted [Goad] to review the [video] and he brought [it] to the prosecutor * * * just prior to the trial set for December 12, 2011.”
To the extent that defendant also claims that his defense was impaired because defendant’s investigator was unable to locate a single previously identified witness, that claim, too, requires too much speculation to establish a reasonable possibility of prejudice. Defendant notes that his private investigator was unable to contact a previously interviewed witness, but he does not identify the
Defendant’s speedy trial claim under the Sixth Amendment fails for the same reasons. See McDonnell,