Petition
for Review from the Court of Appeals of the State of Alaska,
No. A-10587, on appeal from the Superior Court of the State
of Alaska, Third Judicial District, Anchorage, No.
3AN-99-09867 CR, Philip R. Volland and Michael R. Spaan,
Judges.
Timothy W. Terrell, Assistant Attorney General, Anchorage,
and Jahna Lindemuth, Attorney General, Juneau, for
Petitioner.
Margie
Mock, Contract Attorney, Anchorage, and Quinlan G. Steiner,
Public Defender, Anchorage, for Respondent.
Before: Stowers, Chief Justice, Maassen, Bolger, and Carney,
Justices, and Matthews, Senior Justice.[*] [Winfree,
Justice, not participating.]
OPINION
MATTHEWS, Senior Justice.
I.
INTRODUCTION
In
November 1999 the State filed a felony information charging
Sean Wright with sexually abusing two young girls. Wright was
not arrested or indicted on these charges until almost five
years later. He moved to dismiss the charges, claiming, among
other reasons, that his right to a speedy trial had been
violated. The superior court denied this motion. On appeal,
the court of appeals ordered a reassessment of Wright's
claim.
We
granted the State's petition for review and now decide
two questions:
(1) Do speedy trial rights begin when a felony information is
filed, or only when a defendant is arrested or indicted?
(2) Did the superior court err when it decided that Wright
was more responsible than the State for the delay?
We
conclude that speedy trial time begins to run from the filing
of an information. We also find that the superior court did
not err in attributing primary responsibility for the delay
to Wright.
II.
FACTS AND PROCEEDINGS
A.
Facts
The
State began investigating Wright in February 1999 after
receiving a report that Wright had sexually abused his
eleven-year-old stepdaughter, K. A. K. A. and her mother,
Evelyn Wright, had confronted Wright about the abuse, and
Wright moved out of the home, at which point they informed
the police. Alaska State Trooper Investigator Ruth Josten
interviewed K.A. and Evelyn on February 16 and 17, 1999.
Evelyn indicated that Wright may have also abused another
child, M.C., the daughter of his prior long-term partner. On
March 4, Josten made contact with M.C., who confirmed that
Wright had sexually abused her a decade prior.
When
the investigation into the sexual abuse began, Wright left
the state. Initially, he stayed with his brother in Arkansas.
He subsequently decided to leave Alaska permanently and, over
the next five years, worked various jobs in Arkansas,
Mississippi, Alabama, Georgia, Oklahoma, Tennessee, and
Minnesota.
At
first, Wright stayed in contact with Evelyn via phone and
letter. He called Evelyn on February 28 and March 1, 1999,
but would not say where he was. Josten placed a phone trap on
Evelyn's phone on March 2. With the phone trap, the
Matanuska Telephone Authority identified phone calls from
Wright to Evelyn on March 9, 10, and 11 as coming from
Arkansas. In phone calls between February 28 and April 1,
Wright expressed concern that the calls might be monitored by
police, checked to see whether a warrant had been issued for
him, indicated that he was attempting to retain counsel, and
expressed his desire to achieve a non-criminal resolution of
the allegations against him.
In
mid-March 1999, he returned to Alaska. He stayed with a
friend in Anchorage except for the weekend of March 20-21,
which he spent with Evelyn in Wasilla. While back in Alaska
he sold land to a friend, arranged to sell his truck, and
placed his personal belongings in storage. On March 22 he
formally resigned from his job and took a "red-eye"
flight that night back to Arkansas. While Wright was waiting
for his flight out of Alaska, he wrote to a friend:
I don't know what's going on but I got a bad feeling,
time to travel while I can. Note to trust no one, I won't
call for a long time and don't know where I'm going
yet. Have to stick to myself and stay away from family and
friends till my attorney knows what's happening and how
to deal with it. So I act like a termite for a while and work
where I can to pay lawyer and survive.
Josten
did not learn that Wright had been in Alaska until May 1999.
Wright did not return to Alaska until after he was arrested
in Minnesota in 2004.
Wright
telephoned Evelyn frequently for several months after
permanently leaving the state, but according to Evelyn, this
regular contact ended after a warrant was issued. On May 6,
1999 Wright wrote to Evelyn to send her an address where he
could receive mail. The address was his brother's in
Vilonia, Arkansas, but it was clear this was only a
forwarding address. He wrote, "Bill will get my mail to
me were [sic] I'm at." This was the only address
Evelyn and Josten had for Wright.[1] The record reflects that
Wright also occasionally received mail at several mailing
addresses in Russellville, Arkansas, where he at times lived
with a girlfriend.[2] And Wright kept his brother apprised of
where he was working.
Josten
completed her investigation in June 1999. She forwarded the
information she had gathered to the district attorney's
office for review, and, aware that Wright had fled the state,
requested that an extraditable arrest warrant issue. Her
request was declined, "inexplicably, " according to
the superior court.
Five
months later, in November 1999, the State filed a criminal
information with the court charging Wright with eleven counts
of sexual abuse of a minor. On November 16, 1999, an arrest
warrant was issued for Wright. But the warrant was
non-extraditable, so it was not placed in the FBI's
National Crime Information Center system.
In the
summer of 1999, Josten was reassigned. Between then and 2004,
she periodically checked for information about Wright using
databases available to Alaska State Troopers, but she made no
other efforts to locate Wright.
Wright
obtained an Arkansas driver's license in 2001. And
between 1999 and 2004 he worked at a number of nuclear
facilities requiring security clearance. Had his warrant been
entered into the National Crime Information Center database,
his employers would have discovered it.
On
September 17, 2004, almost five years after the felony
information was filed, Alaska State Trooper Sergeant Iliodor
Kozloff received an inquiry from an employer in Minnesota
about Wright.[3] Sgt. Kozloff confirmed there was an arrest
warrant for Wright, but discovered that it was
non-extraditable. He then contacted the district
attorney's office, which decided to obtain an
extraditable warrant. Wright was subsequently arrested and
brought back to Alaska.
On
October 3, 2004, Wright was arraigned on the charges filed in
1999. On October 12, 2004, a grand jury indicted Wright on
eighteen counts of sexual abuse of a minor covering the abuse
of K.A., M.C., and a third girl, T.W.[4]
B.
The Superior Court Proceedings
In
August 2005 Wright filed a motion to dismiss the indictment
claiming that the delay in prosecuting him violated his due
process and speedy trial rights. After extensive briefing and
an evidentiary hearing spread over seven non-consecutive
days, Superior Court Judge Philip Volland denied the motion
in a 13-page written opinion. The discussion portion of Judge
Volland's opinion is set out in the appendix.
With
respect to the due process claim, the court determined that
Wright had failed to show actual prejudice or unreasonable
delay, and found Wright largely responsible for the delay.
As to
the speedy trial claim, the court implicitly determined that
the speedy trial clock began to run when the information was
filed in November 1999. The court then applied a four-factor
balancing test to determine whether the delay deprived Wright
of his right to a speedy trial. The test, laid out by the
Supreme Court of the United States in Barker v.
Wingo, requires a court to consider: (1) the length of
the delay, (2) the reasons for the delay, (3) the
defendant's assertion of the speedy trial right, and (4)
prejudice to the defendant.[5] The superior court found that
none of the latter three factors favored Wright.
Wright
unsuccessfully sought interlocutory review in state and
federal courts.[6] He also brought numerous other motions
before the case finally came to trial in May 2009. Wright
renewed his speedy trial motion just prior to trial. Superior
Court Judge Michael Spaan denied this motion, relying on
Judge Volland's decision. Before the jury began
deliberations Wright again renewed his motion to dismiss on
speedy trial grounds. Judge Spaan again denied this motion.
The jury convicted Wright on eight counts of sexual abuse of
a minor involving M.C. and five counts involving K.A. After
Wright was sentenced, he appealed to the court of
appeals.[7]
C.
The Court Of Appeals' Decision
The
court of appeals held that Wright's speedy trial claim
under the federal constitution was without
merit.[8] The court explained that federal courts
have held that such claims do not begin to run until either
an arrest or the filing of formal charges in a court having
jurisdiction to try to accused, whichever comes
first.[9] Since the November 1999 information was
filed in the district court, which does not have jurisdiction
to try felonies, the federal speedy trial right did not
attach until Wright's arrest in September
2004.[10] Wright made no claim that the
post-arrest delay violated his rights. He therefore had no
viable federal speedy trial claim.[11]
But the
court held that Wright's state speedy trial right
attached when the felony information was filed in November of
1999.[12] The court based its holding in part on
the court of appeals' decision in State v.
Mouser[13] and in part on this court's decision
in Yarbor v. State.[14]
Turning
to the trial court's decision, the court of appeals found
that the trial court had misapplied the four-factor
Barker test.[15] According to the court of appeals,
the trial court erred in finding Wright partially responsible
for the delay because after he left Alaska he "was not
hiding out, and the State had avenues of locating him"
that likely would have been productive.[16] Further, the
trial court should not have faulted Wright for failing to
assert his speedy trial right because he was unaware that
charges had been filed.[17] Moreover, the court of appeals held
that since the lengthy delay was the responsibility of the
State, a presumption of prejudice arose and additional
findings were required as to whether the State had met its
burden of rebutting the presumption or showing extenuating
circumstances.[18]
The
court of appeals noted that pretrial determinations of speedy
trial claims are necessarily provisional because prejudice
can be better evaluated after a trial, so it instructed the
superior court to apply the four-factor test to the whole
period between the filing of the information and the
trial.[19] The court suggested that the pre-arrest
delay, which it found to be the responsibility of the State,
might be counterbalanced by the post-arrest delay, if found
to be the responsibility of Wright.[20] The court further
suggested that Wright's post-arrest litigation conduct
might indicate that he was not actually interested in a
speedy trial.[21]
The
State filed a petition for review to this court contending
that the speedy trial time should have run from Wright's
2004 arrest or indictment, rather than from the 1999
information. After oral argument we ordered supplemental
briefing on whether the court of appeals erred in attributing
the pre-arrest delay to the State rather than, as the
superior court did, primarily to Wright's flight from the
state once he realized he was under investigation.
III.
STANDARDS OF REVIEW
The
proper interpretation of the Alaska Constitution is a
"question[] of law to which we apply our independent
judgment, adopting the rule of law that is most persuasive in
light of precedent, reason, and policy."[22]
We
review a trial court's findings of fact for clear error,
[23]
but the assessment of the legal consequences of the trial
court's findings of fact is a question of law that we
review de novo.[24]
"[W]e
give no deference to the court of appeals's conclusions
when we grant a petition for review."[25]
IV.
DISCUSSION
A.
Purposes Of The Right To A Speedy Trial
This
case concerns the speedy trial guarantee expressed in the
Alaska Constitution and its relationship to procedures for
initiating criminal prosecutions. Article I, section 11 of
the Alaska Constitution states: "In all criminal
prosecutions, the accused shall have the right to a speedy
and public trial...." This language is almost identical
to the speedy trial clause in the Sixth Amendment to the
United States Constitution.
The
speedy trial right has its origins in English law. Sir Edward
Coke wrote that "the innocent shall not be worn and
wasted by long imprisonment, but. . . speedily come to his
trial."[26] As this indicates, the core evil that
the right was originally designed to prevent was lengthy
pretrial incarceration. But modern cases have recognized that
the right has broader purposes. Inordinate delay, regardless
of incarceration, may impair a defendant's ability to
prepare an effective defense.[27] And regardless of prejudice in
attempting to defend on the merits, long delay may
"seriously interfere with [a] defendant's liberty,
whether he is free on bail or not, and . . . may disrupt his
employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create
anxiety in him, his family[, ] and his
friends."[28]
There
are other legal protections against undue delay in bringing
criminal charges to trial. Alaska Criminal Rule 45 requires a
trial within 120 days from the date a charging document is
served on a defendant, subject to defined excluded periods.
This rule, promulgated in 1971, has sharply reduced the
number of constitutional speedy trial claims asserted in our
courts, as the proscriptions of Rule 45 are generally
narrower than the limits of the constitutional speedy trial
right.[29] Statutes of limitations also provide a
limit beyond which the law irrebuttably presumes that a
defendant cannot receive a fair trial.[30] And lengthy
pre-accusation delay may result in a deprivation of due
process.[31]
All of
these protections have limits. They are not necessarily
congruent with each other, nor does any one of them fully
protect against undue delay.[32] The ultimate limits on delay -
statutes of limitations - are tolled when an "indictment
is found" or an "information or complaint is
instituted."[33] Further, there is no limitation period
for many serious crimes, [34] including as of 2007, cases of
felony sexual abuse of a minor;[35] for most other serious
crimes the period is a lengthy ten years.[36] Meanwhile, a
defendant asserting a due process claim of pre-accusation
delay must prove both unreasonable delay and actual
prejudice.[37] For a state constitutional speedy trial
violation, under the analysis we use, proof of actual
prejudice is not always required.[38]But the constitutional
speedy trial right utilizes an ad hoc and imprecise balancing
test, [39]and it does not attach until the
defendant becomes an "accused, "[40] which is when
the defendant is either arrested or formally
charged.[41] The other protection against
post-accusation delay, Rule 45, contains well-defined
standards, but it does not begin to run until a defendant is
served with the charging document.[42]
B.
The Criminal Information Was A Formal Charge That Started The
Speedy Trial Clock.
The
first question in this case is when a defendant is
"formally accused" for purposes of starting the
speedy trial clock under the Alaska Constitution.
Specifically, this case concerns whether the filing of a
criminal information triggers the speedy trial right.
In
Alaska the initial pleading in a criminal case may be an
information, a complaint, or an indictment. All are charging
documents with formal requirements prescribed by
rule.[43] All may charge either misdemeanors or
felonies. But felony charges initiated by a complaint or
information are generally not the final pleading required
before a defendant can be brought to trial. For that, an
indictment is necessary unless the defendant waives an
indictment, in which case the trial may proceed based on an
information.[44] Informations and complaints are
generally similar. The main differences are that informations
must be signed by the prosecuting attorney and complaints
need not be, [45] and complaints can never serve alone as
the basis for a felony prosecution, even if an indictment is
waived, while informations can.[46] The filing of a complaint
or information sets in motion a litigation process described
in Alaska Criminal Rules 3, 4, 5.1, 7, and 9. But the rules
do not indicate how the litigation process aligns with the
state constitutional right to a speedy trial.
The
State argues that the right to a speedy trial in cases where
a defendant has not been first arrested should not attach
until a charging document has been filed that is sufficient
to compel a defendant to stand trial. Because an information
is not a sufficient pleading to compel a person charged with
a felony to stand trial unless the person waives indictment,
the State contends that the speedy trial time did not begin
to run in this case until Wright was arrested in September of
2004. By contrast, Wright argues that the speedy trial right
attaches in felony cases when an information is filed and
therefore the speedy trial time in this case began to run
when the information was filed in November of 1999.
Both
positions find substantial support in the case law of other
jurisdictions.[47] Our case law has also considered the
issue. In Yarborv. State, we stated that the speedy
trial time starts when the defendant "becomes formally
accused - that is, the subject of a filed complaint or an
arrest."[48] The State asks us to revisit this
statement from Yarbor.
The
criminal conduct in Yarbor, lewd and lascivious acts
toward a child, took place in August 1973.[49] The police
investigation ended ten days later, and the district
attorney's office completed its review of the case in
December 1973, when it notified the victim's mother that
a criminal complaint was ready for her
signature.[50] But she did not sign the complaint until
March 1974.[51] Yarbor was served two days later, but
not arrested.[52] He was indicted in April 1974 and tried
in June 1974.[53] On appeal Yarbor challenged the delay in
commencing prosecution on speedy trial grounds, arguing that
the right to a speedy trial attached when the State acquired
sufficient evidence to charge him.[54] The State argued that the
speedy trial right should not attach prior to
"accusation, " a term that it defined as "that
point in time when a person is officially charged with the
commission of a crime either by arrest, with or without a
warrant, complaint, information or indictment, whichever
occurs first."[55]
We
rejected Yarbor's contention on several grounds. We noted
that the United States Supreme Court in United States v.
Marion[56] had rejected a similar argument and held
instead that the right to a speedy trial does not attach
until the defendant has been "formally
accused."[57] We also observed that Yarbor's
proposed rule would be difficult to administer, and might
have adverse effects because it would create incentives to
bring charges too hastily.[58] We concluded our discussion of
the speedy trial claim with the following language:
For these reasons, we now join our sister states in holding
that the right to a speedy trial does not attach before the
defendant becomes formally accused-that is, the subj ect of a
filed complaint or arrest.[59]
The
State now contends that the quoted statement from
Yarbor is dictum rather than a holding, and
therefore has limited precedential effect. The State also
argues that even if the statement is a holding, it should be
overruled because the criteria for overruling a holding are
satisfied in this case.[60] Wright counters that the statement is
a holding and therefore must be followed because the grounds
for overruling a holding are not met. Wright also contends
that the statement is consistent with substantial authority
and furthers the purposes underlying the speedy trial
guarantee.
We find
it unnecessary to resolve the question of whether the
Yarbor statement - that a defendant becomes formally
accused when a complaint is filed - is a holding or dictum.
Instead, we conclude today that a defendant becomes formally
accused for speedy trial purposes under the Alaska
Constitution not just upon indictment or arrest but also when
the State files an information charging the defendant with a
crime.
We
reach this conclusion because the filing of an information
marks the beginning of litigation against a defendant. An
information is a formal document with prescribed
contents.[61] It must include the name of the
defendant, the statute the defendant is charged with
violating, and a concise and definite written statement of
the essential facts constituting the crime.[62] An
information must also bear the signature of the prosecuting
attorney.[63] It is a public document, available for
view by anyone in the office of the clerk of court. When an
information is filed, the title of the charges, a citation to
the statutes on which the charges are based, and the
defendant's name are promptly entered in the Court View
database, and thus become viewable by anyone with access to
the internet. When the prosecutor's office files an
information it "clearly manifest[s] its decision to
prosecute."[64] And the filing of an information is
sufficient to toll the statute of limitations on a criminal
charge.[65]
When an
information is filed the court must either issue a warrant of
arrest or a summons requiring the defendant to appear in
court at a specified time.[66] At the first appearance the
judge treats a summoned defendant much like an arrested
defendant. The judge informs the defendant of the charges and
of any affidavit filed with it and makes sure the defendant
has copies.[67] The judge also informs the defendant of
his or her right to counsel, the potential penalties the
defendant faces, and the defendant's right to remain
silent.[68] If the defendant desires appointed
counsel, the judge proceeds to determine the defendant's
eligibility by reviewing his or her financial status, and if
the defendant is eligible, appoints an
attorney.[69] The judge also establishes the
conditions of release applicable to the
defendant.[70] In felony cases, the judge informs the
defendant of his or her right to a preliminary hearing unless
the defendant waives this right or consents to the filing of
an information in superior court.[71] If there is a waiver or
consent the judge "shall forthwith hold the defendant to
answer in the superior court."[72] If not, the judge
schedules a preliminary hearing, which must be held within 20
days of the initial appearance.[73]
The
preliminary hearing is a trial in miniature. The State must
present evidence in support of its case and the defense may
present evidence.[74] All witnesses are subject to cross
examination[75] and the defendant has the right to
counsel.[76] If the judge determines there is no
probable cause the defendant is discharged, [77] but if
probable cause is found to exist the judge enters an order
holding the defendant to answer and establishes conditions of
release.[78]
All
these actions and proceedings may come before an indictment.
We believe that it cannot reasonably be said that a defendant
who is a party to them has not been formally accused.
Further,
the text of the Alaska Constitution suggests that the term
"accused" applies at pre-indictment stages. Several
of the rights addressed at the first appearance described
above - e.g., the right to be informed of charges and to
counsel - are rights secured by the second sentence of
article 1, section 11 of the Alaska
Constitution.[79] A charged person thus becomes an
"accused" for the purposes of these rights after an
information is filed and need not await an indictment before
he or she is so considered. There is no indication that the
first sentence of section 11 embraces a different meaning of
"accused" than the second sentence.[80]
Moreover,
the text of article 1, section 8 uses the term
"accused" in a sense that can only precede an
indictment. That section states in part:
Grand Jury-No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or
indictment of a grand jury.... Indictment may be waived
by the accused. In that case the prosecution shall be by
information.[81]
If an
"accused" can waive an indictment, it is not the
indictment that confers "accused" status on a
defendant. Thus, for defendants who have not been arrested,
the term logically attaches when an information is filed
against them.[82]
We
believe that the purposes of the speedy trial right are best
secured when the speedy trial clock begins with the filing of
an information. As we observed above, [83] the purpose
of the speedy trial guarantee is to prevent lengthy pretrial
imprisonment and other adverse impacts of delay. Given the
question in this case, incarceration is not a factor since it
is undisputed that an arrest would trigger the attachment of
speedy trial rights. But a long delay, regardless of
incarceration, may impair a defendant's ability to
prepare an effective defense, disrupt a defendant's
employment, drain his or her financial resources,
circumscribe his or her associations, subject the defendant
to public shame, and create anxiety in the defendant and his
or her family and friends.[84] These interests come into play
as readily with the filing of an information as with the
return of a grand jury indictment. A holding that speedy
trial rights do not attach until an indictment issues
potentially leaves a long period when a defendant is publicly
accused by an information, suffers the detriments meant to be
protected against by the speedy trial guarantee, but does not
receive its protection.
The
fact that pending charges are now available on the internet
in searchable form magnifies their potential for harm. Such
broad publicity, especially when the charges are of a heinous
nature, can effect a near banishment of the person charged
from certain lines of work and certain sectors of society,
and also increases the potential that charges may be filed or
maintained for vindictive or otherwise improper purposes.
As
already noted, a number of other jurisdictions are in accord
with the view that the filing of a complaint or information
rather than an indictment will start the speedy trial
clock.[85] A good discussion of the reasons
supporting this view is contained in Commonwealth v.
Butler. There, the Massachusetts Supreme Judicial Court
reached a conclusion similar to ours for similar reasons,
stressing especially the detriments that can flow from public
charges.[86] In Butler, the court held that
a defendant's right to a speedy trial under the
Massachusetts Constitution "attaches when a criminal
complaint issues."[87] "Therefore, arrest, indictment,
or a criminal complaint issued pursuant to Massachusetts law,
whichever comes first, will start the speedy trial
clock."[88] Moreover, the Massachusetts speedy trial
right "does not distinguish between the types of cases,
(misdemeanor or felony; within the district or superior
court) to which the right to a speedy trial
attaches."[89] The court explained that "[t]he
constitutional right to a speedy trial attaches because the
subject of a criminal complaint is undoubtedly an
'accused, ' and is not merely in 'the
pre-accusation period when a police investigation is
ongoing.' "[90] Observing that a "criminal
complaint is a formal charging document in Massachusetts,
" the court stated that "[t]he fact that a
complaint may be followed by an indictment... does not render
a complaint any less of a formal
accusation."[91] Finally, the court emphasized, as we do
in the present case, that the public aspect of the charge is
of primary importance: "Of perhaps greatest
significance, the subject of a criminal complaint typically
faces the same 'anxiety, concern, economic debilitation,
public scorn and restraint on liberty' that the right to
a speedy trial is intended to guard
against."[92]The court determined that "no
logical conclusion can be reached other than that the time
within which an accused is to be secured in his right to a
speedy trial must be computed from the time the complaint is
filed against him."[93]
At
stake in the present case is whether the delay between an
information and an arrest should be assessed under the due
process standard for pre-accusation delay or the speedy trial
standard applicable to post-accusation delay. Under the due
process standard, a defendant has the burden of proving both
that the delay was unjustified and that the defendant
suffered actual prejudice.[94] Under the speedy trial
standard, if the defendant can show a delay of sufficient
duration to be presumptively prejudicial, the four-factor
balancing test is triggered.[95] Under this test the State has
the burden of proving that the justification for the delay is
valid[96] and prejudice may be presumed rather
than proven when other factors weigh heavily against the
State.[97] It is obvious that in speedy trial cases
a heavier burden is placed on the State, and a lighter one on
the defendant, than in cases of pre-accusation delay. This
differential is justified because incarceration and the
personal disruptions that flow from being publicly charged
are normally not present in pre-accusation cases, while the
possibility of prejudice from delay may be present in
both.[98] In addition, an information manifests
the State's decision to go forward with prosecution,
whereas at the pre-accusation stage there may be uncertainty
as to whether there will even be litigation.[99] When the
State files an information, the State has placed the accused
under a cloud of suspicion. At that point it is appropriate
to employ the more demanding speedy trial standard. It
imposes an incentive on the State to bring the accused to
trial promptly and protects interests of the accused, placed
at risk by the filing of the information, that are not well
protected by the due process standard.
For
these reasons, we conclude that speedy trial time begins to
run with the filing of an information.[100]
Accordingly, Wright's constitutional speedy trial clock
started in November 1999 when the State filed a criminal
information against him.
C.
The Superior Court Did Not Err In Placing Primary
Responsibility For The Delay With Wright.
We turn
now to the question of whether the superior court correctly
decided that Wright bore most of the responsibility for the
pre-arrest delay. This question requires an evaluation of the
trial court's factual findings on the reasons for delay,
which we review for clear error.[101] But we review de novo
the superior court's legal conclusion that Wright failed
to establish a violation of his constitutional right to a
speedy trial.[102]
In
analyzing Wright's speedy trial claim the superior court
followed the four-factor balancing approach embraced by the
Supreme Court of the United States in Barker v.
Wingo[103] and adopted by the Alaska Court of
Appeals in State v. Mouser.[104]We agree
that this test presents an appropriate analytical structure
for evaluating speedy trial claims brought under the Alaska
Constitution. The four factors, as already noted, are: (1)
length of the delay, (2) the reasons for the delay, (3) the
defendant's assertion of his or her speedy trial right,
and (4) the prejudice to the defendant.[105] No one of
these factors is a necessary or sufficient condition to
finding a speedy trial violation.[106] Rather, the factors
are related and must be considered together with other
relevant circumstances.[107]
The
first factor, the length of delay, bears further explanation.
It is both a triggering mechanism that activates the
balancing test and a relevant factor for consideration when
the balancing test is used.[108] Until there is a delay that
is sufficiently lengthy that it may be said to be
presumptively prejudicial, there is no need to conduct the
balancing test.[109] In the present case, the superior
court found the nearly five-year pre-arrest delay to be
presumptively prejudicial, [110] thus triggering the
balancing test.
While
no one disputes the first factor in this case, the superior
court and the court of appeals disagreed as to the second
factor. When considering the reasons for the delay, the
superior court stated that "part of the reason for the
delay is the State's negligence in failing to issue an
extraditable warrant for Wright's arrest. Had such a
warrant been issued, the State would likely have located
Wright when he applied for work at the nuclear facilities in
Arkansas in 2000 which required security
clearance."[111] But apart from the State's failure
to obtain an extraditable warrant the court did not find
other negligent conduct on the part of the State. The court
focused largely on Investigator Josten, finding that her
conduct was reasonable, in part because by September of 1999
she was no longer assigned to the case.[112] The court
stated:
Wright's argument that Josten could have located Wright
by checking Palmer court records, Juneau court records, and
Vital Statistics files places an unreasonable burden on law
enforcement. By the time an arrest warrant was issued for
Wright in September 1999, Josten was off the case and
assigned different duties. She did what any reasonable
officer would do under the circumstances and that is to
periodically check with various police sources to see if
Wright had surfaced. A more thorough investigation of a
defendant's whereabouts cannot be expected of a police
officer no longer having responsibility for the
case.[113]
The
court also concluded that "contacting Wright at his
brother's without an extraditable warrant would only have
alerted Wright that police were searching for
him."[114]
The
superior court concluded that the State's negligence in
failing to obtain an extraditable warrant as a reason for
delay was greatly outweighed by Wright's departure from
the state when he realized he was under investigation. The
court wrote that Wright's departure "made it
impossible to comply with the right to speedy trial" and
added a footnote stating that "defendant's causes
for delay do not count towards determining speedy trial
violation."[115] Earlier in its decision, when
discussing Wright's due process claim, the court also
placed primary responsibility on Wright for the delay:
Wright voluntarily left the state once he realized he was
under investigation for alleged sexual abuse of a minor.
Wright moved from state to state and job to job until
authorities found him in Minnesota. Wright was promptly
extradited once located. The delay in indicting Wright was
largely attributable to his flight from the state and his
frequent moves to different states to obtain
employment.[116]
The
court of appeals interpreted the superior court's
decision as finding Wright only partially at fault for the
delay and found even this conclusion to be
erroneous.[117] Instead, the court of appeals
concluded, none of the responsibility for the delay should
have been attributed to Wright.[118] The court accepted
Wright's argument that "he was unaware that charges
had been filed" and "that none of his actions were
directed at avoiding apprehension."[119] The court
also noted that the State had conceded that after Wright left
the state he "was not hiding out, and the State had
avenues of locating him that likely would have produced him
within a brief period."[120] The court of appeals also
wrote "that although Wright moved frequently for work,
he maintained an Arkansas driver's license and a physical
address that other Alaska state agencies used to communicate
with him. Wright also repeatedly passed intensive security
clearances that would have uncovered the arrest warrant if
the information had been entered into the [National Crime
Information Center] data base."[121]
But the
court of appeals' conclusion that the trial court
attributed only "partial" blame to Wright for the
delay substantially understates the trial court's
assessment of the relative responsibility of the parties.
Initially, in the inquiry as to the due process clause, the
trial court found that the responsibility "largely"
fell on Wright: "[t]he delay in indicting Wright was
largely attributable to his flight from the state and his
frequent moves to different states to obtain
employment."[122] When weighing the
responsibility-for-delay factor in its speedy trial analysis,
the trial court found against Wright even more heavily,
concluding that Wright's flight from the state made it
impossible for the State to comply with the speedy trial
right.
Wright's
flight from the state did not make it literally impossible
for the State to apprehend him. The trial court recognized
this when it stated that an extraditable warrant would likely
have been effective. We therefore understand the trial
court's finding of impossibility not in its literal
sense, but as a means of expressing the much greater
responsibility that Wright should bear for the pre-arrest
delay.
As so
understood, we agree with the trial court. As between an
individual who takes flight to avoid prosecution and a
government that is negligent in its efforts to apprehend him,
the relative responsibility for the ensuing delay must weigh
heavily against the individual. Many authorities illustrate
this point.[123]
The
superior court's characterization of Wright's conduct
as "flight from the State"[124] has
evidentiary support and therefore is not clearly erroneous.
As Wright was leaving the state he left the following note to
a friend:
I don't know what's going on but I got a bad feeling,
time to travel while I can. Note to trust no one, I won't
call for a long time and don't know where I'm going
yet. Have to stick to myself and stay away from family and
friends till my attorney knows what's happening and how
to deal with it. So I act like a termite for a while and work
where I can to pay lawyer and survive.
The
court of appeals stressed that after Wright left the state he
was living and working under his own name and that the State
had means of locating Wright that could readily have been
successful.[125] But these observations, in our view,
do not undercut the superior court's determination that
the primary responsibility for the delay was Wright's act
of fleeing the state. It is likely not a simple matter to
change one's identity and yet remain eligible for
well-paying construction jobs. Wright apparently hoped that
by leaving the state and, as he put it, "acting like a
termite, " his absence would create sufficient
difficulties for the State so that he could escape
prosecution. This strategy worked for about five years, and
the superior court was right to reject Wright's attempt
to blame the State for its success.[126] We therefore affirm
the superior court's determination that Wright bore
primary responsibility for the delay.
This
means that the superior court's determination that
Wright's speedy trial claim was without merit also must
be affirmed. Wright was primarily responsible for the lengthy
delay, and the delay did not prejudice him in preparing his
defense, so the first, second, and fourth factors of the
Barker balancing test weigh heavily against Wright.
And any dispute as to the third factor - whether Wright
should be faulted for failing to assert his speedy trial
right or whether his non-assertion is irrelevant under the
circumstances of this case - is moot because that factor
cannot be favorable to Wright; at best it is neutral.
V.
CONCLUSION
For
these reasons we conclude that the superior court correctly
decided that Wright was not denied his right to a speedy
trial under the Alaska Constitution. We therefore REVERSE the
decision of the court of appeals and REMAND this case with
directions to AFFIRM the decision of the superior court.
BOLGER, Justice, concurring.
I agree
with the court's opinion that the State did not violate
Sean Wright's right to a speedy trial. But I disagree
with the court's conclusion that a prosecutor's
information is a formal charge sufficient to initiate a
felony prosecution within the meaning of this constitutional
guarantee. The Alaska Constitution requires a grand jury
indictment to initiate a felony prosecution. Therefore, until
the defendant has been arrested or indicted, we should apply
the due process test to assess preindictment delay.
A.
Alaska Law Requires The Grand Jury To Return An Indictment To
Initiate Felony Charges.
The
right to a speedy trial does not accrue until the defendant
is arrested or formally charged.[1] A formal charge means a
criminal charge that "alone gives 'the court
jurisdiction to proceed to trial.' "[2] For
example, the filing of a criminal complaint in a felony
matter generally will not trigger the defendant's right
to a speedy trial.[3] In the majority of state jurisdictions
that requires a grand jury indictment to initiate felony
charges, [4] the speedy trial right does not accrue
until arrest or indictment, whichever comes
first.[5] This is also the rule in the federal
courts, where the right to a grand jury for those accused of
federal felonies is guaranteed by the Fifth
Amendment.[6] As the United States Supreme Court has
recognized, "when no indictment is outstanding, only the
'actual restraints imposed by arrest and holding
to answer a criminal charge ... engage the particular
protections of the speedy trial provision of the Sixth
Amendment.' "[7]
Alaska
is one of the jurisdictions where an indictment is required
to formally charge a criminal defendant with a felony.
"In Alaska felony charges must be initiated by grand
jury indictment unless the defendant waives
indictment."[8] "This requirement ensures that a
group of citizens will make an independent determination
about the probability of the accused's guilt 'before
the accused suffers any of the grave inconveniences which are
apt to ensue upon the return of a felony indictment.'
"[9]
The
delegates at the Alaska Constitutional Convention considered
and rejected the original Committee proposal, which would
have allowed prosecutors the option of prosecuting by either
information or indictment. Instead, the delegates voted in
favor of an amendment that retained the indictment
requirement, which is now enshrined in article I, section
8.[10] Accordingly, our court rules require
that a felony charge "shall be prosecuted by indictment,
unless indictment is waived."[11] Only non-felony
offenses "may be prosecuted by [either] indictment or
information."[12] If a felony indictment is waived, then
"the prosecution shall be by information or
complaint."[13]
In my
opinion, the court's analysis is incomplete because of
the lack of recognition of an important qualifier: the
accused's right to a speedy trial in article I, section
11, applies only to a criminal prosecution. "In all
criminal prosecutions, the accused shall have the
right to a speedy and public trial, by an impartial jury of
twelve . . . ."[14] This term comes into play in the
court's discussion of article I, section 8, the grand
jury clause, which states in relevant part:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the armed forces in
time of war or public danger. Indictment may be waived by the
accused. In that case the prosecution shall be by
information.[15]
The
court's opinion reasons that the statement that the
indictment may be waived by "the accused" implies
that a person may be an accused before an
indictment.[16] But the opinion ignores the fact that
the "prosecution" itself cannot begin until the
grand jury has returned an indictment or the accused has
waived the indictment. If we assume that this term has a
similar meaning in these related sections, then the speedy
trial right cannot attach until the formal felony prosecution
begins - upon indictment or waiver.[17]
In the
absence of a waiver, the information that the State filed to
obtain a warrant for Wright was inadequate to initiate his
formal prosecution for felony charges and insufficient to
trigger his entitlement to a speedy trial.
B.
The Authority The Court's Opinion Relies Upon Is
Distinguishable.
The
court's opinion in the case at hand implies that we
decided in Yarbor v. State that a defendant becomes
formally accused upon the filing of a
complaint.[18] In my opinion, this language is taken
out of context. The Yarbor case establishes only
that, contrary to the defendant's argument in that case,
the right to a speedy trial does not attach "when the
state has acquired sufficient evidence to charge an
individual with a crime."[19] And
Yarbor's statement that "we now join our
sister states in holding that the right to a speedy trial
does not attach before the defendant becomes formally
accused"[20] cites at least three other opinions
stating or implying that a pre-indictment complaint is
insufficient to trigger the speedy trial
guarantee.[21]
The
court's opinion relies on Commonwealth v.
Butler, a Massachusetts case.[22] But the Butler
court interpreted the language of article 11 of the
Declaration of Rights of the Massachusetts Constitution,
which is much different from the text of the speedy trial
rights in the Alaska and U.S. Constitutions:
Every subject of the commonwealth ought to find a certain
remedy, by having recourse to the laws, for all injuries or
wrongs which he may receive in his person, property, or
character. He ought to obtain right and justice freely, and
without being obliged to purchase it; completely, and without
any denial; promptly, and without delay; conformably to the
laws.[23]
The
Butler court alluded to this difference in its
analysis.[24] The language of the Massachusetts
provision is concerned with prompt administration of justice
generally, rather than speedy criminal trials specifically.
This language could easily cover more stages than the
criminal trial process, including pre-arrest and
pre-indictment delays.
In a
related proceeding, the First Circuit distinguished the
Butler holding as "a rule of state
constitutional law" and explained on the same facts that
"[u]nder the Sixth Amendment... the speedy-trial right
attached, and the count began, not when the complaint was
issued, but when the 1999 indictment was
announced."[25] The First Circuit's conclusion is
more persuasive, given that Alaska's speedy trial right
closely resembles the text of the Sixth Amendment, not
Massachusetts's article 11.
The
court's opinion also cites Scherling v. Superior
Court for the proposition that under the California
Constitution "speedy trial protections attach after a
complaint has been filed."[26] This is a correct but
incomplete statement. The Scherling court goes on to
clarify that the scope of that right changes based on the
stage of the delay-and effectively describes a due process
test when the delay occurs between the complaint and an
indictment or arrest:
Unlike federal law . . . this state has extended the [speedy
trial] right to the pre-indictment and pre-arrest stage,
holding that it attaches under article I, section 15, of our
Constitution after a complaint has been filed. But the
consequence of a violation depends upon the stage at which a
violation of the right occurs. The right to a speedy trial
following the filing of an indictment or information and the
time limitations applicable thereto are set forth by statute
and a violation of the statute is presumed to be prejudicial.
...