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State v. Wright

Supreme Court of Alaska

September 22, 2017

STATE OF ALASKA, Petitioner,
SEAN WRIGHT, Respondent.

         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.]


          MATTHEWS, Senior Justice.


         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.


         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.


         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]


         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. ...

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