State v. Hunter ( 2017 )

[Cite as State v. Hunter, 2017-Ohio-4180.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104789
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ISAAC HUNTER
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-604839-A
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: June 8, 2017
ATTORNEYS FOR APPELLANT
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Daniel T. Van
Brett Hammond
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mark Stanton
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Appellant, the state of Ohio, appeals the decision of the trial court to dismiss
the indictment against defendant-appellee, Isaac Hunter (“Hunter”), for preindictment
delay. The state raises the following assignment of error:
The trial court erred in dismissing the indictment as appellee failed to
present evidence establishing that he suffered substantial and actual
prejudice due to preindictment delay.
{¶2} After careful review of the record and relevant case law, we reverse the trial
court’s judgment and remand for further proceedings consistent with this opinion.
I. Procedural and Factual History
{¶3} On April 27, 1997, 13-year-old Jane Doe was walking with her female
friends when she was approached by her boyfriend, Hunter, who was 16 years old at the
time, and three other juvenile males. One of the juvenile males showed Jane Doe a gun
in his waistband, and the juvenile males forced her into a nearby abandoned house. Once
inside the abandoned house, the four juvenile males ordered Jane Doe to remove her
clothes. After several minutes, Hunter made his friends leave the room and he then
forced Jane Doe to have vaginal sex with him.
{¶4} Jane Doe subsequently went home and immediately told her mother what had
occurred. Her mother contacted the police, who took a statement from Jane Doe, and
initiated a search for the suspects based on the available information. Jane Doe was then
transported to Mt. Sinai Medical Center, and a rape kit was collected. Ultimately, the
investigating officers did not pursue the matter further because Jane Doe indicated that
she was scared to move forward with the case because she attended the same school as
the four juvenile males.
{¶5} In February 2014, the Bureau of Criminal Investigation (“BCI”) processed
Jane Doe’s rape kit as a part of a sexual assault initiative. In November 2015, BCI
determined that semen recovered from Jane Doe’s jeans matched a sample of Hunter’s
DNA.
{¶6} In March 2016, Hunter was indicted on charges of rape and kidnapping,
arising from the incident that occurred nearly 19 years earlier. In June 2016, Hunter filed
a motion to dismiss his indictment based on preindictment delay, stating that “the
inexcusable delay of the State of Ohio in failing to formally indict Mr. Hunter with the
rape and kidnapping until just one year short of twenty years is a violation of his due
process rights under both the Federal and Ohio Constitutions.” Hunter further argued
that the state’s delay led to the loss of critical evidence and substantially prejudiced his
ability to confront and defend against the charges levied against him. The state opposed
the motion and a hearing was held in June 2016.
{¶7} At the hearing, Officer Anthony Krastas testified that he was involved in the
investigation into the cold rape case that occured on April 27, 1997. Officer Krastas
stated that Hunter was named a suspect in that case and that Hunter’s age and address
were known by the police in 1997. In the course of his investigation, Officer Krastas
came to learn of multiple witnesses, including Hunter, the three other juvenile male
suspects, and a female friend of Jane Doe, who was believed to have seen the gun at the
time Jane Doe was threatened with the weapon. Officer Krastas testified that he was
only able to locate one of the other juvenile males, who were alleged to have been
involved in the incident. However, the juvenile male indicated that he had no memory of
the incident. Officer Krastas further testified that, to the best of his knowledge, the
investigating officers did not interview Hunter following Jane Doe’s initial statement to
the police in 1997.
{¶8} Following the hearing, the trial court granted Hunter’s motion to dismiss.
The state now appeals from the trial court’s judgment.
II. Law and Analysis
{¶9} In its sole assignment of error, the state argues the trial court erred in
dismissing the indictment for preindictment delay. The state contends that Hunter failed
to present evidence to establish that he suffered actual prejudice due to preindictment
delay.
{¶10} The statute of limitations for a criminal offense is a defendant’s primary
protection against overly stale criminal charges. U.S. v. Marion, 404 U.S. 307, 322, 92
S. Ct. 455, 30 L. Ed. 2d 468 (1971). In some circumstances, however, the Due Process
Clause of the Fifth Amendment provides limited protection against preindictment delay.
U.S. v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). “An unjustifiable
delay between the commission of an offense and a defendant’s indictment therefor[e],
which results in actual prejudice to the defendant, is a violation of the right to due process
of law.” State v. Luck, 15 Ohio St. 3d 150, 472 N.E.2d 1097 (1984), paragraph two of the
syllabus.
{¶11} The Ohio Supreme Court has “firmly established a burden-shifting
framework for analyzing a due-process claim based on preindictment delay. Once a
defendant presents evidence of actual prejudice, the burden shifts to the state to produce
evidence of a justifiable reason for the delay.” State v. Jones, 148 Ohio St. 3d 167,
2016-Ohio-5105, 69 N.E.3d 688, ¶ 13. A court must determine whether the defendant
has established actual prejudice to his ability to defend himself before independently
determining whether the state met its burden of establishing a justifiable reason for the
delay in bringing charges. Id. at ¶16-18, 29. Thus, when a defendant fails to establish
prejudice, it is unnecessary to consider the reasons for the delay. State v. Adams, 144
Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 107.
{¶12} In Jones, the Ohio Supreme Court set forth the appropriate standard for
gauging actual prejudice, which involves a “delicate judgment” and a “case-by-case
consideration” of the particular circumstances. Id. at ¶ 20. In determining actual
prejudice, “[a] court must ‘consider the evidence as it exists when the indictment is filed
and the prejudice the defendant will suffer at trial due to the delay.’” Id., quoting State v.
Walls, 96 Ohio St. 3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52. A claim of actual
prejudice should be scrutinized “vis-à-vis the particular evidence that was lost or
unavailable as a result of the delay” and “the relevance of the lost evidence and its
purported effect on the defense.” Id. at ¶ 23.
{¶13} “The ‘possibility that memories will fade, witnesses will become
inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.’” Id.
at ¶ 21, quoting Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127 at ¶ 105.
(Emphasis sic.) “Those are ‘the real possibilit[ies] of prejudice inherent in any extended
delay,’ and statutes of limitations sufficiently protect against them.” Id., citing Marion,
404 U.S. at 326, 92 S. Ct. 455, 30 L. Ed. 2d 468. “That does not mean, however, that
demonstrably faded memories and actually unavailable witnesses or lost evidence cannot
satisfy the actual-prejudice requirement.” Id. The Jones court explained that even when
a defendant does not know what the exact substance of an unavailable witness’s
testimony would have been, actual prejudice may still be shown where
missing evidence or unavailable testimony, identified by the defendant and
relevant to the defense, would minimize or eliminate the impact of the
state’s evidence and bolster the defense.
Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105, 69 N.E.3d 688 at ¶ 28, citing Luck, 15 Ohio
St.3d 150, 157, 472 N.E.2d 1097 (1984).
{¶14} In light of Jones, it is evident that a defendant is not required to establish
“precisely” what an unavailable witness would have testified to at trial and that the
testimony would have been directly exculpatory. Id. at ¶ 27. However,
a defendant cannot rely upon broad assertions of missing evidence or an
unavailable witness to establish prejudice. A defendant must demonstrate
a viable, tangible connection between the missing evidence or the
unavailable witness to the defense of the case.
State v. Richardson, 8th Dist. Cuyahoga No. 103925, 2016-Ohio-5843, ¶ 13. As the
Ohio Supreme Court recognized in Jones, the due-process requirement of actual prejudice
may be shown upon “the proven unavailability of specific evidence or testimony that
would attack the credibility or weight of the state’s evidence against a defendant, and
thereby aid in establishing a defense.” Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105, 69
N.E.3d 688, at ¶ 25. Thus, while precision is not required, “there must be some
indication in the record of what the missing evidence or unavailable witness might have
offered.” Richardson at ¶ 13.
{¶15} Once a defendant has established actual prejudice, the state must produce
evidence of a justifiable reason for delay in the commencement of prosecution. Walls,
96 Ohio St. 3d 437, 2002-Ohio-5059, 775 N.E.2d 829 at ¶ 51. A delay can be found to
be unjustifiable
when the state’s reason for the delay is to intentionally gain a tactical
advantage over the defendant, see United States v. Marion, [404 U.S. at
324, 92 S. Ct. 455, 30 L. Ed. 2d 468], or when the state, through negligence
o[r] error in judgment, effectively ceases the active investigation of a case,
but later decides to commence prosecution upon the same evidence that was
available to it at the time that its active investigation was ceased.
Luck, 15 Ohio St. 3d at 158, 472 N.E.2d 1097. The length of delay will typically be the
“key factor” in determining whether a delay caused by the state’s negligence or error in
judgment is justifiable. Id. Thereafter, the due process inquiry involves a balancing
test by the court, weighing the reasons for the delay against the prejudice to the defendant,
in light of the length of the delay. Id. at 154.
 {¶16} In reviewing a trial court’s decision on a motion to dismiss for
preindictment delay, this court applies a de novo standard of review to the legal issues,
but we afford great deference to the findings of fact made by the trial judge. State v.
Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23, citing State v. Wade, 8th
Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 45.
{¶17} In this case, Hunter generally claims that he was prejudiced by (1) his own
faded memory, (2) the faded memories of the lone witness discovered by Officer Krastas,
and (3) the state’s inability to locate witnesses, including Jane Doe’s female friend, and
the remaining two male juveniles who were alleged to have been involved in the incident.
Hunter further argues that he was prejudiced by the delay in prosecution because he was
a juvenile at the time the offense occurred and was now being prosecuted as an adult.
{¶18} With respect to Hunter’s faded memory, “a defendant’s own general
assertion that he does not remember details of an event that occurred nearly 20 years ago
does not, in and of itself, constitute actual prejudice. Smith at ¶ 26; State v. Ricosky, 5th
Dist. Stark No. 2003CA00174, 2004-Ohio-2091, ¶ 15. In addition, we are unpersuaded
by Hunter’s suggestion that he was prejudiced by the delay in prosecution because he was
a juvenile at the time the offense was alleged to have occurred. In our view, legal
arguments concerning Hunter’s age at the time of his indictment relate solely to the
subject matter jurisdiction of the common pleas court and do not concern Hunter’s due
process rights or his ability to defend himself. Walls, 96 Ohio St. 3d 437,
2002-Ohio-5059, 775 N.E.2d 829; State v. Lawrence, 8th Dist. Cuyahoga No. 104316,
2016-Ohio-7618. Thus, the fact that Hunter is now an adult does not constitute actual
prejudice.
{¶19} Regarding Hunter’s claims of missing evidence or unavailable testimony,
we are cognizant that at the time the trial court rendered its judgment in this case, the
Supreme Court of Ohio had yet to issue its decision in Jones. Because the trial court,
through no fault of its own, applied the “basic concepts of due process and fundamental
justice” standard articulated by the majority en banc decision of this court, we reverse and
remand for the court to apply the appropriate burden-shifting analysis and the
actual-prejudice standard set forth above. On remand, the trial court shall consider
whether testimony from the “missing witnesses” would have “minimized or eliminated
the impact of the state’s case against him” and whether Hunter can “provide an
explanation of what exculpatory testimony [the witnesses] [sic] might have offered.”
Jones at ¶ 28, citing Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at
¶ 103. See also Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, at ¶ 20.
Hunter need not set forth exactly what an unavailable witness might have said if he or she
were available to testify. Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105, 69 N.E.3d 688,
at ¶ 28. However, “it is still necessary that the defendant explain how the unavailable
witness’s testimony would hurt or undermine the state’s case and aid the defense.” State
v. Dickerson, 8th Dist. Cuyahoga No. 102461, 2017-Ohio-177, ¶ 71 (Stewart, J.,
dissenting).
{¶20} Based on the foregoing, we reverse and remand for the trial court to apply
the appropriate legal standard.
{¶21} The state’s sole assignment of error is sustained.
{¶22} Judgment reversed; case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR