State v. Delatorre ( 2021 )

559
Argued and submitted September 9, reversed and remanded December 22,
2021, petition for review denied May 5, 2022 (369 Or 705)
STATE OF OREGON,
Plaintiff-Appellant,
v.
CARLOS DAVID DELATORRE,
Defendant-Respondent.
Polk County Circuit Court
09P3539; A172360
502 P3d 767
The state appeals from a judgment dismissing its case against defendant on
speedy trial grounds. Defendant was charged by indictment in 2009 with rape
in the first degree, ORS 163.375, rape in the second degree, ORS 163.365, and
sexual abuse in the first degree, ORS 163.427, and then he fled the state for nine
years. During the delay, the police entered his name into the Law Enforcement
Data System repeatedly and followed up on all known tips. At trial in 2019, the
trial court granted defendant’s motion for dismissal, in which he argued that the
delay had violated his constitutional right to a speedy trial. On appeal, the state
assigns error to the court’s ruling, particularly its finding that the delay was
attributable to the state and that the delay resulted in prejudice to the defense.
Held: The trial court erred in granting the motion to dismiss. Although the length
of the delay was significant, defendant’s evasion of law enforcement was the cause
of the delay, and the state made reasonable efforts to locate and prosecute defen-
dant. Further, the delay did not prejudice defendant, as faded memories alone
only establish a speculative harm to the defense, and any prejudice was caused
by defendant’s evasion.
Reversed and remanded.
Monte S. Campbell, Judge.
Jonathan N. Schildt, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Andrew D. Robinson, Deputy Public Defender, argued
the cause for respondent. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
560 State v. Delatorre
MOONEY, J.
Reversed and remanded.
Cite as 316 Or App 559 (2021) 561
MOONEY, J.
The state appeals from a criminal judgment dis-
missing its case against defendant on speedy trial grounds.
Defendant was charged by indictment in 2009 with rape in
the first degree, ORS 163.375, rape in the second degree,
ORS 163.365, and sexual abuse in the first degree, ORS
163.427. Defendant fled the state for a period of years and,
when the case proceeded to trial in 2019, he moved for dis-
missal with prejudice, arguing that the nine-year delay vio-
lated his state and federal constitutional rights to a speedy
trial. The trial court granted the motion. The state now
assigns error to that ruling, arguing that the trial court
improperly attributed the reasons for delay to the state and
that defendant failed to show that the delay resulted in prej-
udice. We agree with the state that the court erred in grant-
ing the motion to dismiss. We reverse and remand.
We review the grant or denial of a motion to dismiss
on speedy trial grounds for legal error, accepting the trial
court’s findings of historical fact if there is evidence in the
record to support them. State v. Stinnett, 291 Or App 638,
639, 422 P3d 372 (2018). In particular, we are bound by the
“trial court’s findings of fact concerning the length and rea-
sons for the delay * * * if supported by [the] evidence.” State
v. Johnson, 342 Or 596, 608, 157 P3d 198 (2007).
The Independence police spoke with defendant in
May 2009 about a report that he had raped a 12-year-old
girl, the daughter of his wife’s cousin. When police attempted
to follow up with defendant on June 8, 2009, he and his fam-
ily had disappeared. Defendant and his wife had quit their
jobs, pulled their children from school, and moved away from
their home. The police tried to contact defendant by calling
the phone numbers associated with him and his wife, but
those numbers were no longer in service. The alleged vic-
tim’s mother typically saw defendant’s family daily, but she
did not know where the family had gone. On November 4,
2009, defendant was indicted and a warrant for his arrest
was issued. The police promptly entered that warrant into
the Law Enforcement Data System (LEDS), alerting law
enforcement nationwide of defendant’s outstanding warrant
should he come into any police contact.
562 State v. Delatorre
There was no further information on defendant’s
whereabouts until 2018. There were rumors that the fam-
ily had fled to Mexico or Texas. The Independence police
continued to confirm that the warrant was active in LEDS,
running defendant’s name through the system 56 times
by 2013. In 2018, the alleged victim contacted the police
and said that she believed, according to what she had seen
online, that the family was in Texas. From that information,
the police searched and found that defendant’s wife had
obtained a Texas driver’s license on December 28, 2009, but
there was still no available information for defendant. The
FBI received a separate tip in September 2018 that also sug-
gested that defendant was in Texas. From that tip, the FBI
went to Texas and spoke to a woman believed to be defen-
dant’s wife, who indicated that he was not home. The FBI
also learned who defendant’s employer was and obtained
defendant’s cell phone number from them. After that, defen-
dant quit his job and stopped using that cell phone.
The Independence police learned about the FBI
investigation and obtained two warrants for cell phone
records for the number that the FBI agents had obtained
from defendant’s employer. From those records, the
Independence police were able to identify the numbers most
associated with that cell phone number, which, in turn,
allowed them to locate defendant. Defendant was arrested
in Texas on December 19, 2018, by U.S. Marshals and extra-
dited to Oregon. He was arraigned in March of 2019, and,
in July of that year, defendant moved to dismiss the indict-
ment on speedy trial grounds.
In support of his motion, defendant relied upon
Article I, section 10, of the Oregon Constitution, which pro-
vides, in part, that “justice shall be administered * * * with-
out delay[.]” He also relied upon the Sixth Amendment to
the United States Constitution, which provides that, “[i]n
all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial.” The trial court’s order
of dismissal refers to a violation of “[d]efendant’s State and
Federal Constitutional Rights to Speedy Trial,” but neither
the written order nor the court’s oral ruling provides an
independent federal analysis. Defendant acknowledges that
his arguments and the trial court’s reasoning under each
Cite as 316 Or App 559 (2021) 563
constitutional provision were “the same.” We, therefore,
restrict our review to the state constitutional arguments
that defendant presented to the trial court and that the par-
ties briefed on appeal.
Defendant argued that the nine-year delay between
the issuance of the indictment in 2009 and his arrest in
2018 was excessive and that it was attributable to the state
because the police could have done more to locate him. The
trial court found that there was conclusive evidence that
defendant had “skipped town” to “avoid prosecution” and
that he was “a man in flight.” However, the court also agreed
with defendant that the delay was for a “long period of time,”
and the court attributed that delay to the state. The trial
court found that the police could have located defendant
sooner if they had attempted to check additional sources of
information such as real property, social security, and pass-
port records. They could have searched for defendant’s wife’s
driver’s license records and his children’s school records. The
court found that the state could have questioned members of
defendant’s family beyond the alleged victim and her imme-
diate family. The court then concluded that the state “didn’t
do any of that in their investigation,” and it reasoned that,
because the state’s investigative efforts in 2018 resulted in
defendant’s arrest, “the proof is in the pudding that had they
used some diligence in the beginning they probably would
have found [defendant] very quickly.”
In regard to potential prejudice to defendant, the
trial court heard testimony from one of the original inves-
tigating law enforcement officers who testified that her
memory of the investigation had faded. The court also heard
testimony from defendant’s expert who explained that long
delays generally tend to affect memory. Although the court
did not find the expert’s testimony to be particularly helpful,
it concluded that defendant had been prejudiced by the delay
because “everybody knows what ten years does to [a wit-
ness’s] memory.” When pressed by counsel, the court clari-
fied that the only basis for its finding of prejudice was the
“lapse of time.”
Article I, section 10, requires the state to bring a
defendant to trial “without delay.” State v. Harberts, 331 Or
564 State v. Delatorre
72, 88, 11 P3d 641 (2000). Whether the state did so requires
a fact-specific inquiry into the circumstances of the case.
Id. The trial court’s inquiry begins with considering the
length of the delay itself. When the amount of time that
has passed is so long that ordering a defendant to proceed
to trial “shocks the imagination and the conscience,” State
v. Vawter, 236 Or 85, 96, 386 P2d 915 (1963) (quoting U.S.
v. Chase, 135 F Supp 230, 233 (N.D. Ill. 1955), the delay is
presumptively prejudicial. State v. Chinn, 115 Or App 662,
665, 840 P2d 92 (1992). When the length of the delay falls
short of shocking but is nevertheless significantly longer
than average, then the court must consider the reasons for
the delay and whether the defendant has established any
prejudice resulting from the delay. State v. Chelemedos,
286 Or App 77, 81, 398 P3d 415, rev den, 362 Or 208(2017).
The length of the delay here—nine years—was very
long. Defendant does not argue that the nine-year delay was
a per se violation of the state’s obligation to bring him to
trial without delay. But, as the state acknowledges, the delay
between indictment and trial was “substantially greater
than average.” We agree that it was a significant delay and
that the delay, therefore, triggered inquiry into the reasons
for the delay and any resulting prejudice to defendant.
This case turns on the reason for the nine-year delay.
It is undisputed that the lengthy delay was due to defendant
fleeing the state to avoid prosecution. Generally, “[d]elays
caused by a defendant’s evasion of law enforcement” are
deemed reasonable and do not weigh in favor of dismissal.
State v. Berrellez, 266 Or App 381, 385, 337 P3d 964 (2014),
rev den, 356 Or 689 (2015). Berrellez concerned an eight-year
gap between indictment and trial. Id. at 382-83. Like the
case before us, the defendant in Berrellez disappeared when
he learned of the accusation against him, a warrant for his
arrest was entered into LEDS, and he was not located by
the police until eight years later. Id. The defendant sought
dismissal on both statutory and constitutional speedy trial
grounds, which the trial court denied.
We examined the trial court’s decision concerning
the reasonableness of the delay using a two-step process.
Cite as 316 Or App 559 (2021) 565
Id. at 384.1 The first step is to “ ‘determine the relevant amount
of delay by subtracting from the total delay any periods of
delay that defendant requested or consented to.’ ” Id. (quot-
ing State v. Glushko/Little, 351 Or 297, 266 P3d 50 (2011)).
However, we concluded that the first step was not relevant in
Berrellez because defendant had not consented to the delay.
Id. The second step is to examine whether the delay was
reasonable “given the totality of the circumstances” by mak-
ing a record-specific inquiry. Id. In the second step, we con-
sidered the entire eight-year delay and concluded that it was
reasonable because the defendant had caused that delay by
evading law enforcement. We concluded that the trial court
had not erred in denying his motion to dismiss on speedy
trial grounds, because, like the case before us, the evidence
in Berrellez established that the defendant had fled from
justice twice; that law enforcement had entered the warrant
into LEDS; and that the police had had no information as to
the defendant’s location until his arrest. Id. at 385.
As in Berrellez, although defendant fled to avoid
prosecution, he did not expressly consent to a delay of nine
years between issuance of the indictment and the eventual
trial. Given the lack of consent to a delayed trial, the trial
court—both here and in Berrellez—correctly considered the
circumstances of the entire period of delay in assessing the
reasonableness of the delay. In reviewing the trial court’s
reasonableness analysis here, we are mindful that, in gen-
eral, “ ‘[d]elays, due to the defendant’s fault, as, for instance,
his absence from the state in order to escape trial, afford no
basis for dismissal of the charge’ ” on speedy trial grounds.
Glushko/Little, 351 Or at 309 (quoting State v. Swain, 147
Or 207, 214, 31 P2d 745 (1934)).
The delay began in 2009 when defendant learned
that he was being investigated for rape. At that time, he
told the police that he would show up for a polygraph exam-
ination, but he instead left town in the middle of the night.
The police entered warrant information into LEDS and
1
We have long assessed the “reasonableness” of delay in statutory and state
constitutional speedy trial cases by the same general method because Oregon’s
former speedy trial statute was intended to “carry into effect” Article I, section
10. State v. Swain, 147 Or 207, 214, 31 P2d 745 (1934).
566 State v. Delatorre
repeatedly followed up on the warrant to ensure that it
remained active. The police asked defendant’s family if they
knew where defendant was, but they offered no leads. The
delay continued and, in 2018, when law enforcement agents,
acting on a tip, contacted defendant’s wife in Texas, defen-
dant once again fled. The Independence police then followed
up and ultimately located defendant through cell phone
records it had obtained through warrants.
The trial court correctly found that defendant had
fled the state to avoid prosecution. But its conclusion that the
nine-year delay from indictment to trial was unreasonable
is based on the speculative factual finding that if the state
had done more, then it would have located defendant sooner.
The record does not support that conclusion or that finding,
especially given the evidence that defendant actively con-
cealed his whereabouts from the state. We know of no prin-
cipled reason to measure the reasonableness of the state’s
prosecutorial efforts by the level of success that defendant
achieves in evading those efforts.
This is not a case like State v. Rohlfing, 155 Or App
127, 963 P2d 87 (1998), where we held that an eight-year
delay was unreasonable. In that case, there was no evidence
that the defendant had moved out of state to avoid arrest.
Id. at 132-33. The state did not attempt to reach defendant
by telephone, and it did not enter the warrant into LEDS.
Id. at 133. The state’s lack of effort in Rohlfing weighed
against it on the question of whether the delay was reason-
able. Id. Here, by contrast, the police promptly contacted
defendant in 2009 and questioned him about the report that
they had received. Defendant agreed to take a polygraph test,
but he did not appear for that, and, when the police returned
for more discussion, they discovered that defendant was no
longer living or working where he had been when they first
contacted him. The police issued a nationwide arrest war-
rant and entered it into LEDS, and they followed up on tips
and information that finally led to defendant’s arrest. The
record reflects that the state did far more here than it did in
Rohlfing. It also did more than was done in Berrellez where
we concluded that an eight-year delay was reasonable. This
case is more like Berrellez than Rohlfing—police efforts
Cite as 316 Or App 559 (2021) 567
were sufficient to avoid unreasonable delay on the part of
the state.
Finally, after analyzing the length and reason for
the delay, we consider whether there was a “reasonable pos-
sibility of prejudice to the defense.” State v. McDonnell, 343
Or 557, 573-74, 176 P3d 1236 (2007) (quoting Harberts, 331
Or at 97). The speedy trial rule is designed to (1) protect
against “ ‘oppressive pretrial incarceration’ ”; (2) to minimize
the accused’s “ ‘anxiety and concern’ ” due to pending crimi-
nal charges; and (3) to “ ‘limit the possibility that the defense
will be impaired.’ ” Harberts, 331 Or at 85 (quoting Barker
v. Wingo, 407 US 514, 532, 92 S Ct 2182, 33 L Ed 2d 101(1972)).
We focus on the prejudice found by the trial court—
the impaired ability to defend at trial due to faded memories—
which potentially implicates the third Harberts factor. Faded
memories can, of course, cut both ways. And the fact that
memories fade is a relevant consideration, but it does not, by
itself, establish prejudice. The court found that defendant’s
ability to defend himself at trial was impaired by the nine-
year delay and the “memory issues” that come with the pas-
sage of time. The court did not, however, identify any partic-
ular memories that had likely faded or how such memories
would have aided the defense. Where, as here, “the value
of unavailable evidence is only speculative, the unavail-
ability of that evidence will not factor significantly in the
analysis.” Johnson, 342 Or at 608; see State v. Tiner, 340
Or 551, 558, 135 P3d 305 (2006) (loss of witness’s unknown
testimony insufficient to warrant dismissal). And the loss
of any testimony here is directly related to defendant who
caused the delay in the first place and who continued his
efforts to avoid prosecution over the next nine years. The
trial court assigned too much weight to the potential impact
of faded memories on defendant’s ability to defend himself,
given that it was defendant who created the delay, none of
which was attributable to the state.
Reversed and remanded.