John Terry v. Jack Duckworth and Linley E. Pearson

HARLINGTON WOOD, Jr., Circuit Judge.

This is an appeal from the district court’s denial of a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

On March 5, 1975 at the street corner of 26th and Broadway in Gary, Indiana, a gas station attendant was robbed at gun point by two men. The victim identified the petitioner, John Terry, from police photograph files as one of the robbers. Sometime prior to the robbery, Terry had frequented the vicinity of the gas station. An information was filed charging Terry with the crime and a warrant issued for his arrest on March 15, 1975. The warrant was issued for Terry’s arrest at 1968 Roosevelt Place, Gary, Indiana. Terry, however, resided at 1978 Roosevelt Place. Terry was not arrested on the outstanding warrant until November 14, 1977, when he was stopped for an expired auto safety sticker. Terry’s first judicial appearance in regard to the robbery charge was on that date. During the period from March 1975 to November 1977, petitioner resided in Gary, Indiana and was employed by the city.

At his trial, which commenced on August 14, 1978, Terry testified that due to the delay of some forty months before his trial, thirty-two months of which passed prior to arrest, he was unable to recall anything concerning the date of the alleged robbery. Terry was convicted by a jury and sentenced by the Lake Superior Court on September 14,1978 to a term of ten to twenty-five years. A direct appeal was taken to the Court of Appeals of Indiana which affirmed the conviction. Terry v. State, 400 *1219N.E.2d 1158 (Ind.App.1980). Terry filed a petition for a writ of habeas corpus in'the federal district court alleging a violation of his right to a speedy trial. On March 29, 1982, the district court denied the petition and, in its Memorandum of Decision and Order, ruled that Terry failed to demonstrate a sufficient causal relationship between the delay and any actual prejudice. On appeal, the sole issue presented for review is whether the thirty-two month delay between the filing of criminal charges and Terry’s arrest violated his right to a speedy trial as guaranteed by the United States Constitution. For the following reasons we agree with the district court that Terry has not been deprived of his right to a speedy trial.

A criminal defendant’s right to a speedy trial is guaranteed by the Sixth Amendment which is applicable to state criminal proceedings through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The right to a speedy trial arises when a person becomes an “accused.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). A person becomes an accused when prosecution is initiated against him, either through “a formal indictment or information or [by] the actual restraints imposed by arrest and holding to answer a criminal charge.... ” Marion, 404 U.S. at 320, 92 S.Ct. at 463. In this case, Terry’s right to a speedy trial attached on March 19, 1975 when he was charged by information and a warrant issued for his arrest. United States v. Hauff, 461 F.2d 1061, 1063 (7th Cir.1972).

The right to a speedy trial is an amorphous concept which “necessitates a functional analysis of the right in the particular context of the case.... ” Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972). In Barker the United States Supreme Court formulated an ad hoc “balancing test” entailing four factors to be considered in evaluating claimed violations of the right to a speedy trial. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The factors are: length of delay, reason for the delay, timeliness of defendant’s assertion of his right, and resultant prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. No one factor is dispositive to the finding of a violation of the right to a speedy trial. These factors, rather, must be considered together with the circumstances of each case. Barker, 407 U.S. at 533, 92 S.Ct. at 2193. We will deal with each of the above four factors separately.

Length of Delay

The Court in Barker viewed the length of delay both as a “triggering” mechanism and as one of the four components of the balancing test. Until the delay becomes “presumptively prejudicial,” the balancing test is not triggered and a court need not consider the remaining three factors. Once the balancing test is triggered, the court must then balance all four factors. Barker, 407 U.S. at 530, 92 S.Ct. at 2192.

We find the thirty-two month delay between the filing of the information and Terry’s arrest is “presumptively prejudicial.” Although the Court in Barker declined to specify durational limits in this threshold inquiry, the Court indicated that the length of delay sufficient to invoke the presumption depends upon the circumstances of the ease, such as the degree of complexity involved. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. An ordinary street crime, such as the robbery in this case, is ordinarily not complex to investigate and prosecute. Moreover, delays of this length and much less have been held sufficient to establish a presumption of prejudice. See, e.g. United States v. Jackson, 542 F.2d 403 (7th Cir. 1976) (one year delay); United States v. Fairchild, 526 F.2d 185 (7th Cir.1975) (27 month delay); United States v. De Tienne, 468 F.2d 151 (7th Cir.1972), cert, denied, 410 U.S. 911, 93 S.Ct. 977, 35 L.Ed.2d 274 (1973) (19 month delay).

A thirty-two month delay, however, does not lead inevitably to the conclusion that petitioner was deprived of his right to a speedy trial. In Barker, for example, the Supreme Court held that a delay of over five years between arrest and trial did not under the circumstances of that case deny *1220the defendant his constitutional right to a speedy trial. The Court in Barker specifically ruled that “deprivation of the right to a speedy trial does not per se prejudice the accused’s ability to defend himself.” 407 U.S. at 521, 92 S.Ct. at 2187. Rather, the longer the delay, the greater the weight that factor receives in the balance. United States v. Macino, 486 F.2d 750, 752 (7th Cir.1973).

Explanation for the Delay

In balancing the four factors, the weight assigned to the delay is determined in part by the explanation given for the delay. “A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence ... should be weighted less heavily.... Finally, a valid reason ... should serve to justify appropriate delay.” Barker, 407 U.S. at 531, 92 S.Ct. at 2192.

The precise reason for the thirty-two month delay does not appear in the state court record.1 Although the record indicates a hearing was held , on petitioner’s motion to dismiss, a transcript of that hearing is not part of the record. Absent any direct evidence on this point, we cannot presume either a deliberate attempt on the part of the state to hamper the defense or a valid justification for the delay. United States v. Macino, 486 F.2d 750, 753 (7th Cir.1973). The record does, however, reveal that the warrant was incorrectly addressed. Respondents suggest that the warrant was misplaced. In light of these circumstances, the district court concluded that the reason for the delay was negligence on behalf of the state.2 Since there is nothing in the record or contended by the parties that would lead us to infer that the delay was due to anything other than negligence or inadvertence, this factor must be given some weight in defendant’s favor. See generally, United States v. Carreon, 626 F.2d 528, 534 (7th Cir.1980) (negligence to be weighed less heavily than intentional delay); Jones v. Morris, 590 F.2d 684, 686 (7th Cir.1979) (absence of reason for delay should be weighed against the state); United States v. Jackson, 542 F.2d 403, 407 (7th Cir.1976) (failure to account for delay may be weighed against the state); United States v. Lockett, 526 F.2d 1110, 1111-12 (7th Cir.1975) (government’s failure to give a reason tends to favor defense).

Assertion of Right

The third factor which must be considered concerns petitioner’s responsibility to assert his right to a speedy trial. Barker, 407 U.S. at 528-29, 92 S.Ct. at 2191. This factor has little relevance in light of the facts presented by this case. Petitioner first learned of the charges against him at the time of his arrest in mid-November 1977. Since petitioner, through no fault of his own, was supposedly unaware of the pending charge and outstanding warrant, he was not in a position to assert his right. Petitioner’s attorney filed a motion to dismiss on March 10, 1978, approximately 21A months after his arrest and first judicial appearance. Although that was not a very speedy response for the filing of a motion, we do not assign significant blame to petitioner for the delay in asserting ,his right to a speedy trial. United States v. Houston, 450 F.Supp. 131, 133 (E.D.Tenn.1978) (defendant similarly unaware of indictment); United States v. Judge, 425 F.Supp. 499, 504 (D.Mass.1976). See generally, Clark v. Oliver, 346 F.Supp. 1345, 1350 (E.D.Va. 1972).

Prejudice to Petitioner

In holding that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment, the Supreme Court has expressed concern that delay in trying an accused may subject him to public scorn, deprive him of employment and curtail his rights of free speech and association. Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 *1221(1967). The Court in Barker specifically identified three interests which the right to a speedy trial protects: to prevent oppressive pre-trial incarceration, to minimize anxiety and concern of the accused, and to reduce the risk of impairment to the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Recently in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Court outlined the rationale behind the speedy trial guarantee stating:

The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

456 U.S. at 8, 102 S.Ct. at 1502.

In Terry’s case there was no pre-trial incarceration or deprivation of employment. Terry’s interests in minimizing anxiety associated with a pending criminal charge and exercising his rights to free speech and association were unaffected because he was not aware of the outstanding warrant. Thus, the only relevant interest to consider is that of defense impairment.

Terry makes two contentions with regard to prejudice to the defense. First, Terry asserts that because the delay occurred between the filing of the charge and his arrest, he should not be required to articulate specific instances of prejudice.3 According to Terry, a delay of the magnitude involved herein “so obviously” prejudices “a defendant’s ability to adequately defend himself that the necessity of demonstrating specific prejudicial occurrences is obviated.” However, the Court in Barker specifically ruled that “deprivation of the right to a speedy trial does not per se prejudice the accused’s ability to defend himself.” 407 U.S. at 521, 92 S.Ct. at 2187.

Second, Terry testified at trial that he had no recollection of his whereabouts on the date of the alleged crime. He now claims that this testimony established memory loss and is sufficient to demonstrate prejudice to his defense.

Terry’s argument fails, in part, because it depends upon the truthfulness of his trial testimony. The jury heard all the incriminating evidence as well as Terry’s testimony. The jury had the opportunity to observe Terry’s demeanor on the witness stand and to judge his credibility. The jury did not believe him. By returning a verdict of guilty, we may assume that the jury found that Terry did recall his whereabouts and activities on the night of March 5,1975, and that his loss of memory was merely a convenient alibi. Moreover, Title 28 U.S.C. § 2254(d) limits the federal court’s power of review in a habeas corpus proceeding. Section 2254(d) provides that the federal court must presume the state court’s findings of fact are correct, unless one of eight enumerated grounds exists for making an exception. In general, if one of the exceptions exists, the federal court must grant an evidentiary hearing to the habeas petitioner to resolve the facts in question. Thus, to properly assail the factual findings of the state court as permitted by 28 U.S.C. § 2254(d), Terry should have focused upon the inadequacies, if any, in the hearing on the motion to dismiss and requested the district court to conduct an evidentiary hearing concerning both his loss of memory claim and reason for the delay in prosecu*1222tion. See generally, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). We conclude, therefore, that the prejudice factor does not weigh in Terry’s favor.

With only two of the four balancing factors weighing moderately in Terry’s favor, we hold that Terry’s right to a speedy trial has not been violated. The order of the district court is affirmed.

. Terry challenges, and we only focus on, the pre-arrest delay in this case. Furthermore, we need not apportion responsibility for the subsequent nine-month delay which can be attributed to both petitioner’s requests for continuances and illness of the government’s witness.

. The Court of Appeals of Indiana similarly stated that even though “the record [was] silent upon these matters it [was] susceptible to the inference that the state was negligent." Terry, 400 N.E.2d at 1160.

. The petitioner relies on Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) to support his position that he is not obligated to demonstrate any actual prejudice in order to show a violation of his right to a speedy trial. In vacating the Arizona Supreme Court’s judgment denying defendant’s state petition for a writ of habeas corpus without a hearing, the Court stated:

The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied in judging petitioner’s speedy trial claim. Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.

414 U.S. at 26, 94 S.Ct. at 189.

However, we read Moore as proscribing the use of the prejudice factor as the “triggering mechanism” for consideration of the other three factors. In considering petitioner’s appeal we have carefully weighed all of the factors in light of the relevant circumstances presented.