dissenting:
I must respectfully dissent from the opinion of my colleagues. I believe that the indictment should have been dismissed in that defendant’s constitutional right to due process was violated by the unreasonable delay in indicting him. In the absence of such a dismissal, I also believe that denying the defendant a continuance was a clear abuse of discretion and that a new trial should have been granted.
Due process requires that governmental action be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions. As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. (Lisenba v. California (1941), 314 U.S. 219, 86 L. Ed. 166, 62 S. Ct. 280.) In United States v. Marion (1971), 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455, the Supreme Court held that due process may be denied a defendant where there is a lengthy pre-indictment delay which causes substantial prejudice to the defendant’s right to a fair trial. In People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, the Illinois Supreme Court refined this statement into a three-part test for determining whether a lengthy pre-indictment delay deprived the defendant of due process. The court stated that, first the defendant must show actual and substantial prejudice. If the defendant shows that he or she has been substantially prejudiced, then the burden shifts to the State to show the reasonableness of the delay. If both substantial prejudice and reasonableness of delay are shown, then the court must make a determination based upon a balancing of the interests of the defendant and the public. Factors the court should consider include the length of the delay and the seriousness of the crime.
The majority, after stating the test set forth in Lawson, holds that under this test Park failed to show actual prejudice. Park claims that due to the 309-day delay between the alleged offense and the date of his indictment he was unable to remember the events of the day in question and the names and locations of witnesses in his behalf. The majority states that under Lawson the mere assertion of inability to recall is insufficient. I agree that mere inability to recall is insufficient. However, the present case contains significantly more than that. Not only was there a 309-day delay which dulled defendant’s memory, the government’s case consisted of one special agent, Salmon, who allegedly saw the defendant only once, for a short time, almost a year prior to the trial. There were discrepancies between Salmon’s description of the man who sold him the marijuana and Park’s appearance. Park was balding, a fact which Salmon neglected to mention in his report. Park also had a very distinctive tattoo on his right arm which allegedly was visible and which Salmon failed to mention. Further, Salmon had felt it necessary to view a photo of the defendant shortly before trial. In other words, not only was defendant’s memory dimmed by the 309-day delay, but there was considerable doubt about the identification.
In Ross v. United States (D.C. Cir. 1965), 349 F.2d 210, the District of Columbia court had before it an almost identical case. In the trial court, the defendant had been convicted of a narcotics violation. The alleged violation took place seven months before the arrest and the conviction was based upon the sole testimony of a Washington D.C. undercover agent investigating many individuals at the same time. The agent met the defendant on one brief occasion, did not recall the meeting and had to testify from his notes. The defendant claimed that the seven-month delay prejudiced him in that, due to the passage of time, he was unable to reconstruct the events of the day in question. Additionally, during the delay a witness died who might have been able to testify. The trial court concluded that this did not constitute prejudice in that there was no indication that the defendant would have been able to present a more adequate defense had he been arrested sooner than he was. The appellate court reversed, stating that the inability to recall did prejudice the defendant.
“His failure of memory and his inability to reconstruct what he did not remember virtually precluded his showing in what respects his defense might have been more successful if the delay had been shorter. With time passed any opportunity appellant might have had to reconstruct the events of May 10 or to discover how he was disadvantaged thereby. In a very real sense, the extent to which he was prejudiced by the Government’s delay is evidenced by the difficulty he encountered in establishing with particularity the elements of that prejudice.” Ross v. United States (D.C. Cir. 1965), 349 F.2d 210, 215.
While Ross has been applied narrowly by the D.C. courts and other courts, limiting it to cases where there is a failure of memory and a weak identification, I believe that the instant case is sufficiently similar to Ross so that the Ross rationale is applicable. In the instant case, there was an even longer delay than in Ross, 10 months as opposed to seven months. As in Ross, the delay virtually precluded the defendant from showing how he was prejudiced in that his memory was dimmed and his witnesses scattered to their homes during summer vacation. And, as in Ross, there was a weak, uncorroborated identification. While the agent, Salmon, claimed that he remembered Park he apparently felt it necessary and desirable to view á picture of Park just prior to the trial and there were discrepancies between his testimony and his police report.
In Woody v. United States (D.C. Cir. 1966), 370 F.2d 214, 216-17, Chief Judge Bazelon explained the rationale behind Ross and clarified the prejudice which the defendant suffered.
“But the ultimate prejudice that has concerned us in these cases has been the risk of erroneous conviction attributable to the process which led to the verdict of guilt. Delays prior to arrest which hinder or prevent presentation of a defense shackle our system of determining truth through the adversary process. The reliability of the verdict then depends upon the quality of the police identification. The more inherently unreliable the method of identification, the more the ultimate prejudice — the risk of erroneous conviction. 0 0 0 There is a haunting danger that any person chosen at random from the slum area where appellant lives would have been convicted * * * had his picture been selected instead of appellant’s.”
Chief Judge Bazelon was concerned that, due to the delay, innocent people might be erroneously convicted. The same consideration applies in the instant case with equal force. Had a different student been selected instead of defendant, he would have been equally unable to defend himself. Over 10 months had elapsed, the other students in the community were scattered and not present due to summer vacation, and certainly the events of 10 months ago would be only dimly remembered, if at all. With these factors operating to preclude an effective defense, a weak, uncorroborated identification could easily be adequate to convict an innocent person. The “haunting danger” of an erroneous conviction that worries Chief Judge Bazelon is certainly present in the instant case.
In other words, in the instant case the system has operated so as to, in effect, tie one hand behind defendant’s back in his attempt to establish a defense. Then, the defendant is convicted on the basis of a weak identification which, due to the system’s impairment of his ability to defend himself, the defendant is unable to refute. Such a system hardly comports with the concept of fundamental fairness so integral to due process.
The dangers inherent in a long pre-indictment delay are obvious. Thé delay may result in the loss of alibi witnesses, the destruction of material evidence and the blurring of memories. At least when a person is accused of a specific crime, he can devote his powers of recall to the events surrounding the alleged occurrences. When there is no formal accusation, however, the State may proceed methodically to build its case while the prospective defendant proceeds to lose his. When these dangers reach the point that the delay prevents the defendant from refuting a weak identification, the conclusion is inescapable that actual and substantial prejudice has occurred.
It must be emphasized that finding prejudice in a case of this type does not impose an intolerable burden on the State which precludes valid convictions where there has been a long pre-indictment delay. Assuming that the government can show that the delay is reasonable, the court makes a determination based upon the balancing of the interests of the defendant and the public. Thus, the court can find that the public interest in the delay outweighed the defendant’s interest in an early arrest and find there has been no denial of due process despite the prejudice to the defendant.
To get to this balancing step when there has been actual and substantial prejudice, the burden shifts to the State to show the reasonableness of the delay. In the case at hand, the State has failed to make such a showing. In his trial testimony, the special agent, Salmon, stated that Park was not indicted earlier because the informant continued to work in the Canton area after this case. However, Salmon testified that the informant had stopped working the area approximately two to four months after the alleged sale. Thus, six months of the pre-indictment delay occurred after the informant had terminated his work in the investigation. There is no doubt that a pre-indictment delay is reasonable where it is necessary to permit an ongoing undercover investigation to reach completion. (United States v. Lovasco (1977), 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044.) In such a situation, an early indictment could destroy an undercover informant’s effectiveness and possibly endanger his safety.
However, I do not believe that a six-month delay after the informant’s termination of work in the investigation is reasonable. The State presents no evidence in explanation of this six-month delay. The State claims that the investigation in the Canton area might have continued after the informant left or that the informant might have been working in the six-county area covered by the Multi-County Drug Enforcement Group and that bringing the indictment earlier might have thus jeopardized the investigation or the safety of the informant. This is sheer speculation. The State offered no evidence, and there is nothing in the record that indicates that the investigation continued during the six-month delay or that the informant would have been endangered had there been no delay.
In United States v. Jackson (8th Cir. 1974), 504 F.2d 337, 340-41, the court held a pre-indictment delay to be unreasonable where it extended five months beyond the time necessary to protect an ongoing investigation. The court reasoned that:
“The interest of the defendant in preparing his defense while events are still recent and his memory still fresh must be taken seriously by the government in deciding to continue the undercover operation, and it must not be forgotten that the withholding of notice to the suspect is a conscious and deliberate act on the part of the police. * * * Even the legitimate excuse of a continuing undercover investigation may be stretched to the breaking point; at some point, the accused’s right to due process of law must prevail. * * * On balance, then, we believe that it was reasonable to delay the indictment until Crosby terminated his services, but it should have been brought promptly thereafter.”
The logic in Jackson is clearly applicable to the instant case. Where there is a six-month delay between the end of an investigation and the indictment and absolutely no justification is proffered, such a delay acts to the defendant’s detriment with no corresponding public benefit and is clearly unreasonable.
In the present case the defendant suffered actual and substantial prejudice, and the delay which caused this prejudice was unreasonable. Therefore, under the test set forth in Lawson, the pre-indictment delay was violative of Park’s constitutional right to due process and should have been dismissed.
In addition to disagreeing with the majority as to the disposition of the indictment, I must also disagree with the majority’s decision regarding the trial court’s denial of defendant’s motion for a continuance. The statute governing continuances (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 4) states that the granting of a continuance is within the discretion of the trial court, which is to view the motion in light of the movant’s diligence. A reviewing court will not interfere with the trial court’s decision unless there has been an abuse of discretion. (People v. Boyce (1977), 51 Ill. App. 3d 549, 366 N.E.2d 914; People v. Tyler (1975), 28 Ill. App. 3d 538, 328 N.E.2d 585; People v. Bain (1972), 4 Ill. App. 3d 442, 280 N.E.2d 776.) In deciding whether or not there has been an abuse of discretion, it is necessary to look at the facts and circumstances existing at the time of the request. People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 776, cert. denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94.
In the instant case, there was a 10-month delay between the alleged transaction and the indictment. The alleged transaction took place in a college community where students move often and it is easy to lose track of them. Thus, in the present situation, the 10-month delay was particularly damaging in that possible witnesses were scattered and difficult to get in touch with. Additionally, the defendant was indicted during the summer when most college students are at home. This made the search for witnesses even more difficult. In addition, the State gave Park the wrong address of the informant with the result that all of the defendant’s attempts to subpoena the informant were unsuccessful. Further, Park received the results of his first discovery motion on August 23, 1977, and then received supplemental information on September 1, 1977, only 12 days before trial.
In an oft-cited passage from People v. Dunham (1929), 334 Ill. 516, 521-22, 166 N.E. 97, 99, the Illinois Supreme Court stated:
“No person accused of a serious crime should be forced to trial without a reasonable opportunity to employ counsel and properly prepare his defense. [Citation.] Upon a proper showing that for want of time counsel has not been able to properly prepare the case, * * * or that the cause is not ready for trial for want of opportunity for preparation owing to no fault of the accused, the court, in the exercise of a wise discretion, should postpone the trial to a later day in the term or continue the cause, if necessary.”
I believe that, under the circumstances, there was simply not enough time for the defendant to adequately prepare. As mentioned before, witnesses were scattered and memories dimmed. There is no indication that college had commenced or that defendant could have interviewed the students after receiving the initial discovery material. Both the motion for continuance and defendant’s testimony indicated that he did make an effort to locate prospective alibi witnesses during the week between his finally learning all of the specific charges against him and the date of the motion for continuance. The record hardly supports any conclusion of lack of diligence and indeed affirmatively presents circumstances both supporting and justifying the conclusion that the defendant and his counsel were acting diligently.
In addition, the State furnished Park with the wrong address of the informant, resulting in an inability to subpoena him, despite what appear to have been diligent attempts to find him. Further, the State either knew or should have known that the informant had a broken jaw and was in the hospital. The State cannot mislead the defendant, even though it may have been done negligently, and then expect to profit when, as a result, the defendant does not have enough time to track down the informant. This inability, caused by the State, to find a key witness severely hampered the defendant’s attempts to prepare his defense. Thus, I believe that, under these circumstances, there was a clear abuse of discretion in denying the continuance.
The majority affirms the denial of the continuance and argues that the legislative intent is that criminal trials should be tried with due diligence. The majority then cites People v. Breen (1976), 62 Ill. 2d 323, 342 N.E.2d 31, as authority for their position. I am completely in accord with the statute which requires due diligence and also with the statement from Breen criticizing delay. However, while Breen might be appropriate as a general principle, its facts have nothing to do with granting or denying a first motion for continuance, but rather deal with the unreasonableness of a delay which occurs when a defendant is granted supervision. I would suggest that if the quote from Breen, dealing with long periods of time running counter to the legislative intent that criminal cases be tried with due diligence, has any bearing on the instant case, it is supportive of my contention that the indictment was brought too late and should be dismissed.
The majority also states that there was no abuse of discretion in denying the continuance because the defendant failed to specify how he would locate the witnesses he was trying to find and he failed to specify what witnesses would provide him with what alibi. In effect, the court rules that because the defendant hasn’t had enough time to discover the events that had occurred on the day of the alleged transaction, he will be denied more time.
My views find complete support in People v. Bain (1972), 4 Ill. App. 3d 442, 280 N.E.2d 776. In Bain the court held that there was an abuse of discretion where the motion for continuance was made on the grounds that defendant did not have adequate time to prepare a defense. A college freshman was charged with aggravated assault and moved for a continuance on the grounds that she had not been afforded ample time to prepare her defense during nonschool months and to identify and locate witnesses. The trial court denied the motion and on appeal the appellate court reversed, citing the aforementioned passage from People v. Dunham. I believe that the circumstances in the present situation are at least as compelling as those in Bain, especially since Park has a material witness whom he could not subpoena at the first trial.
The majority fails to distinguish Bain, simply asserting that it has been superseded by People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181,98 S. Ct. 273. A review of King shows that it has little relevancy to the present case and certainly does not supersede Bain. There are three crucial differences between King and the present case. First, in King the motion for continuance was made on the day the case was set for trial, not a week prior to the trial as in the instant case. Second, when the case was set for trial the court specifically told the defendant that if the State was present with its witnesses no continuance would be granted. No such statement was made in the present case. Third, both earlier and on the date of the trial, the defendant himself wanted the trial to proceed. In the instant case, although the defendant had, on indictment, demanded an immediate trial, on September 7 he did not wish the trial to proceed, desiring time to prepare a defense. The absence in the instant case of the facts present in King leads me to believe that King is inapposite in the instant case and certainly doesn’t supersede Bain. Therefore, I would hold that there was an abuse of discretion by the trial court in refusing to grant the continuation.
For the foregoing reasons I believe the indictment should have been dismissed or the defendant granted a new trial.