Terry v. State

GARRARD, Presiding Judge.

Appellant Terry was tried by jury and was convicted of robbery. See IC 85-18-4-6 (Repealed). His appeal presents three assertions of error.1

Of principal concern is Terry's contention that the trial court should have granted his pretrial motion to dismiss because of delay in arresting him for the offense.

*1160The record discloses that on March 19, 1975, an information was filed charging Terry with a robbery that had been committed on or about March 5, 1975. Although an arrest warrant was promptly issued, Terry was not arrested until mid-November, 1977. He then appeared in court on November 14, 1977.2

Terry argues that a delay of approximately two and one half years between the filing of the information and his arrest was so prejudicial that it was impossible for him to receive a fair trial. Thus, he contends this delay violated his constitutional rights to a speedy trial under both the sixth amendment to the United States Constitution and article I, section 12 of the Indiana Constitution.

We agree of course, that the protections afforded by these provisions attached to Terry upon the filing of the information. See, e. g., United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Cooley v. State (1977), Ind.App., 360 N.E.2d 29.

In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the Supreme Court rejected a mechanical assessment of speedy trial claims in favor of a balancing test. Indiana has applied the Barker analysis to claims made under our state constitution. Wade v. State (1979), Ind., 387 N.E.2d 1309; Collins v. State (1975), 163 Ind.App. 72, 321 N.E.2d 868.

Barker identified four relevant factors: length of delay, the reason for delay, the defendant's assertion of his speedy trial right, and prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2191.

We believe that on the facts presented a delay of two and one half years between the filing of the formal charge and further proceedings is of sufficient presumptive prejudice to trigger a Barker inquiry into the other factors.3

It appears that during the time in question Terry was unaware of the pending charge or outstanding warrant. He resided in Gary throughout the period and worked for at least two local employers, including the Gary Housing Authority. According to Terry he was acquainted with several Gary police officers who had seen him and with whom he had exchanged conversation during the period. In short, it does not appear from the record that he was incarcerated elsewhere, had left the area, or was attempting to evade discovery. Moreover, while there is no evidence that the state acted in bad faith to delay Terry's trial, neither is there evidence of diligence and reasonable effort in procuring his arrest. The record is silent upon these matters and is susceptible to the inference that the state was negligent. Thus, it does not appear that the delay was occasioned by good cause. Moreover, Terry suffers no adverse inference from his failure to assert his rights since he was unaware of the penden-cy of the charge. >

We must turn then to a consideration of the prejudice to Terry. As the Court stated in Barker,

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defensé will be impaired. Of these, the most serious is the last, because *1161the inability of a defendant adequately to prepare his case skews the fairness of the entire system.

407 U.S. at 532, 92 S.Ct. at 2193. The first two factors are inapplicable since Terry was not incarcerated nor even aware the charge was pending. What then of the impairment of his defense? Terry makes no showing of any actual impairment. There are no factual contentions that witnesses died or were unavailable or were unable to remember. Instead, it is his position that the burden of proof rested with the state to establish he was not prejudiced (Appellant's brief, pp. 12, 18). Thus, he contends that because the state failed to produce evidence to show no prejudice, he was entitled to discharge.

We disagree. The burden was upon Terry to show that he had been actually prejudiced by the delay. Wade v. State (1979), Ind., 387 N.E.2d 1309, 1310; Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745, 749, See also the Indiana cases analogous to the situation in United States v. Marion, supra, where the accused complains of delay prior to arrest or the initiation of a prosecution. Indiana imposes the burden of establishing actual prejudice upon the accused. McMorris v. State (1979), Ind.App., 392 N.E.2d 820; Burress v. State (1977), Ind. App., 363 N.E.2d 1036.

Thus, we are constrained to find that since Terry demonstrated no actual prejudice to his defense, his claim must fail.

Terry next asserts error in the trial court's refusal to grant a mistrial. The basis for this contention is that he impeached the prosecuting witness' identification by showing that he and the witness had not attended high school together as the witness had testified. This evidence went to the weight and credibility to be given the identification. As such it was for the jury's consideration. It was not a ground for mistrial.

Finally, Terry objects to the introduction of a photograph of him as part of the state's case on rebuttal. The only objection at trial was a general one. Such objections are insufficient to preserve error. Dorsey v. State (1976), Ind. App., 357 N.E.2d 280.

Affirmed.

HOFFMAN, J., concurs. STATON, J., dissents and files separate opinion.

. A fourth assigned error challenging the sufficiency of the evidence was not argued and is therefore waived.

. No challenge is made to the proceedings following his arrest. Thus the issue is beyond the purview of Indiana Rules of Procedure, Criminal Rule 4, which comes into play after the filing of the information or arrest of the accused, whichever occurs later. However, compare State v. Roberts (1976), Ind.App., 358 N.E.2d 181.

. "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." 407 U.S. at 530-531, 92 S.Ct. at 2192.