Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge. No. C 72-02-0466 Cr.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.
Defendant was convicted by a jury of illegal sale of narcotics, viz., heroin, in violation of former ORS 474.020 (repealed Oregon Laws 1971, ch 743, § 432).
On appeal he contends that the trial judge erred:
(1) In denying his motion to dismiss for failure to grant him a speedy trial;
(2) In failing to make provision for him to listen to his trial by use of sound equipment after he had been removed from the courtroom for allegedly disruptive conduct;
(3) In instructing the jury that "[e]very witness is presumed to speak the truth";
(4) In failing to instruct the jury that if the state presented less satisfactory evidence it should be treated with distrust; and
(5) In failing to instruct the jury it could not find defendant guilty on the basis of an accomplice's testimony.
The state's evidence was that on September 27, 1971, an undercover officer assigned to the Narcotics Detail of the Portland Police Bureau met the defendant by prearrangement at a residence in Portland. The officer told defendant he wanted to purchase two bags of heroin. The defendant reached into his pocket and handed the officer two balloons containing heroin and the officer gave the defendant a $20 bill and a $5 bill in payment.
The officer had arranged to meet the defendant through an individual named Simon Barber. The officer testified that he had been invited to come into the house by Barber who was one of the residents of the house.
The indictment in this case was not returned until February 15, 1972. The state contends that the delay was because the officer who bought the narcotics from the defendant would have had to disclose his identity which would have ended his usefulness as an undercover agent.
(1) The trial judge did not err in denying defendant's motion to dismiss for lack of a speedy trial. The time interval involved (141 days), between the sale of heroin charged in the indictment and the return of the indictment, was not excessive. Defendant failed to establish that he had been prejudiced thereby.
As we observed in State v. Griffin, 7 Or App 19, 489 P2d 985 (1971), while there may be circumstances where long, unexplained delay between act and indictment may result in prejudice, the record fails to establish any prejudice here. Defendant's statement that he was unable to recall on March 24, 1972, the date his motion was heard, where he had been on the date of the alleged sale, would not be sufficient to show such prejudice. State v. Griffin, supra, does not require a contrary holding in this case.
The undercover officer testified that he was assigned to investigate narcotics in the Albina area of Portland in August 1971, where this sale occurred; that his assignment to this area ended in early February 1972, at which time he presented the results to the grand jury.
(2) The trial judge did not err in failing to make provision for defendant to listen to his trial by use of sound equipment after he had been removed ...