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State v. Whitlow

Court of Appeals of Oregon

April 23, 2014

STATE OF OREGON, Plaintiff-Appellant Cross-Respondent,
v.
IVAN CLIFF WHITLOW, Defendant-Respondent Cross-Appellant

Argued and Submitted December 10, 2013.

Yamhill County Circuit Court. CR090320. John L. Collins, Judge.

David B. Thompson, Senior Assistant Attorney General, argued the cause for appellant-cross-respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Frank E. Stoller argued the cause and filed the brief for respondent-cross-appellant.

Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.

OPINION

Page 608

[262 Or.App. 331] HASELTON, C. J.

Defendant was charged with multiple counts of sexual abuse. ORS 163.427. After a first trial resulted in a mistrial, the state reprosecuted and defendant moved to dismiss based on (1) preindictment delay, invoking the Fifth and Fourteenth Amendments to the United States Constitution, and (2) lack of speedy trial, invoking former ORS 135.747 (2011), repealed by Ore. Laws 2013, ch 431, § 1, Article I, section 10, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. In a separate motion, defendant also sought dismissal on double jeopardy grounds, ORS 131.515, Article I, section 12, of the Oregon Constitution, and the Fifth and Fourteenth Amendments. As detailed below, the trial court granted the former motion, denied the latter motion, and entered a judgment of dismissal.[1]

The state appeals, arguing that the trial court improperly conflated pre- and post-indictment delay in its analysis supporting the dismissal, and that, in any event, with respect to the preindictment delay, defendant failed to establish that the state was culpable for the delay and that he was actually prejudiced by the delay.

Defendant responds, arguing, inter alia, that the state was negligent or indifferent to the delay and that he was actually prejudiced because, as a result of the delay, an important impeachment witness is unavailable. Defendant also cross-assigns error to the denial of his motion to dismiss based on double jeopardy.[2]

[262 Or.App. 332] As amplified below, we affirm based on our conclusion that the preindictment delay violated defendant's right to due process,[3] because the lengthy delay was unjustified and defendant was actually prejudiced by the loss of the opportunity to impeach the victim through the testimony of the principal investigating detective who was unavailable because of that delay. Accordingly, we do not address the state's arguments challenging the trial court's conclusion that defendant's constitutional and statutory speedy trial rights were violated. Similarly, given our analysis and disposition, we need not reach defendant's cross-assignment of error pertaining to the trial court's denial of his motion to dismiss on double jeopardy grounds.

We review a trial court's ruling on a motion to dismiss for errors of law. State v. Davis, 345 Ore. 551, 564-65, 201 P.3d 185 (2008), cert den, 558 U.S. 873, 130 S.Ct. 371, 175 L.Ed.2d 124 (2009). We are bound by the trial court's findings of historical fact that are supported by evidence in the record. State v. Ehly, 317 Ore. 66, 74-75, 854 P.2d 421 (1993). To the extent that the trial court did not make express findings, we resolve disputed facts consistently with the trial court's

Page 609

ultimate conclusion. Ball v. Gladden, 250 Ore. 485, 487, 443 P.2d 621 (1968).

I. BACKGROUND

The background facts of this case are undisputed and derived from testimony in a trial that took place in February 2011.[4] Defendant is the step-grandfather of the alleged victim, S, who, between the ages of eight and 12, lived with defendant and her maternal grandmother (defendant's wife) at their home in Sheridan. In August 2004, when S was 12 and still living with defendant and her grandmother, S disclosed to her mother that she believed that defendant had sexually abused her. On August 24, 2004, S reported her allegations to Yamhill County Sheriff [262 Or.App. 333] Corporal Ludwig, who took an initial report and then assigned the case to Detective Rosario. That same day, S moved out of defendant's home. On August 25, Detectives Rosario and Carelle interviewed S and her mother at the sheriff's office.[5] On September 2, S was examined and interviewed at a child abuse assessment center. A center staff member, in turn, reported S's disclosures to Rosario, who then authored an investigative report. As explained below, that report by Rosario is central to defendant's contention that he suffered actual prejudice as a result of Rosario's subsequent unavailability. Although Carelle was present at the initial interview, he was not in charge of the investigation, and he did not author any reports regarding the investigation. After writing his report, Rosario did not engage in any further investigative activity. Consequently, the investigation halted in early September 2004, mere days after it commenced.

On March 28, 2006, 19 months after S reported the alleged abuse, a Yamhill County Multidisciplinary Child Abuse Team (MCAT)[6] met to discuss her allegations. After that meeting, the Yamhill County District Attorney's Office sent a prosecution memo to Rosario with a " prosecution declined" box checked and the following explanatory note:

" No response to requested follow-up. Victim is unable to be located. If further follow-up is produced, please feel free to re-refer case. If you can locate victim, please advise."

The same memo notes that the case was discussed at an MCAT meeting on April 4, 2006, but no further action was suggested or taken. In March and April 2006, S was living with her mother in Dallas, Oregon (in neighboring Polk County) and attending public middle school.

In 2007, S moved back into defendant's home in Sheridan and attended public high school. On November 21, 2008, an anonymous caller contacted the Department of [262 Or.App. 334] Human Services (DHS), and reported that " [S] had said [defendant] tried to molest her." Three days later, Yamhill County Sheriff's Office Detective Geist (who was unaware of the previous allegations and investigation involving defendant) and a DHS service worker visited defendant's house to check on S, who was then 16 years old. S did not report any abuse at that meeting.

The next day, November 25, Geist discovered a record of the case, including Rosario's report. Geist " asked around" about Rosario--who had left his position at the Yamhill County Sheriff's Office in March 2008--and learned that Rosario was reportedly living in Puerto Rico. Geist did not attempt to locate or contact him there.[7] Geist testified:

" I found in that report that Detective Rosario had spoken with [S] and her mother along with Sergeant Carelle from our office

Page 610

and then [S] had been seen at * * * the child abuse assessment center here in town. I believe [S] was seen in early September of 2004. Detective Rosario's report indicated that there would need to be follow-up done to complete the case. I did not find any other follow-up in that case in [our case records management system], so I had records pull the case file and found that there was no follow-up done in the case file, either.
" * * * * *
" Being discussed at MCAT is not follow-up on an investigation. * * * I discuss all my cases at MCAT; that doesn't mean I followed up on it just because I discussed them with MCAT. That is not a follow-up. Follow-up is when I actually go out and do something on the case."

After learning that the 2004 investigation remained unresolved, Geist decided to contact S at school. At that interview, S not only reaffirmed her allegations from 2004, but also reported other instances of abuse and inappropriate behavior by defendant when she had lived with him between [262 Or.App. 335] the ages of 10 and 12 years old. Some of those incidents were not included in Rosario's report. S stated that no new incidents of abuse had occurred after she had moved out of defendant's home in August 2004. Geist contacted defendant, who categorically denied S's allegations.

On June 17, 2009, nearly five years after S first reported the alleged abuse, the state arrested defendant and indicted him on multiple counts of sex abuse. Defendant entered a not-guilty plea, and the case proceeded to trial in February 2011. At that trial, S testified to incidents that were not included in Rosario's 2004 report. For example, S testified about an incident where defendant laid on top of her and kissed her while she was laying on her grandparents' bed. When defense counsel asked her whether she told Rosario about that incident, she responded, " I don't remember." In another instance, S testified that defendant kissed her on the stairs in his garage and tried to put his tongue in her mouth. Defense counsel asked her whether she told Rosario about that incident, and she responded, " I don't remember."

That first trial ended in a mistrial.[8] The state elected to reprosecute defendant and, in June 2011, before a second trial, defendant moved to dismiss for lack of speedy trial and delay constituting denial of due process. In particular, defendant contended that, in light of the lengthy preindictment delay, " [a]ny further prosecution * * * would deny him Due Process of law." That was so, defendant argued, because " no substantive investigation took place" after the initial interview and assessment in August and September 2004, and the state provided no justification for delaying the indictment. Defendant also asserted that further prosecution would deny him his statutory and constitutional right to a speedy trial. In advancing that contention, defendant combined the 58-month period between S's report and his indictment with the 26-month period after the indictment and before the second set trial date. Defendant conceded [262 Or.App. 336] that some of the post-indictment delay was attributable to his motions to continue, but he argued that the remainder of the delay was attributable to the state.

The trial court granted that motion to dismiss after finding that the total preindictment delay was 58 months [9] and " entirely attributable to the state." In that regard, the court found that " [t]here was a significant period in the preindictment stage where no investigation was taking place." In response to the state's proffered reason for the delay--that S was unable to be located--the court found that she " could have been located through family, associates, or school with little effort." Accordingly, the court determined that the delay was unjustified and " a result of negligence or indifference by law

Page 611

enforcement in following through on an investigation that might easily have located the victim and allowed further pursuit of the case."

With respect to actual prejudice to defendant as a result of that delay, the court determined:

" As a result of the delay, defendant and other witnesses would likely lose memory of events. During the delay, both pre-indictment and post-indictment, the victim herself lost memory as to events as evidenced by her answering at ...

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