Opinion
No. 107,545.
2013-11-4
STATE of Kansas, Appellee, v. Timothy James CHILEN, Appellant.
Appeal from Douglas District Court; Barbara Kay Huff, Judge. Thomas F. McGraw III, of Overland Park, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Barbara Kay Huff, Judge.
Thomas F. McGraw III, of Overland Park, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
After a bench trial on December 14, 2011, the district court convicted Timothy James Chilen of driving under the influence (DUI) and speeding. Due to a large number of DUI cases in Douglas County, the district attorney's office delayed prosecuting the charges against Chilen, and the trial was held more than 2 two years after his arrest. On appeal, Chilen contends the lengthy delay violated his constitutional rights to a speedy trial as well as his right to due process. While we are concerned with the way the State handled this DUI case, we do not find that the delay violated Chilen's constitutional rights. Thus, we affirm.
Facts
On October 24, 2009, around 6:40 p.m., Trooper Jimmy Hall noticed a silver Mercedes weaving down the Kansas Turnpike in Douglas County. At one point, the car was going 98 miles per hour in a 60–mile–per–hour construction zone. After pulling the car over, Trooper Hall learned that the driver of the vehicle was Chilen. In speaking with Chilen, Trooper Hall noticed a strong odor of alcohol. In addition, Trooper Hall noticed that Chilen slurred his speech and had trouble finding his driver's license.
When stepping out of his car at Trooper Hall's request, Chilen was unsteady and braced himself against the side of the vehicle as he walked. Chilen admitted that he had been drinking, and he failed a one-leg-stand test. Trooper Hall did not perform any other sobriety tests at that point because traffic was heavy. Rather, he arrested Chilen and took him to jail. Chilen consented to a breath test on the Intoxilyzer 8000 at the jail, and he blew a deficient sample of. 153. Trooper Hall then issued a DC–27 form charging Chilen with DUI and indicating a court date of November 9, 2009. Thereafter, Chilen was released on an appearance bond.
On November 9, 2009, the State cancelled the scheduled court date and filed a notice with the district court stating that it would not file a complaint against Chilen at that time. It does not appear, however, that the State sent a copy of the notice to Chilen. A couple months later, Trooper Hall failed to appear at a driver's license suspension hearing, and the administrative action against Chilen was dismissed. Following the administrative hearing, Chilen and his attorney went to the Douglas County District Attorney's office to inquire about the DUI case. They were told that the case had not yet been filed. Evidently, Chilen's attorney was aware from speaking with other defense attorneys that DUI cases were commonly delayed in Douglas County due to the high volume of such cases.
On June 29, 2011, the State filed a formal complaint against Chilen for DUI, second offense, and exceeding the speed limit. Chilen then filed a motion to dismiss, claiming the delay in prosecuting these crimes violated his constitutional speedy trial and due process rights. The district court conducted a hearing on his motion on November 22, 2011, and took the matter under advisement. About a week later, the district court denied Chilen's motion to dismiss on the record, finding that the delay in prosecution was due to understaffing in the district attorney's office. Furthermore, it found that the delay did not prejudice Chilen's defense because even if his witnesses had moved, he could subpoena the witnesses who had moved out of state.
The district court held a bench trial on December 14, 2011. Trooper Hall testified to the events of October 24, 2009. In turn, Chilen testified in his own defense. He claimed his training to run a marathon left him overly tired, which is why he stumbled on the evening of his arrest, and that there was no way he was intoxicated. Chilen did not call any other witnesses, claiming he could no longer locate them or that they had moved out of state. Ultimately, the district court found him guilty of DUI and speeding.
Analysis
Issue Presented
On appeal, Chilen contends that the State's delay in prosecuting the DUI charge violated his constitutional rights to a speedy trial and to due process. Chilen argues that he was unable to locate witnesses in support of his defense because of the delay in prosecution. He also argues that the delay in prosecution resulted in anxiety and had a negative impact on his business. Accordingly, we must determine whether the delay in the prosecution of Chilen's case violated his constitutional speedy trial and due process rights. Right to Speedy Trial
“Whether a defendant's constitutional right to speedy trial has been violated is a question of law over which this court has unlimited review.” State v. Weaver, 276 Kan. 504, Syl. ¶ 1, 78 P.3d 397 (2003). “The speedy-trial right is ‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’ “ Vermont v. Brillon, 556 U.S. 81, 89, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009). In determining whether a defendant's right to a speedy trial has been violated, we must balance four factors—referred to as the Barker factors—to determine whether a delay violated the constitutional right to a speedy trial: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant caused by the delay. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Rivera, 277 Kan. 109, Syl. ¶ 3, 83 P.3d 169 (2004); State v. Gill, 48 Kan.App.2d 102, Syl. ¶ 3, 283 P.3d 236 (2012).
The Barker factors “ ‘have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.’ “ Weaver, 276 Kan. at 510. Although no individual factor is controlling, the length of the delay acts as a triggering mechanism because the other factors do not become relevant unless the delay presumptively prejudices the defendant. See Barker, 407 U.S. at 530;Rivera, 277 Kan. 109, Syl. ¶ 4. The particular facts of each case determine whether the delay between arrest and trial is presumptively prejudicial—not the passage of a set period of time. See Weaver, 276 Kan. 109, Syl. ¶ 3.
Here, the time from Chilen's arrest on October 24, 2009, until the time of his trial on December 14, 2011, amounts to about 26 months. During this time, the initial traffic citation or complaint remained pending. See State v. Boyle, 21 Kan.App.2d 944, 945, 913 P.2d 617 (1996) (“A traffic citation issued by a law enforcement officer pursuant to and in compliance with [K.S.A.] 8–2106 serves as a valid complaint.”). Moreover, as the State concedes, this DUI case was not complex. Thus, we conclude that delay was objectively unreasonable and presumptively prejudicial. See State v. Shepard, No. 101, 106, 2010 WL 922866, at *1 (Kan.App.2010) (unpublished opinion).
While a tactical delay by a prosecutor intended to hamper the defense weighs heavily against the State, neutral reasons like an overcrowded court do not. See State v. Jamison, 248 Kan. 302, 307, 806 P.2d 972 (1991); Gill, 48 Kan.App.2d at 114. In the present case, the State explained that the delay was caused by “too many impaired drivers and not enough [prosecutors].” Although the district attorney's office had requested funding for an additional prosecutor as a result of a DUI backlog for several years, the request was not granted until 2011. In his brief, Chilen concedes that “the State's motive for delay was not malicious.” Moreover, his attorney indicated that he was aware of multiple DUI cases in Douglas County where the State delayed prosecution while it attempted to work through the backlog. Hence, we conclude that the reason for the delay articulated by the State was reasonable under the circumstances presented.
The State argues that Chilen did not assert his right to a speedy trial until September 13, 2011, when he filed his motion to dismiss. While this may have been the first formal assertion of the right, Chilen did complain early on that he could not get any information—including copies of the Highway Patrol reports—regarding his case because of the delay in prosecution. Thus, we conclude that Chilen asserted his right to a speedy trial within a reasonable amount of time following the filing of a formal complaint by the district attorney's office.
Turning to the factor of prejudice, we note that the Sixth Amendment right to speedy trial was designed to (1) prevent oppressive pretrial incarceration; (2) minimize the anxiety and concern of the accused; and (3) limit the possibility that the defense will be impaired. Gill, 48 Kan.App.2d at 115 (citing Barker, 407 U.S. at 532). Accordingly, we analyze those three factors when considering the prejudice caused by the delay. See Weaver, 276 Kan. at 511. In reviewing the record in the present case, we find the question of prejudice to be a close call.
Although the delay in bringing this case to trial was lengthy, Chilen was released from custody on the night of his arrest. As such, there was no oppressive pretrial incarceration. Likewise, we find that conclusory claims of anxiety are not sufficient to establish the prejudice prong of the Barker factors. See State v. Sprague, No. 105,827, 2012 WL 3822625, at *6 (Kan.App.2012) (unpublished opinion), petition for rev. filed October 1, 2012. Although Chilen claims that he was nervous and anxious about the DUI case, he stated in an affidavit that he told an employee at a restaurant in 2010 that he “was grateful that [he] had not been charged with DUI and it appeared that [he] would not be charged.” Moreover, he stated that he had no reason to find witnesses to his sobriety after his arrest because he did not think he was facing any charges. As such, it is unlikely that Chilen was extremely anxious about a charge he did not think he was facing.
Chilen also argues that, by the time of trial, the delay impaired his defense because some of the witnesses he wanted to call to show that he was sober had moved out of Kansas. Evidently, one witness was in Missouri, one was in Colorado, and another was in California. Each of those states has procedures in place under which Chilen could have subpoenaed the witnesses to appear in Kansas to testify in the criminal proceedings. See Mo.Rev.Stat. 491.410 (2000); Colo.Rev.Stat. § 16–9–202 (2012); Cal.Penal Code § 1334.2 (2004). Thus, we do not find the fact that some of Chilen's witnesses lived out of state significantly prejudiced his defense.
Chilen further argues that the delay in prosecution resulted in his inability to call an employee of the restaurant at which he ate an hour or more before the traffic stop. He claims the witness would be able to testify to his sobriety. While Chilen knew the employee was male, with brown hair, about 5' 10?, mid–20's, and weighed approximately 160 pounds, Chilen did not know the employee's name. And because the restaurant had changed ownership, Chilen claims that he could no longer track down the employee by the time of trial.
The Kansas Supreme Court has found prejudice arguments premised on the inability to locate witnesses unpersuasive. See State v. Mathenia, 262 Kan. 890, 897, 942 P.2d 624 (1997) (“The judge was not persuaded that the inability to obtain those witnesses was a result of the 2–year lapse in getting the case to trial and denied the motion to dismiss for lack of speedy trial. We agree.”); State v. Fitch, 249 Kan. 562, 567–68, 819 P.2d 1225 (1991) (ultimately finding speedy trial violation after balancing the factors, but noting that “the defendant could have attempted to contact witnesses when charges were first filed. There is no showing that the defense tried or wanted to find the witnesses.... The trial court's conclusion that there was prejudice to Fitch because of the two witnesses is weak.”); State v. Wilson, 227 Kan. 619, 625, 608 P.2d 1344 (1980) (“The difficulty appears to have been that the proposed witnesses were persons with whom defendant had chance and fleeting contact people whom he met in bars in Florida and in Colorado, for example. Finding such witnesses, most of whose names and addresses are unknown, is difficult under optimum circumstances, but defendant and counsel had the opportunity in 1975 if they wished to exercise it”).
Courts in other jurisdictions been similarly skeptical of allegations of lost witnesses or evidence. After finding that the State prosecuted a claim with reasonable diligence, i.e., it had a good reason for the delay, the Sixth Circuit Court of Appeals noted: “[N]othing precluded Young's counsel from obtaining these records early in the case, or soon after the government gave notice of its intent to seek the death penalty in 2002.” United States v.. Young, 657 F.3d 408, 420 (6th Cir.2011). Moreover, the 11th Circuit Court of Appeals affirmed a district court's finding of “no prejudice” when a defendant's claim was premised on a single, named witness that could no longer be located. United States v. Villarreal, 613 F.3d 1344, 1356 (11th Cir.2010). And in Villarreal, the court weighed the potential impact of the alleged lost witness' testimony: “Further, even if Villarreal was operating a legitimate business, [which is what he claimed the witness would have said], that is only a tangential fact, rather than a dispositive one, pertaining to the charge against Villarreal that he was engaged in drug dealing.” 613 F.3d at 1356.
In the present case, Chilen retained counsel to represent him shortly after his arrest. Likewise, Chilen claims to have spoken to the unknown employee about a month after his arrest. The employee allegedly said that he did not believe Chilen to have been intoxicated on the night of his arrest (although the employee last saw Chilen an hour or more before the arrest). Chilen knew at that time (a month after his arrest and prior to the date of his administrative hearing) that he had a pending charge (the ticket). Chilen or his attorney could have obtained the man's name and contact information at that time but failed to do so. Notably, Chilen could have presented affidavits from his alleged witnesses to contest the DUI at his administrative suspension hearing. Even though the administrative action was ultimately dismissed because the trooper did not appear, Chilen did not know that prior to the hearing. See K.S.A.2012 Supp. 8–1020(1)(5) (permitting affidavits from witnesses in the administrative hearing). Accordingly, Chilen had incentive and the opportunity to secure his alleged witnesses early on, and he failed to do so.
Although the inability to find the witness at the time of trial is perhaps partially attributable to the State's delay in prosecuting the case, the primary responsibility to secure the witness' name and address rests with Chilen and his attorney. We do recognize that Chilen and his attorney were at a disadvantage because they could not evaluate the State's case without police reports, and a defendant does not want to spend money defending a criminal case that may not proceed. But even if the witness testified that he believed Chilen to be sober at some point before his arrest, that testimony would have been tangential considering that Chilen admitted to having consumed two mixed drinks, that Trooper Hall testified Chilen's car was weaving and going 38 miles per hour over the speed limit in a construction zone, that Chilen stumbled out of his car, that Chilen smelled like alcohol, that Chilen had slurred speech, and that Chilen failed a one-leg-stand test. It is also significant that even though Chilen blew a deficient sample (which, according to the trooper's testimony, indicated that because Chilen did not blow hard enough, the Intoxilyzer 8000 could have recorded an even higher blood-alcohol content), it still recorded a blood-alcohol content of .153, which is nearly twice the legal limit. See Villarreal, 613 F.3d at 1356 (considering the likely impact of the alleged lost witness' testimony).
To be certain, the State's alleged reason for the delay—understaffing—was legitimate. See Jamison, 248 Kan. at 307;Gill, 48 Kan.App.2d at 114. But the State could have taken relatively easy steps to minimize the potential prejudice resulting from the delay. The State could have dismissed the charges against Chilen without prejudice. See 48 Kan.App.2d at 110–11 (recognizing that speedy trial is not applicable when charges are dismissed). At the least, on November 9, 2009, the State should have provided Chilen with a copy of the notice that it filed with the district court indicating it would not be filing a formal complaint at that time. Moreover, the State should have been able to provide Chilen with the Highway Patrol reports for his case so he would be best able to prepare his defense. While we find the State's actions problematic, we do not find that Chilen has shown that his constitutional right to a speedy trial was violated under the circumstances presented in this case.
In summary, we find the State's reason for the delay was legitimate. We also find that Chilen or his attorney could have secured affidavits (or other information) from his witnesses early on and could have attempted to subpoena those witnesses who lived outside of Kansas. Furthermore, we find that the testimony of these witnesses would likely have had little impact on Chilen's conviction in light of the overwhelming evidence against him. We, therefore, conclude that Chilen's constitutional right to a speedy trial was not violated. Due Process Rights
Chilen also contends that the State's delay in prosecuting the DUI charge violated his due process rights. A defendant “has a due process right to a reasonably timely prosecution of criminal charges .” State v. Clemence, 36 Kan.App.2d 791, 800, 145 P.3d 931 (2006), rev. denied 283 Kan. 932 (2007). Whether a defendant was denied due process is a question of law subject to unlimited review. See State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).
For the delay in Chilen's case to have violated his due process rights, it must have (1) actually prejudiced him and (2) occurred because the State sought to gain a tactical advantage over Chilen or otherwise harass him. See State v. Royal, 217 Kan. 197, Syl. ¶ 2, 535 P.2d 413 (1975); Gill, 48 Kan.App.2d at 117. Importantly, we must find both of these factors present for Chilen to obtain relief. See 48 Kan.App.2d at 117.
As we found with respect to Chilen's claim of a violation of his constitutional right to a speedy trial, the delay in prosecuting the DUI claim did not significantly prejudice his ability to defend himself. Furthermore, nothing in the record suggests that the State delayed the prosecution of this case for tactical reasons or to harass him. Rather, as Chilen recognizes, the State's motive for the delay was not malicious. Instead, the delay resulted from the district attorney's office not having sufficient staff to prosecute the backlog in DUI cases. Accordingly, we conclude that the delay in prosecution did not violate Chilen's right to due process.
Affirmed.