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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Wright (9/22/2017) sp-7200

State v. Wright (9/22/2017) sp-7200

                           Notice:     This   opinion   is   subject   to   correction   before   publication  in  the  

                           PACIFIC  REPORTER.  Readers are requested to bring errors to the attention                                     

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                             THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



STATE  OF  ALASKA,                                                                 )
  

                                                                                   )             Supreme  Court  No.  S-15917  

                                         Petitioner,                               )             Court  of  Appeals  No.  A-10587  

                                                                                   )  

                                                                                                                                                                            

              v.                                                                   )             Superior Court No. 3AN-99-09867 CR  

                                                                                   )  

               

SEAN WRIGHT,                                                                                                               

                                                                                   )             O P I N I O N  

                                                                                   )  

                                                                                                                                                         

                                         Respondent.                               )             No. 7200 - September 22, 2017  

                                                                                   )  



                                                     

                                                                                                                                                    

                            Petition for Review from the Court of Appeals of the State of  

                                                                                                                                                    

                            Alaska, on appeal from the Superior Court of the State of  

                                                                                                                                        

                            Alaska, Third Judicial District, Anchorage, Philip R. Volland  

                                                                             

                            and Michael R. Spaan, Judges.  



                                                                                                                                    

                            Appearances:                      Timothy  W.  Terrell,  Assistant  Attorney  

                                                                                                                                   

                            General,   Anchorage,   and   Jahna   Lindemuth,   Attorney  

                                                                                                                                      

                            General,  Juneau,  for  Petitioner.                                      Margie  Mock,  Contract  

                                                                                                                                         

                            Attorney,   Anchorage,   and   Quinlan   G.   Steiner,   Public  

                                                                                   

                            Defender, Anchorage, for Respondent.  



                                                                                                                                                          

                            Before:   Stowers,   Chief   Justice,   Maassen,   Bolger,   and  

                                                                                                                               *    [Winfree,  

                                                                                                                                    

                            Carney, Justices, and Matthews, Senior Justice. 

                            Justice, not participating.]  

                                                     



                            MATTHEWS, Senior Justice.
  

                                                                           

                            BOLGER, Justice, concurring.
  

                                                                    

                            CARNEY, Justice, concurring in part and dissenting in part.
  

                                                                                                                                                            



              *             Sitting by assignment made pursuant to article IV, section 11 of the Alask                                                                           a 



Constitution and Alaska Administrative Rule 23(a).                                              


----------------------- Page 2-----------------------

I.                                    INTRODUCTION  



                                                                            In November 1999 the State filed a felony information charging Sean                                                                                                                                                                                                                                                                                                                               



Wright with sexually abusing two young girls.                                                                                                                                                                                                                               Wright was not arrested or indicted on                                                                                                                                                                           



these charges until almost five years later.                                                                                                                                                                                                    He moved to dismiss the charges, claiming,                                                                                                                                                            



among other reasons, that his right to a speedy trial had been violated.                                                                                                                                                                                                                                                                                                                                                     The superior   



court denied this motion.                                                                                                                            On appeal, the court of appeals ordered a reassessment of                                                                                                                                                                                                                                                                                 



Wright's claim.                                                                            



                                                                            We granted the State's petition for review and now decide two questions:                                                                                                                                                                                                                                                                                                                                                           



                                                                             (1)  Do speedy trial rights begin when a felony information is filed, or only                                                                                                                                                                                                                                                                                                                         



when a defendant is arrested or indicted?                                                                                                                                           



                                                                             (2)   Did   the   superior  court   err   when   it   decided   that   Wright   was   more  



responsible than the State for the delay?                                                                                                                                                                                                 



                                                                            We conclude that speedy trial time begins to run from the filing of an                                                                                                                                                                                                                                                                                                                                          



information.    We also find that the superior court did not err in attributing primary                                                                                                                                                                                                                                                                                                    



responsibility for the delay to Wright.                                                                                                                                   



II.                                   FACTS AND PROCEEDINGS                                                              



                                      A.                                    Facts  



                                                                            The State began investigating Wright in February 1999 after receiving a                                                                                                                                                                                                                                                                                                                                                  



report that Wright had sexually abused his eleven-year-old stepdaughter, K.A. K.A. and                                                                                                                                                                                                                                                                                                                                                                                                  



her mother, Evelyn Wright, had confronted Wright about the abuse, and Wright moved                                                                                                                                                                                                                                                                                                                                                                                   



out   of   the   home,   at   which   point   they   informed   the   police.   Alaska   State   Trooper  



Investigator Ruth Josten interviewed K.A. and Evelyn on February 16 and 17, 1999.                                                                                                                                                                                                                                                                                                                                                                                          



Evelyn indicated that Wright may have also abused another child, M.C., the daughter of                                                                                                                                                                                                                                                                                                                                                                                                           



his prior long-term partner. On March 4, Josten made contact with M.C., who confirmed                                                                                                                                                                                                                                                                                                                                                             



that Wright had sexually abused her a decade prior.                                                                                                                                                                                                                                                      



                                                                                                                                                                                                                                               -2-                                                                                                                                                                                                                                7200
  


----------------------- Page 3-----------------------

                                                                                                                                     

                    When the investigation into the sexual abuse began, Wright left the state.  



                                                                                                                       

Initially, he stayed with his brother in Arkansas.   He subsequently decided to leave  



                                                                                                                    

Alaska permanently and, over the next five years, worked various jobs in Arkansas,  



                                                                                                             

Mississippi, Alabama, Georgia, Oklahoma, Tennessee, and Minnesota.  



                                                                                                                               

                    At first, Wright stayed in contact with Evelyn via phone and letter.  He  



                                                                                                                                     

called Evelyn on February 28 and March 1, 1999, but would not say where he was.  



                                                                                                                               

Josten placed a phone trap on Evelyn's phone on March 2.  With the phone trap, the  



                                                                                                                               

Matanuska  Telephone  Authority  identified  phone  calls  from  Wright  to  Evelyn  on  



                                                                                                                              

March 9, 10, and 11 as coming from Arkansas. In phone calls between February 28 and  



                                                                                                                       

April 1, Wright expressed concern that the calls might be monitored by police, checked  



                                                                                                                                 

to see whether a warrant had been issued for him, indicated that he was attempting to  



                                                                                                                               

retain counsel, and expressed his desire to achieve a non-criminal resolution of the  



                                      

allegations against him.  



                                                                                                                                 

                    In mid-March 1999, he returned to Alaska.   He stayed with a friend in  



                                                                                                                                

Anchorage except for the weekend of March 20-21, which he spent with Evelyn in  



                                                                                                                              

Wasilla.  While back in Alaska he sold land to a friend, arranged to sell his truck, and  



                                                                                                                               

placed his personal belongings in storage.  On March 22 he formally resigned from his  



                                                                                                                         

job and took a "red-eye" flight that night back to Arkansas.  While Wright was waiting  



                                                                 

for his flight out of Alaska,  he wrote to a friend:  



                                                                                                             

                    I don't know what's going on but I got a bad feeling, time to  

                                                                                                              

                    travel while I can.  Note to trust no one, I won't call for a  

                                                                                                         

                    long time and don't know where I'm going yet. Have to stick  

                                                                                                          

                    to  myself  and  stay  away  from family  and  friends  till  my  

                                                                                                            

                     attorney knows what's happening and how to deal with it. So  

                                                                                                          

                    I act like a termite for a while and work where I can to pay  

                                       

                    lawyer and survive.  



                                                                                                                               

Josten did not learn that Wright had been in Alaska until May 1999.  Wright did not  



                                                                                                     

return to Alaska until after he was arrested in Minnesota in 2004.  



                                                                -3-                                                        7200
  


----------------------- Page 4-----------------------

                                        Wright telephoned Evelyn frequently for several months after permanently                                                                                                              



leaving the state, but according to Evelyn, this regular contact ended after a warrant was                                                                                                                                                              



issued.   On May 6, 1999 Wright wrote to Evelyn to send her an address where he could                                                                                                                                                              



receive mail.  The address was his brother's in Vilonia, Arkansas, but it was clear this                                                                                                                                  



was only a forwarding address.  He wrote, "Bill will get my mail to me were [sic] I'm                                                                                                                                                    

                                                                                                                                                                                                     1     The record reflects  

at."   This was the only address Evelyn and Josten had for Wright.                                                                                                                                                                           



that Wright also occasionally received mail at several mailing addresses in Russellville,  

                                                                                                                                                                                                                               

Arkansas, where he at times lived with a girlfriend.2                                                                                                                     And Wright kept his brother  

                                                                                                                                                                                                                                             



apprised of where he was working.  

                                                                                                             



                                        Josten  completed  her  investigation  in  June  1999.                                                                                                            She  forwarded  the  

                                                                                                                                                                                                                                                         



information she had gathered to the district attorney's office for review, and, aware that  

                                                                                                                                                                                                                                                        



Wright had fled the state, requested that an extraditable arrest warrant issue. Her request  

                                                                                                                                                                                                                                              



was declined, "inexplicably," according to the superior court.  

                                                                                                                                                                                           



                                        Five months later, in November 1999, the State filed a criminal information  

                                                                                                                                                                                                                                 



with the court charging Wright with eleven counts of sexual abuse of a minor.   On  

                                                                                                                                                                                                                                                        



November 16, 1999, an arrest warrant was issued for Wright. But the warrant was non- 

                                                                                                                                                                                                                                                      



extraditable, so it was not placed in the FBI's National Crime Information Center system.  

                                                                                                                                                                                                                                             



                    1                   Evelyn used the Vilonia address to contact Wright in order to obtain a                                                                                                                                                  



dissolution of their marriage.                                                          The Palmer superior court did so as well.                                                                                    Wright waived   

his right to appear in the dissolution proceedings and signed the dissolution paperwork                                                                                                                                            

before a notary in Arkansas.                           



                    2                   At one of the Russellville addresses, Wright received a summons from a  

                                                                                                                                                                                                                                                                

law firm about a case in Juneau regarding his overdue student loans.  He also gave a  

                                                                                                                                                                                                                                                                

Russellville address to the Alaska Bureau of Vital Statistics when he made a request for  

                                                                                                                                                                                                                                                           

a death certificate.  

                                                         



                                                                                                                              -4-                                                                                                                    7200
  


----------------------- Page 5-----------------------

                                      In the summer of 1999, Josten was reassigned. Between then and 2004, she                                                                                                                                 



periodically checked for information about Wright using databases available to Alaska                                                                                                                                               



State Troopers, but she made no other efforts to locate Wright.                                                                                                                       



                                      Wright obtained an Arkansas driver's license in 2001.                                                                                                      And between 1999                         



and 2004 he worked at a number of nuclear facilities requiring security clearance.                                                                                                                                                        Had  



his warrant been                                    entered   into   the National Crime Information                                                                                        Center   database,   his  



employers would have discovered it.                                                                         



                                      On September 17, 2004, almost five years after the felony information was                                                                                                                              



filed,   Alaska   State   Trooper   Sergeant   Iliodor   Kozloff   received   an   inquiry   from   an  

                                                                                                                3       Sgt. Kozloff confirmed there was an arrest  

employer in Minnesota about Wright.                                                                                                                                                                                                    



warrant for Wright, but discovered that it was non-extraditable.  He then contacted the  

                                                                                                                                                                                                                                               



district attorney's office, which decided to obtain an extraditable warrant.  Wright was  

                                                                                                                                                                                                                                             



subsequently arrested and brought back to Alaska.  

                                                                                                                                                   



                                      On October 3, 2004, Wright was arraigned on the charges filed in 1999.   

                                                                          



On October 12, 2004, a grand jury indicted Wright on eighteen counts of sexual abuse  

                                                                                                                                                                                                                                        

of a minor covering the abuse of K.A., M.C., and a third girl, T.W.4  

                                                                                                                                                                                                     



                   B.                 The Superior Court Proceedings  

                                                                                                     



                                      In August 2005 Wright filed a motion to dismiss the indictment claiming  

                                                                                                                                                                                              



that the delay in prosecuting him violated his due process and speedy trial rights.  After  

                                                                                                                                                                                                                                        



extensive briefing and an evidentiary hearing spread over seven non-consecutive days,  

                                                                                                                                                                                                                                         



                   3                  According to the State, the personnel officer who made the inquiry was                                                                                                                                



suspicious since "it appeared that Mr. Wright wasn't providing any residences since                                                                                                                                                     

living in Alaska."        



                   4                  The State later agreed to dismiss the counts pertaining to the abuse of T.W.  

                                                                                                                                                                                                                                         

on statute of limitations grounds.  

                                                                                                 



                                                                                                                        -5-                                                                                                               7200
  


----------------------- Page 6-----------------------

 Superior Court Judge Philip Volland denied the motion in a 13-page written opinion.                                                                                                                                                                                                                               



The discussion portion of Judge Volland's opinion is set out in the appendix.                                                                                                                                                               



                                               With respect to the due process claim, the court determined that Wright had                                                                                                                                                                         



failed   to  show   actual   prejudice   or   unreasonable   delay,   and   found   Wright   largely  



responsible for the delay.                                          



                                               As to the speedy trial claim, the court implicitly determined that the speedy                                                                                                                                                            



trial clock began to run when the information was filed in November 1999.                                                                                                                                                                                                  The court  



then applied a four-factor balancing test to determine whether the delay deprived Wright                                                                                                                                                                                               



of his right to a speedy trial. The test, laid out by the Supreme Court of the United States                                                                                                                                                                                               



in  Barker v. Wingo, requires a court to consider: (1) the length of the delay, (2) the                                                                                                                                                                                                             



reasons for the delay, (3) the defendant's assertion of the speedy trial right, and (4)                                                                                                                                                                                             

                                                                                            5   The superior court found that none of the latter three factors  

prejudice to the defendant.                                                                                                                                                                                                                                                             



favored Wright.  

                             



                                               Wright unsuccessfully sought interlocutory review in state and federal  

                                                                                                                                                                                                                                                                                      

                        6   He also brought numerous other motions before the case finally came to trial in  

courts.                                                                                                                                                                                                                                                                                                  



May 2009.  Wright renewed his speedy trial motion just prior to trial.  Superior Court  

                                                                                                                                                                                                                                                                                           



Judge Michael Spaan denied this motion, relying on Judge Volland's decision.  Before  

                                                                                                                                                                                                                                                                                       



the jury began deliberations Wright again renewed his motion to dismiss on speedy trial  

                                                                                                                                                                                                                                                                                                  



grounds.  Judge Spaan again denied this motion.  The jury convicted Wright on eight  

                                                                                                                                                                                                                                                                                              



                        5                      407 U.S. 514, 530 (1972). In                                                                         State v. Mouser                                       , the court of appeals used this                                                         



test in evaluating a speedy trial claim arising under the Alaska Constitution.  806 P.2d   

330, 340 (Alaska App. 1991).                                                      



                        6                       Wright v. State, 347 P.3d 1000, 1005 & n.3 (Alaska App. 2015).  

                                                                                                                                                                                                                                                          



                                                                                                                                                   -6-                                                                                                                                         7200
  


----------------------- Page 7-----------------------

counts of sexual abuse of a minor involving M.C. and five counts involving K.A.                                                                 After  

Wright was sentenced, he appealed to the court of appeals.                                              7  



                                                                     

            C.          The Court Of Appeals' Decision  



                                                                                                                                              

                        The court of appeals held that Wright's speedy trial claim under the federal  



                                                       8  

                                                                                                                                                   

constitution was without merit.                            The court explained that federal courts have held that  



                                                                                                                                                        

such claims do not begin to run until either an arrest or the filing of formal charges in a  



                                                                                                                   9  

                                                                                                                                        

court having jurisdiction to try the accused, whichever comes first.                                                  Since the November  



                                                                                                                                                     

 1999 information was filed in the district court, which does not have jurisdiction to try  



                                                                                                                                       

felonies, the federal speedy trial right did not attach until Wright's arrest in September  



          10  

                                                                                                                                          

2004.         Wright made no claim that the post-arrest delay violated his rights. He therefore  



                                                                       11  

                                                                             

                                                             

had no viable federal speedy trial claim. 



                                                                                                                                                     

                        But the court held that Wright's state speedy trial right attached when the  



                                                                                          12  

                                                                                                                                                    

felony information was filed in November of 1999.                                             The court based its holding in part  

                                                                                          13  and in part on this court's decision  

                                                                                                                                           

on the court of appeals' decision in State v. Mouser 



                                 14  

in Yarbor v. State.  

                                     



            7          Id.  at   1005.  



            8          Id.  at   1005-06.  



            9          Id.  (citing  5  WAYNE  R. LAFAVE, JEROLD  H. ISRAEL, NANCY  J. KING  & ORIN  



S. KERR, CRIMINAL  PROCEDURE      18.1(c),  at   110  (3d  ed.  2007)).  

                  



            10         Id.  at   1006.  



            11         Id.  



            12         Id.  at   1006-07.  



            13          806  P.2d  330  (Alaska  App.   1991).  



            14          546  P.2d  564  (Alaska   1976).  



                                                                          -7-                                                                    7200
  


----------------------- Page 8-----------------------

                         Turning to the trial court's decision, the court of appeals found that the trial                                                



                                                                                       15  

court had misapplied the four-factor                              Barker  test.                                                                            

                                                                                            According to the court of appeals, the  



                                                                                                                                                          

trial court erred in finding Wright partially responsible for the delay because after he left  



                                                                                                                                                     

Alaska he "was not hiding out, and the State had avenues of locating him" that likely  

                                                     16  Further, the trial court should not have faulted Wright for  

                                                                                                                                                           

would have been productive. 



failing to assert his speedy trial right because he was unaware that charges had been  

                                                                                                                                                       

filed.17        Moreover,  the  court  of  appeals  held  that  since  the  lengthy  delay  was  the  

                                                                                                                                                          



responsibility of the State, a presumption of prejudice arose and additional findings were  

                                                                                                                                                       



required as to whether the State had met its burden of rebutting the presumption or  

                                                                                                                                                            

showing extenuating circumstances.18  

                                        



                         Thecourt ofappeals notedthatpretrialdeterminations ofspeedy trial claims  

                                                                                                                                                     



are necessarily provisional because prejudice can be better evaluated after a trial, so it  

                                                                                                                                           



instructed the superior court to apply the four-factor test to the whole period between the  

                                                                                                                                                           

                                                                      19   The court suggested that the pre-arrest delay,  

filing of the information and the trial.                                                                                         

                                                              



which it found to be the responsibility of the State, might be counterbalanced by the post- 

                                                                                                                                                       

arrest delay, if found to be the responsibility of Wright.20  The court further suggested  

            



            15           Wright, 347 P.3d at 1007-09;                          Barker v. Wingo               , 407 U.S. 514, 530 (1972).
           



            16           Wright, 347 P.3d at 1008.
           



            17
         Id. at 1009.  

                                    



            18          Id. at 1009-11.  

                                    



            19          Id.  at 1010-11.   



            20          Id. at 1011.  

                                    



                                                                             -8-                                                                      7200
  


----------------------- Page 9-----------------------

that   Wright's   post-arrest   litigation   conduct   might  indicate   that   he   was   not   actually  

interested in a speedy trial.            21  



                     The State filed a petition for review to this court contending that the speedy  

                                                                                                                           



trial time should have run from Wright's 2004 arrest or indictment, rather than from the  

                                                                                                                                 



1999 information. After oral argument we ordered supplemental briefing on whether the  

                                                                                                                                 



court of appeals erred in attributing the pre-arrest delay to the State rather than, as the  

                                                                                                                                 



superior court did, primarily to Wright's flight from the state once he realized he was  

                                                                                                                                



under investigation.  

                                 



III.      STANDARDS OF REVIEW  

                                          



                     The proper interpretation of the Alaska Constitution is a "question[] of law  

                                                                                                                                



to which we apply our independent judgment, adopting the rule of law that is most  

                                                                                                                              

persuasive in light of precedent, reason, and policy."22  

                                                                      



                                                                                                                     23  

                                                                                                                         

                    We  review  a  trial  court's  findings  of  fact  for  clear  error,                                but  the  



                                                                                                                                   

assessment of the legal consequences of the trial court's findings of fact is a question of  



                                           24  

                                    

law that we review de novo. 



          21        Id.  at   1009,   1011  (citing   United States v.  Loud  Hawk,  474  U.S.  302, 315  



(1986)).  



          22        Premera  Blue  Cross  v.  State,  Dep't  of  Commerce,  Cmty.  & Econ.  Dev.,  Div.  



of  Ins.,   171  P.3d   1110,   1115  (Alaska  2007)  (citing  State   Commercial  Fisheries  Entry  

Comm'n  v.  Carlson,  65  P.3d  851,  858  (Alaska  2003)).  



          23        Johnson v. State, 328 P.3d 77, 81 (Alaska 2014).  

                                                                                       



          24        See Michael v. State, 115 P.3d 517, 519 (Alaska 2005); Meyer v. State, 368  

                                                                                                                                

P.3d 613, 615 (Alaska App. 2016).  

                                             



                                                                -9-                                                          7200
  


----------------------- Page 10-----------------------

                          "[W]e give no deference to the court of appeals's conclusions when we                                                     



                                                     25  

grant a petition for review."                             



IV.          DISCUSSION  



                                                                                                                 

             A.           Purposes Of The Right To A Speedy Trial  



                                                                                                                                                        

                          This case concerns the speedy trial guarantee expressed in the Alaska  



                                                                                                                                                                       

Constitution  and  its  relationship  to  procedures  for  initiating  criminal  prosecutions.  



                                                                                                                                                                

Article I, section 11 of the Alaska Constitution states: "In all criminal prosecutions, the  



                                                                                                                                                         

accused shall have the right to a speedy and public trial . . . ."  This language is almost  



                                                                                                                                                         

identical  to  the  speedy  trial  clause  in  the  Sixth  Amendment  to  the  United  States  



Constitution.  



                                                                                                                                                           

                          The speedy trial right has its origins in English law.   Sir Edward Coke  



                                                                                                                                                                   

wrote that "the innocent shall not be worn and wasted by long imprisonment, but . . .  



                                                   26  

                                                                                                                                                   

speedily come to his trial."                           As this indicates, the core evil that the right was originally  



                                                                                                                                                            

designed  to  prevent  was  lengthy  pretrial  incarceration.                                                        But  modern  cases  have  



                                                                                                                                                                

recognized  that  the  right  has  broader  purposes.                                                  Inordinate  delay,  regardless  of  



                                                                                                                                                       27  

                                                                                                                                                             

incarceration, may impair a defendant's ability to prepare an effective defense.                                                                             And  



                                                                                                                                                   

regardless of prejudice in attempting to defend on the merits, long delay may "seriously  



             25          State v. Hodari               , 996 P.2d 1230, 1232 (Alaska 2000).                        



             26           1 SIR  EDWARD COKE, S                        ECOND  PART OF THE                      INSTITUTES OF THE                    LAWS OF   

                              

ENGLAND  315 (E. & R. Brooke eds. 1797) (1642),                                                quoted in Betterman v. Montana                               , 578   

U.S.  ___, 136 S. Ct. 1609, 1614 (2016).                       



             27          Barker v. Wingo, 407 U.S. 514, 532 (1972) (identifying "the most serious"  

                                                                                                                                                      

interest that the speedy trial right protects as being the limits the right places on "the  

                                                                                                                                                              

possibility that the defense will be impaired");  United States v. Marion, 404 U.S. 307,  

                                                                                                                                                    

320-21 (1971) ("Passage of time, whether before or after arrest, may impair memories,  

                                                                                                                                                  

cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere  

                                                                                                                                                     

with his ability to defend himself.").  

                                                  



                                                                               -10-                                                                         7200
  


----------------------- Page 11-----------------------

interfere with [a] defendant's liberty, whether he is free on bail or not, and . . . may                                                                 



disrupt his employment, drain his financialresources,curtail                                                               hisassociations, subjecthim                       

to public obloquy, and create anxiety in him, his family[,] and his friends."                                                                               28  



                                                                                                                                                                   

                            There are other legal protections against undue delay in bringing criminal  



                                                                                                                                                                            

charges to trial.  Alaska Criminal Rule 45 requires a trial within 120 days from the date  



                                                                                                                                                                            

a charging document is served on a defendant, subject to defined excluded periods. This  



                                                                                                                                                                            

rule, promulgated in 1971, has sharply reduced the number of constitutional speedy trial  



                                                                                                                                                                            

claims asserted in our courts, as the proscriptions of Rule 45 are generally narrower than  

                                                                                                   29    Statutes of limitations also provide a  

                                                                                                                                                                                  

the limits of the constitutional speedy trial right. 



limit beyond which the law irrebuttably presumes that a defendant cannot receive a fair  

                                                                                                                                                                             

trial.30       And lengthy pre-accusation delay may result in a deprivation of due process.31  

                                                                                                                                                               



                            All of these protections have limits.  They are not necessarily congruent  

                                                                                                                                                               

with each other, nor does any one of them fully protect against undue delay.32                                                                                              The  

                                                                                                                                                                           



ultimate limits on delay - statutes of limitations - are tolled when an "indictment is  

                                                                                                                                                                                 



              28            See Marion              , 404 U.S. at 320;                   see also Barker                  , 407 U.S. at 537-38 (White,               



J., concurring).   



              29            Snyder v. State, 524 P.2d 661, 664 (Alaska 1974) (noting that Rule 45 does  

                                                                                                                                                                           

not define the outer limits of Alaska's constitutional right to a speedy trial).  

                                                                                                                                                  



              30            Marion, 404 U.S. at 321.  

                                                                       



              31            Id.  at 324 (due process requires dismissal of an indictment if defendant  

                                                                                                                                                                

shows that pre-indictment delay caused substantial prejudicetodefendant's right to a fair  

                                                                                                                                                                             

trial and delay was an intentional means of gaining tactical advantage over the accused).  

                                                                                                                                                                 



              32            See Marks v. State, 496 P.2d 66, 68 (Alaska 1972) (statute of limitations  

                                                                                                                                                              

"does not fully define . . . rights with respect to the events occurring prior to indictment"  

                                                                                                                                                            

(quoting Marion, 404 U.S. at 324)).  

                                                               



                                                                                      -11-                                                                                7200
  


----------------------- Page 12-----------------------

                                                                                         33  

found" or an "information or complaint is instituted."                                        Further, there is no limitation         



                                                    34  

period for many serious crimes,                                                                                                             

                                                        including as of 2007, cases of felony sexual abuse of  

              35                                                                                                       36  Meanwhile,  

                 for most other serious crimes the period is a lengthy ten years.                                           

                                                                                                              

    

a minor; 



a defendant asserting a due process claim of pre-accusation delay must prove both  

                                                                                                                                       

unreasonable  delay  and  actual  prejudice.37                               For  a  state  constitutional  speedy  trial  

                                                                                                                                        

violation, under the analysis we use, proof of actual prejudice is not always required.38  

                                                                                                                                                

But the constitutional speedy trial right utilizes an ad hoc and imprecise balancing test,39  

                                                                                                                                      

and it does not attach until the defendant becomes an "accused,"40  which is when the  

                                                                                                                                          

defendant is either arrested or formally charged.41                                   The other protection against post- 

                                                                                                                                       



accusation delay, Rule 45, contains well-defined standards, but it does not begin to run  

                                                                                                                                          

until a defendant is served with the charging document.42  

                                                                           



           33         AS   12.10.010(b).  



           34         AS   12.10.010(a).  



           35         AS   12.10.010(a)(3).  



           36         AS   12.10.010(b)(1).  



           37         See  State  v.  Mouser,  806  P.2d  330,  336  (Alaska  App.  1991)  (citing  York  v.  



State,  757  P.2d  68,  70  (Alaska  App.   1988)).  



           38         Id.  at  338.  



           39         Id.  at  340  (adopting  the  Barker  test).  



           40         Alaska  Const.,  art.   1,     11.  



           41         Yarbor  v.  State,  546  P.2d  564,  567  (Alaska   1976).  



           42         Alaska  R.  Crim.  P.  45(c)(1).   



                                                                    -12-                                                              7200
  


----------------------- Page 13-----------------------

                B.	             The Criminal Information Was A Formal Charge That Started The                                                                                                     

                                Speedy Trial Clock.               



                                The first question in this case is when a defendant is "formally accused" for                                                                                         



purposes of starting the speedy trial clock under the Alaska Constitution.                                                                                                   Specifically,  



this case concerns whether the filing of a criminal information triggers the speedy trial                                                                                                         



right.  



                                In Alaska the initial pleading in a criminal case may be an information, a                                                                 



complaint, or an indictment.                                           All are charging documents with formal requirements                                                  



                                              43  

prescribed by rule.                                                                                                                                                                         

                                                      All may charge either misdemeanors or felonies.   But felony  



                                                                                                                                                                                       

charges initiated by a complaint or information are generally not the final pleading  



                                                                                                                                                                                     

required before a defendant can be brought to trial.  For that, an indictment is necessary  



                                                                                                                                                                                                      

unless the defendant waives an indictment, in which case the trial may proceed based on  

                                      44       Informations  and  complaints  are  generally  similar.                                                                              The  main  

                                                                                                                                                                                               

an  information. 



differences  are  that  informations  must  be  signed  by  the  prosecuting  attorney  and  

                                                                                                                                                                                                  

complaints need not be,45  and complaints can never serve alone as the basis for a felony  

                                                                                                                                                                                            

prosecution, even if an indictment is waived, while informations can.46                                                                                                   The filing of a  

                                                                                                                                                                                                         



complaint or information sets in motion a litigation process described in Alaska Criminal  

                                                                                                                                                                                        



Rules 3, 4, 5.1, 7, and 9. But the rules do not indicate how the litigation process aligns  

                                                                                                                                                                                              



with the state constitutional right to a speedy trial.  

                                                                                                            



                                The State argues that the right to a speedy trial in cases where a defendant  

                                                                                                                                                                                    



has not been first arrested should not attach until a charging document has been filed that  

                                                                                                                                                                                                    



                43             See  Alaska R. Crim. P. 3 (complaint), 7 (indictment and information).                                                                



                44  

                                                                                             

                               Alaska R. Crim. P. 7; AS 12.80.020.  



                45  

                                                                                    

                               Alaska R. Crim. P. 3, 7.  



                46  

                                                                              

                               Alaska R. Crim. P. 7.  



                                                                                                 -13-	                                                                                          7200
  


----------------------- Page 14-----------------------

 is sufficient to compel a defendant to stand trial.                                                                                                                                                                                                    Because an information is not a                                                                                                                              



  sufficient pleading to compel a person charged with a felony to stand trial unless the                                                                                                                                                                                                                                                                                                                     



 person waives indictment, the State contends that the speedy trial time did not begin to                                                                                                                                                                                                                                                                                                                          



 run in this case until Wright was arrested in September of 2004.                                                                                                                                                                                                                                                        By contrast, Wright                                             



 argues that the speedy trial right attaches in felony cases when an information is filed and                                                                                                                                                                                                                                                                                                               



 therefore the speedy trial time in this case began to run when the information was filed                                                                                                                                                                                                                                                                                                             



 in November of 1999.                                                                                         



                                                                 Both    positions    find   substantial    support    in    the    case    law    of    other  

                                                               47   Our case law has also considered the issue. In Yarbor v. State, we stated  

jurisdictions.                                                                                                                                                                                                                                                                                                                                                                                   



 that the speedy trial time starts when the defendant "becomes formally accused - that  

                                                                                                                                                                                                                                                                                                                                                                                                          

 is, the subject of a filed complaint or an arrest."48   The State asks us to revisit this  

                                                                                                                                                                                                                                                                                                                                                                                                         



  statement from Yarbor.  

                                                                           



                                 47                              Compare,   e.g.,   United States v. Madden                                                                                                                                                            , 682 F.3d 920, 930 (10th Cir.                                                                                                   



 2012)   ("The   general   rule   is   that   the   [federal]   speedy   trial   right   attaches   when  the  

 defendant is arrested or indicted, depending on which comes first." (quoting                                                                                                                                                                                                                                                                                                             United  

 States v. Gomez                                                             , 67 F.3d 1515, 1521 (10th Cir. 1995)));                                                                                                                                                        United States v. Dowdell                                                                                                 , 595   

 F.3d 50, 61 (1st Cir. 2010) (same);                                                                                                                                     United States v. Battis                                                                                    , 589 F.3d 673, 678 (3rd Cir.                                                                                         

 2009) (same);                                                       People v. Martinez                                                                           , 996 P.2d 32, 41 (Cal. 2000) (felony complaint does                                                                                                                                                                                

 not trigger federal speedy trial right);                                                                                                                                      and People v. Mitchell                                                                                      , 825 N.E.2d 1241, 1243-45                                                                

 (Ill. App. 2005) (felony complaint does not trigger state or federal speedy trial right),                                                                                                                                                                                                                                                                                                    

 with Scherling v. Superior Court                                                                                                                           , 585 P.2d 219, 225 (Cal. 1978) (en banc) (state speedy                                                                                                                                                                        

 trial protections attach after a complaint has been filed);                                                                                                                                                                                                                  Jacobson v. Winter                                                                             , 415 P.2d   

 297, 300 (Idaho 1966) (state speedy trial right attaches when a criminal complaint is                                                                                                                                                                                                                                                                         

 filed);  State v. Larson                                                                              , 623 P.2d 954, 957-58 (Mont. 1981) (state and federal speedy trial                                                                                                                                                                                                                               

 guarantee "is activated . . . by arrest, the filing of a complaint, or by indictment or                                                                                                                                                                                                                                                                                                                        

 information");  People v. White                                                                                                                        , 298 N.E.2d 659, 662 (N.Y. 1973) (state and federal                                                                                                                                                                             

  speedy trial right attaches by filing of felony information or complaint, detainer warrant,                                                                                                                                                                                                                                                                                        

 or indictment);                                                          State v. Selvage                                                               , 687 N.E.2d 433, 436 (Ohio 1997) (filing of criminal                                                                                                                                                                      

 complaint triggered speedy trial inquiry);                                                                                                                                                               and State v. Lemay                                                                              , 455 N.W.2d. 233, 236                                                                         

 (Wis. 1990) (speedy trial right attaches when complaint and warrant are issued).                                                                                                                                                                                                                                                                                                                 



                                 48                              546 P.2d 564, 567 (Alaska 1976).  

                                                                                                                                                                                                  



                                                                                                                                                                                                      -14-                                                                                                                                                                                            7200
  


----------------------- Page 15-----------------------

                     The criminal conduct in Yarbor, lewd and lascivious acts toward a child,   



                                            49  

took place in August 1973.                                                                                                          

                                                 The police investigation ended ten days later, and the  



                                                                                                                                       

district attorney's office completed its review of the case in December 1973, when it  

                                                                                                                               50   But  

                                                                                                                                    

                                                                                                                 

notified the victim's mother that a criminal complaint was ready for her signature. 

she did not sign the complaint until March 1974.51  Yarbor was served two days later, but  

                                                                                                                                     

not arrested.52  He was indicted in April 1974 and tried in June 1974.53  On appeal Yarbor  

                                                                                                                               



challenged the delay in commencing prosecution on speedy trial grounds, arguing that  

                                                                                                                                    



the right to a speedy trial attached when the State acquired sufficient evidence to charge  

                                                                                                                               

him.54  The State argued that the speedy trial right should not attach prior to "accusation,"  

                                                                                                                     



a term that it defined as "that point in time when a person is officially charged with the  

                                                                                                                                     



           49        Id.  at  565.  



           50        Id.  



           51        Id.  at  566.  



           52        Id.  



           53        Brief  for  Appellee  at  3,  5,  Yarbor,  546  P.2d  564  (No.  2397).  



           54        He  relied  on  a  law  journal  article  that  stated  that  the  speedy  trial  right  would  



begin  "from  the  time  the  defendant  is  arrested,  from  the  time  of  his  initial  arraignment,  

or  from  the  time  the  charge  is  placed  against  the  accused,  whichever  is  first"  unless  the  

defendant  could  prove  that  the  State  "had  sufficient  evidence  .  .  .  to  prosecute  him  prior  

to  the  date  on  which  charges  were  formally  brought,"  subject  to  exceptions  if  the  delay  

was  reasonably  necessary  and  did  not  prejudice  the  accused  in  the  presentation  of  his  

defense.   Mark  I.   Steinberg,   Comment,  Right   to  Speedy   Trial:  Maintaining  a  Proper  

Balance  between  the  Interests  of  Society  and  the  Rights  of  the  Accused ,  4  UCLA ALASKA  

L. REV.  242,  259-60  (1974),  cited  in  Brief  for  Appellant  at  13-14,  Yarbor,  546  P.2d  564  

     

(No.  2397).    



                                                                 -15-                                                            7200
  


----------------------- Page 16-----------------------

commission of a crime either by arrest, with or without a warrant, complaint, information                                                                                      



                                                                                          55  

or indictment, whichever occurs first."                                                         



                               We rejected Yarbor's contention on several grounds.  We noted that the  

                                                                                                                                                                                                   

                                                                                                                                             56     had  rejected  a  similar  

United  States  Supreme  Court  in  United  States  v.  Marion                                                                                                                           

                                                                                                                           



argument  and  held instead that the right to a speedy trial does not attach until the  

                                                                                                                                                                                                  

defendant has been "formally accused."57  We also observed that Yarbor's proposed rule  

                                                                                                                                                                                                 



would be difficult to administer, and might have adverse effects because it would create  

                                                                                                                                                                                            

incentives to bring charges too hastily.58  We concluded our discussion of the speedy trial  

                                                                                                                                                                                                 



claim with the following language:  

                                                           



                               For these reasons, we now join our sister states in holding  

                                                                                                                                                         

                               that the right to a speedy trial does not attach  before the  

                                                                                                                                                                   

                               defendant becomes formally accused - that is, the subject of  

                                                                                                                                                                       

                               a filed complaint or arrest.[59]  

                                                                               



                               The State now contends that the quoted statement from Yarbor is dictum  

                                                                                                                                                                                    



rather than a holding, and therefore has limited precedential effect. The State also argues  

                                                                                                                                                                                           



that even if the statement is a holding, it should be overruled because the criteria for  

                                                                                                                                                                                                   



                55             See  Brief for Appellee at 8 n.1,                                            Yarbor, 546 P.2d 564 (No. 2397).                                                    The  



State went on to note that "[t]he point of referrence [sic] is the same as that employed in                                                                                                           

Rule 45(c)(1), Alaska Rules of Criminal Procedure, to determine the time from which                                                                                                         

the 120 day period for trial under that rule begins running."                                                                                       Id.   At that time Rule                   

45(c)(1)   provided   that   speedy   trial   time   would   begin   to   run   "[f]rom   the   date   the  

defendant   is   arrested,   initially   arraigned,   or  from   the   date   the   charge   (complaint,  

indictment, or information) is served upon the defendant, whichever is first."                                                                                                      Id.  at v.   



                56             404 U.S. 307, 321-22 (1971).  

                                                                                    



                57              Yarbor, 546 P.2d at 566 (citing Marion, 404 U.S. at 321-22).  

                                                                                                                                                          



                58             Id.  



                59             Id. at 567.  

                                             



                                                                                                -16-                                                                                          7200
  


----------------------- Page 17-----------------------

                                                                                                                                                   60  

overruling a holding are satisfied in this case.                                                                                                         Wright counters that the statement is a                                                                                   



holding and therefore must be followed because the grounds for overruling a holding are                                                                                                                                                                                       



not met.                    Wright also contends that the statement is consistent with substantial authority                                                                                                                                              



and furthers the purposes underlying the speedy trial guarantee.                                                                                                            



                                           We find it unnecessary to resolve the question of whether the                                                                                                                                                       Yarbor  



statement - that a defendant becomes formally accused when a complaint is filed - is                                                                                                                                                                                              



a holding or dictum.                                                  Instead, we conclude today that a defendant becomes formally                                                                                                                         



accused for speedy trial purposes under the Alaska Constitution not just upon indictment                                                                                                                                                             



or arrest but also when the State files an information charging the defendant with a crime.                                                                                                                                                                      



                                           We reach this conclusion because the filing of an information marks the                                                                                                                                                           



beginning of litigation against a defendant.                                                                                                An information is a formal document with                                                                                     

                                                                   61          It  must  include  the  name  of  the  defendant,  the  statute  the  

prescribed   contents.                                                                                                                                                                                                                                                      



defendant is charged with violating, and a concise and definite written statement of the  

                                                                                                                                                                                                                                                                             

                                                                                                                       62       An information must also bear the signature of  

essential facts constituting the crime.                                                                                                                                                                                                                                          

                                                                                                   

                                                                                63       It is a public document, available for view by anyone in the  

the prosecuting attorney.                                                                                                                                                                                                                                                    

                                                    



office of the clerk of court.   When an information is filed, the title of the charges, a  

                                                                                                                                                                                                                                                                                   



citation to the statutes on which the charges are based, and the defendant's name are  

                                                                                                                                                                                                                                                                             



                      60                   "We  overrule  a  prior  decision  only  when  we  are   'clearly  convinced  that  



(1)   a   decision   was   originally   erroneous   or   no   longer   sound   because   of   changed  

conditions;  and  (2)  more  good  than  harm  would  result  from  overruling  it.'  "  Charles  v.  

State,  326  P.3d  978,  983  (Alaska  2014)  (quoting  Native  Vill.  of  Tununak  v.  State,  Dep't  

of  Health  &  Soc.  Servs,  Office  of  Children's  Servs.,  303  P.3d  431,  447  (Alaska  2013)).   



                      61                   Alaska R. Crim. P. 7.  

                                                                                                          



                      62                   Id.  



                      63                   Id.  



                                                                                                                                     -17-                                                                                                                              7200
  


----------------------- Page 18-----------------------

promptly entered in the CourtView database, and thus become viewable by anyone with                                                                



 access to the internet.                   When the prosecutor's office files an information it "clearly                                     

                                                                   64  And the filing of an information is sufficient to  

manifest[s] its decision to prosecute."                                                                                                                 

toll the statute of limitations on a criminal charge.65  

                                                                             



                        When an information is filed the court must either issue a warrant of arrest  

                                                                                                                                                  

 or a summons requiring the defendant to appear in court at a specified time.66  At the first  

                                                                                                                                                    



 appearance the judge treats a summoned defendant much like an arrested defendant. The  

                                                                                                                                                     



judge informs the defendant of the charges and of any affidavit filed with it and makes  

                                                                                                                                                

 sure the defendant has copies.67   The judge also informs the defendant of his or her right  

                                                                                                                                                   



to counsel, the potential penalties the defendant faces,andthedefendant's rightto remain  

                                                                                                                                               

 silent.68   If the defendant desires appointed counsel, the judge proceeds to determine the  

                                                                                                                                                      



 defendant's eligibility by reviewing his or her financial status, and if the defendant is  

                                                                                                                                                        

 eligible, appoints an attorney.69                          The judge also establishes the conditions of release  

                                                                                                                                              

                                                 70   In felony cases, the judge informs the defendant of his or  

 applicable to the defendant.                                                                                                                          

                               



her right to a preliminary hearing unless the defendant waives this right or consents to  

                                                                                                                         



            64          State  v.  Mouser,  806  P.2d  330,  339  (Alaska  App.   1991).  



            65          AS   12.10.010(b).  



            66          Alaska  R.  Crim  P.  9(a).   See  also  Alaska  R.  Crim.  P.  4(a)  (requiring  a  judge  



to  find  probable  cause  and  issue  a  warrant  or  summons  upon  complaints).  



            67          Alaska  R.  Crim.  P.  5(c)(1)-(2).  



            68          Alaska  R.  Crim.  P.  5(c)(3)-(4).  



            69          Alaska  R.  Crim.  P.  5(a)(2)(E)(iii),  5(c)(3).  



            70          Alaska  R.  Crim.  P.  5(c)(5).  



                                                                          -18-                                                                    7200
  


----------------------- Page 19-----------------------

                                                                                71  

the filing of an information in superior court.                                     If there is a waiver or consent the judge                    



                                                                                                                         72  

"shall forthwith hold the defendant to answer in the superior court."                                                                            

                                                                                                                              If not, the judge  



                                                                                                                                                

schedules  a  preliminary  hearing,  which  must  be  held  within  20  days  of  the  initial  



                     73  

appearance.               



                        The preliminary hearing is a trial in miniature.   The State must present  

                                                                                                                                              

evidence in support of its case and the defense may present evidence.74  All witnesses are  

                                                                                                                                                      

subject to cross examination75  and the defendant has the right to counsel.76                                                         If the judge  

                                                                                                                                                 

determines there is no probable cause the defendant is discharged,77 but if probable cause  

                                                                                                                                                 



is  found  to  exist  the  judge  enters  an  order  holding  the  defendant  to  answer  and  

                                                                                                                                                    

establishes conditions of release.78  

                                                                



                        All these actions and proceedings may come before an indictment.  We  

                                                                                                                                                    



believe that it cannot reasonably be said that a defendant who is a party to them has not  

                                                                                                                                                     



been formally accused.  

                                            



            71          Alaska   R.   Crim.   P.   5(e)(2).  However,   even   when   a   defendant   has   not  



waived  the  right  to  a  preliminary  hearing,  a  preliminary  hearing  need  not  be  provided  if  

an  indictment  has  already  been  returned on the  same  charges.   Martinez  v.  State,  423  

P.2d  700,  712  (Alaska   1967).  



            72          Alaska R. Crim P. 5(e)(3).  

                                                          



            73          Alaska R. Crim. P. 5(e)(4).  

                                                           



            74          Alaska R. Crim. P. 5.1(b)-(c).  

                                                           



            75          Id .  



            76          Alaska R. Crim. P. 5.1(a).  

                                                           



            77          Alaska R. Crim. P. 5.1(h).  

                                                           



            78          Alaska R. Crim. P. 5.1(I).  

                                                           



                                                                          -19-                                                                    7200
  


----------------------- Page 20-----------------------

                                      Further,thetext                             oftheAlaskaConstitutionsuggests                                                                   that theterm"accused"               



applies at pre-indictment stages.                                                           Several of the rights addressed at the first appearance                                                                 



described above - e.g., the right to be informed of charges and to counsel - are rights                                                                                                                                             

                                                                                                                                                                                                                                       79   A  

secured by the second sentence of article 1, section 11 of the Alaska Constitution.                                                                                                                                                          



charged person thus becomes an "accused" for the purposes of these rights after an  

                                                                                                                                                                                                                                            



information is filed and need not await an indictment before he or she is so considered.  

                                                                                                                                                                                                                                                      



There is no indication that the first sentence of section 11 embraces a different meaning  

                                                                                                                                                                                                                            

of "accused" than the second sentence.80  

                                                                                    



                                      Moreover, the text of article 1, section 8 uses the term "accused" in a sense  

                                                                                                                                                                                                                                   



that can only precede an indictment.  That section states in part:  

                                                                                                                                                                                      



                                      Grand Jury - No person shall be held to answer for a capital,  

                                                                                                                                                                                        

                                      or  otherwise infamous  crime,  unless on  a presentment or  

                                                                                                                                                                                                        

                                      indictment of a grand jury . . . . Indictment may be waived by  

                                                                                                                                                                                                        



                   79                 Article 1, section 11 of the Alaska Constitution provides:                                                                             



                                      Rights  of   Accused   -   In   all   criminal   prosecutions,   the  

                                      accused shall have the right to a speedy and public trial, by an                                                                                                  

                                      impartial   jury   of   twelve,   except   that  the   legislature   may  

                                     provide for a jury of not more than twelve nor less than six in                                                                                                     

                                      courts not of record.                                      The accused is entitled to be informed                                              

                                      of the nature and cause of the accusation; to be released on                                                                           

                                     bail, except for capital offenses when the proof is evident or                                                                                                      

                                      the presumption great; to be confronted with the witnesses                                                                                   

                                      against   him;   to   have   compulsory   process   for   obtaining  

                                      witnesses in his favor, and to have the assistance of counsel                                                                                      

                                      for his defense.                              



                   80                 We recognize, of course, that each of the enumerated rights under article 1,  

                                                                                                                                                                                                                                               

section 11 can have different activation and termination points.  See State v. Wassillie,  

                                                                                                                                                                                                  

606  P.2d  1279,  1282  (Alaska  1980)  (finding  that  the  constitutional  right  to  bail  

                                                                                                                                                                                                                               

terminates upon conviction, but rejecting the argument that each of the rights in article 1,  

                                                                                                                                                                                                                                               

section 11 must terminate at the same point).  

                                                                                                            



                                                                                                                    -20-                                                                                                              7200
  


----------------------- Page 21-----------------------

                      the   accused.     In   that   case   the   prosecution   shall   be   by  

                      information.[81]  



If an "accused" can waive an indictment, it is not the indictment that confers "accused"  

                                                                                                                               



 status on a defendant.   Thus, for defendants who have not  been  arrested, the term  

                                                                                                                                       

logically attaches when an information is filed against them.82  

                                                                                           



                      We believe that the purposes of the speedy trial right are best secured when  

                                                                                                                                       

the speedy trial clock begins with the filing of an information.  As we observed above,83  

                                                                                                                                  



the purpose of the speedy trial guarantee is to prevent lengthy pretrial imprisonment and  

                                                                                                                                          



other adverse impacts of delay.  Given the question in this case, incarceration is not a  

                                                                                                                                              



factor since it is undisputed that an arrest would trigger the attachment of speedy trial  

                                                                                                                                         



rights. But a long delay, regardless of incarceration, may impair a defendant's ability to  

                                                                                                                                            



prepare an effectivedefense, disrupt a defendant's employment, drain his or her financial  

                                                                                                                                  



resources, circumscribe his or her associations, subject the defendant to public shame,  

                                                                                

and create anxiety in the defendant and his or her family and friends.84                                              These interests  

                                                                                                                                  



come into play as readily with the filing of an information as with the return of a grand  

                                                                                                                                      



jury indictment.   A holding that speedy trial rights do not attach until an indictment  

                                                                                                                              



issues potentially leaves a long period when a defendant is publicly accused by an  

                                                                                                                                           



information, suffers the detriments meant to be protected against by the speedy trial  

                                                                                                                                         



guarantee, but does not receive its protection.  

                                                                              



           81         Alaska Const. art 1,  8 (emphasis added).                 



           82         Alternatively,   the   attaching   event   might   be   when   the   complaint   or  



information is served, as in Alaska R. Crim. P. 45(c)(1).                      



           83         See supra Section IV.A.  

                                                      



           84          United States v. Marion, 404 U.S. 307, 320 (1971).  

                                                                                                



                                                                    -21-                                                               7200
  


----------------------- Page 22-----------------------

                                  The   fact   that   pending   charges   are   now   available   on   the   internet   in  



 searchable form magnifies their potential for harm.                                                                                Such broad publicity, especially                          



when the charges are of a heinous nature, can effect a near banishment of the person                                                                                                                  



 charged from certain lines of work and certain sectors of society, and also increases the                                                                                                                     



potential that charges may be filed or maintained for vindictive or otherwise improper                                                                                                          



purposes.  



                                 As already noted, a number of other jurisdictions are in accord with the                                                                                                      



view that the filing of a complaint or information rather than an indictment will start the                                                                                                                    

                                             85   A good discussion of the reasons supporting this view is contained  

 speedy trial clock.                                                                                                                                                                           



 in Commonwealth v. Butler.  There, the Massachusetts Supreme Judicial Court reached  

                                                                                                                                                                                                    



 a conclusion similar to ours for similar reasons, stressing especially the detriments that  

                                                                                                                                                                                                             

                                                                           86      In Butler, the court held that a defendant's right to a  

 can flow from public charges.                                                                                                                                                                                      

                                                       



 speedy trial under the Massachusetts Constitution "attaches when a criminal complaint  

                                                                                                                                                                                              

                    87      "Therefore, arrest, indictment, or a criminal complaint issued pursuant to  

 issues."                                                                                                                                                                                                        

                                                                                                                                                                                      88  Moreover,  

Massachusetts law, whichever comes first, will start the speedy trial clock."                                                                                                                

                                                                                                                                                                      



the Massachusetts speedy trial right "does not distinguish between the types of cases,  

                                                                                                                                                                                                        



 (misdemeanor or felony; within the district or superior court) to which the right to a  

                                                                                                                                                                                                                   



                 85              See  supra  note  47.   A  recent law  review  article  lists  ten  states,  including  



Alaska,  that  either consider  a  complaint or  information  to  be  an  accusation  for  speedy  

trial  purposes  or,  while  not  specifically  addressing  the  question,  contain  language  in  their  

 case  law  that  so  suggests.   Mikel  Steinfeld,  Rethinking  the  Point  of  Accusation:   How  the  

Arizona   Court  of  Appeals  Erred   in   State  v.  Medina,   7  PHOENIX   L.   REV. 329,   354-55  

 (2013).  



                 86               985  N.E.2d  377,  383  (Mass.  2013).  



                 87              Id.  



                 88              Id.  



                                                                                                      -22-                                                                                                7200
  


----------------------- Page 23-----------------------

                                          89  

speedy trial attaches."                        The court explained that "[t]he constitutional right to a speedy                                          



trial attaches because the subject of a criminal complaint is undoubtedly an 'accused,'     



and   is   not   merely   in   'the   pre-accusation   period   when   a   police   investigation   is  

                      90    Observing that a "criminal complaint is a formal charging document in  

ongoing.' "                                                                                                                                                        



Massachusetts," the court stated that "[t]he fact that a complaint may be followed by an  

                                                                                                                                                                  

indictment . . . does not render a complaint any less of a formal accusation."91                                                                       Finally,  

                                                                                                                                                        



the court emphasized, as we do in the present case, that the public aspect of the charge  

                                                                                                                                                          



is of primary importance: "Of perhaps greatest significance, the subject of a criminal  

                                                                                                                                                      



complainttypically facesthesame'anxiety, concern, economicdebilitation,publicscorn  

                                                                                                                                                             

and restraint on liberty' that the right to a speedy trial is intended to guard against."92  

                                                                                                                                                                        



The court determined that "no logical conclusion can be reached other than that the time  

                                                                                                                                                               



within which an accused is to be secured in his right to a speedy trial must be computed  

                                                                                                                                                    

from the time the complaint is filed against him."93  

                                                                                                    



                          At stake in the present case is whether the delay between an information  

                                                                                                                                                



and an arrest should be assessed under the due process standard for pre-accusation delay  

                                                                                                                                                             



or the speedy trial standard applicable to post-accusation delay.  Under the due process  

                                                                                                                                                         



standard, a defendant has the burden of proving both that the delay was unjustified and  

                                                                                                                                                                

that the defendant suffered actual prejudice.94                                             Under the speedy trial standard, if the  

                                                                                                                                                                 



             89          Id .
  



             90          Id.  (quoting  Commonwealth v. Gove                                   , 320 N.E.2d 900, 905 (Mass. 1974)).
                     



             91          Id.
  



             92          Id.  (quoting  Gove, 320 N.E.2d at 907).                          



             93          Id.  (quoting  Jacobson v. Winter                             , 415 P.2d 297, 300 (Idaho 1966)).                                   



             94           State v. Mouser               , 806 P.2d 330, 336 (Alaska App. 1991).                           



                                                                               -23-                                                                          7200
  


----------------------- Page 24-----------------------

defendant can show a delay of sufficient duration to be presumptively prejudicial, the                                                                                



                                                                              95  

four-factor balancing test is triggered.                                                                                                                               

                                                                                    Under this test the State has the burden of  

                                                                                                     96  and prejudice may be presumed  

                                                                                                                                                        

                                                                                            

proving that the justification for the delay is valid 

                                                                                                                                      97  It is obvious that  

rather than proven when other factors weigh heavily against the State.                                                                                               

                                                                                                                            



in speedy trial cases a heavier burden is placed on the State, and a lighter one on the  

                                                                                                                                                                     



defendant, than in cases of pre-accusation delay.  This differential is justified because  

                                                                                                                                          



incarceration and the personal disruptions that flow from being publicly charged are  

                                                                                                                                                                     



normally not present in pre-accusation cases, while the possibility of prejudice from  

                                                                                                                                                                  

delay may be present in both.98  In addition, an information manifests the State's decision  

                                                                                                                                                           



to  go  forward  with  prosecution,  whereas  at  the  pre-accusation  stage  there  may  be  

                                                                                                                                                                      

uncertainty  as  to  whether  there  will  even  be  litigation.99                                                        When  the  State  files  an  

                                                                                                                                                                      



information, the State has placed the accused under a cloud of suspicion.  At that point  

                                                                                                                                                                  



it is appropriate to employ the more demanding speedy trial standard.  It imposes an  

                                                                                                                                                                       



incentive on the State to bring the accused to trial promptly and protects interests of the  

                                                                                                                                                                      



accused, placed at risk by the filing of the information, that are not well protected by the  

                                                                                                                                                                      



due process standard.  

                         



             95           Barker v. Wingo                  , 407 U.S. 514, 531 (1972).              



             96           Id. ;  McNelly v. Blanas                     , 336 F.3d 822, 827 (9th Cir. 2003).                       



             97           Mouser, 806 P.2d at 342.                  



             98            United States v. Marion                        , 404 U.S. 307, 321-22 (1971).                 



             99           Mouser, 806 P.2d at 339.                  



                                                                                  -24-                                                                           7200
  


----------------------- Page 25-----------------------

                            For these reasons, we conclude that speedy trial time begins to run with the                                                                     



                                                    100  

filing of an information.                                                                                                                                              

                                                             Accordingly, Wright's constitutional speedy trial clock  



                                                                                                                                                                  

started in November 1999 when the State filed a criminal information against him.  



                                                                                                                                                   

              C.	           The Superior Court Did Not Err In Placing Primary Responsibility  

                                                                          

                            For The Delay With Wright.  



                                                                                                                                                                   

                            We turn nowto thequestion ofwhether the superior court correctly decided  



                                                                                                                                                                

that  Wright bore most of the responsibility for the pre-arrest delay.   This question  



                                                                                                                                                                      

requires an evaluation of the trial court's factual findings on the reasons for delay, which  



                                                   101  

                                                                                                                                                             

we review for clear error.                                But we review de novo the superior court's legal conclusion  



                                                                                                                                                                             102  

                                                                                                                                                                    

that Wright failed to establish a violation of his constitutional right to a speedy trial. 



              100           We do not decide whether a complaint filed by a police officer or private                                                               



person would also mark the attachment of the speedy trial right, as that question is not                                 

presented in this case. There may be sufficient reasons not to start the time in such cases;                                                                           

such   complaints   may,   for   instance,   be   filed   prematurely,   at   a   time   when   further  

investigation is necessary and before the prosecutor has decided that prosecution is                                                                                           

warranted.     But   a   complaint   filed   with   the   assistance   of   the   prosecutor  -   as   in  

 Yarbor   - would seem to be indistinguishable from an information for speedy trial                                                                                       

purposes.  



              101	          See Lentine v. State, 282 P.3d 369, 375-76 (Alaska 2012) (citing Crowley  

                                                                                                                                                                 

v. State, Dep't of Health & Soc. Servs., 253 P.3d 1226, 1229 (Alaska 2011)); see also  

                                                                                                                                                                          

Doggett  v.  United  States,  505  U.S.  647,  652  (1992)  (reviewing  the  trial  court's  

                                                                                                                                                                   

determinations as to the reasons for delay "with considerable deference").  

                                                                                                                                



              102           Cf. Kodiak Island Borough v. Large, 622 P.2d 440, 447 (Alaska 1981)  

                                                                                                                                                                      

(reviewing denovo "thelegal consequences ofundisputedoccurrences"); Meyer v. State,  

                                                                                                                                                                        

368 P.3d 613, 615 (Alaska App. 2016); see also United States v. Velasquez, 749 F.3d  

                                                                                                                                                                         

 161,  174  (3rd  Cir.  2014)  (reviewing  de  novo  the  legal  conclusion  about  whether  

                                                                                                                                                                 

defendant established violation of constitutional right to speedy trial, but applying clear  

                                                                                                                                                                         

error to the underlying factual findings); United States v. Robinson, 455 F.3d 602, 607- 

                                                                                                                                                                         

08 (6th Cir. 2006) (same).  

                                       



                                                                                     -25-	                                                                              7200
  


----------------------- Page 26-----------------------

                             In analyzing Wright's speedy trial claim the superior court followed the                                                                              



four-factor balancing approach embraced by the Supreme Court of the United States in                                                                                                 



                                    103                                                                                                                                             104  

                                          and adopted by the Alaska Court of Appeals in State v. Mouser.                                                                                   

Barker v. Wingo                                                                                                                                              



We agree that this test presents an appropriate analytical structure for evaluating speedy  

                                                                                                                                                                           



trial claims brought under the Alaska Constitution.  The four factors, as already noted,  

                                                                                                                                                     



are: (1) length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of  

                                                                                                                                                                                     

his or her speedy trial right, and (4) the prejudice to the defendant.105  No one of these  

                                                                                                            

factors is a necessary or sufficient condition to finding a speedy trial violation.106  Rather,  

                                                                                                                                                                          



the   factors   are   related   and   must   be   considered   together   with   other   relevant  

                                                                                                                                                                      

circumstances.107  



                             The first factor, the length of delay, bears further explanation.  It is both a  

                                                                                                                                                                                       



triggering  mechanism  that  activates  the  balancing  test  and  a  relevant  factor  for  

                                                                                                                                                                                  

consideration when the balancing test is used.108  Until there is a delay that is sufficiently  

                                                                                                                                                                 



lengthy that it may be said to be presumptively prejudicial, there is no need to conduct  

                                                                                                                                                                        



               103           407 U.S. 514, 530 (1972).                



               104           806 P.2d at 340.          



               105          Barker, 407 U.S. at 530.  

                                                                        



               106          Id. at 533.  

                                          



               107          Id .  



               108          Id. at 530.  

                                          



                                                                                        -26-                                                                                  7200
  


----------------------- Page 27-----------------------

the balancing test.109  In the present case, the superior court found the nearly five-year   



                                                                                      110  

pre-arrest delay to be presumptively prejudicial,                                                                                               

                                                                                           thus triggering the balancing test.  



                                                                                                                                                      

                        While no one disputes the first factor in this case, the superior court and the  



                                                                                                                                                      

court of appeals disagreed as to the second factor. When considering the reasons for the  



                                                                                                                                              

delay, the superior court stated that "part  of the reason for the delay is the State's  



                                                                                                                                                         

negligence in failing to issue an extraditable warrant for Wright's arrest.  Had such a  



                                                                                                                                                            

warrant been issued, the State would likely have located Wright when he applied for  



                                                                                                                                                      111  

                                                                                                                                                            

work at the nuclear facilities in Arkansas in 2000 which required security clearance." 



But apart from the State's failure to obtain an extraditable warrant the court did not find  

                                                                                                                                                    



other  negligent  conduct  on  the  part  of  the  State.                                          The  court  focused  largely  on  

                                                                                                                                                      



Investigator  Josten,  finding  that  her  conduct  was  reasonable,  in  part  because  by  

                                                                                                                                                      

                                                                                                         112   The court stated:  

September of 1999 she was no longer assigned to the case.                                                                         

                                                                                                 



                        Wright's argument that Josten could have located Wright by  

                                                                                                                               

                        checking Palmer court records, Juneau court records, and  

                                                                                                                            

                        Vital Statistics files places an unreasonable burden on law  

                                                                                                                             

                        enforcement.  By the time an arrest warrant was issued for  

                                                                                                                              

                        Wright  in  September  1999,  Josten  was  off  the  case  and  

                                                                                                                            

                        assigned  different  duties.                       She  did  what  any  reasonable  

                                                                                                               

                        officer  would  do  under  the  circumstances  and  that  is  to  

                                                                                                                               

                        periodically  check  with  various  police  sources  to  see  if  

                                                                                                                                

                        Wright had surfaced.   A more thorough investigation of a  

                                                                                                                                 



            109         Id .  



            110         See Rutherford v. State                 , 486 P.2d 946, 952 (Alaska 1971) (14-month delay                                 



presumed   prejudicial);   State   v.   Mouser,   806  P.2d   330,   340   (Alaska   App.   1991)  

("[U]nexplained delays of fourteen months or more [are] presumptively prejudicial.").                                             



            111         Appendix at 6.  

                                                



            112         Appendix at 7.  

                                                



                                                                          -27-                                                                    7200
  


----------------------- Page 28-----------------------

                       defendant's   whereabouts   cannot   be   expected   of   a   police  

                       officer no longer having responsibility for the case.                                     [113]  



The court also concluded that "contacting Wright at his brother's without an extraditable  

                                                                                                                                   

warrant would only have alerted Wright that police were searching for him."114  

                                                                                                                                            



                       The superior court concluded that the State's negligence in failing to obtain  

                                                                                                                                             



an  extraditable  warrant  as  a  reason  for  delay  was  greatly  outweighed  by  Wright's  

                                                                                                                                       



departure from the state when he realized he was under investigation.  The court wrote  

                                                                                                                                             



that Wright's departure "made it impossible to comply with the right to speedy trial" and  

                                                                                                                                                 



added  a  footnote  stating  that  "defendant's  causes  for  delay  do  not  count  towards  

                                                                                                                                         

determining speedy trial violation."115   Earlier in its decision, when discussing Wright's  

                                                                                                                                        



due process claim, the court also placed primary responsibility on Wright for the delay:  

                                                                                                                                                         



                       Wright  voluntarily  left  the  state  once  he  realized  he  was  

                                                                                                                         

                       under  investigation  for  alleged  sexual  abuse  of  a  minor.  

                                                                                                                                 

                       Wright  moved  from  state  to  state  and  job  to  job  until  

                                                                                                                       

                       authorities found him in Minnesota.  Wright was promptly  

                                                                                                                

                       extradited once located.  The delay in indicting Wright was  

                                                                                                                         

                       largely  attributable  to  his  flight  from  the  state  and  his  

                                                                                                                          

                       frequent moves to different states to obtain employment.[116]  

                                                                                                    



                       The court of appeals interpreted the superior court's decision as finding  

                                                                                                                                          



Wright  only  partially  at  fault  for  the  delay  and  found  even  this  conclusion  to  be  

                                                                                                                                                  

erroneous.117   Instead, the court of appeals concluded, none of the responsibility for the  

                                                                                                                                                  



            113        Appendix at 6-7.
       



            114        Appendix at 7.
         



            115        Appendix at 6.
              



            116        Appendix at 4.
         



            117         Wright v. State          , 347 P.3d 1000, 1008-09 (Alaska App. 2015).
                          



                                                                        -28-                                                                  7200
  


----------------------- Page 29-----------------------

                                                                                      118  

delay should have been attributed to Wright.                                                The court accepted Wright's argument                      



that "he was unaware that charges had been filed" and "that none of his actions were                                                                          

                                                                     119   The court also noted that the State had conceded  

directed at avoiding apprehension."                                                                                                                   



that after Wright left the state he "was not hiding out, and the State had avenues of  

                                                                                                                                                                    

locating him that likely would have produced him within a brief period."120  The court  

                                                                                                                                                    



of appeals also wrote "that although Wright moved frequently for work, he maintained  

                                                                                                                                                  



an Arkansas driver's license and a physical address that other Alaska state agencies used  

                                                                                                                                                               



to communicate with him.  Wright also repeatedly passed intensive security clearances  

                                                                                                                                                    



that would have uncovered the arrest warrant if the information had been entered into the  

                                                                                                                                                                  

[National Crime Information Center] data base."121  

                                                                                                    



                          But the court of appeals' conclusion that the trial court attributed only  

                                                                                                                                                               



"partial"  blame  to  Wright  for  the  delay  substantially  understates  the  trial  court's  

                                                                                                                                                         



assessment of the relative responsibility of the parties.  Initially, in the inquiry as to the  

                                                                                                                                                                  



due process clause, the trial court found that the responsibility "largely" fell on Wright:  

                                                                                                                                                         



"[t]he delay in indicting Wright was largely attributable to his flight from the state and  

                                                                                                                                                                 

his frequent moves to different states to obtain employment."122                                                                 When weighing the  

                                                                                                                                                                  



responsibility-for-delay factor in its speedy trial analysis, the trial court found against  

                                                                                                                                                          



Wright  even  more  heavily,  concluding  that  Wright's  flight  from  the  state  made  it  

                                                                                                                                                                    



impossible for the State to comply with the speedy trial right.  

                                                                                                                         



             118          Id.   



             119          Id.  at 1008.   



             120          Id.  



             121          Id.  at 1009.   



             122          Appendix at 4.            



                                                                                -29-                                                                          7200
  


----------------------- Page 30-----------------------

                                                                    Wright's flight from the state did not make it literally impossible for the                                                                                                                                                                                                                                                                                      



 State to apprehend him. The trial court recognized this when it stated that an extraditable                                                                                                                                                                                                                                                                                              



warrant would likely have been effective.                                                                                                                                                                                   We therefore understand the trial court's                                                                                                                                           



 finding of impossibility not in its literal sense, but as a means of expressing the much                                                                                                                                                                                                                                                                                                                                



 greater responsibility that Wright should bear for the pre-arrest delay.                                                                                                                                                                                                                                                                                            



                                                                    As so understood, we agree with the trial court.                                                                                                                                                                                               As between an individual                                                       



who takes flight to avoid prosecution and a government that is negligent in its efforts to                                                                                                                                                                                                                                                                                                                                                  



 apprehend him, the relative responsibility for the ensuing delay must weigh heavily                                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                                   123  

 against the individual.                                                                                           Many authorities illustrate this point.                                                                                                                                                                       



                                   123                              The Sixth Circuit, in                                                                                Wilson v.                                       Mitchell, applied tort law principles to weigh                                                                                                                                                



 the relative fault of the defendant and the state in causing a 22-year                                                                                                                                                                                                                                                                               delay between the                                                               

 defendant's indictment and arrest.                                                                                                                                           250 F.3d 388, 395 (6th Cir. 2001).                                                                                                                                                  In analyzing the                                                    

 second  Barker  factor, the Sixth Circuit explained:                                                                                                                                                  



                                                                    Under general tort-law principles, an active tortfeasor is not                                                                                                                                                                                                                                

                                                                    entitled to either indemnity or contribution from a passive                                                                                                                                                                                                            

                                                                    tortfeasor. . . . [U]nder our tort [law] analogy, because Wilson                                                                                                                                                                                                          

                                                                    activelyevaded discovery,                                                                                                            and the state was, atworst, passive                                                                                                  

                                                                    in   its   pursuit   of   him,   we   cannot   attribute   the   primary  

                                                                    responsibility for the delay to the state.                                                                                                                                                                Indeed, even if the                                                                 

                                                                    police made mistakes in their search for Wilson, he is not                                                                                                                                                                                                                                  

                                                                    entitled to relief on this ground so long as his active evasion                                                                                                                                                                                                                                                  

                                                                    "is more to blame for that delay."                                                                                                                                           



Id.  at 396 (quoting                                                                          Doggett v. United States                                                                                                    , 505 U.S. 647, 651 (1992)).                                                                                                                 See also United                             

States v. Arceo                                                            , 535 F.3d 679, 685-86 (7th Cir. 2008) (attributing "most of the blame for                                                                                                                                                                                                                                                                                  

 the delay" to the defendant, who fled the jurisdiction when he became "aware that                                                                                                                                                                                                                                                                                                                                              

 criminal charges were forthcoming" and hid from authorities "in a calculated effort to                                                                                                                                                                                                                                                                                                                                                    

 avoid arrest and prosecution");                                                                                                                                  People v. Hsu                                                                , 85 Cal. Rptr. 3d 566, 572 (Cal. App.                                                                                                                                      

 2008) (explaining that a defendant's active evasion must be weighed more heavily than                                                                                                                                                                                                                                                                                                                                          

 the state's failure to pursue the defendant diligently enough because to hold otherwise  

                                                                                                                                                                                                                                                                                                                                                                                                                                           

would "encourage[] defendants to become fugitives" (emphasis omitted)); People v.  

                                                                                                                                                                                                                                                                                                                                                                                                                              

Perez, 279 Cal. Rptr. 915, 922 (Cal. App. 1991) ("[T]he prosecution cannot be held  

                                                                                                                                                                                                                                                                                                                                                                                   (continued...)  



                                                                                                                                                                                                                 -30-                                                                                                                                                                                                         7200
  


----------------------- Page 31-----------------------

                       The superior court's characterization of Wright's conduct as "flight from                                              



                 124  

the State"                                                                                                                                

                      has evidentiary support and therefore is not clearly erroneous.  As Wright  



                                                                                          

was leaving the state he left the following note to a friend:  



                                                                                                                            

                       I don't know what's going on but I got a bad feeling, time to  

                                                                                                                             

                       travel while I can.  Note to trust no one, I won't call for a  

                                                                                                                       

                       long time and don't know where I'm going yet. Have to stick  

                                                                                                                         

                       to  myself  and  stay  away  from family  and  friends  till  my  

                                                                                                                           

                       attorney knows what's happening and how to deal with it. So  

                                                                                                                         

                       I act like a termite for a while and work where I can to pay  

                                            

                       lawyer and survive.  



                                                                                                                                            

                       The court of appeals stressed that after Wright left the state he was living  



                                                                                                  

and working under his own name and that the State had means of locating Wright that  

                                                                125    But these observations, in our view, do not  

                                                                                                                                                

could readily have been successful. 



undercut the superior court's determination that the primary responsibility for the delay  

                                                                                                                                             



was Wright's act of fleeing the state.  It is likely not a simple matter to change one's  

                                                                                                                                             



identity and yet remain eligible for well-paying construction jobs.  Wright apparently  

                                                                                                                                    



hoped that by leaving the state and, as he put it, "acting like a termite," his absence  

                                                                                                                                        



would create sufficient difficulties for the State so that he could escape prosecution. This  

                                                                                                                                               



strategy worked for about five years, and the superior court was right to reject Wright's  

                                                                                                                                       



            123(...continued)  



                                                                                                                                   

accountable for delay caused by defendant's unilateral action in fleeing the jurisdiction  

                               

in order to avoid prosecution.").  



            124        Appendix at 4.  

                                              



            125         Wright, 347 P.3d at 1009.  

                                                           



                                                                       -31-                                                                  7200
  


----------------------- Page 32-----------------------

                                                                                                                                                                                                                126  

attempt to blame the State for its success.                                                                                                                                                                                  We therefore affirm the superior court's                                                                                                                                    



determination that Wright bore primary responsibility for the delay.                                                                                                                                                                                                                                                                              



                                                                  This means that the superior court's determination that Wright's speedy                                                                                                                                                                                                                                                               



trial claim was without merit also must be affirmed.                                                                                                                                                                                                              Wright was primarily responsible                                                                                 



for the lengthy delay, and the delay did not prejudice him                                                                                                                                                                                                                           in preparing his defense, so the                                                                                                        



first, second, and fourth factors of the                                                                                                                                                               Barker   balancing test weigh heavily against                                                                                                                                                  



Wright.   And any dispute as to the third factor - whether Wright should be faulted for                                                                                                                                                                                                                                                                                                                                      



failing to assert his speedy trial right or whether his non-assertion is irrelevant under the                                                                                                                                                                                                                                                                                                                                



circumstances of this case - is moot because that factor cannot be favorable to Wright;                                                                                                                                                                                                                                                                                                              



at best it is neutral.                                 



V.                               CONCLUSION  



                                                                  For these reasons we conclude that the superior court correctly decided that                                                                                                                                                                                                                                                                            



Wright was not denied his right to a speedy trial under the Alaska Constitution.  We  

                                                                                                                                                                                                                                                                                                                                                                                                                       



therefore REVERSE the decision of the court of appeals and REMAND this case with                                                                                                                                                                                                                                                                                                                                     



directions to AFFIRM the decision of the superior court.                                                                                                                                                                                                   



                                 126                              We note that we find that the focus of the trial court solely on Investigator                                                                                                                                                                                                                                 



Josten's actions after September 1999 was too narrow.                                                                                                                                                                                                                           The focus should have been on                                                                                                                  

whether the police as a whole were negligent.                                                                                                                                                                                      There is no suggestion in the record that                                                                                                                                             

once Josten was off the case another officer was assigned to pursue it.  But even if we                                                                                                                                                                                                                                                           

assume   that    the    State    was    negligent   in    failing    to    further    investigate   Wright's  

whereabouts, that negligence, like the negligence of the State in failing to issue an                                                                                                                                                                                                                                                                                                                                         

extraditable warrant, would clearly be secondary to Wright's flight as an assignable                                                                                                                                                                                                                                                                                                 

cause for delay.                                                                 



                                                                                                                                                                                                             -32-                                                                                                                                                                                                   7200
  


----------------------- Page 33-----------------------

 BOLGER, Justice, concurring.                    



                                  I agree with the court's opinion that the State did not violate Sean Wright's                                                                                   



 right to a speedy trial.                                 But I disagree with the court's conclusion that a prosecutor's                                                               



 information is a formal charge sufficient to initiate a felony prosecution within the                                                                                                                         



 meaning of this constitutional guarantee. The Alaska Constitution requires a grand jury                                                                                                                      



 indictment to initiate a felony prosecution.                                                                    Therefore, until the defendant has been                                                   



 arrested or indicted, we should apply the due process test to assess preindictment delay.                                                                                                               



                 A.	              Alaska Law Requires The Grand Jury To Return An Indictment To  

                                  Initiate Felony Charges.                                          



                                  The right to a speedy trial does not accrue until the defendant is arrested or                                                                                                   



                                             1  

 formally charged.                                                                                                                                                                                         

                                                A formal charge means a criminal charge that "alone gives 'the court  



                                                                                   2  

                                                                                        

jurisdiction to proceed to trial.' "                                                    For example, the filing of a criminal complaint in a  



                                                                                                                                                                                                   3  

                                                                                                                                                                                                       In the  

 felony matter generally will not trigger the defendant's right to a speedy trial. 



                 1                5 W       AYNE   R. L                AFAVE,   ET.   AL., C                        RIMINAL   PROCEDURE    18.1(c) (4th ed.                                                    



 Supp. 2016) (citing                               United States v. Marion                                    , 404 U.S. 307 (1971)).               



                 2               Id . (quoting People v. Martinez, 996 P.2d 32, 41 (Cal. 2000)); see also  

                                                                                                                                                                                                             

 United States v. MacDonald, 456 U.S. 1, 10 (1982) (holding that speedy trial period did  

                                                                                                                                                                                                                

 not  commence  because  "there  was  no  criminal  prosecution  pending  on  which  [the  

                                                                                                                                                                                                             

 defendant] could have been tried until the grand jury . . . returned the indictment");  

                                                                                                                                                                                      

Martinez, 996 P.2d at 41-42 ("[A] pleading does not constitute a 'formal charge' for  

                                                                                                                                                                                                                

purposes of attaching the federal Constitution's speedy trial right unless the pleading is  

                                                                                                                                                                                                                    

 a formal accusation upon which a defendant may be brought to trial in the court with  

                                                                                                                                                                                                            

jurisdiction over prosecution of the offenses alleged."); State v. Gee, 471 A.2d 712, 716  

                                                                                                                                                                                                              

 (Md. 1984) ("[T]he document consisting of a warrant of arrest and statement of charges  

                                                                                                                                                                                                     

 on which the warrant is based . . . is a 'formal charge' in the contemplation of the speedy  

                                                                                                                                                                                                       

 trial right  when a defendant is subject to be tried on that document." (emphasis in  

                                                                                                                                                                                                                  

 original)).  



                 3               People v. Mitchell, 825 N.E.2d 1241, 1243 (Ill. App. 2005) ("[E]ither an  

                                                                                                                                                                        

 arrest or a formal  accusation - and not merely any charging instrument - is needed to  

                                                                                                                                                                                                                   

                                                                                                                                                                                      (continued...)  



                                                                                                       -33-	                                                                                               7200
  


----------------------- Page 34-----------------------

majority of state jurisdictions that requires a grand jury indictment to initiate felony                                             



              4  

charges,                                                                                                                       

                the speedy trial right does not accrue until arrest or indictment, whichever  

                   5   This is also the rule in the federal courts, where the right to a grand jury for  

                                                                                                                                            

             

comes first. 



           3(...continued)  



                                                                                                                                         

start the speedy-trial clock." (emphases in original));  State v. Caffey, 438 S.W.2d 167,  

                                                                                                                                              

 171 (Mo. 1969) ("The constitutional right to a speedy trial has no application until a  

                                                                                                                             

criminal prosecution is commenced. The constitutional provisions invoked contemplate  

                                                                                                                                       

a  pending  charge  and  not  merely  a  pending  complaint,  which  represents  a  mere  

                                                                                                      

possibility that a criminal charge will be filed." (emphasis in original)).  



           4          The 18 states that grant the right to a grand jury to those accused of serious  

                                                                                                                                     

crimes  are Alabama,  Alaska,  Delaware,  Georgia, Kentucky, Maine,  Massachusetts,  

                                                                                                         

Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, South  

                                                                                                                                      

Carolina, Tennessee, Texas, Virginia, and West Virginia.   4 LAFAVE   ET   AL.,   supra  

                                                                                                          

note 1,  15.1(d).        



           5          See Preston v. State, 338 A.2d 562, 565 (Del. 1975) ("We hold . . . that the  

                                                                                                                                            

speedy trial guarantee of the Sixth Amendment does not attach at the time of the filing  

                                                                                                                                        

of a complaint and the issuance of an arrest warrant."); Wooten v. State, 426 S.E.2d 852,  

                                                                                                                                         

855 (Ga. 1993) ("The Sixth Amendment does not guarantee a right to a speedy arrest.  

                                                                                                                                                  

However, an inordinate delay between the time a crime is committed and the time a  

                                                                                                                                              

defendant is arrested or indicted may violate due process . . . ." (emphases in original));  

                                                                                                                                

State  v.  Aguirre,  670  A.2d  583,  585  (N.J.  Super.  App.  Div.  1996)  (distinguishing  

                                                                                                                       

between speedy trial right and "claims under the Due Process Clause arising from undue  

                                                                                                                                      

pre-indictment or pre-arrest delay"); Statev.Allen, 237S.E.2d64, 66 (S.C. 1977) ("Their  

                                                                                                                                     

right to a speedy trial attached . . . at the time the arrest warrants were served; and not . . .  

                                                                                                                                                

when the warrants were issued . . . ."); State v. Utley, 956 S.W.2d 489, 493 (Tenn. 1997)  

                                                                                                                                       

("Like the other courts that follow the majority view, this Court has determined that a  

                                                                                                                                               

warrant alone does not trigger speedy trial analysis; to the contrary, a formal grand jury  

                                                                                                                                          

action or the actual restraints of an arrest are required."); Rios v. State, 718 S.W.2d 730,  

                                                                                                                                         

732 (Tex. Crim. App. 1986) (defendant's statutory speedy trial right was not violated  

                                                                                                                                   

because although "a formal complaint was filed . . . , the purpose was to secure a felony  

                                                                                                                                      

arrest warrant from a justice of the peace sitting as a magistrate, not to constitute a  

                                                                                                                                              

charging instrument for trial of a felony offense in district court[,] . . . [and] a criminal  

                                                                                 

action . . . did not commence until the indictment was filed in district court"); State v.  

                                                                                                                                             

                                                                                                                         (continued...)  



                                                                     -34-                                                              7200
  


----------------------- Page 35-----------------------

                                                                                                                          6  

those accused of federal felonies is guaranteed by the Fifth Amendment.                                                      As the United     



States Supreme Court has recognized, "when no indictment is outstanding, only the                                                               



            5(...continued)  



                                                                                                                                                  

Hinchman, 591 S.E.2d 182, 187 (W. Va. 2003) ("[W]here there has been no arrest or  

                                                                                                                                           

indictment, the Sixth Amendment right to a speedy trial is not implicated[,]" [but when]  

                                                                                                                                 

the prosecution "may have substantially delayed the institution of criminal proceedings  

                                                                                                                                  

. . . the Fifth Amendment due process standard is utilized." (quoting State v. Drachman,  

                                                                                                                                         

358 S.E.2d603, 627 (W.Va.1987))); seealso Goncalvesv. Commonwealth, 404 S.W.3d  

                                                                                                                                           

 180, 199 (Ky. 2013); State v. Harper, 613 A.2d 945, 946 n.1 (Me. 1992) (first citing  

                                                                                                                

State v. Joubert, 603 A.2d 861, 863 (Me. 1992); and then citing State v. Cadman, 476  

                                                                                              

A.2d 1148, 1151 n.4 (Me. 1984)); State v. Philibotte, 459 A.2d 275, 277 (N.H. 1983);  

                                                                                                                 

State v. Pippin, 324 S.E.2d 900, 904 (N.C. App. 1985).  But see Ex parte Walker, 928  

                                                                                                                                                

So. 2d 259, 264 (Ala. 2005) ("[T]he length of delay is measured from the date of the  

                                                                                                                                                   

indictment or the date of the issuance of an arrest warrant - whichever is earlier . . . ."  

                                                                                                                                            

(emphasis added) (quoting Roberson v. State, 864 So. 2d 379, 394 (Ala. Crim. App.  

                                                                                                                                                 

2002)));  Commonwealth  v.  Butler,  985  N.E.2d  377,  383  (Mass.  2013);  People  v.  

                                                                                              

Taranovich, 335 N.E.2d 303, 306 (N.Y. 1975); State v. Selvage, 687 N.E.2d 433, 435  

            

(Ohio 1997).  



            6          See Butler v. Mitchell, 815 F.3d 87, 89 (1st Cir. 2016) ("Under the Sixth  

                                                                                                                                            

Amendment . . . the speedy-trial right attached, and the count began, not when the  

                                                                                                                                                

complaint was issued, but when the . . . indictment was announced."); United States v.  

                                                                                                                          

Hicks, 779 F.3d 1163, 1167 (10th Cir. 2015) ("A defendant's constitutional right to a  

                                                                                                                                                   

speedy trial 'attaches when he is arrested or indicted on federal charges, whichever  

                                                                                                                                   

comes first.' " (quoting United States v. Banks, 761 F.3d 1163, 1181 (10th Cir. 2014)));  

                                                                                                                                       

 United States v. Claxton, 766 F.3d 280, 294 (3d Cir. 2014);  United States v. Young,  

                                                                                                                                         

657 F.3d 408, 414 (6th Cir. 2011);  United States v. Jenkins-Watts, 574 F.3d 950, 966  

                                                                                                                                               

(8th Cir. 2009); United States v. Knight, 562 F.3d 1314, 1323 (11th Cir. 2009); United  

                                                                                                                                          

States v. Uribe-Rios, 558 F.3d 347, 358 n.8 (4th Cir. 2009); United States v. Tchibassa,  

                                                                                                                                   

452 F.3d 918, 922 (D.C. Cir. 2006); United States v. Bloom, 865 F.2d 485, 491 (2d Cir.  

                                                                                                                                               

 1989); see also Amos v. Thornton, 646 F.3d 199, 206 (5th Cir. 2011) (applying the rule  

                                                                                                                                               

that the Sixth Amendment right "attaches at the time of arrest or indictment, whichever  

                                                                                                                                   

comes first"when analyzing charges for Mississippi, an indictment state (quoting Nelson  

                                                                                                                                          

v. Hargett, 989 F.2d 847, 851 (5th Cir. 1993))).  

                                                                     



                                                                       -35-                                                                 7200
  


----------------------- Page 36-----------------------

'actual  restraints imposed by arrest and holding to answer a criminal charge . . . engage                                                     

the particular protections of the speedy trial provision of the Sixth Amendment.' "                                                                 7  



                        Alaska  is  one  of  the  jurisdictions  where  an  indictment  is  required  to  

                                                                                                                                                        



formally charge a criminal defendant with a felony.  "In Alaska felony charges must be  

                                                                                                                                                        

initiated by grand jury indictment unless the defendant waives indictment."8                                                                     "This  

                                                                                                                                                 



requirement ensures that a group of citizens will make an independent determination  

                                                                                                           



about the probability of the accused's guilt 'before the accused suffers any of the grave  

                                                                                                                                                  

inconveniences which are apt to ensue upon the return of a felony indictment.' "9  

                                                                                                                                                     



                        The delegates at the Alaska Constitutional Convention considered and  

                                                                                                                                                     



rejected the original Committee proposal, which would have allowed prosecutors the  

                                                                                                                                                      



option of prosecuting by either information or indictment.  Instead, the delegates voted  

                                                                                                                                                  



in  favor  of  an  amendment  that  retained  the  indictment  requirement,  which  is  now  

                                                                                                                                                    

enshrined in article I, section 8.10                            Accordingly, our court rules require that a felony  

                                                                                                                                                



            7           United   States   v.  Loud  Hawk,   474   U.S.   302,   310   (1986)   (omission   in  



original) (emphasis in original) (quoting                                   United States v. Marion                    , 404 U.S. 307, 320           

(1971)).  



            8           Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007); see also Alaska  

                                                                                                                                               

Const. art. I,  8 ("No person shall be held to answer for a capital, or otherwise infamous  

                                                                                                                                            

crime, unless on a presentment or indictment of a grand jury . . . .").  

                                                                                                                     



            9           Cameron, 171 P.3d at 1156 (quoting State v. Gieffels, 554 P.2d 460, 465  

                                                                                                           

(Alaska 1976)).  

                



            10          See  generally  2  Proceedings  of  the  Alaska  Constitutional  Convention  

                                                                                                                                      

(PACC)  1322-37  (Jan.  6,  1956);  Alaska  Const.  art.  I,    8.                                               As  the  sponsor  of  the  

                                                                                                                                                      

amendment explained,  

                                           



                        there isn't any question that each grand jury that sits returns  

                                                                                                                        

                        some 'no true bills' . . . [which] means that somebody has  

                                                                                                                              

                        been charged with a crime by the district attorney and the  

                                                                                                                              

                                                                                                                                   (continued...)  



                                                                          -36-                                                                     7200
  


----------------------- Page 37-----------------------

charge "shall be prosecuted by indictment, unless indictment is waived."                                                     11  Only non-  



                                                                                                                              12  

felony offenses "may be prosecuted by [either] indictment or information."                                                               

                                                                                                                                  If a felony  



                                                                                                                                             13  

                                                                                                                          

indictment is waived, then "the prosecution shall be by information or complaint." 



                                                                                                                                                 

                       In my opinion, the court's analysis is incomplete because of the lack of  



                                                                                                                                                  

recognition of an important qualifier:  the accused's right to a speedy trial in article I,  



                                                                                                                                               

section 11, applies only to a criminal prosecution.  "In all criminal prosecutions, the  



                                                                                                                                         

accused shall have the right to a speedy and public trial, by an impartial jury of twelve  

          14   This term comes into play in the court's discussion of article I, section 8, the  

                                                                                                                                               

. . . ." 



grand jury clause, which states in relevant part:  

                                                                          



                       No person shall be held to answer for a capital, or otherwise  

                                                                                                             

                       infamous crime, unless on a presentment or indictment of a  

                                                                                                                            

                       grand jury, except in cases arising in the armed forces in time  

                                                                                                                      



            10(...continued)  



                       district  attorney   .   .   .  has  presented  all  of  his  evidence  to  the  

                       grand  jury   and   in   spite   of  that  the   grand  jury  has said  that  

                       there is  no  cause  to  hold  this  man  for  trial,  and the  man  has  

                       been  released  without  going  through  a  trial  to  a  regular  jury.   

                       Certainly under those  circumstances  it can't be said that the  

                       grand  jury   serves  no  useful  purpose.    It   serves   a   distinctly  

                       useful  purpose.  



2  PACC  at   1327.  



            11         Alaska R. Crim. P. 7(a).  

                                                         



            12         Id.  



            13         AS  12.80.020.  

                              



            14         Alaska  Const.  art.  I,    11  (emphasis  added);  cf.  United  States  v.  

                                                                                                                                                

MacDonald, 456 U.S. 1,6 (1982) ("The Sixth Amendment provides that '[i]nall criminal  

                                                                                                                                       

prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .' A literal  

                                                                                                                                           

reading of the Amendment suggests that this right attaches only when a formal criminal  

                                                                                                                                      

charge is instituted and a criminal prosecution begins.").  

                                                                                 



                                                                      -37-                                                                 7200
  


----------------------- Page 38-----------------------

                     of war or public danger.                Indictment may be waived by the                   

                     accused.       In    that    case           the     prosecution          shall     be     by  

                     information.[15]  



The court's opinion reasons that the statement that the indictment may be waived by "the  

                                                                                                                                  

accused" implies that a person may be an accused before an indictment.16                                                    But the  

                                                                                                                                   



opinion ignores the fact that the "prosecution" itself cannot begin until the grand jury has  

                                                                                                                                    



returned an indictment or the accused has waived the indictment.  If we assume that this  

                                                                                                                                   



term has a similar meaning in these related sections, then the speedy trial right cannot  

                                                                                                                              

attach until the formal felony prosecution begins - upon indictment or waiver.17  

                                                                                                                  



                     In the absence of a waiver, the information that the State filed to obtain a  

                                                                                                                                       



warrant for Wright was inadequate to initiate his formal prosecution for felony charges  

                                                                                                                             



and insufficient to trigger his entitlement to a speedy trial.  

                                                                                     



           B.	       The Authority The Court's Opinion Relies Upon Is Distinguishable.  

                                                                                                            



                     The court's opinion in the case at hand implies that we decided in Yarbor  

                                                                                                                             

v. State that a defendant becomes formally accused upon the filing of a complaint.18  

                                                                                                                                    In  

                                                                                                                                     



my opinion, this language is taken out of context. The Yarbor case establishes only that,  

                                                                                                                                  



contrary to the defendant's argument in that case, the right to a speedy trial does not  

                                                                                                                                   



attach "when the state has acquired sufficient evidence to charge an individual with a  

                                                                                                                                       



           15        Alaska  Const.  art.  I,    8  (emphasis  added).  



           16        Op.  at   19-21.  



           17        The   court's   description of   "all   [the]   actions   and  proceedings   [that]  may  



come  before  an  indictment"  is  not  to  the  contrary.   See  Op.  at   19.   These  procedures  do  

not  occur  until  a  felony  defendant  actually  appears  in  court  -  generally  after  an  arrest,  

when  the  defendant's  speedy  trial  rights  have  already  attached.  



           18        Op. at 14 (discussing Yarbor v. State, 546 P.2d 564 (Alaska 1976)).  

                                                                                                                     



                                                                 -38-	                                                          7200
  


----------------------- Page 39-----------------------

             19  

crime."          And  Yarbor's statement that "we now join our sister states in holding that the                                             

right to a speedy trial does not attach before the defendant becomes formally accused"                                                         20  



cites at least three other opinions stating or implying that a pre-indictment complaint is  

                                                                                                                                                

insufficient to trigger the speedy trial guarantee.21  

                                                                 



                       The court's opinion relies on Commonwealth v. Butler, a Massachusetts  

                                                                                                                          



        22  

case.        But the Butler court interpreted the language of article 11 of the Declaration of  

                                                                                                                                               



Rights of the Massachusetts Constitution, which is much different from the text of the  

                                                                                                                                             



speedy trial rights in the Alaska and U.S. Constitutions:  

                                                                       



                      Every subject of the commonwealth ought to find a certain  

                                                                                                                

                      remedy, by having recourse to the laws, for all injuries or  

                                                                                                                        

                      wrongs which he may receive in  his person, property, or  

                                                                                                                        

                       character.  He ought to obtain right and justice freely, and  

                                                                                                                      

                      without being obliged to purchase it; completely, and without  

                                                                                                               

                       any denial; promptly, and without delay; conformably to the  

                                                                                                                       

                       laws.[23]  



           19          Yarbor,  546  P.2d  at  566-67.  



           20         Id .  at  567  (footnotes  omitted)  (citations  omitted).  



           21         For  instance,  in  People  ex  rel.  Coca  v.  District  Court,  the  court  held  that  the  



right  to  a  speedy trial  was  not  triggered  by  the  filing  of  a  complaint  and  issuance  of  a  

warrant,  530  P.2d  958,  959-60  (Colo.   1975)  (en  banc).   See  also  State  v.  Lee,  519  P.2d  

56,  60  (Ariz.  1974)  ("We  have  held  that  the  right  to  a  speedy  trial  commences  at  the  time  

the   accused  has  been  held  to   answer  by   a  magistrate   or   after   an   indictment  has  been  

returned."   (citations   omitted));  State  v.  Bessey,   328  A.2d   807, 817 (Me.   1974)   ("We  

observe,  first,  that  the  right  to  a  speedy  trial  does  not  arise  until  criminal  prosecution  has  

begun  and  a  defendant  has  become  an  'accused.'   Pre-indictment  delay  does  not  deny  a  

defendant's  Sixth  Amendment  right."  (emphasis  in  original)).  



           22          Op. at 22-23 (discussing Commonwealth v. Butler, 985 N.E.2d 377 (Mass.  

                                                                                                                                       

2013)).  



           23         Mass. Const. pt. 1, art. 11. In contrast, the Alaska and federal constitutions  

                                              

                                                                                                                             

                                                                                                                           (continued...)  



                                                                     -39-                                                                7200
  


----------------------- Page 40-----------------------

                                                                                                                                             24  

The   Butler   court   alluded   to   this   difference   in   its  analysis.                                                                       The   language   of   the  



Massachusetts provision is concerned with prompt administration of justice generally,   



rather than speedy criminal trials specifically.                                                           This language could easily cover more                                           



stages than the criminal trial process, including pre-arrest and pre-indictment delays.                                                                                            



                               In a related proceeding, the First Circuit distinguished the                                                                          Butler  holding  



as "a rule of state constitutional law" and explained on the same facts that "[u]nder the                                                                                                       



Sixth Amendment . . . the speedy-trial right attached, and the count began, not when the                                                                                                        

                                                                                                                                                                         25      The First  

complaint was issued, but when the 1999 indictment was announced."                                                                                                                          



Circuit's conclusion is more persuasive, given that Alaska's speedy trial right closely  

                                                                                                                                                                                       



resembles the text of the Sixth Amendment, not Massachusetts's article 11.  

                                                                                                                                                                      



                               The  court's  opinion  also  cites  Scherling  v.  Superior  Court  for  the  

                                                                                                                                                                                              



proposition that under the California Constitution "speedy trial protections attach after  

                                                                                                                                                                                             

a complaint has been filed."26   This is a correct but incomplete statement. The Scherling  

                                                                                                                                                                                 



court goes on to clarify that the scope of that right changes based on the stage of the  

                                                                                                                                                                                                



delay - and effectively describes a due process test when the delay occurs between the  

                                                                                                                                                                                                



complaint and an indictment or arrest:  

                                                                          



               23(...continued)  



                                                                                                               

provide that "[i]n all criminal prosecutions, the accused shall [have or enjoy] the right  

                                                                                                                                                                                

to a speedy and public trial."  Alaska Const. art. I,  11; U.S. Const. amend. VI.  



               24              "[A]rt. 11 does not distinguish between the types of cases . . . to which the  

                                                                                                                                                                                                

right to a speedy trial attaches; it states that the right to a speedy trial applies to '[e]very  

                                                                                                                                                                                     

subject  of  the  [C]ommonwealth.'  "                                                      Butler,  985  N.E.2d  at  383  (third  and  fourth  

                                                                                                                                                                                        

alterations in original).  

                                



               25             Butler v. Mitchell, 815 F.3d 87, 89 (1st Cir. 2016).  The court also rejected  

                                                                                                                                                                                     

the defendant's invitation to apply the Butler court's reasoning to federal law. Id. at 90.  

                                                                                                                                                                                                



               26              Op. at 14 n.47 (citing Scherling v. Superior Court, 585 P.2d 219, 225 (Cal.  

                                                                                                                                                                                            

 1978) (en banc)).  

                        



                                                                                               -40-                                                                                        7200
  


----------------------- Page 41-----------------------

                                   Unlike federal law . . . this state has extended the [speedy                                                                          

                                   trial] right to the pre-indictment and pre-arrest stage, holding                                                                        

                                   that it attaches under article I, section 15, of our Constitution                                                          

                                   after a complaint has been filed.                                                      But the consequence of a                                         

                                   violation depends upon the stage at which a violation of the                                                      

                                   right occurs.  The right to a speedy trial following the filing                             

                                   of   an   indictment   or  information   and   the   time   limitations  

                                   applicable thereto are set forth by statute and a violation of                                                                                       

                                   the statute is presumed to be prejudicial.                                                                    A violation at a                         

                                  prior stage                   depends upon a balancing of theprejudicial effect                                                                

                                   of the delay and the justification therefor.                                                                [27]  



For delays prior to the filing of an indictment or information, California thus applies the  

                                                                                                                                                                                                                         



same test "regardless of whether [the] defendant's claim is based on a due process  

                                                                                                                                                                                                            

analysis or a right to a speedy trial not defined by statute."28  

                                                                                                                                                              

                                   Finally, the court's opinion29  

                                                                                                              cites People v. White for the proposition that  

                                                                                                                                                                                                                       



the New York speedy trial right is "violated if there is an excessive delay between  

                                                                                                                                                                                                          



institution of the prosecution - whether by felony information or complaint, detainer  

                                                                                                                                       

warrant or indictment - and the trial."30                                                                   But like the California court in Scherling, the  

                                                                                                                                                                                                                         



New York court in  White recognized that the speedy trial and due process rights may  

                                                                                                                                                                                                                     

sometimes merge.31  And later decisions reinforce that in New York, "the factors utilized  

                                                                                                                                                                                                              



                 27                Scherling,   585   P.2d   at   225-26   (emphasis   added)   (footnotes   omitted)  



(citations  omitted).   Under  the  California  Constitution, "[t]he  defendant  in  a  criminal  

cause  has  the  right  to  a  speedy  public  trial."   Cal.  Const.  art.   1,     15.  



                 28                Scherling, 585 P.2d at 226.  

                                                                                              



                 29                Op. at 14 n.47.  

                                                             



                 30               People v. White, 298 N.E.2d 659, 662 (N.Y. 1973)).  

                                                                                                                                                       



                 31                White, 298 N.E.2d at 662 ("It may be that [the due process] doctrine has  

                                                                                                                                                                                                                        

now been incorporated in the 'speedy trial' guarantee of the Sixth Amendment . . . but  

                                                                                                                                                                                                                    

                                                                                                                                                                                              (continued...)  



                                                                                                           -41-                                                                                                    7200
  


----------------------- Page 42-----------------------

to determine if a defendant's rights have been abridged are the same whether the right   



                                                                                                                                       32  

asserted   is   a   speedy   trial   right   or   the   due   process   right   to   prompt   prosecution."                                 



Accordingly - and in contrast to the Alaska rule we announced in  Yarbor - New  

                                                                                                                                   



York's speedy trial right can apparently attach before arrest, information, indictment, or  

                                                                                                                                       

even a warrant or complaint - even from the time of the offense.33  

                                                                                             



                                                                                                              

           C.        The Speedy Trial Clause Does Not Apply To These Circumstances.  



                                                                                                                                     

                     When there has been no arrest or formal charge, the application of the  



                                                                                                                                    

speedy trial clause does not promote the purposes of that provision.  The speedy trial  



           31(...continued)  



                                                                                                                                       

it is only of limited analytical importance whether the right is one of a 'speedy trial' or  

                                                                                                                                 

of 'due process of law.' " (quoting People v.  Winfrey, 228 N.E.2d 808, 812 (N.Y.  

 1967))).  



           32        People v. Vernace, 756 N.E.2d 66, 67 (N.Y. 2001) (citing People v. Staley,  

                                                                                                                                

364 N.E.2d 1111, 1113 (N.Y. 1977)); see also id. ("In this State, 'we have never drawn  

                                                                                                                                 

a fine distinction between due process and speedy trial standards' when dealing with  

                                                                                                                      

delays in prosecution." (quoting People v. Singer, 376 N.E.2d 179, 186 (N.Y. 1978))).  

                                                                                                                                            

These factors are "the extent of the delay," "the reasons for the delay, the nature of the  

                                                                                                                                      

underlying charge, whether there has been an extended period of pretrial incarceration,  

                                                                                                                     

and whether there is any indication that the defense has been impaired by reason of the  

                                                                                                                                      

delay."  Id. (citing People v. Taranovich, 335 N.E.2d 303, 306 (N.Y. 1975)).  

                                                                                                                



           33        SeeSinger, 376 N.E.2d at 185-86 ("[M]orerealistically, it could besaid that  

                                                                                                                                     

[the defendant] was actually although not formally accused of the homicide . . . when he  

                                                                                                                                       

was confronted by the police with the crime scene photographs of the dead girl; informed  

                                                                                                                            

they 'knew' that he did it, and went into a state of shock in response to the charge.");  

                                                                                                                           

Taranovich, 335 N.E.2d at 307 ("[T]his defendant was not deprived of his constitutional  

                                                                                                                     

right to a speedy trial.  A one-year delay between the alleged occurrence of a crime and  

                                                                                                                                     

an indictment for a class C felony . . . in and of itself does not entitle a defendant to a  

                                                                                                                                         

dismissal of the indictment . . . ."); People v. Wiggins, 395 N.Y.S.3d 395, 399 (N.Y. App.  

                                                                                                                                   

Div. 2016) ("[T]he six-year delay between the shooting in 2008 and defendant's guilty  

                                                                                                                                 

plea in 2014 was 'extraordinary.' ") (applying  Taranovich factors),  leave to appeal  

                                                                                                                               

granted, 74 N.E.3d 688 (N.Y. 2017).  

                                                  



                                                                  -42-                                                            7200
  


----------------------- Page 43-----------------------

clause is intended:                 "(1) to prevent harming the defendant by a weakening of his case as                                                     



evidence and memories of witnesses grow stale with the passage of time; (2) to prevent                                                            



prolonged pre-trial incarceration; and (3) to limit the infliction of anxiety upon the                                                                    

                                                                                     34     But  there  is  nothing  in  the  record  

accused   because   of   long-standing   charges."                                                                                                 



indicatingthat Wright suffered any anxiety or publichumiliation;indeed, heasserted that  

                                                                                                                                                         

he was completely unaware that the State had obtained an arrest warrant.35                                                                       Prior to  

                                                                                                                                                            



Wright's arrest, he obviously did not suffer from incarceration; he was moving from job  

                                                                                                                                                          



to job and state to state.  And Wright did not contest the trial court's finding that he  

                                                                                                                                                           

suffered no actual prejudice as a result of this delay.36   So the purposes of the speedy trial  

                                                                                                                                                         



clause do not apply to the period before Wright's arrest.  

                                                                                             



                         Moreover, these circumstances do not support the application of the test we  

                                                                                                                                                           



generally apply to determine a speedy trial violation.  This test considers the length of  

                                                                                 



the delay, the reasons for the delay, any demand for trial by the accused, and prejudice  

                                                                                                                                               

                              37  As the court of appeals noted, it would be unfair to consider the factor  

to the defendant.                                                                                                                                     

            



that Wright did not demand a speedy trial prior to his arrest because he was unaware that  

                                                                                                                                                         

an information had been filed.38   And even if Wright had demanded a speedy trial, the  

                                                             



superior  court  would  have  been  powerless  to  schedule  one.                                                       A  trial  could  not  be  

                                                                                                                                                           



            34          Rutherford  v.  State,  486  P.2d  946,  947  (Alaska   1971).     



            35           The  court  of  appeals  noted  that  Wright  "was  able  to  live  freely  and  openly  



[prior  to  his  arrest],  unaffected  by  the  anxiety,  stress,  and  'public  obloquy'  that  [felony]  

charges  might otherwise  bring."    Wright  v.  State,   347  P.3d   1000,   1007   (Alaska  App.  

2015).  



            36          Id. at 1006.  

                                    



            37          Barker v. Wingo, 407 U.S. 514, 530-32 (1972).  

                                                                                                   



            38           Wright, 347 P.3d at 1009.  

                                                              



                                                                            -43-                                                                      7200
  


----------------------- Page 44-----------------------

 scheduled before Wright's arrest because there were no charges pending in a court with                                                                            



jurisdiction to bring him to trial.                     



                           The remaining factors in the                                 speedy trial test focus on the length and                                   



reasons for the delay and the prejudice to the defendant.                                                        But we have another test that                      



                                                                                                                                                                        39  

 explicitly focuses on these factors - the due process test for preindictment delay.                                                                                         



                           We applied the due process test to a case remarkably similar to Wright's  

                                                                                                                                                     

                                         40    Similar to Wright, Gonzales became aware that the authorities  

 in State v. Gonzales.  

                                                                                                                                                       

were  investigating  him for  sexual  abuse  of  his  girlfriend's  ten-year-old  daughter.41  

                                                                                                                                                                             

 Similar to Wright, Gonzales left Alaska suddenly and did not return for many years.42  

                                                                                                                                                                             

 Gonzales was not arrested until he returned to the state almost ten years later.43                                                                                 We  

                                                                                                                                                                    



recognized that the defendant's flight was a reasonable basis for the State to delay a  

                                                                                                                                                                         

                                            44   We therefore concluded that the resulting preindictment delay  

 grand jury indictment.                                                                                                                                          

                       

 did not violate Gonzales's right to due process.45  

                                                                              



                           I believe the same due process analysis should apply to Sean Wright.  I  

                                                                                                                                                                          



would reverse the court of appeals' decision because a prosecutor's information in a  

                                                                                                                                                                         



 felony case is not a formal charge for purposes of the speedy trial clause.  

                                                                                                                                    



              39           State  v.  Gonzales,   156  P.3d  407,  411-12  (Alaska  2007).  



              40           Under   this   test,   "the   defendant   must   prove   both   that   the   delay   was   not  



reasonable  and  that  the  defendant  suffered  actual  prejudice  from  the  delay."   Id.  at  411  

 (footnote  omitted)  (citing  State  v.  Mouser,  806  P.2d  330,  336  (Alaska  App.   1991)).  



              41           Id . at 409.  

                                       



              42           Id . at 409-10.  

                                       



              43           Id . at 410.  

                                       



              44           Id. at 412-15.  

                                       



              45           Id. at 415.  

                                       



                                                                                  -44-                                                                           7200
  


----------------------- Page 45-----------------------

CARNEY, Justice, concurring in part and dissenting in part.                                                                                                               



                                         I concur in the court's conclusion that the filing of an information starts the                                                                                                                                       



speedy trial clock.                  



                                         But I disagree with the court's conclusion that the superior court did not err                                                                                                                                         



in holding that the pretrial delay was Wright's fault.                                                                                                            I am persuaded that the superior                                            



court   clearly   erred   in   so   holding.     And  while   I   recognize   that   this   court   owes   no  



deference to the court of appeals' decision in this matter, I believe that its opinion of the                                                                                                                                                                 



facts of the case and the impact those facts had upon the pretrial delay more accurately                                                                                                                                                



reflects what occurred.                  



                                        Not only did the State concede that "Wright was not hiding out, and the                                                                                                                                               



 State had avenues of locating him that likely would have produced him within a brief                                                                                                                                                                 

                         1 but after leaving Alaska Wright made no attempt to hide his whereabouts or his  

period,"                                                                                                                                                                                                                                                       



identity.  On the contrary, he remained in touch with his wife, the mother of the young  

                                                                                                                                                                                                                                                    



girl he abused.  He returned to Alaska and stayed at her home, he called her, and he sent  

                                                                                                                                                                                                                                                            



and received mail from her.  While the Palmer District Attorney's office was working  

                                                                                                                                                                                                                                



with the Alaska State Troopers to investigate his case, the Palmer Court presided over  

                                                                                                                                                                                                                              



the dissolution of his marriage.   In addition, the Juneau court sent him documents  

                                                                                                                                                                                                                                     



relating to a student loan matter. Wright also contacted the Alaska Department of Health  

                                                                                                                                                                                                                                                    

and Social Services to obtain a death certificate.2                                                                                                         A number of Alaska state agencies  

                                                                                                                                                                                                                                             



therefore had contact information for Wright while he was outside of the state.  

                                                                                                                                                                                                                                



                                         In addition, "Wright worked at a number of nuclear facilities that required  

                                                                                                                                                                                                                                              



security clearances.  To obtain these clearances, [he] provided his name, address, date  

                                                                                                                                                                                                                                                           



                     1                    Wright  v.  State,  347  P.3d   1000,   1008  (Alaska  App.  2015).  



                    2                   Id.  at   1004.  



                                                                                                                              -45-                                                                                                                                   7200  


----------------------- Page 46-----------------------

of birth, and social security number, along with copies of his drivers's license and social                                                   



                          3  

security card."                                                                             

                             He made no attempt to conceal his identity.  



                                                                                                                                     

                       I agree with the court that Investigator Josten "did what any reasonable  

                                                                          4   But the superior court's focus on the single  

                                                                                                                                              

                                                

officer would do under the circumstances." 



investigator's actions was misplaced. The Alaska State Troopers are a statewide agency,  

                                                                                                                                           

currently employing some 300 uniformed officers and 147 civilian employees.5                                                                 There  

                                                                                                                                              



is no suggestion in the record that another officer was assigned after the first officer's  

                                                                                                                                 



reassignment.  The failure to assign another trooper to continue the investigation after  

                                                                                                                                                



Josten's  reassignment  further  demonstrates  the  State's  negligence  in  searching  for  

                                                                                                                                                  



Wright, particularly given the quantity and seriousness of the allegations against him.  

                                                                                                                                                          



In addition, the Palmer District Attorney's delay in charging Wright and its or the  

                                                                                                                                                  



troopers' failure to obtain an extraditable warrant contribute to the State's responsibility  

                                                                                                                                 



for the pretrial delay.  

                           



                       I would therefore conclude that the superior court erred in holding Wright  

                                                                                                                                            



responsible for the pre -arrest delay.  But I agree with the court of appeals' suggestion  

                                                                                                                                     



that the post -arrest delay is another matter altogether, and may well demonstrate that he  

                                                                                                                                                    



had no interest in a speedy trial.  

                                                 



                       I would decide this case as did the court of appeals, and reverse and remand  

                                                                                                                                           



it to the superior court for further findings.  I therefore respectfully dissent from this  

                                                                                                                                                  



portion of the court's decision.  

                                       



            3          Id.  



            4          Opinion  at  27-28  (quoting  Appendix  at  7).  



            5          History   of the  Alaska   State   Troopers,   DEP 'T   OF   PUB.   SAFETY,   ALASKA  



STATE  TROOPERS,  http://dps.alaska.gov/ast/history.aspx  (last  visited  June  6,  2017).  



                                                                        -46-                                                                   7200
  


----------------------- Page 47-----------------------

                       IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
                                                                   



                                    THIRD JUDICIAL DISTRICT AT ANCHORAGE
                                       



STATE OF ALASKA,                                                                   )
  

                                                                                   )  

                            Plaintiff,                                             )  

                                                                                   )  

vs.                                                                                )  

                                                                                   )  

                

SEAN WRIGHT,                                                                       )  

                                                                                   )  

                            Defendant.                                             )  

                                                                                    

_______________________________ )  

                                                    

Case No. 3AN-99-9876 CR  



                                                                                                    

                                                                           EXCERPT OF
  

                                                                                                                                                             *
  

                                                                                                                                            

                      ORDER RE MOTION TO DISMISS FOR PRETRIAL DELAY 



                                                                                    *****
  



II.           Discussion  



                            Wright has not made a showing of actual prejudice necessary to trigger  

                                                                                                                                                                      

                            the due process clause.  

                                                               



                            The due process clauses of the United States and Alaska Constitutions  

                                                                                                                                                        

protect the accused against unreasonable pre-accusation delay.17  

                                                                                                                                                                    

                                                                                                                                        The primary concern  



                                                                                                                                                                        

of the rule against pre-accusation delay is the impact of the delay on the accused's ability  



              *             This decision has been edited to conform to the technical rules of the                                                                            



Alaska Supreme Court, internal citations have been omitted, and typographical errors                                                                                    

have been corrected.     



              17            State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991) (citing  United  

                                                                                                                                                                      

States v. Marion, 404 U.S. 307, 324 (1971)).  

                                                                             



                                                                             APPENDIX  

Order Re Motion to Dismiss                                                         Page 1                                                                                 7200  

                                                                                               


----------------------- Page 48-----------------------

                                                                                                                      18  

to present a defense, not on the length of the delay itself.                                                              To prevail on such a claim,                  



the accused must establish both the absence of a valid reason for the delay, and that the                                                                                     

                                                                                                   19    A showing of potential or possible  

delay caused actual prejudice to the defendant.                                                                                         



prejudice will not suffice.  

                                                       



                            In  considering  a  claim of  unreasonable  delay,  the  court  must  strike  a  

                                                                                                                                                                                 



balance weighing the reasonableness of the justification for delay against the degree of  

                                                                                                                                                                               



prejudice to the defendant. The burden of proof is on the defendant to show the absence  

                                                                                                                                                                    



of a valid reason for the delay; however, once the issue is raised, the State has the burden  

                                                                                                                                                                      

of presenting sufficient reasons for such delay.20   When sufficient reasons are advanced  

                                                                                                                                                                

by the State, the defendant must show the State's reasons do not justify the delay.21   The  

                                                                                                                                                                            

defendant also has the burden to prove actual prejudice.22  

                                                                                                



                            To establish actual prejudice, the defendant must present a "particularized  

                                                                                                                                                     



showing that the unexcused delay was likely to have a specific and substantial adverse  

                                                                                                                                                                    

                                                                         23   At the very least, the accused must show that, but  

impact on the outcome of the case."                                                                                                                                           

                                                              



for the delay, he would have been able to present favorable evidence.  Mere speculation  

                                                                                                                                                             



about the loss of favorable evidence is insufficient. Absent a showing of specific adverse  

                                                                                                                                                                    



impact  stemming  from  the delay,  the  requirement  of  prejudice  is  not  met,  and  the  

                                                                                                                                                                             



              18           Id .;  see also Smith v. State                          , No. A-6340, 1998 WL 191146, at *3 (Alaska                                      



App. Apr. 22, 1998).           



              19           Mouser, 806 P.2d at 336.  

                                                                        



              20           Id . (quoting Alexander v. State , 611 P.2d 469, 474 (Alaska 1980)).  

                                                                                                                                                       



              21           Id .  



              22           Id .  



              23           Id .  at  337.  



                                                                             APPENDIX  

Order  Re  Motion  to  Dismiss                                                     Page  2                                                                                      7200  


----------------------- Page 49-----------------------

balancing procedure is simply not triggered, even if there is no reason advanced by the                                                                   

 State for the delay.              24  



                                                                                                      25   the  Alaska  Supreme  Court  

                         In  a  recent  decision,  State  v.  Gonzales,                                                                             

                                                                                   



reemphasized that the burden of proof rests with the defendant claiming unreasonable  

                                                                                                                                       



pre-indictment delay.  In Gonzales, the defendant fled the state after being accused of  

                                                                                                                                                           



 sexuallyabusingtheten-year-old daughter ofhis girlfriend in1992. Gonzales resurfaced  

                                                                                                                                             



in Alaska ten years later, at which point Anchorage police resumed the investigation.  

                                                                                                                                      



 Gonzales was arrested after a search of Gonzales's home revealed thousands of images  

                                                                                                                                                   

 of child pornography.26                     Gonzales was then indicted on various counts of sexual abuse  

                                                                                                                                                     



 of a minor stemming from the 1992 allegations.  

                                                                    



                         Gonzales moved the superior court to dismiss the charges against him  

                                                                                                                                                        



 arguing unreasonable pre-indictment delay.  The superior court granted the motion on  

                                                                                                                                      

the basis that the State failed to put forth any good reason for the delay.27                                                          The Court of  

                                                                                                                                                            



Appeals  affirmed  the  superior  court  finding  that  "the  State  presented  no  evidence  

                                                                                                                                              

justifying the delay."28  

                           



                         The Alaska Supreme Court reversed the decision of the two lower courts  

                                                                                                                          



 and remanded the case back to the superior court, concluding that the lower courts did  

                                                                                                                                                         



             24          Id . at 338. The           Mouser  court held that anxiety of the accused, and possible                                 



memory loss to the defendant and witnesses do not act as a showing of actual prejudice.                                                      



             25          State v. Gonzales, 156 P.3d 407 (Alaska 2007).  Gonzales's departure and  

                                                                                                                                                         

 absence from the state is quite analogous to Wright's departure and absence in this case.  

                                                                                                                                                       



             26          Id . at 410.  

                                    



             27          Id .  



             28          Id . (quoting State v. Gonzales, 121 P.3d 822, 826 (Alaska App. 2005)).  

                                                                                                                                               



                                                                    APPENDIX  

 Order Re Motion to Dismiss                                              Page 3                                                                            7200  

                                                                                    


----------------------- Page 50-----------------------

                                                                                                          29  

not properly assign the burden of proof to the defendant.                                                      In reaching this conclusion,       



the Supreme Court found that the lower courts erred in finding that the ten-year pre-                                                                       



                                                                   [30]  

                                                                                                                                                             

indictment delay was unreasonable.                                        The Court held that "because the delay here was  



                                                                                                                                             

caused largely  by the actions of the defendant,  the ten-year  delay  was nonetheless  

reasonable."31  



                         The same holds true in Wright's case. Wright voluntarily left the state once  

                                                                                                                                                            



he realized he was under investigation for alleged sexual abuse of a minor.   Wright  

                                                                                                                                                      



moved  from state to state and job to job until authorities found him in Minnesota.  

                                                                                                                                                                      



Wright was promptly extradited once located. The delay in indicting Wright was largely  

                                                                                                                                                       



attributable to his flight from the state and his frequent moves to different states to obtain  

                                                                                                                                                         



employment.  As such, the length of the delay is not unreasonable.  Moreover, Wright  

                                                                       



has advanced no evidence of actual prejudice caused by the State's delay in arresting him  

                                                                                                                                                             

and bringing him before the court.32  Without meeting his burden of showing actual  

                                                                                                                                                         



prejudice, Wright is not entitled to relief under the due process clause.  

                                                                                                                         



                          Wright is not entitled to relief under the speedy trial clause.  

                                                                                                                                



                         The Sixth Amendment of the United States Constitution, as well as Art. I,  

                                                                                                                                                                  



section 11 of the Alaska Constitution, guarantee an accused the right to a speedy trial.  

                                                                                                                           



Courts have identified three objectives of the speedy trial guarantee: (1) to prevent  

                                                                                                                                                     



harming the defendant by a weakening of his case as evidence and memories grow stale  

                                                                                                                                                            



             29          Id .  at  411-12.  



             30          Id .  at  412-14.  



             31          Id .  at  414.  



             32          Wright's   assertion   that   he   has   lost   the   defense   of   "planted   memory,"  



asserted for the first time in his post-hearing  briefing,  is  purely speculative.  The court  

sees  no  reason  why  that  defense  cannot  now  still  be  asserted.  



                                                                      APPENDIX  

Order  Re  Motion  to  Dismiss                                              Page  4                                                                             7200  


----------------------- Page 51-----------------------

with the passage of time; (2) to prevent prolonged pre-trial incarceration; and (3) to limit                                                           



                                                                                                                                           33  

the infliction of anxiety upon the accused because of longstanding charges.                                                                              

                                                                                                                                                For this  



                                                                                                                                                        

reason, a showing of actual prejudice is not a prerequisite to relief under the speedy trial  



                                                                                                34  

                                                                                   

clause; a showing of possible prejudice may suffice. 



                         To determine whether a defendant has been denied the right to speedy trial,  

                                                                                                                                                       



courts must consider (1) the length of the delay, (2) the reason for the delay, (3) the  

                                                                                                                                                         

defendant's assertion of his right, and (4) the prejudice to the defendant.35                                                           The accused  

                                                                                                                                                 



must show that the length of the delay is presumptively prejudicial, or alternatively, that  

                                                                                                                                                         



he was actually prejudiced to invoke the above test. When a delay is extensive, prejudice  

                                                                                                                                               



may be presumed.   Alaska courts have considered a delay of over fourteen months  

                                                                                                                                                 



presumptively prejudicial.   The right to a speedy trial attaches when  the defendant  

                                                                                                                                             

                                                 36   In calculating the period of delay, any delay caused by the  

becomes formally accused.                                                                                                                                 

                                   

defendant is excluded.37  

                        



                         The delay of five years in Wright's case is of sufficient duration to be  

                                                                                                                                                          



presumptively prejudicial; however, this delay does not invariably violate Wright's right  

                                                                                                                                                       



to speedy trial.   Instead, prejudicial delay only triggers the four-part balancing test  

                                                                                                                                                        



articulated in Mouser . When using the balancing test, the court must determine precisely  

                                                                                                                                               



            33          State  v.  Mouser,  806  P.2d  330,  338  (Alaska  App.  1991)  (citing  Rutherford  



v.  State,  486  P.2d  946,  947  (Alaska   1971)).  



            34          Id .  (citing  Moore  v.  Arizona ,  414  U.S.  25,  26-27  (1973)).  



            35          Smith  v.  State  ,  No.  A-6340,  1998  WL  191146,  at  *2  (Alaska  App.  Apr.  22,  



 1998)  (citing  Barker  v.   Wingo,  407  U.S.  514,  530  (1972));  Mouser,  806  P.2d  at  340.  



            36           Yarbor v. State, 546 P.2d 564, 567 (Alaska 1976).  

                                                                                                          



            37          Springer v. State, 666 P.2d 431, 435 (Alaska App.  1983).  

                                                                                                                       



                                                                    APPENDIX  

Order Re Motion to Dismiss                                               Page 5                                                                            7200  

                                                                                    


----------------------- Page 52-----------------------

                                                                                                                                     38  

how heavily any lack of diligence should weigh against the state.                                                                         Deliberate attempts   



to delay trial in order to impede defense should weigh heavily against the State, while     



more neutral reasons, such as negligence, should be weighed less heavily. Valid reasons,                                                                           



                                                                                                                                                39  

 such as missing witness[es], should serve to justify appropriate delay.                                                                             



                            In the present case, it is clear that the five year delay is presumptively  

                                                                                                                                                     



prejudicial. The court finds that part of the reason for the delay is the State's negligence  

                                                                                                                                                             



 in failing to issue an extraditable warrant for Wright's arrest.  Had such a warrant been  

                                                                                                                                                                         



 issued, the State would likely have located Wright when he applied for work at the  

                                                                                                                                                                            



nuclear facilities in Arkansas in 2000 which required security clearance.  But Wright's  

                                                                                                                                                                 



 departure from the state during the investigation, and after the warrant was issued for his  

                                                                                                                                                                             

 arrest, made it impossible to comply with the right to speedy trial.40                                                                     Wright had no less  

                                                                                                                                                                           



than sixteen different jobs in different states and locations during his absence.  Between  

                                                                                                                                                                 



jobs he would be in Arkansas part of the time.  With a few exceptions, Wright generally  

                                                                                                                                                                

                                                                                          41  Due diligence only requires that the State  

 stayed at one location for only a few months.                                                                                                                           

                                                                           



make reasonable efforts to find a defendant whosewhereabouts wereunknown and bring  

                                                                                                                                                                         



              38            Mouser,  806  P.2d  at  341.  



              39            Id .  



              40            As   mentioned,   the   defendant's   causes   for   delay   do   not   count   towards  



 determining  speedy  trial  violation.  



              41            Wright   worked  at   the   Pine   Bluff   Arsenal   nuclear   facility   for   one   year  



beginning  in  1999,  and  at  the  Sequoyah  Nuclear  Plant  in  Tennessee  for  eight  months  in  

 2003.     Other   than   a   six-month  job   at   Arkansas   Nuclear   One   in   Arkansas  in   2000,  

Wright's  periods  of  employment  were  brief.  



                                                                             APPENDIX  

 Order  Re  Motion  to  Dismiss                                                    Page  6                                                                                     7200  


----------------------- Page 53-----------------------

                                                    42  

him to trial.                                               The court finds Investigator Josten's attempts to locate Wright throughout                                                                                                                                                                                                                 



his absence from the State were reasonable.                                                                                                       



                                                             Wright's argument that Josten could have located Wright by checking                                                                                                                                                                                                                              



Palmer   court   records,   Juneau   court   records,   and   Vital   Statistics   files  places   an  



unreasonable burden on law enforcement.                                                                                                                                                         By the time an arrest warrant was issued for                                                                                                                                               



Wright in September 1999, Josten was off the case and assigned different duties. She did                                                                                                                                                                                                                                                                                                   



what any reasonable officer would do under the circumstances and that is to periodically                                                                                                                                                                                                                                                           



check with various police sources to see if Wright had surfaced.                                                                                                                                                                                                                                                   A more thorough                            



investigation of a defendant's whereabouts cannot be expected of a police officer no                                                                                                                                                                                                                                                                                                        



longer having responsibility for the case.                                                                                                                         



                                                             Wright's argument that Josten knew (or should have known) that Wright                                                                                                                                                                                                                                      



was at his brother's residence shortly after he left Alaska also misses the mark.                                                                                                                                                                                                                                                                                        Josten  



had no arrest warrant for Wright at the time, was not certain he was at his brother's                                                                                                                                                                                                                                                                         



because   of   phone   calls   to  Evelyn   from   different   numbers,   and   was   declined   an  



extraditable arrest warrant when she requested it.                                                                                                                                                                                   Contacting Wright at his brother's                                                                                       



without   an   extraditable   warrant   would   have   only   alerted   Wright   that   police   were  



 searching for him.                                           



                                                             Despiteknowing oftheinvestigation                                                                                                                                   againsthim,Wrightnever asserted his                                                                                                                        



right to speedy trial. In                                                                               Mouser, the Court of Appeals noted that the defendant presented                                                                                                                                                                                      



no evidence indicating that he made any effort to inquire into the status of his case during                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                                                                                  43  

the period of delay, nor did he advance an explanation for the apparent lack of inquiry.                                                                                                                                                                                                                                                                                                                   



Here, it is equally clear that Wright did not inquire into the status of his case at any time.  

                                                                                                                                                                                                                                                                                                                                                                                  



                              42                             Odekirk v. State                                                         , 648 P.2d 1039, 1043 (Alaska App. 1982).                                                                                                                             



                              43  

                                                                                                                                                           

                                                            Mouser, 802 P.2d at 342.
  



                                                                                                                                                                         APPENDIX
  

                                                                                                                                                                                                              

Order Re Motion to Dismiss                                                                                                                                                            Page 7                                                                                                                                                                                       7200  


----------------------- Page 54-----------------------

                                              While memories may have faded in Wright's case, witness statements from                                                                                                                                                                     



the police investigation remain intact.                                                                                            Wright has not asserted that witnesses important                                                                                      



to his defense cannot now be located or cannot now recall events.                                                                                                                                                                  Wright has not been                                    



incarcerated during the delay in bringing him to trial.                                                                                                                                     Balancing all these factors, the                                                                   



court concludes that Wright's speedy trial rights have not been violated.                                                                                                                                                  

                                              For the foregoing reasons, Wright's Motion to Dismiss is DENIED.                                                                                                                                                                           44  



                                              DATED at Anchorage, Alaska this 8th day of May, 2007.  

                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                          

                                                                                                                                                                              /s/  

                                                                                                                                                                          

                                                                                                                                          Philip R. Volland  

                                                                                                                                                                                               

                                                                                                                                          Superior Court Judge  



                       44                     Wright's Motion                                               to   Dismiss  the Special Findings to the Indictment is                                                                                                                                



DENIED AS MOOT in light of                                                                                    State v. Dague                                       , 143 P.3d 988 (Alaska App. 2006).                                                                  



                                                                                                                                APPENDIX  

Order Re Motion to Dismiss                                                                                                                Page 8                                                                                                                                         7200  

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