Ellis v. State

CHAPEL, J.,

dissenting.

1 1 Ellis consistently demanded his right to a speedy trial. Despite this he was jailed for nearly two and a half years before his trial began. The case was delayed for changes in prosecution, court docketing convenience, and a lengthy pause for investigation-well after the charges were filed and Ellis bound over-while the prosecution unsuccessfully attempted to recover a weapon which might have been used in the crime. In determining whether this delay so prejudiced Ellis's right to a speedy trial that it requires relief, we consider the four factors set forth in Barker v. Wingo: 1 length of the delay, reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defen *1143 dant. I agree with the majority that two of these factors-length of delay and assertion of his right to speedy trial-weigh in Ellis's favor. I do not agree that the majority of the delay, which was caused by the prosecution, was for good reason. Reviewing the evidence and balancing the factors, I must conclude that the majority of factors weigh in Ellis's favor.

T2 Thirteen months of the delay, from mid-April, 2000, to late May, 2001, occurred while the State attempted to drain a private-property lake in a fruitless search for the murder weapon. A jailhouse informant had told police that Ellis said he threw the gun in that lake, and prosecutors wanted to find the weapon in order to corroborate the informant's story. The majority concludes that this delay was reasonable, since under Dodd v. State, 2 the informant's testimony could not be used at trial unless it was corroborated. As the prosecution argued, in order to know whether to call the informant, the State had to corroborate his story by finding the gun. However, this delay would be reasonable only if the informant's testimony were admis-gible, because Dodd applies only to evidence not specifically excluded by the Constitution 3 A review of the record shows that the informant's testimony would not have been admissible under the Sixth Amendment.

[3 The informant was acting as an agent of the State when he spoke with Ellis. The informant spoke with Ellis after he had been bound over and while he was represented by an attorney. In an interview on November 22, 1999, the informant came to police and told them he had spoken with Ellis about the crime. Police officers asked the informant to go back and continue talking to Ellis, and particularly to find out where the gun was. On December 2, 1999, the informant told police that he had talked to Ellis again and Ellis said he threw the gun in the lake at Willoweliff. This information led to the request to drain that lake.

T4 The use of "incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment" violates the Sixth Amendment right to counsel. 4 Ellis vigorously argued this before two trial courts and raises the issue on appeal. As Ellis argued below, and repeats on appeal, if the informant's testimony was inadmissible then it did not need corroboration, and the thirteen-month lake draining delay was unnecessary. Ellis first raised this claim in a motion to suppress filed April 13, 2000, and also argued it in support of his speedy trial claims. Both trial courts appeared to miss the point of Ellis's argument. Focusing on the Fourth and Fifth Amendment questions of search and seizure and self-incrimination, the trial courts failed to consider Ellis's Sixth Amendment claim. Ellis's first trial judge explicitly refused to hear his Sixth Amendment claim, ruling that the issue of admissibility of the informant's testimony was not ripe until the State corroborated his evidence and decided to use him. This is exactly backwards. There was no need to delay the trial, giving the State the chance to decide whether to call the informant, if his testimony was inadmissible to begin with. If the Sixth Amendment right to counsel question had been decided at the time Ellis raised it, there would have been no need for investigation to corroborate the informant's story. At least thirteen months of the subsequent trial delay could have been avoided.

{5 The majority acknowledges Henry but attempts to distinguish it by misstating the sequence of events here. Police officers could not speak directly to Ellis, who was represented by counsel. The informant came to officers and told them, unbidden, that Ellis said the gun was in "the lake". The informant did indeed voluntarily approach the police with this story. However, it did not stop there. During that first con *1144 versation officers asked which lake, and told the informant they wanted to know specifically what Ellis did with the gun. After this instruction, the informant talked again to Ellis then told officers the name of the lake in which Ellis said he threw the gun. This second statement provided the basis of the State's request to delay Ellis's trial in order to drain a particular lake and search for a particular weapon. The informant's first statement may have been constitutionally admissible, but it was not the statement on which the State relied in conducting its investigation. The informant's voluntary explanation that Ellis threw the gun in "the lake" was enough to make officers ask for the lake's name, in order to investigate the claim. It was the informant's second statement giving the lake's name that the State wanted to corroborate, and that is the information which is inadmissible, because it was discovered at the request of police.

T6 As an agent of the State, the informant's testimony violated Ellis's Sixth Amendment right to counsel, and the delay caused by attempts to corroborate this informant's testimony violated his Sixth Amendment right to a speedy trial. As Henry says, the initial constitutional violation here is the government's intentional creation of "a situation likely to induce Henry to make incriminating statements without the assistance of counsel". 5 Subsequently, Ellis's demands for a speedy trial were disregarded while the State attempted to corroborate information which was illegally obtained. Therefore, I cannot join the majority's conclusion that this reason for delay favors the State. 6 I add it to the balance of factors already weighing in Ellis's favor.

T 7 I also disagree with the majority's conclusion that the prejudice Ellis suffered from this lengthy delay was fairly unsubstantial, and with the apparent weight the majority opinion places on this factor. I am particularly concerned about the effect of the delay in prosecution given his youth. Ellis was seventeen at the time of the crime. His application for certification as a juvenile or, in the alternative, as a youthful offender, was denied despite a recommendation from the Office of Juvenile Affairs that he retain Youthful Offender status, and he was certified as an adult. The Youthful Offender Study, and the accompanying psychological evaluation, both noted that Ellis appeared to be a normal teenager of average intelligence, and found no explanation for the crime in Ellis's history, character or cireumstances.

T8 In this context, and given his clean criminal record and negligible school discipline record, Ellis's claims of prejudice are particularly poignant. Ellis was in jail for the entire pre-trial period. He could not complete high school or begin college, lost his girlfriend, and his immediate family was damaged. The guarantee of a speedy trial is designed to protect an accused from lengthy pretrial incarceration and impaired liberty, and to shorten the disruptions of life which occur with an arrest and pending criminal charges. 7 The right to speedy trial covers the period of time in which Ellis was presumed to be innocent and enjoyed the same rights to life, liberty, and the pursuit of happiness as any other citizen. 8

19 While Ellis, who claimed he was innocent, does not allege any specific harm done to his defense case, he suffered exactly the type of prejudice the Speedy Trial Clause is designed to prevent. Absent a particular *1145 claim of egregious harm, this factor does not weigh heavily in Ellis's favor. However, as the majority opinion notes, prejudice is not the foremost Sixth Amendment consideration, and it is not limited to prejudice which damages a defense. 9 Even were Ellis to claim less specific prejudice than he has, the presumptive prejudice arising from a lengthy delay is always a factor to be considered in applying the Barker v. Wingo analysis. 10 We are required to weigh all four factors equally in determining whether Ellis's right to speedy trial was violated. 11 I find that the first three factors-length of delay, the reason for the delay, and Ellis's assertion of his right-all weigh in Ellis's favor. Were I to completely disregard the prejudice Ellis suffered to his rights as a citizen, I cannot conclude that the lack of serious prejudice outweighs the three remaining factors. This Court is directed to weigh the factors equally. Doing so, I must conclude that Ellis's right to a speedy trial was violated. I would reverse.

. 407 U.S. 514, 530 , 92 S.Ct. 2182, 2192 , 33 L.Ed.2d 101 (1972).

. 2000 OK CR 2 , 993 P.2d 778 .

. Dodd, 993 P.2d at 784 .

. United States. v. Henry, 447 U.S. 264, 269 , 100 S.Ct. 2183, 2186 , 65 L.Ed.2d 115 (1980). While the government agent in Henry was paid, the opinion focuses on the man's status officers used him to deliberately elicit information rather than the fact of payment for services rendered. Henry relied on Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), which held that a defendant could not be convicted by statements elicited by a government agent, his co-defendant. This Court recognized this principle in Dodd v. State, 2000 OK CR 2 , 993 P.2d 778, 783 .

. Henry, 447 U.S. at 275 , 100 S.Ct. at 2189 .

. I agree with the majority that we should hold the last seven months of trial delay neutral, benefiting neither side. I disagree with the majority's implication that Ellis might have avoided this delay had he not moved to disqualify the original trial judge.

. Bowie v. State, 1995 OK CR 4 , 906 P.2d 759, 761 ; United States v. MacDonald, 456 U.S. 1, 7 , 102 S.Ct. 1497, 1501 , 71 L.Ed.2d 696 (1982).

. The majority suggests that some of the delay worked in Ellis's favor. I disagree with the majority's comment that this delay actually helped Ellis since no gun was found; as the informant's testimony about the gun was inadmissible under the Constitution, the State could not have used the evidence. I find repugnant the implication that, rather than delay the trial while his motion for disqualification was heard, Ellis could have agreed to be tried by a trial judge this Court ultimately removed from the case. Ellis had no need to raise a speedy trial claim in the first months of trial. It was only when the trial became, in the majority's phrase, a procedural quagmire, that Ellis was forced to unsuccessfully attempt to assert his Sixth Amendment rights.

. Moore v. Arizona, 414 U.S. 25, 26-27 , 94 S.Ct. 188, 189 , 38 L.Ed.2d 183 (1973).

. Doggett v. United States, 505 U.S. 647, 655-56 , 112 S.Ct. 2686, 2692-93 , 120 LEd.2d 520 (1992).

. Barker, 407 U.S. at 533 , 92 S.Ct. at 2193 .