December 17, 2013
STATE OF ARIZONA, Appellee
BENNIE LEE TYE, Appellant
Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-103286-001 The Honorable Edward W. Bassett, Judge
Arizona Attorney General, Phoenix By Myles A. Braccio Counsel for Appellee
Janelle McEachern Attorney at Law, Chandler By Janelle McEachern Counsel for Appellant
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.
Michael J. Brown, Judge
¶1 Bennie Lee Tye appeals from his convictions and sentences for first-degree felony murder and armed robbery, arguing his speedy trial rights were violated. For the following reasons, we affirm.
¶2 J.M. and Tye dated off and on for about a year, starting in August 2003. J.M. was an admitted drug addict and generally funded her drug habit through prostitution. In May 2004, J.M. got into the victim's red truck and began negotiating the price for her services. During this conversation the car windows were rolled down.
¶3 As they began to engage in sexual activity, the victim became rough with J.M. and she told him to stop. A struggle ensued during which J.M. heard footsteps run up to the driver side of the truck and then a loud boom, causing her ears to ring. The victim exited the truck. When J.M. looked outside, she saw Tye standing there asking if she was okay, but did not see a gun in Tye's hand. J.M. then took the car's stereo from the dashboard and exited the vehicle. She did not see where the victim went, and left the scene with Tye.
¶4 Police later found the victim in an alleyway not far from his truck. It appeared to police that the victim's pockets had been "pulled out" as though somebody had gone through them. It was later determined by a medical examiner that the victim had died of a gunshot wound in the upper left shoulder in his back. The medical examiner estimated that gun was fired within two feet of the victim's shoulder.
¶5 In August 2004, Tye was indicted on one count of second- degree murder and one count of misconduct involving weapons. Prior to trial, the State moved to dismiss the case on the second day of jury selection because the State could not locate J.M., who was expected to testify. The trial court granted the State's motion and entered a dismissal without prejudice.
¶6 In January 2011, Tye was indicted for first-degree felony murder and armed robbery. The trial court designated the case as a complex criminal case for purposes of determining time limits pursuant to Arizona Rule of Criminal Procedure 8. In November, Tye moved to dismiss the indictment with prejudice, alleging that "[m]ore than seven years ha[d] passed since the shooting and nearly six and a half years ha[d] passed since the case was dismissed without prejudice" and this "inordinate delay" violated Tye's right to a speedy trial pursuant to the Sixth Amendment of the United States Constitution and Article 2, Section 24, of the Arizona Constitution. He also asserted that the delay violated his right to due process under the Fifth and Fourteenth Amendment of the United States Constitution and Article 2, Sections 4 and 11, of the Arizona Constitution. After oral argument, the court denied the motion.
¶7 A jury found Tye guilty as charged. The trial court sentenced Tye to life with the possibility of parole after 25 years for first-degree murder, to be served concurrently with a 10.5 year sentence for armed robbery. This timely appeal followed.
¶8 Tye asserts that his rights to a speedy trial were violated and therefore the trial court erred in denying his motion to dismiss the indictment with prejudice. "We review issues of constitutional law de novo and related factual determinations for abuse of discretion." State v. Parker, 231 Ariz. 391, 398, ¶ 8, 296 P.3d 54, 61 (2013) (citation omitted).
I. Sixth Amendment Right to Speedy Trial
¶9 A criminal defendant's right to a speedy trial is guaranteed by both Article 2, Section 24, of the Arizona Constitution and the Sixth Amendment of the United States Constitution. State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d 909, 913 (1991); State v. Henry, 176 Ariz. 569, 578, 863 P.2d 861, 870 (1993).
¶10 "There is no bright line rule for how quickly a trial must occur." Parker, 231 Ariz. at 398, ¶ 9, 296 P.3d at 61. To evaluate Tye's claim, we consider (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has demanded a speedy trial; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). "In weighing these factors, the length of delay is the least important, while the prejudice to defendant is the most significant." State v. Spreitz, 190 Ariz. 129, 139-40, 945 P.2d 1260, 1270-71 (1997). As the pretrial delay approaches one year, the delay is considered "presumptively prejudicial, " that is, unreasonable enough to trigger a speedy trial analysis. Doggett v. United States, 505 U.S. 647, 652, n.1 (1992). None of the four factors, however, is either a sufficient or necessary condition to finding a violation of the constitutional right to a speedy trial. Barker, 407 U.S. at 533. Rather, the factors are to be applied in "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id. at 530.
A. Length of Delay
¶11 Tye suggests that the measure of time for evaluating his speedy trial rights began when he was indicted in 2004. However, a defendant's right to a speedy trial does not attach until the defendant is accused by information or indictment, or actually held in custody following arrest. McCutcheon v. Superior Court, 150 Ariz. 312, 316, 723 P.2d 661, 665 (1986). The "time limits for purposes of the right to a speedy trial begin to run anew when a grand jury reindicts a defendant following the dismissal of an earlier action against the defendant." United States v. Loud Hawk, 474 U.S. 302, 310-11 (1986) (time during which indictment was dismissed and defendants were free of all restrictions on their liberty was excludable from length of delay considered under Sixth Amendment speedy trial clause); State v. Dunlap, 187 Ariz. 441, 449-50, 930 P.2d 518, 526-27 (App. 1996) (The Sixth Amendment does not apply "[i]f a defendant is not under arrest and no indictment or charge is outstanding, " or "if the government dismisses charges in good faith and later refiles them, as long as a defendant has not been subjected to actual restraints on his liberty after dismissal.").
¶12 According to Tye's motion to dismiss, he was indicted on one count of second-degree murder and one count of misconduct involving weapons on August 6, 2004. Tye was arrested August 9, 2004, and arraigned on August 20, 2004. Jury selection for Tye's case began on May 3, 2005, but the State moved to dismiss the case without prejudice the following day, before the jury was sworn in and jeopardy attached, due to its inability to locate J.M. The trial court granted the State's motion, and Tye's case was dismissed without prejudice.
¶13 A new indictment was filed on January 27, 2011 and Tye went to trial on June 18, 2012. Therefore, we find that for purposes of Tye's appeal, the correct calculation of time for his right to a speedy trial under the Sixth Amendment began at the filing of the second indictment. As such, Tye experienced a post-accusation delay of 508 days between the indictment and the first day of trial. Therefore, this delay is sufficient to trigger a full Barker analysis. See Doggett, 505 U.S. at 652, n. 1 (explaining postaccusation delay of one year "marks the point at which courts deem delay unreasonable enough to trigger the Barker enquiry").
B. Reason for Delay
¶14 When the State advances valid reasons for the delay, or when the delay is attributable to the defendant, this factor is weighed in favor of the State. Barker, 407 U.S. at 531 (explaining "a valid reason, such as a missing witness, should serve to justify appropriate delay"); see also Spreitz, 190 Ariz. at 140, 945 P.2d at 1271.
¶15 The original date for Tye's trial was October 4, 2011. The State filed a motion to continue the trial to January 5, 2012. The State avowed that Tye had no objection and waived all applicable time limits. The court granted this motion as well as a subsequent joint motion to continue the trial to March 2012. The court then granted a third motion to continue, which was also jointly filed, requesting postponement of the trial until May 2012. In each of these motions, the State (and Tye) asserted legitimate reasons for delay, ranging from docketing issues to rescheduling of witness interviews that were unexpectedly delayed.
¶16 It is evident from the record that the time period between indictment and trial was justified, given that this case was designated a "complex" case and that Tye waived all time and participated in, or had no objection to, all three time-extending motions.
C. Whether Defendant Demanded a Speedy Trial
¶17 The "defendant's assertion of his speedy trial right  is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, 407 U.S. at 531-32. Even assuming that Tye asserted his speedy trial right under the Sixth Amendment, Tye did not do so until November 1, 2011, roughly 10 months after he was re-indicted. As such his "delay in asserting his right weighs against him." Parker, 231 Ariz. at 399, ¶ 15, 296 P.3d at 62. Furthermore, when Tye filed his motion to dismiss based on delay he either waived time or agreed to the continuances that delayed his trial date. See id. (When analyzing the third Barker factor our supreme court noted that the defendant clearly consented to the delays and that once he began asserting his speedy trial rights, his case went to trial within a year).
¶18 Finally, the fourth Barker factor, the most important in the analysis, requires that Tye demonstrate prejudice by the delay. Barker, 407 U.S. at 532 (holding that prejudice is "obvious" if "witnesses die or disappear during a delay, " or "if defense witnesses are unable to recall accurately events of the distant past"); Schaaf, 169 Ariz. at 327, 819 P.2d at 913.
¶19 Prejudice should be examined by considering the interests that the speedy trial right was designed to protect, such as preventing oppressive pretrial incarceration, minimizing the anxiety of the accused, and limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532. Of these concerns, the inability of the defendant to adequately prepare his case is the most serious harm because it "skews the fairness of the entire system." Doggett, 505 U.S. at 654.
¶20 Without any reference to the record on appeal or specific testimony, Tye makes a blanket assertion that he suffered prejudice because J.M. "did not remember significant facts about the case or what she had said to detectives at the time." Faulty memory of a prosecution witness, however, is generally not considered prejudicial. See Barker, 407 U.S. at 532 (holding that prejudice is "obvious" "if defense witnesses are unable to recall accurately events of the distant past") (emphasis added); State v. Leslie, 147 Ariz. 38, 45, 708 P.2d 719, 726 (1985) (defendant arguing on appeal that a delay of 20 months caused him to lose a key defense witness); State v. Zuck, 134 Ariz. 509, 515, 658 P.2d 162, 168 (1982) ("Appellant must show that he was prejudiced by being prevented from presenting some defense, rather than by the State's being allowed to make its case."). Here, J.M. was the prosecution's chief witness testifying against Tye. Presumably her faulty memory, if any, would only have been to the benefit of Tye's defense. Furthermore, we note that Tye has not asserted that he was prevented from producing evidence or presenting a specific defense based on the delay.
¶21 After considering the Barker factors on balance, we find that Tye has not established that his Sixth Amendment right to a speedy trial was violated.
II. Due Process Right to a Speedy Trial
¶22 Although the Sixth Amendment does not apply to delay prior to a formal accusation, pre-indictment delay may violate due process in some circumstances. See U.S. v. Marion, 404 U.S. 307, 324 (1971). However, in order for pre-indictment delay to violate due process, the defendant must prove the delay was (1) an intentional effort by the state to gain a tactical advantage over the defendant and (2) the delay caused actual prejudice to the defendant. See Dunlap, 187 Ariz. at 450, 930 P.2d at 527. As such, "a defendant has a heavy burden to prove that pre-indictment delay caused actual prejudice; the proof must be definite and not speculative." State v. Broughton, 156 Ariz. 394, 397-98, 752 P.2d 483, 486-87 (1988). To make a showing of actual and substantial prejudice, "it is not enough to show the mere passage of time nor to offer some suggestion of speculative harm; rather the defendant must present concrete evidence showing material harm." Dunlap, 187 Ariz. at 450, 930 P.2d at 527 (quoting United States v. Anagnostou, 974 F.2d 939, 942 (7th Cir. 1992) (internal quotation omitted)).
¶23 We conclude that even if Tye could prove that the State had intentionally delayed Tye's trial to gain a tactical advantage, Tye has not met his burden of showing he suffered prejudice in the delay between the original indictment in 2004 and the trial in 2012. As previously discussed, Tye's sole reason for prejudice is his unfounded allegation that the State's witness lacked memory. To the contrary, the record demonstrates that J.M. recalled a substantial amount of detail from the homicide, and testified for several days at trial about her memory of the events. In addition, J.M.'s interview with the detectives, as well as her subsequent interview with defense counsel, were recorded and admitted at trial as exhibits.
¶24 Furthermore, Tye has not alleged, nor does the record support, that Tye's witnesses disappeared or suffered memory issues because of the delay between the original indictment and subsequent trial. See, e.g., Dunlap, 187 Ariz. at 451, 930 P.2d at 528 (explaining that a finding of prejudice based on the loss of a witness requires a showing that the defendant's witness would have testified, that the witness would have been credible to a jury and that the testimony would have affected the trial's outcome). Accordingly, Tye has not established that his due process right to a speedy trial was violated.
¶25 For the foregoing reasons, we affirm Tye's convictions and sentences.