State v. Berrellez

Under Art. I, sec. 10 of the Oregon Constitution and former ORS 135.747 (2011), a defendant’s defense is not unreasonably prejudiced by an 8-year delay due to evasion of police, destruction of non-valuable case notes, and the death of a witness.

Defendant appealed a conviction for first-degree sexual abuse under ORS 163.427. Defendant sexually abused his minor daughter and a police report was filed. After learning of the police report, Defendant fled to California, avoiding a grand-jury indictment in 2003. Defendant was arrested and arraigned in November 2011 and a trial date was set for January 2012. Defendant moved for dismissal for lack of a speedy trial under Art. I, sec. 10 of the Oregon Constitution and former ORS 135.747 based on the eight-year delay, the destruction of some of the case notes, as well as the death of a witness. The trial court held that the delay was reasonable based on the attendant circumstances of the eight-year delay. The Court determined that delay is reasonable when caused by the Defendant’s evasion of law enforcement despite due diligence by law enforcement to find the Defendant. Because the state did not purposely cause the delay in order to prejudice the Defendant’s case, the delay did not violate the Constitutional right to a speedy trial. The Court found that there was not a reasonable possibility that the destroyed case notes and death of a witness impaired Defendant’s ability to defend. Affirmed.