February 21, 1999

WASHINGTON COUNTY - - Martin Allen Johnson, suspect in the homicide of 15 year old Heather Fay Fraser, was arrested in the Orlando, Florida area by US Marshals after receiving a tip via the television program, America’s Most Wanted.

Just over a year ago, on February 23, 1998, 15 year old Heather Fraser’s disappeared. Her body was found and recovered in the Columbia River near Warrenton, Oregon on the following day.

Martin Johnson was quickly developed as a "person of interest" and eventually a suspect. Attempts to locate Johnson over the past year, however, proved fruitless. Sheriff’s Detectives recently came in contact with producers of the internationally recognized crime show, America’s Most Wanted (AMW). AMW agreed to air the story yesterday, February 20, 1999.

Almost immediately after the show aired on the East Coast, a tip came into the AMW hotline suggesting that Johnson was living in the Orlando area. US Marshals from Portland, and local Marshals from the Orlando, established a surveillance of the location provided by the tipster. Johnson was soon arrested by the federal agents and taken into their custody.

Johnson is currently being held on the sole federal charge of Unlawful Flight to Avoid Prosecution. He has not yet been charged with sexual assault warrants that exist in Clackamas and Multnomah Counties. Grand Jury regarding the Fraser homicide is scheduled in Washington County the first week on March.

Months passed. To be precise, more than 20 months passed from the date of defendant's return to Oregon without Clackamas County taking any action to pursue the charges pending against defendant in that county. Then, according to defendant, in November 2000 he learned inadvertently from Washington County jail officials that Clackamas County had placed a hold on him, which in turn caused him to learn of the Clackamas County charges. Defendant requested a speedy trial on the Clackamas County charges. In response, on December 20, 2000, defendant was served with an arrest warrant on the Clackamas County charges and arraigned the following day.

Trial on the Clackamas County charges initially was scheduled for February 9, 2001. The date was postponed several times, on defendant's motion or that of his attorney (during times that defendant was represented). Defendant waived his speedy trial rights for purposes of any postponements that occurred after the scheduled trial date. But he preserved them--and the trial court understood him to do so--as to the state's delay in bringing his case to trial between the time that he was returned to Oregon custody and the time that Clackamas County served its arrest warrant and arraigned him. Eventually, defendant moved to dismiss the Clackamas County charges on both constitutional and statutory speedy trial grounds.

The trial court denied the motion, concluding that the delay between indictment and service of the warrant was "attributable to the defendant's absence from the State of Oregon." The trial court further concluded that, once defendant was returned to Oregon and requested a speedy trial, he was promptly "served with the arrest warrant and arraigned." Further delays in defendant's prosecution were "at the request of the defendant in order to prepare the case."

On appeal, defendant challenges only the trial court's ruling on his statutory right to speedy trial. Defendant points out that approximately three years and five months elapsed between his indictment and trial.

Defendant acknowledges, however, that not all of that delay is attributable to the state. In particular, he agrees that the state could not serve the arrest warrant because he had absconded and that the state's first opportunity to do so came when defendant was brought to Oregon from Florida and lodged in the Washington County jail.

Defendant also agrees that the postponements of his trial at his request are not attributable to the state. Defendant asserts, however, that the delay in the prosecution of his case for more than 20 months "while he sat in the Washington County jail awaiting trial on aggravated murder" is attributable entirely to the state and violated ORS 135.747.

In response, the state argues that defendant impliedly consented to that delay by "elect[ing] to wait 20 months" before requesting a speedy trial on the Clackamas County charges, and that the delay was reasonable because it was appropriate for the state to proceed to trial first on the most serious charge against defendant (i.e., the aggravated murder charge in Washington County).

ORS 135.747 provides:

"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

The statute applies to delays between indictment and arrest. State v. Rohlfing, 155 Or App 127, 130, 963 P2d 87 (1998). A defendant is entitled to dismissal under the statute if the defendant did not cause or consent to the delay and if the case has not been brought to trial within a reasonable period of time. State v. Emery, 318 Or 460, 470-71, 869 P2d 859 (1994); State v. Green, 140 Or App 308, 310-11, 915 P2d 460 (1996). Whether defendant was brought to trial within a reasonable period of time is a question of law that we review for legal error. State v. Kirsch, 162 Or App 392, 394-95, 987 P2d 556 (1999).

We turn to the first prong of the statutory inquiry: whether defendant consented to or caused the delay. Although the state acknowledges that defendant did not expressly consent to the pertinent delay in his prosecution, it argues that he impliedly did so. Specifically, the state argues that defendant knew about the Clackamas County charges while he was awaiting trial in Washington County and that he impliedly consented to the delay by doing "nothing to notify the state or the court of his desire to proceed to trial on those charges."

There are two problems with the state's argument. The first is that the record does not establish the factual predicate for it. The state presented no evidence that defendant knew of the Clackamas County charges. In that regard, the state argues that the charges "would have been readily apparent to defendant almost as soon as he arrived in Oregon." But the state provides no support or further explanation for that argument, and we fail to see why it would be necessarily so. Likewise, contrary to the state's position, there is no basis on this record to infer that defendant necessarily or likely knew that Clackamas County had placed a "hold" on him. Consequently, the mere existence of the hold, without more, permits only speculation as to whether defendant was aware of the Clackamas County charges.

The second problem with the state's argument is that, as a legal matter, implied consent does not arise from the mere failure on a defendant's part to insist that the state bring a case to trial. That is true regardless of the defendant's awareness of the charges against him or her. For example, in Emery, the defendant knew of the charge against him and appeared for trial on the scheduled date, apparently unaware that the trial judge had removed himself from the case due to a conflict of interest. When the trial did not take place as scheduled, the defendant and the state unsuccessfully engaged in plea negotiations. Beyond that, the state made no effort to bring the defendant to trial until more than two years had elapsed, and the defendant did nothing during that time to demand a speedy trial. Emery, 318 Or at 462-63. The Supreme Court concluded that the delay was not attributable to the defendant's consent. Id. at 471. See also Rohlfing, 155 Or App at 131 (the defendant did not impliedly consent to delay where he was unaware of the indictment and did not move or leave the state to avoid arrest). In other words, it remains true that "[t]he law imposes no duty on a defendant, charged with a crime, of calling his case for trial or insisting that it be set for trial at any particular time. That duty devolves upon the state." State v. Chadwick, 150 Or 645, 650, 47 P2d 232 (1935), overruled in part on other grounds, State v. Crosby, 217 Or 393, 342 P2d 831 (1959).

The remaining question is whether the delay was reasonable considering all of the circumstances. Factors to be considered in determining the reasonableness of the delay include the nature of the charges, the length of the delay, and the state's explanation--or lack of one--for failing to bring the case to trial. State v. Davids, ___ Or App ___, ___, ___ P3d ___ (Apr 28, 2004) (slip op at 8). In general, when a defendant has not consented to the delay and the state does not offer an explanation for it, delays of 15 months or more are unreasonable. Id. at ___ (slip op at 7-8 n 4) (surveying cases).

Here, at the hearing on defendant's motion to suppress, the state offered no explanation for its failure to take any steps whatsoever to bring defendant's case to trial in Clackamas County. Tellingly, once defendant requested a speedy trial, the state responded within less than a month by serving the outstanding arrest warrant on defendant and arraigning him the next day. Those facts suggest that the delay was due to neglect, oversight, or lack of interest.

On appeal, the state argues for the first time that the delay was reasonable because it was "in defendant's best interests." More specifically, the state argues that the delay benefitted defendant by allowing him to defend the aggravated murder charge in Washington County without distraction. The first problem with that argument is that it was not advanced below and, consequently, the record is undeveloped in that regard. In particular, nothing in the factual record establishes that the Clackamas County prosecutor delayed serving defendant with the arrest warrant and bringing him to trial for that reason. Second, and in all events, defendant's speedy trial right was his to waive, not the state's.

In sum, defendant neither caused nor consented to the unexplained delay in the prosecution of the Clackamas County charges. Those facts, coupled with the length of that delay--more than 20 months--render the delay unreasonable. We therefore conclude that defendant's motion to dismiss on statutory speedy trial grounds should have been granted.

Reversed and remanded with instructions to dismiss without prejudice.