[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Jones, Slip Opinion No. 2016-Ohio-5105.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-5105
             THE STATE OF OHIO, APPELLANT, v. JONES, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Jones, Slip Opinion No. 2016-Ohio-5105.]
Sixth Amendment—Right to speedy trial—Preindictment delay—Court of appeals
        improperly applied two-step, burden-shifting analysis for determining
        whether delay constitutes due-process violation—Proven unavailability of
        specific evidence that would attack credibility or weight of state’s
        evidence may satisfy due-process requirement of actual prejudice—
        Judgment affirming dismissal of charges reversed and remanded.
      (No. 2015-1427—Submitted April 20, 2016—Decided July 27, 2016.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 101258,
                                   2015-Ohio-2853.
                               _____________________
        FRENCH, J.
        {¶ 1} This discretionary appeal by the state of Ohio asks this court to
clarify the standard governing claims of prejudice based on preindictment delay.
                                  SUPREME COURT OF OHIO




The Cuyahoga County Court of Common Pleas dismissed charges of rape and
kidnapping against appellee, Demetrius Jones, after determining that the state’s
indictment of Jones one day before the expiration of the applicable 20-year statute
of limitations constituted unconstitutional preindictment delay.                    The Eighth
District Court of Appeals affirmed that dismissal. Because the court of appeals
used an improper standard in its analysis, however, we reverse and remand to that
court for further review.
                            Facts and procedural background
         {¶ 2} Early on September 2, 1993, S.W. reported to the Cleveland Police
Department that Jones had raped her late the previous night. The responding
officers completed an incident report and transported S.W. to St. Luke’s Hospital,
where a rape kit was administered.
         {¶ 3} The incident report lists addresses for S.W., S.W’s mother—who is
listed as a witness—and Jones, and it also includes S.W.’s account of the alleged
rape. S.W. stated that she was with Jones at his mother’s apartment, where Jones
also lived. She said that when she told Jones that she had to leave, he refused to
let her go, locked her in his bedroom, threw her on the bed, threatened her with a
knife, and told her she was not leaving until they had sex. She said that she
screamed for help and fought Jones but that neither Jones’s mother nor his brother
responded.1 She said that Jones ultimately had vaginal intercourse with her and
that her clothes were ripped during the offense.
         {¶ 4} S.W.’s medical records indicate that she identified Jones as her
attacker and that at the time of her forensic exam, she was still wearing the clothes
she wore at the time of the alleged rape.
         {¶ 5} In the week after the alleged rape, police officers twice
unsuccessfully attempted to locate S.W. at the address listed in the incident report.

1
 Jones’s counsel contested S.W.’s identification of the other individual as Jones’s brother but did
not identify the individual.




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                                    January Term, 2016




A police report dated September 8, 1993 characterizes the address listed for S.W.
as “a bad address.” There is no indication that the officers made any other
attempt to contact S.W. And despite S.W.’s identification of Jones by name and
address, the report states, “Until such time as the victim comes forth and assist[s]
in this investigation we have no further investigative leads.” The record does not
reveal that the police took any other investigative steps, such as photographing
S.W. or the alleged crime scene, collecting S.W.’s clothing or other physical
evidence, or interviewing potential witnesses. Rather, the report states that Jones
“is no longer wanted” in connection with the case.
        {¶ 6} Even though S.W. had identified Jones, the Cleveland Police
Department sent S.W.’s rape kit to the Ohio Bureau of Criminal Investigation
(“BCI”) for DNA testing in September 2011, 18 years after the alleged rape, as
part of Ohio’s sexual-assault-kit testing initiative. BCI informed the Cleveland
Police Department in August 2012 that the testing of swabs from the rape kit
resulted in two DNA profiles—one consistent with S.W. and one consistent with
Jones. In June 2013, BCI informed the Cleveland Police Department and the
Cuyahoga County prosecutor’s office that DNA from the rape kit matched a
sample of Jones’s DNA in the Combined DNA Index System.
        {¶ 7} On August 30, 2013, one day before the expiration of the 20-year
statute of limitations that was applicable at the time,2 the Cuyahoga County Grand
Jury returned an indictment, charging Jones with rape and kidnapping.
        {¶ 8} Jones filed a motion to dismiss the indictment with prejudice in the
Cuyahoga County Court of Common Pleas, based on unconstitutional
preindictment delay. He argued that as a result of the state’s delay in pursuing the


2
  Effective July 16, 2015, the General Assembly extended the limitations period for rape in R.C.
2901.13(A) from 20 years to 25 years. See 2015 Sub.H.B. No. 6. The amended statute also
established special rules for rape and sexual-battery cases in which a DNA match is made. In
those cases, prosecution may be commenced within the longer of 25 years after the offense is
committed or five years after the DNA match is made. R.C. 2901.13(D)(1) and (2).




                                               3
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indictment, his mother, Patricia Ann Watkins, who S.W. alleged to have been
present at the time of the alleged rape and who died in 2011, was no longer an
available witness. Jones also argued that he is prejudiced by the unavailability of
S.W.’s 911 call and any physical evidence, including S.W.’s clothing. Jones
argued that the delay was not justified because, Jones asserts, contrary to the
supposed inability to locate S.W., the Cleveland Police Department arrested S.W.
on numerous occasions subsequent to the alleged rape. And at a hearing on
Jones’s motion to dismiss, his attorney argued that the belated DNA match did not
justify the delay because Jones’s identity was not unknown. The trial court
granted Jones’s motion to dismiss, noting prejudice from the loss of physical
evidence and the death of Jones’s mother.
       {¶ 9} The Eighth District affirmed in a divided en banc decision. The
majority evaluated Jones’s claim “in terms of basic concepts of due process and
fundamental justice” and concluded that Jones suffered actual prejudice as a result
of the nearly 20-year delay between the alleged offenses and the indictment.
2015-Ohio-2853, 35 N.E.3d 606, ¶ 47-48. The dissent, however, criticized the
majority’s “new so-called ‘due process and fundamental justice’ standard” as “in
conflict with the long-standing actual or substantial prejudice standard that has
been in play over the past three decades in Ohio.” Id. at ¶ 51 (S. Gallagher, J.,
dissenting).   The dissent reasoned that Jones could not demonstrate actual
prejudice, in part because he has no way to demonstrate what his mother’s
testimony would have been. Id. at ¶ 54.
       {¶ 10} We accepted the state’s discretionary appeal. 143 Ohio St.3d 1542,
2015-Ohio-4633, 40 N.E.3d 1179.
                                     Analysis
       {¶ 11} The Sixth Amendment to the United States Constitution guarantees
the accused in a criminal prosecution “the right to a speedy and public trial.” But
on its face, the Sixth Amendment provides no protection to those who have not




                                          4
                                 January Term, 2016




yet been accused; it does not “require the Government to discover, investigate,
and accuse any person within any particular period of time.” United States v.
Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Statutes of
limitations provide the ultimate time limit within which the government must
prosecute a defendant—a definite point “beyond which there is an irrebuttable
presumption that a defendant’s right to a fair trial would be prejudiced.” Id. at
322. See also United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52
L.Ed.2d 752 (1977) (stating that statutes of limitations provide predictable limits
to prevent initiation of overly stale charges).          But when unjustifiable
preindictment delay causes actual prejudice to a defendant’s right to a fair trial,
despite the state’s initiation of prosecution within the statutorily defined
limitations period, the Due Process Clause affords the defendant additional
protection. Id.
       {¶ 12} This court has stated succinctly that preindictment delay violates
due process only when it is unjustifiable and causes actual prejudice:         “An
unjustifiable delay between the commission of an offense and a defendant’s
indictment therefor, which results in actual prejudice to the defendant, is a
violation of the right to due process of law” under the United States and Ohio
Constitutions.    State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984),
paragraph two of the syllabus.
       {¶ 13} And we have firmly established a burden-shifting framework for
analyzing a due-process claim based on preindictment delay. Once a defendant
presents evidence of actual prejudice, the burden shifts to the state to produce
evidence of a justifiable reason for the delay. State v. Whiting, 84 Ohio St.3d 215,
217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-
3954, 45 N.E.3d 127, ¶ 99.
       {¶ 14} Here, the state argues that the Eighth District’s majority opinion
breaks from well-established precedent requiring a defendant to establish actual




                                         5
                              SUPREME COURT OF OHIO




prejudice—separate from the state’s reasons for the delay—before the burden
shifts to the state to justify its delay. We agree.
        {¶ 15} The Eighth District’s majority opinion acknowledges the two-part,
burden-shifting test for determining whether preindictment delay amounts to a
violation of due process. 2015-Ohio-2853, 35 N.E.3d 606, at ¶ 23. Nevertheless,
as we explain below, under the guise of determining the appropriate standard for
gauging actual prejudice, the majority blurred the distinctions between the
existence of actual prejudice and the lack of a justifiable reason for the delay by
focusing almost exclusively on the actions and inactions of the police.
        {¶ 16} As to the appropriate test and the shifting burden of proof that
applies to a claim of preindictment delay, the dissent got it right. It aptly noted
that unjustifiable delay does not violate due process unless it results in actual
prejudice. Id. at ¶ 51 (S. Gallagher, J., dissenting), citing Luck, 15 Ohio St.3d
150, 472 N.E.2d 1097, at paragraph two of the syllabus. Accordingly, the dissent
reasoned, because Jones failed to carry his burden of establishing actual prejudice,
the state had no obligation to present evidence justifying the delay in this case.
See Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 107
(denying relief on claim of unconstitutional preindictment delay without
considering reasons for delay when defendant failed to establish prejudice).
        {¶ 17} Although the reasons for the preindictment delay are irrelevant to
the existence of, and Jones’s burden to prove, actual prejudice, the majority
concluded:


        [W]here the identity of the defendant as the accused perpetrator
        was known from the beginning, where the state barely investigated
        the case and closed it within one week of the start of its
        investigation, and where no further investigation or technological
        advances occurred in the time between the initial investigation and




                                           6
                                January Term, 2016




       the indictment, we evaluate Jones’s claim of actual prejudice in
       terms of basic concepts of due process and fundamental justice.


       {¶ 18} 2015-Ohio-2853, 35 N.E.3d 606, at ¶ 47. The majority’s focus on
the actions and inactions of the police—including the closing of the police
investigation within one week, after cursory attempts to contact S.W. and despite
the existence of a named suspect, and the questionable claim that the police could
not locate S.W., id. at ¶ 45-46—demonstrates the majority’s abandonment of the
two-step, burden-shifting analysis for determining whether preindictment delay
constitutes a due-process violation. By considering the reasons for the state’s
delay before independently determining whether Jones established actual
prejudice because of that delay, the Eighth District majority erred.
       {¶ 19} We now turn to the state’s second argument—that the Eighth
District majority ignored precedent by concluding that Jones established actual
prejudice, because the record contains only speculation regarding the exculpatory
value of the allegedly lost or otherwise unavailable evidence. Jones responds that
a defendant establishes actual prejudice by showing that a preindictment delay led
to the loss of “critical information” material to the determination of guilt or
innocence.
       {¶ 20} A determination of actual prejudice involves “ ‘a delicate
judgment’ ” and a case-by-case consideration of the particular circumstances.
State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52,
quoting Marion, 404 U.S. at 325, 92 S.Ct. 455, 30 L.Ed.2d 468. A court must
“consider the evidence as it exists when the indictment is filed and the prejudice
the defendant will suffer at trial due to the delay.” Id. This court has suggested
that speculative prejudice does not satisfy the defendant’s burden. Id. at ¶ 56
(noting that Walls’s claims of prejudice were speculative at best); Adams, 144
Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 100 (noting the difficulty




                                         7
                                SUPREME COURT OF OHIO




for defendants claiming unconstitutional preindictment delay because “proof of
prejudice is always speculative”).
        {¶ 21} The “possibility that memories will fade, witnesses will become
inaccessible, or evidence will be lost is not sufficient to establish actual
prejudice.” (Emphasis added.) Id. at ¶ 105, citing Marion at 325-326. Those are
“the real possibilit[ies] of prejudice inherent in any extended delay,” and statutes
of limitations sufficiently protect against them. Marion at 326. That does not
mean, however, that demonstrably faded memories and actually unavailable
witnesses or lost evidence cannot satisfy the actual-prejudice requirement.
        {¶ 22} The Eighth District majority distinguished between two purported
standards for determining the existence of actual prejudice. It referred to the first
as the “exculpatory evidence standard,” under which the defendant must
demonstrate the exculpatory value of the evidence of which he or she has been
deprived. 2015-Ohio-2853, 35 N.E.3d 606, at ¶ 14-15, citing State v. Thomas, 8th
Dist. Cuyahoga No. 101202, 2015-Ohio-415, ¶ 11. That standard, the majority
stated, requires the defendant to “show that missing or unavailable evidence
would have been exculpatory, as opposed to merely attacking the credibility of
the state’s evidence.” Id. at ¶ 14. It contrasted that standard with a second, “less
stringent” one based on “concepts of due process and fundamental justice.” Id. at
¶ 17, 19, citing State v. Mack, 8th Dist. Cuyahoga No. 100965, 2014-Ohio-4817,
and State v. Doksa, 113 Ohio App.3d 277, 680 N.E.2d 1043 (8th Dist.1996).3 The
majority ultimately chose to apply the latter standard in this case.
        {¶ 23} We reject the Eighth District majority’s application of an
amorphous standard based on concepts of fundamental justice to determine the
existence of actual prejudice. But we also reject the majority’s characterization of

3
  It is not clear that either Mack or Doksa applied a less stringent standard to the defendant’s
burden of establishing actual prejudice. Despite a reference to general due-process principles,
later quoted in Mack, the Doksa opinion emphasizes the independent requirement of actual
prejudice as part of the due-process analysis. Doksa at 280.




                                               8
                                January Term, 2016




the alternative standard as requiring the loss of evidence with demonstrably
exculpatory value that goes beyond attacking the credibility of the state’s
evidence. Each time this court has considered preindictment delay, we have
scrutinized the claim of prejudice vis-à-vis the particular evidence that was lost or
unavailable as a result of the delay and, in particular, considered the relevance of
the lost evidence and its purported effect on the defense. See, e.g., Walls, 96 Ohio
St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, at ¶ 52.
       {¶ 24} Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097, offers apt guidance
regarding actual prejudice.    Luck argued that a 15-year preindictment delay
prejudiced her, based on the deaths of two key witnesses, the fading of memories
and changing appearances—which resulted in one witness’s inability to identify
Luck as he had 15 years before—and the loss of evidence, including recorded
police interviews of potential witnesses and suspects.        Id. at 153-154.    We
balanced those prejudicial factors against the evidence at the time of the
indictment to determine whether Luck would suffer actual prejudice were she
required to stand trial, and we held that she would. Id. at 157-158.
       {¶ 25} We reasoned, “[I]t cannot be said that the missing evidence or the
dead witnesses would not have minimized or eliminated the impact of the state’s
circumstantial evidence” connecting Luck to the murder.           Id. at 157.    For
example, one of the dead witnesses was purportedly with Luck at the time of the
alleged murder, and Luck described that witness as the one person who could
have helped her defense. Although there was no record establishing what that
witness would have actually testified to, Luck was “obviously prejudiced by not
being able to seek verification of her story from [the witness] and thereby
establish mitigating factors or a defense to the charge against her.” Id. at 158.
Thus, the proven unavailability of specific evidence or testimony that would
attack the credibility or weight of the state’s evidence against a defendant, and




                                         9
                            SUPREME COURT OF OHIO




thereby aid in establishing a defense, may satisfy the due-process requirement of
actual prejudice.
       {¶ 26} To be sure, the death of a potential witness will not always
constitute actual prejudice. In Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45
N.E.3d 127, as in Luck, we considered the unavailable evidence in light of the
other evidence available at the time of the indictment and in light of its relevance
to the defense. We acknowledged that the preindictment death of a witness can
constitute prejudice “if the defendant can identify exculpatory evidence that was
lost and show that the exculpatory evidence could not be obtained by other
means.” Adams at ¶ 103. Adams, however, did not explain what evidence the
deceased witness “might have offered,” and, moreover, the deceased witness had
actually implicated Adams in the murder before he died; we stated that “[i]f
anything, [the witness’s] absence at trial was a benefit to Adams’s defense.” Id.
       {¶ 27} We agree with the dissent’s concerns about a defendant’s reliance
on mere speculation to support a claim of actual prejudice. See 2015-Ohio-2853,
35 N.E.3d 606, at ¶ 52-53 (S. Gallagher, J., dissenting). And as we recognized
above, the possibility of faded memories, inaccessible witnesses, and lost
evidence is insufficient to demonstrate actual prejudice. Nevertheless, we reject
the state’s suggestion that any claim of actual prejudice based on the death of a
potential witness is too speculative to succeed unless the defendant can establish
precisely what that witness would testify to and that the testimony would be
directly exculpatory.
       {¶ 28} Jones’s inability to articulate specifically what his mother’s
testimony would have been does not render his claim of prejudice fatally
speculative. Indeed, we have held that a defendant may establish actual prejudice
where he or she is unable to seek verification of his or her story from a deceased
witness. Luck at 157. Luck demonstrates that a defendant need not know what
the exact substance of an unavailable witness’s testimony would have been in




                                        10
                                 January Term, 2016




order to establish actual prejudice based on the witness’s unavailability. Actual
prejudice exists when missing evidence or unavailable testimony, identified by
the defendant and relevant to the defense, would minimize or eliminate the impact
of the state’s evidence and bolster the defense. Id. at 157-158. Although defense
counsel acknowledged that he did not know how Jones’s mother would have
testified at trial—because she was never questioned prior to her death—he offered
an explanation of “what exculpatory testimony [the witness] might have offered,”
Adams at ¶ 103.
          {¶ 29} We decline to decide whether Jones succeeded, on the record
before the trial court, in establishing actual prejudice to his ability to defend
himself and, if so, whether the state met its burden of establishing a justifiable
reason for the delay in bringing charges against Jones. Rather, the court of
appeals should make that determination in the first instance, applying the burden-
shifting analysis enunciated in Whiting, 84 Ohio St.3d 215, 702 N.E.2d 1199, and
the actual-prejudice standard from Luck, 15 Ohio St.3d 150, 472 N.E.3d 1097.
                                     Conclusion
          {¶ 30} Because the Eighth District majority applied an incorrect standard
in its analysis of Jones’s preindictment-delay claim, we reverse that court’s
judgment and remand for a determination of Jones’s appeal utilizing the two-part,
burden-shifting test outlined in Whiting and analyzing Jones’s claim of actual
prejudice consistent with Luck and this opinion.
                                                                Judgment reversed
                                                              and cause remanded.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ.,
concur.
          LANZINGER, J., concurs in judgment only.
                                _________________




                                         11
                            SUPREME COURT OF OHIO




       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brett
Hammond and Daniel T. Van, Assistant Prosecuting Attorneys, for appellant.
       Russell S. Bensing, for appellee.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Samuel C. Peterson, Deputy Solicitor, urging reversal for amicus curiae Ohio
Attorney General Michael DeWine.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel
Lipman Curran, Assistant Prosecuting Attorney, urging reversal for amicus curiae
Ohio Prosecuting Attorneys Association.
       Calfee, Halter & Griswold L.L.P., Georgia W. Yanchar, and Alexander B.
Reich; and Goodwin Procter L.L.P., Kevin P. Martin, Alexandra D. Valenti, and
Brigid M. Morris, urging reversal for amici curiae Joyful Heart Foundation,
Aequitas: The Prosecutors’ Resource on Violence Against Women, Rape Abuse
Incest National Network (RAINN), Ohio Alliance to End Sexual Violence, and
National Alliance to End Sexual Violence.
       Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant
Public Defender, urging affirmance for amicus curiae Ohio Public Defender.
       Robert L. Tobik, Cuyahoga County Public Defender, and Erika Cunliffe,
Jeffrey Gamso, and Cullen Sweeney, Assistant Public Defenders; and Kevin
Spellacy, urging affirmance for amici curiae Cuyahoga County Public Defender
and Cuyahoga Criminal Defense Attorneys Association.
       Sarah M. Schregardus, urging affirmance for amicus curiae Ohio
Association of Criminal Defense Lawyers.
                              _________________




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