              THE STATE OF OHIO, APPELLEE, v. WHITING, APPELLANT.

               [Cite as State v. Whiting (1998), ___ Ohio St.3d ___.]

Criminal law – Indictment properly dismissed by trial court when defendant

      presents evidence establishing substantial prejudice resulting from

      preindictment delay and state fails to produce evidence of a justifiable

      reason for the delay.

   (No. 97-2162 – Submitted October 13, 1998 – Decided December 30, 1998.)

       APPEAL from the Court of Appeals for Miami County, No. 96-CA-13.

      Deborah L. Prince was found dead in an Ohio cemetery in 1981. Though

the police investigation pointed to Terry Lee Whiting, Prince’s live-in boyfriend,

he was not indicted for the murder until fourteen years later.

      Whiting moved to dismiss the indictment, arguing that the fourteen-year

preindictment delay substantially prejudiced his defense and that the state had no

justifiable reason for the delay. At the hearing on the motion, Whiting offered

evidence that the loss of crucial exculpatory physical evidence prejudiced his

ability to defend against the charge. Whiting also argued that potential defense

witnesses had died, had suffered mentally debilitating illnesses, or could not be

located. The state cross-examined witnesses and offered two exhibits on the issue

of prejudice, but neither the state nor Whiting presented evidence about the reason

for the fourteen-year delay.

      The trial court permitted both parties to file posthearing memoranda

regarding the motion to dismiss. In his memorandum, Whiting contended that his

motion should be granted because he had demonstrated substantial prejudice

arising from the delay and the state had failed to offer any justification for its delay

in indicting him. The state, however, argued that the burden was on Whiting to
show that the period of delay was unjustifiable and that Whiting had “presented

absolutely no evidence as to the reasons for the delay in the indictment.”

      The trial court overruled Whiting’s motion to dismiss, holding that Whiting

bore the burden of going forward not only to show substantial prejudice from the

delay, but also to show negligence or bad faith on the part of the state. The trial

court found that, although Whiting had demonstrated actual substantial prejudice,

he had presented no evidence to establish the state’s negligence or bad faith.

      At the ensuing trial, the jury failed to return a verdict, and the trial court

declared a mistrial. At that juncture, the trial court agreed to reconsider Whiting’s

motion to dismiss.

      On reconsideration, with the benefit of the testimony from the hearing, the

evidence from trial, and the parties’ memoranda, the trial court granted Whiting’s

motion to dismiss. This reconsidered decision set forth a different burden-shifting

scheme than the court used for its initial decision when it denied the motion to

dismiss. Citing cases from the United States Supreme Court and the Supreme

Court of Ohio, the trial court determined that after a defendant establishes actual

prejudice, the state has the burden to submit a justifiable reason for a delay. The

trial court found that Whiting had produced evidence demonstrating actual

substantial prejudice as a result of the delay and that the state had failed to produce

any evidence to explain the delay.

      On appeal, the state argued that the trial court erred in dismissing the

indictment because the burden of producing evidence that the delay was

unjustifiable was on Whiting. The state argued alternatively that, even if the

burden was on the state, the state justifiably relied, to its detriment, on the trial

court’s contrary decision earlier in the case that Whiting had the burden, and the




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state therefore should have another chance to explain the delay on remand for a

new trial.

      The Miami County Court of Appeals determined that the only point in

dispute on appeal was which party bears the burden to demonstrate a justifiable

reason for a delay between the commission of an offense and an indictment and

concluded that the state, in fact, does have the burden. The court of appeals,

however, additionally decided that, because the trial court led the state to

understand that the burden was Whiting’s, the matter should be remanded to

provide the state an opportunity to meet its burden.      The court of appeals,

therefore, reversed the trial court’s judgment and remanded the case, stating: “On

rehearing, the State will have the burden of producing evidence showing why the

pre-indictment delay occurred, but the burden remains on Whiting to persuade the

court that the delay was unjustifiable.”

      The cause is now before this court upon the allowance of a discretionary

appeal.

                                  __________________

      James D. Bennett, Miami County First Assistant Prosecuting Attorney, for

appellee.

      Sirkin, Pinales, Mezibov & Schwartz, Martin S. Pinales and John

Feldmeier, for appellant.

                                  __________________

      COOK, J. We confirm today our earlier pronouncement in State v. Luck

(1984), 15 Ohio St.3d 150, 15 OBR 296, 472 N.E.2d 1097, that where a defendant

moves to dismiss an indictment and presents evidence establishing substantial

prejudice resulting from preindictment delay, the state bears the burden of

producing evidence of a justifiable reason for the delay. According to the Luck



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burden-shifting analysis, the trial court here erred when it denied defendant’s

motion to dismiss. Because the evidence presented at the hearing on the motion

entitled the defendant to a dismissal of the indictment, the later proceedings in this

case do not support a reversal and remand to allow the state another opportunity to

submit evidence to the court of a justifiable reason for the fourteen-year delay.

        In Luck, this court used the test set forth in United States v. Marion (1971),

404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, and United States v. Lovasco (1977),

431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, to determine when an indictment

should be dismissed due to an unreasonable preindictment delay. Luck, 15 Ohio

St.3d at 153-154, 157-158, 15 OBR at 299, 302-303, 472 N.E.2d at 1102, 1104-

1105.     The Lovasco court burdened the defendant with establishing actual

prejudice from the delay and charged the government with the burden of

producing evidence of a justifiable reason for the delay.         Accordingly, Luck

requires first that the defendant produce evidence demonstrating that the delay has

caused actual prejudice to his defense. Luck, 15 Ohio St.3d at 157-158, 15 OBR at

302-303, 472 N.E.2d at 1104-1105. Then, after the defendant has established

actual prejudice, the state must produce evidence of a justifiable reason for the

delay. Id. at 158, 15 OBR at 303, 472 N.E.2d at 1105. “[T]he prejudice suffered

by the defendant must be viewed in light of the state’s reason for the delay.” Id. at

154, 15 OBR at 299, 472 N.E.2d at 1102, citing Lovasco, 431 U.S. at 789-790, 97

S.Ct. at 2048-2049, 52 L.Ed.2d at 758-759. This court has not disturbed the test

utilized in Luck, and it is well-settled law in Ohio courts.1

        Despite the teachings of Luck, the state did not present any evidence at the

hearing of a justifiable reason for its delay in indicting Whiting. In its posthearing

memorandum, the state argued, against established law, that Whiting had the

burden to explain the delay. It was at that point that the trial court should have



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dismissed the indictment because it found, in accordance with Luck, that Whiting

had demonstrated actual substantial prejudice. With that finding and with no

evidence from the state explaining the delay, the defendant was entitled to a

dismissal. Because the court eventually properly dismissed the indictment, albeit

after a mistrial, that dismissal should be affirmed.

      The state persuaded the court of appeals, however, that the initial erroneous

ruling by the trial court regarding the burden of going forward misled the state in

the succeeding proceedings and that the trial court’s judgment therefore should be

reversed and the case remanded for a new hearing. But since the state’s misstep

on the production of evidence occurred before the trial court expressed its view

that the state had no burden of going forward, the state may not claim to have been

misled by the court’s erroneous ruling. The state rested at the hearing without

offering the evidence required by Luck to counterbalance defendant’s showing of

prejudice resulting from the delay.

      Accordingly, we reverse the judgment of the court of appeals and reinstate

the trial court’s dismissal of Whiting’s indictment.

                                                               Judgment reversed.

      MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG

STRATTON, JJ., concur.

FOOTNOTE

1.    See, e.g., State v. Ellis (May 30, 1997), Montgomery App. No. 15963,

unreported, 1997 WL 282313; State v. Davis (Apr. 15, 1997), Richland App. No.

96-CA-78, unreported, 1997 WL 219180; State v. Glazer (1996), 111 Ohio

App.3d 769, 677 N.E.2d 368; State v. Doksa (1996), 113 Ohio App.3d 277, 680

N.E.2d 1043; State v. Stickney (Dec. 7, 1994), Montgomery App. No. CA 14232,

unreported, 1994 WL 680159; State v. Burrell (Apr. 28, 1989), Portage App. No.



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1948, unreported, 1989 WL 42980; State v. Smith (Feb. 19, 1985), Franklin App.

No. 84AP-785, unreported, 1985 WL 9873.




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