State v. Bradley
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JAMAL SHAREEF BRADLEY, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 01/25/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0821 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-142931-001 DT The Honorable Maria del Mar Verdin, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Michael O Toole, Assistant Attorney General Attorneys for Appellee Phoenix Theresa M. Armendarez, P.L.C. By Theresa M. Armendarez Attorney for Appellant Phoenix B R O W N, Judge ¶1 Jamal Shareef Bradley appeals from his convictions and sentences for three counts of child abuse, two counts of sexual conduct with a minor, six counts of kidnapping, one count of sexual abuse, one count of attempted molestation of a child, and three counts of molestation of a child. For the following reasons, we affirm. BACKGROUND ¶2 In July 2007, Bradley was indicted on eighteen felony counts for offenses allegedly committed against his girlfriend and her five children between July 2000 and September 2001. On June 29, 2009, Bradley moved to dismiss based on pre-indictment delay, contending that the delay violated his rights under both the United States and Arizona Constitutions. Bradley pointed to the State s delay in waiting until 2007 to file charges relating to two child abuse offenses that were part of a 2001 police investigation, as well as the State s delay in filing the remaining charges, the basis for which arose from subsequent police investigations occurring in 2004. He further contended that the State waited between three and six years to indict him and that it did so to gain an advantage over him. Following oral argument, the court denied the motion without explanation. ¶3 An eleven-day jury trial commenced on July 23, 2009. The jury acquitted Bradley of two counts of child abuse, but found him guilty of all remaining charges. The trial court sentenced Bradley to two consecutive life terms, without the possibility misconduct of parole convictions, for and thirty-five imposed 2 years on presumptive, the sexual consecutive terms of imprisonment on the remaining counts. Bradley timely appealed. DISCUSSION ¶4 Bradley argues that (1) the trial court erred in denying his motion to dismiss for pre-indictment delay, and (2) his rights to a speedy trial were violated under both the state and federal constitutions. I. ¶5 Pre-Indictment Delay Independent of the Speedy Trial Clause of the Sixth Amendment, the Due Process Clause has a limited role to play in protecting against oppressive [pre-indictment] delay. States v. Lovasco, 431 U.S. 783, 789 (1977). United To prevail on such a claim, a defendant must show (1) intentional delay by the prosecution to obtain a tactical advantage, and (2) actual and substantial prejudice as a result of the delay. State v. Lemming, 188 Ariz. 459, 462, 937 P.2d 381, 384 (App. 1997). We review the court s denial of a motion to dismiss for an abuse of discretion. Id. at 460, 937 P.2d at 382. A. ¶6 Intentional Delay to Gain a Tactical Advantage Bradley argues that the delay in filing old unsubstantiated charges was a tactical decision by the State and not due investigations. to a lack of We disagree. 3 manpower or priorities in ¶7 Prosecutors are under no duty to file charges if they are not satisfied that they will be able suspect s guilt beyond a reasonable doubt. 791. As such, intentional investigative tactical delay, delay, does not to establish a Lovasco, 431 U.S. at as distinguished violate due from process. Lemming, 188 Ariz. at 462, 937 P.2d at 384. ¶8 Bradley fails to point to any evidence in the record supporting intended his to contention obtain a that the tactical prosecution advantage criminal charges against him. by in this waiting to case file Rather, Bradley simply makes a general assertion that the six-year delay . . . was a tactical decision by the state. ¶9 In 2001, officers investigated child abuse allegations against Bradley after three of the victims. family members discovered bruising on According to Bradley s motion to dismiss, a police report from the 2001 investigation indicated [t]here is little likelihood of successful criminal prosecution and CPS intervention [is believed to be] in the best interest of the family. When allegations of sexual abuse were made in 2003, an investigating officer was unable to obtain cooperation from the victims despite numerous attempts to contact them via telephone and the postal service. 2004 that Bradley s girlfriend It was not until February, responded to the officer s interview requests and a forensic interview specialist conducted 4 an interview with both Bradley s girlfriend and one of the minor victims. A interviews with few days the later, remaining officers victims. conducted As a forensic result of the information obtained in the interviews, officers attempted to interview Bradley, but were unable to locate him until July 3, 2007. After questioning Bradley, the State promptly indicted him. ¶10 Based on this record, there is no support for Bradley s contention that the prosecution intentionally delayed filing the indictment. Instead, the record shows that much of the evidence was not gathered until 2004, after which police investigators determined they wanted to locate and interview the Bradley prior to seeking prosecution. Bradley does not direct us to any evidence in the record supporting the notion that the State delayed bringing charges for the purpose of harassment or to gain a strategic advantage. Therefore, the trial court did not abuse its discretion in denying his motion to dismiss for pre-indictment delay. See State v. Lacy, 187 Ariz. 340, 346, 929 P.2d 1288, 1294 (1996) (recognizing that [a]bsent proof of an intentional delay for strategic or harassment purposes, . . . [a] claim [of pre-indictment delay] must fail ). B. ¶11 failed Actual and Substantial Prejudice Even if Bradley established intentional delay, he has to show the requisite prejudice. 5 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 prejudice, it is not enough to show the mere passage of time nor to offer some suggestion of speculative harm; rather the defendant evidence showing material harm. must present concrete State v. Dunlap, 187 Ariz. 441, 450, 930 P.2d 518, 527 (App. 1996) (internal citation and quotation omitted). ¶12 Bradley argues that he suffered actual prejudice because he was unable to call witnesses due to his lack of memory of his whereabouts at the time of the alleged offenses. But his general assertion is insufficient to show actual and substantial prejudice because it is purely speculative. Bradley has not suggested which witnesses he may have called or what the nature of their testimony would have been, nor has he alleged the existence of any concrete evidence tending to show material harm caused by the State s delay. See State v. Everidge, 188 Ariz. 46, 47, 932 P.2d 802, 803 (App. 1996) ( The mere claim that a possible witness might have been found is nothing more than speculation. ); State v. Torres, 116 Ariz. 377, 379, 569 P.2d 807, 809 (1977) (defendant did not establish substantial prejudice when she failed to show how an unavailable eyewitness 6 would have aided in defense). Therefore, the trial court did not abuse its discretion in denying Bradley s motion to dismiss. II. ¶13 Constitutional Right to a Speedy Trial Bradley also argues that the post-indictment delay violated his state and federal constitutional rights to a speedy trial. court However, he failed to raise this issue before the trial and error. therefore has forfeited review, absent fundamental See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail under this standard of review, a defendant must establish that: (1) error occurred; (2) the error is fundamental; and (3) the error caused the defendant prejudice. Id. at 568, ¶¶ 23-26, 115 P.3d at 608. Error is fundamental if it goes to the foundation of [the] case, takes away a right that is essential to [the] defense, and is of such magnitude that [the defendant] could not have received a fair trial. Id. at ¶ 24. Evidence required to prove prejudice varies, depending upon the type of error that occurred and the facts of a particular case. ¶14 Provisions Constitutions in guarantee Id. at ¶ 26. the the United right to States a speedy Const. amend. VI; Ariz. Const. art. 2, § 24. and Arizona trial. U.S. Neither provision, however, requires that the trial be held within a specific time period. 1270 State v. Spreitz, 190 Ariz. 129, 139, 945 P.2d 1260, (1997). We apply the following 7 factors to determine whether post-indictment delay requires reversal: (1) length of the delay; (2) reason for the delay; (3) whether the defendant has demanded a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). None of these factors have talismanic qualities; courts must still engage in a difficult and sensitive balancing process. Id. at 533. However, in weighing the factors, length of the delay is the least important significant. ¶15 and prejudice to the defendant is trial rights are calculated defendant is charged by indictment. from delay presumptively trial analysis. approaches prejudicial one and the date McCutcheon v. Superior Ct., 150 Ariz. 312, 316, 723 P.2d 661, 665 (1986). (1992). most Spreitz, 190 Ariz. at 139-40, 945 P.2d at 1270-71. Speedy indictment the year, therefore As the post- the delay triggers a is speedy Doggett v. United States, 505 U.S. 647, 652 n.1 However, constitutional speedy trial protections apply only to delay caused by the State, not delay . . . attributable to the defendant. Barker, 407 U.S. at 529; see State v. Burkett, 179 Ariz. 109, 115, 876 P.2d 1144, 1150 (App. 1993). ¶16 Here, Bradley was indicted on July 13, 2007, and trial began on July 23, 2009. Thus, because the delay was a little more than two years, it is presumptively prejudicial, triggering a speedy trial analysis under Barker. Although the delay Bradley Bradley experienced was 8 substantial, was responsible for nearly half of it. 1 Delays occurred on four separate occasions due to defendant s motions to continue and trial was rescheduled twice due to defense counsel s withdrawals from the case. Moreover, although Bradley asserted his right to a speedy trial eight months after indictment, he subsequently requested four continuances. See Spreitz, 190 Ariz. at 140, 945 P.2d at 1271 (finding no speedy trial violation where, inter alia, defendant moved to continue trial after asserting his speedy trial rights). ¶17 Bradley argues he was prejudiced by the delay because he was unable to accurately recall his whereabouts at the time 1 The delay attributable to Bradley is as follows: after defense counsel filed a motion to withdraw, the court vacated the February 5, 2008, trial date and rescheduled trial for April 1, 2008. When Bradley filed a motion to continue, the trial court rescheduled the trial date from August 4, 2008, to October 1, 2008. The trial court subsequently extended the trial date from October 1 to November 5, 2008, when the State filed a motion to continue, which was joined by the defense. Bradley again filed a motion to continue, resulting in an extension of the trial date from December 11, 2008, to January 5, 2009. After defense counsel filed a motion to withdraw, trial was rescheduled from January 5 to April 6, 2009. The trial date was further delayed from April 6 to July 16, 2009, when defense counsel filed a motion to continue and the State filed a notice of conflicts. Therefore, the delay attributable to Bradley totals 366 days. Moreover, we note that Bradley failed to object to a further delay when the trial court granted the State s motion for complex case designation on March 27, 2008. See Snyder v. Donato, 211 Ariz. 117, 124, ¶ 27, 118 P.3d 632, 639 (App. 2005) (explaining that a complex case is one that is so complicated that the ordinary time limits for trial must be extended to allow the parties more time to prepare and fully present their case). 9 of the alleged appropriate offenses, witnesses possibility of defendant s] position violated. United (1986). As entirely to therefore support prejudice is that States explained, and his not [his] v. Loud supra speculative nothing ¶ in was unable defense. 11, the to trial Hawk, call However, sufficient speedy to 474 support rights U.S. Bradley s record the [a were 302, 315 argument reveals is what witnesses he would have called or how they would have aided in his defense. ¶18 in In sum, after weighing each of the Barker factors, and particular the lack of actual prejudice to Bradley, we conclude that his constitutional rights to a speedy trial were not violated. Therefore, the court did not commit any error, much less fundamental error, by failing to sua sponte dismiss the charges filed against Bradley. 10 CONCLUSION ¶19 For the following reasons, we affirm Bradley s convictions and sentences. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ _________________________________ DANIEL A. BARKER, Presiding Judge /s/ _________________________________ PATRICIA K. NORRIS, Judge 11
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