John Revils v. State of Arkansas

ANDREE LAYTON ROAF, JUDGE

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

DIVISION IV

JOHN REVILS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 00-591

FEBRUARY 14, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-2550]

THE HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

John Revils was convicted by a jury of aggravated robbery and misdemeanor theft of property. On appeal, Revils argues that the trial court erred in denying his motion to dismiss, because the State offered no explanation for the lengthy delay in bringing charges against him. We affirm.

John Revils was charged with aggravated robbery and theft of property. The State also charged Revils as a habitual offender, alleging that he had previously been convicted of more than four felonies, and called for an enhancement pursuant to Ark. Code Ann. § 5-4-501(b) (1997). The State alleged that on November 24, 1997, Revils threatened Little Rock Dodge salesman Victor Browning with a knife during a test drive of a pick-up truck and then stole the truck. Browning viewed a photographic lineup on March 31, 1998, and identified Revils as the perpetrator. An arrest warrant for Revils was issued on April 2, 1998, a felony information charging him with aggravated robbery and theft of property was filed on July 14, 1999, and a bench warrant was issued on July 16, 1999. Revils was arrested on the charges on August 9, 1999, and was tried on December 7, 1999.

Prior to trial, Revils filed a motion to dismiss, claiming that the delay in bringing the charges deprived him of the ability to adequately defend himself because the passage of time would hinder his ability to locate witnesses. Revils also asserted that, even if he could locate the witnesses, it would be doubtful that they would be able to testify with accuracy. The State filed no response. During his pretrial hearing, Revils provided no testimony but relied on his motion. The State argued that Revils's constitutional rights were not violated and that he was not prejudiced by the delay. The trial court denied the motion stating that, "the law says that speedy trial begins to run when the defendant is arrested or when charges are filed, which would have been August 9, 1999, and with the dates I have in the file, this is well within the time."

After the State rested its case, the trial court granted Revils's motion for a directed verdict on the felony theft of property charge and reduced it to a misdemeanor but denied Revils's motion for a directed verdict on the aggravated robbery charge. A jury found Revils guilty of aggravated robbery and theft of property, and sentenced him to sixteen years in the Department of Correction and one year in the county jail and a fine of $1,000, respectively.

On appeal, Revils argues that the trial court erred in denying his motion to dismiss when the State offered no explanation for the lengthy delay in bringing charges against him. He concedes that the statute of limitations had not run on these offenses. See Ark. R. Crim. P. 28.2(a). However, he asserts that his whereabouts should have been known to the State, as he was incarcerated withineight days of the incident, and that the delay hindered his ability to locate witnesses who could recall and accurately testify as to his whereabouts at the time of the incident.

Ordinarily, where an indictment is returned within the period of limitations, due process considerations do not arise. Forgy v. State, 16 Ark. App. 76, 697 S.W.2d 126 (1985). However, the statute of limitations defines only the outer limits of prosecution beyond which there is an irrebutable presumption that a defendant's right to a fair trial has been prejudiced. Within the guidelines of the statute of limitations, the due process clause still has a limited role to play in protecting against oppressive delay which prejudices a defendant's rights. When an indictment is returned within the period of limitations, as is the case here, due process considerations do not arise unless prejudice to the defense resulting from delay is alleged and demonstrated and it appears that the government intentionally delayed the indictment to gain some tactical advantage over the defendant. United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971); Young v. State,14 Ark. App. 122, 685 S.W.2d 823 (1985). The burden is then on the State to give a satisfactory explanation for the delay. Young, supra. Thus, to prevail, Revils must demonstrate that he suffered prejudice as a result of the delay and that the State intentionally delayed bringing charges to gain some tactical advantage.

In Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978), there was a three-year delay between the crime and the date on which charges were filed. Our supreme court held that where the accused was prevented from using two alibi witnesses, one whose whereabouts were not known and the other who had died a year and a half after the crime, the State should have been required to provide a satisfactory reason for the delay. The case was remanded with directions that unless the State demonstrated that the reason for the delay was other than to gain a tactical advantage against theaccused, the charges should be dismissed. In Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984), the delay was even longer. There, children were removed from the parents' custody in 1978 based on allegations of sexual abuse, but the mother and step-father were not charged with rape of the children until 1983. The supreme court held that although the delay was unusually long, it could not say that the prosecution was intentionally delayed in order to gain a tactical advantage over the appellants and found no prejudicial error.

Here, Revils did not testify at the pre-trial hearing but merely relied on the information filed in his motion. In his motion, Revils contended that the delay was prejudicial because it would be doubtful that his witnesses could testify with the degree of accuracy required to be effective but that the State would call witnesses who would testify with the aid of notes to refresh their memory. However, at trial, Revils's grandmother and father testified, and both stated that they remembered Revils being in Dewitt and Raydell throughout the week of the robbery, as it was Thanksgiving. Further, Revils's grandmother testified that she kept a calender where she wrote things down and that she had written that Revils used the phone on Friday and that she saw Revils on the date in question. Revils has not shown how he suffered any prejudice from the delay or that the State delayed his trial in order to gain a tactical advantage. The testimony showed that both of Revils's witnesses remembered the week in question. Although Revils relies on Officer Robert Wortham's testimony that he "knew where [Mr. Revils] was and how to take care of this" as evidence that the State lacked an adequate explanation for the delay on the part of the State, this reliance is misplaced because Revils has failed to demonstrate prejudice.

Revils further relies on Forgy v. State, 16 Ark. App. 76, 697 S.W.2d 126 (1985), in support of his assertion that he adequately pleaded the necessary prejudice to shift the burden to the State to explain its delay in bringing charges. In Forgy the appellant denied having committed therobbery and testified that due to the passage of time he would be unable to establish his whereabouts on the day of the crime. In affirming the conviction, this court held that a one-half year delay in arresting Forgy for armed robbery was not oppressive delay where police had attempted to locate Forgy, there was testimony they lacked Forgy's address, Forgy had moved several times, had no utilities connected in own name, no steady job, and no phone listing for most of this period. However, unlike Forgy, Revils presented no evidence showing that he was unable to find witnesses or to establish his whereabouts on the date of the crime due to the passage of time. In fact, two witnesses testified in this regard at his trial and he consequently has failed to demonstrate that he was prejudiced by the delay.

Affirmed.

Pittman and Baker, JJ., agree.