COMMONWEALTH OF KENTUCKY v. WILLIAM WESTBAY
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RENDERED: APRIL 9, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000767-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ATHOL LEE TAYLOR, JUDGE
ACTION NO. 85-CR-00036
v.
WILLIAM WESTBAY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BUCKINGHAM AND VANMETER, JUDGES.
EMBERTON, CHIEF JUDGE.
The Commonwealth appeals from an order
of the Bullitt Circuit Court dismissing an indictment entered
against William Westbay on July 5, 1985, charging him with
murder.
The circuit court held that the eighteen-year delay in
prosecution denied Westbay’s right to a speedy trial and
dismissed the indictment.
We agree with the well-reasoned
opinion of the circuit court and affirm.
Westbay was indicted in July 1985, and following
various pretrial procedures, his case was set for trial on
November 26, 1985; over the next three years, however, the trial
date on numerous occasions was continued.
The record reveals
that the continuances were the result of requests made at
various times by the Commonwealth and at other times by Westbay,
and at least two continuances were on the court’s own motion.
On December 15, 1988, an order was entered stating that by
agreement of the parties, the case was removed from the trial
docket to be reassigned on the motion of either party.
Nothing further happened in the case until the
Commonwealth, through a special prosecutor, on January 2, 2003,
filed a motion to assign the case for pretrial conference and
for a trial date.
On January 22, 2003, Westbay filed a motion
to dismiss the indictment for lack of a speedy trial.
On March
10, 2003, the circuit court dismissed the indictment.
The Sixth Amendment to the United States Constitution
and Section 11 of the Bill of Rights to the Kentucky
Constitution guarantee an accused the right to a speedy trial.
The right is afforded for the benefit of the accused who may or
may not be in custody awaiting trial and who has an interest in
having his case heard promptly, but also for the benefit of
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society.
As noted by the court in Barker v. Wingo,1 delay is
often a defense tactic.
Prosecuting witnesses become
unavailable, their credibility may erode over time, and the
passage of time alone sometimes brings with it a reluctance to
dredge up the past.
Thus, it is a right that is limited by the
prosecution’s right to prepare its case.2
Additionally, it has
been recognized that under both the Kentucky Constitution and
the United States Constitution it is a right that can be waived.3
The Commonwealth argues that Westbay waived his right
to a speedy trial, and therefore, the circuit court erred when
it dismissed the indictment.
In Mann v. Commonwealth,4 the
court, relying on Blair v. Commonwealth,5 stated that the failure
to demand a speedy trial constitutes a waiver.
However, in
Barker, supra, recognizing that the accused has no duty to see
that the prosecution brings him to trial, the court clearly
rejected the demand-waiver rule in favor of a balancing
approach.
Instead of a fixed rule, it provided a four-factor
analysis:
A balancing test necessarily compels
courts to approach speedy trial cases on an
1
407 U.S. 514, 519, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101, 110 (1972).
2
Clark v. Commonwealth, Ky., 293 S.w.2d 465, 466 (1956).
3
Id.
4
Ky. App., 561 S.W.2d 335 (1978).
5
Ky., 458 S.W.2d 761 (1970).
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ad hoc basis. We can do little more than
identify some of the factors which courts
should assess in determining whether a
particular defendant has been deprived of
his right. Though some might express them
in different ways, we identify four such
factors: Length of delay, the reason for
the delay, the defendant’s assertion of his
right, and prejudice to the defendant.6
The Barker analysis was cited with approval and
followed in Preston v. Commonwealth.7
Applying these same
factors to the present case, there is no conclusion but that the
circuit court correctly found that Westbay was denied his right
to a speedy trial.
There was an inordinate delay in the prosecution of
Westbay’s case and there is no reasonable justification for
taking eighteen years to prepare a murder case.
The admitted
difficulty in contacting witnesses and evidence after an
eighteen-year delay sufficiently triggers a presumption of
prejudice set forth in Barker that it needs no further
discussion.
It is equally clear that the circuit court correctly
found that the delay in this case is attributable to
prosecutorial neglect.
This is not a case where numerous
motions for extensions of the trial date were requested by the
accused or complex pretrial motions prolonged the trial date.
6
Barker, supra, at 407 U.S. 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116.
7
Ky. App., 898 S.W. 2d 504 (1995).
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It appears that for unexplained reasons the case was simply
dormant.
Under Barker, supra, it is not fatal to an accused’s
speedy trial claim if a motion for a speedy trial is not made.
Finally, as to the prejudice Westbay suffered by the
delay, under Barker, Westbay has the burden to establish actual
prejudice.
However, the court noted in Barker the difficulty of
the accused’s task.
The effect of passage of time is lost or
destroyed evidence, absent witnesses, and faded memories so that
prejudice can rarely be shown.
In Preston, the court explained:
“[W]e generally have to recognize that
excessive delay presumptively compromises
the reliability of a trial in ways that
neither party can prove or, for that matter,
identify. While such presumptive prejudice
cannot alone carry a Sixth Amendment claim
without regard to the other Barker criteria,
. . . it is part of the mix of relevant
facts, and its importance increases with the
length of delay.” Doggett v. United States,
505 U.S. 647, 112 S.Ct. 2686, 2692-2693, 120
L.Ed.2d 520, 530-531 (1992) (citations
omitted).8
There is no doubt that the delay in Westbay’s
prosecution prejudiced his defense.
It is impossible for this
court to conceive that witnesses have not disappeared, their
memories faded by the passage of time, and that evidence has not
vanished.
The length of the delay in this case is sufficient so
that we must conclude that Westbay has demonstrated actual
prejudice.
8
Id. at 507-508 (footnote 2).
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We recognize that dismissal of an indictment is a
severe remedy and one that may allow a guilty person to go free
without trial.
Such a disposition of an indictment is contrary
to our basic legal premise that the guilty will be brought to
justice.
However, the right to a speedy trial and the overall
fairness of our criminal justice system require that dismissal
be the only remedy.9
The order dismissing the indictment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler II
Attorney General
Steve Strepey
Louisville, Kentucky
Barry Bertram
Special Assistant Attorney
General and Special Prosecutor
Frankfort, Kentucky
9
Barker, supra, 407 U.S. at 522, 92 S.Ct. at 2188.
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