APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER III, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant was indicted by a Macon County grand jury on November 6, 1974, for unlawful delivery and unlawful possession of a controlled substance. According to the indictment the offenses occurred on November 15, 1973. A hearing was held on a pretrial motion by defendant to dismiss the indictment on the ground that the one-year delay denied defendant due process of law. The trial court dismissed the indictment. The State appeals.
Issue No. 1. Whether the trial court has the power to dismiss an indictment on a ground other than those listed in section 114-1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 114-1).
Section 114-1(a)(1) through (10) sets forth various grounds for motions to dismiss indictments. Denial of the constitutional right to due process is not among the grounds listed. The State argues that the section is exclusive and that a trial court cannot dismiss except for the listed reasons.
This question was presented recently to the Illinois Supreme Court in People v. Silverstein, 60 Ill.2d 464, 328 N.E.2d 316. In Silverstein, the appellate court affirmed the trial court's dismissal of an indictment because the actions of the prosecution in telling a witness he could not speak to defense counsel denied defendant due process. (People v. Silverstein, 19 Ill. App.3d 826, 313 N.E.2d 309.) The Supreme Court reversed on the ground that the record failed to support the trial court's conclusion that the actions of the prosecutor had prejudiced the preparation of the defense. The court found it unnecessary to consider whether section 114-1(a) limits the power of a trial court to dismiss an indictment, in view of their holding that defendant was not denied due process.
1 We find the appellate court's reasoning in Silverstein persuasive. A trial court has inherent authority to insure a defendant receives a fair trial. If we were to hold, under the circumstances here present, that the trial court had no authority to dismiss the indictment the case would then have to be tried on the merits, and the defendant could appeal an adverse result. In that appeal, however, the question of denial of due process occasioned by preindictment delay could not be an issue. That would be necessarily raised in a post-conviction proceeding in which another appeal would lie. Our heavily burdened court system ought not to countenance a procedure which involves a needless waste of judicial resources, and deliberately delays a decision essential to the final disposition of the case. Consequently we hold that section 114-1(a) does not preclude the trial judge from dismissing an indictment when it properly determines that preindictment delay has resulted in a denial of a defendant's right to due process.
Issue No. 2. Whether the trial court properly found the delay between the offense and the indictment denied defendant due process.
The United States Supreme Court, in United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971), has made it clear that the Sixth Amendment right to a speedy trial does not come into play until a person has become, in some sense, an accused, whether that is by arrest, indictment or other formal charge. A defendant's primary safeguard against prejudice caused by a delay between the offense and his arrest or charge is the statute of limitations. However, the statute of limitations does not exclusively define a defendant's right with respect to events occurring prior to indictment. Preindictment delay which causes substantial, actual prejudice could require a dismissal of the indictment by virtue of the due process clause. (Marion, 404 U.S. 307, 324, 30 L.Ed.2d 468, 481, 92 S.Ct. 455, 465.) As Marion makes clear not every delay will be a denial of due process. Instead, "a delicate judgment based on the circumstances in each case" (Marion, 404 U.S. 307, 325, 30 L.Ed.2d 468, 481, 92 S.Ct. 455, 466) must be made. We first must determine when the "delicate judgment" of the trial judge is brought to bear, and also decide what factors are relevant to the rendering of that judgment.
2 To begin with, the burden is on the defendant to establish that the delay between the alleged offense and the charge has caused substantial, actual prejudice to his ability to present a defense. Clearly the prejudice must be shown to be actual, and not merely speculative. (Marion.) The prejudice alleged is usually the defendant's inability to recall or to reconstruct his activities or recall his whereabouts at the time of the alleged offense. Some courts have held that the mere statement of inability to remember is insufficient to carry defendant's burden of establishing actual, substantial prejudice. (State v. Brown (Ore. App. 1975), 541 P.2d 491; People v. Duran (Colo. 1975), 535 P.2d 505; State v. Bryson (1972), 53 Haw. Hawaii, 500 P.2d 1171), and we agree. Unless that statement is supported by affirmative evidence of defendant's diligent efforts to reconstruct the events of the time when the offense was allegedly committed, by investigating sources which might refresh his recollection (such as employment records, the recollection of family and acquaintances or other sources appropriate under the circumstances or proof of loss of material witnesses or evidence), a trial judge has no evidentiary basis upon which to predicate a judgment that the delay has occasioned substantial and actual prejudice to defendant's ability to defend against the charge. See State v. Hackett (1975), 26 N.C. App. 239, 215 S.E.2d 832.
It is also part of defendant's burden to show the nexus between the delay and the unavailability of the evidence or witnesses. (United States v. Parish (D.C. Cir. 1972), 468 F.2d 1129 (1972).) From the evidence presented, the trial court evaluates the existence and extent of the prejudice alleged. (United States v. McGough (5th Cir. 1975), 510 F.2d 598.) If the court finds no actual, substantial prejudice, the inquiry is ended since the mere possibility of prejudice does not violate the due process clause.
In the event the trial court finds prejudice, the burden then shifts to the State to show that the delay was not an intentional strategy to gain a tactical advantage over defendant *fn1 and that the delay was reasonable. People v. Vanderburg (1973), 32 Cal.App.3d 526, 108 Cal Rptr. 104.
In the case at bar, and in the usual situation involving narcotics offenses, the State will attempt to show that at least a portion of the delay was reasonable, although deliberate, because of an ongoing undercover narcotics investigation. Certainly there exists a strong, legitimate, public interest in investigating and prosecuting narcotics offenses. Due to the nature of the crime, often the only effective way to investigate is to utilize agents who must remain undercover for long periods of time in order to develop the contacts that lead up the chain of narcotics distribution. (People v. Allen, 38 Ill.2d 26, 230 N.E.2d 170.) Since an agent's usefulness is ended as soon as the first alleged offender is arrested or charged, that cannot occur until the end of the complete investigation. For these reasons, a certain amount of delay is reasonable.
Whether a delay has become unreasonably long is a matter for the trial court. Evidence concerning the length and intensity of the investigation, when it started and terminated, and the frequency and pattern of "buys" are relevant to this determination. We purposefully refrain from holding that a presumption attaches to a delay of any certain duration. Each case must be weighed under its own circumstances. The State does not sustain its burden merely by saying that there was an ongoing undercover investigation.
If the trial court should determine that defendant was prejudiced and that the delay was reasonable, the court then engages in a "delicate judgment" defined in Marion. One of the most important factors to be considered is the applicable statute of limitations. The purpose of that statute is to bar prosecution of overly stale criminal ...