COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68103 STATE OF OHIO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION GERALD LOOMER : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-307,700 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LISA REITZ WILLIAMSON, Assistant FRANK GASPER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: CHRISTOPHER STANLEY Attorney at Law 614 W. Superior Avenue Cleveland, Ohio 44114 TERRENCE O'DONNELL, J.: The State of Ohio appeals the trial court's decision to dismiss Gerald Loomer's indictment for the murder of Joyce Spearow due to pre-indictment delay. For the following reasons, we reverse and remand the matter for further proceedings. The facts adduced at the hearing on the motion to dismiss generally revealed that on the evening of April 28, 1981, the appellee Gerald Loomer argued violently with and choked the decedent Joyce Spearow who was then crying. The two later left the residence of Betty Howard, and Loomer later returned alone. Three weeks later police discovered Spearow's body at the Moribito Trucking Company on East 55th Street in Cleveland containing multiple stab wounds including perforations of her heart and left lung. Investigation at that time did not result in an indictment, although police questioned both James Spearow, her husband, and Gerald Loomer. Cleveland Homicide Detective Leo Allen reopened the investigation in 1994 based upon information obtained from the decedent's son, Freddie Workman, who, in 1993, wrote and asked the matter be reopened. Workman signed an affidavit that on the night he last saw his mother, Loomer returned to the Howard residence, - 3 - scratched and bloody, that his pants were ripped, that he heard water running in the kitchen for "quite a while," and that he saw Loomer sitting in the kitchen and observed a fillet knife and a staple remover on the sink. Detective Allen also reinterviewed Betty Howard and her husband Michael Howard, and confirmed fresh bloody scratches on Loomer's chest. On March 3, 1994, based on the new statements of Workman and Howard, a Cuyahoga County Grand Jury indicted Gerald Loomer for the 1981 murder of Joyce Spearow. Loomer then moved to dismiss the indictment alleging pre-indictment delay had prejudiced his ability to defend the charge because a bartender at the Cherry Blossom bar whom he had known as "Dick" died in 1982, but would have been able to testify for him. The trial court granted Loomer's motion and dismissed the murder indictment against him finding the delay in prosecution prejudiced the defendant and was not justified since he no longer owned the same automobile, his house had burned, and his memory is not now as good as it was earlier due in part to an automobile accident. The State now appeals the court's decision raising one assignment of error. I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON THE GROUNDS OF PRE-INDICTMENT DELAY. Both the trial court and the appellant cite State v. Luck (1984), 15 Ohio St.3d 150, as authority for cases involving pre- - 4 - indictment delay. The State urges appellee's burden of proof is to demonstrate both actual prejudice to right to a fair trial, unjustifiable delay in prosecution, and contends the trial court erred in its analysis of this case and in finding appellee was prejudiced by the delay indictment. Although appellee did not file a brief in this court, the trial judge's opinion incorporates appellee's position: prejudice enured because during the thirteen-year delay in prosecution, evidence has been lost, memory has faded, and an alibi witness, Richard Kavecky, the bartender named "Dick" at the Cherry Blossom bar on Broadway has passed away and now cannot establish appellee's presence at the bar alone. The syllabus in State v. Luck states as follows: "2. An unjustifiable delay between the commission of an offense and a defendant's indictment therefor, which results in actual prejudice to the defendant, is a violation of the right to due process of law under Section 16, Article I of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution." The trial court found no prejudice as a result of the loss of evidence and fading memory but did find prejudice as a result of the death of the bartender and that the delay in prosecution was unjustified. We agree with the trial judge's conclusions that the loss of appellee's vehicle and destruction of his home are at least as problematic for the State as for the defendant. Further, the - 5 - record does not demonstrate any prejudice to appellee resulting from these occurrences. We also note an absence of evidence in the record to support the memory lapse appellee claims to have suffered from an automobile accident. Hence, this assertion cannot establish prejudice. Finally, regarding the claim that the now deceased bartender could have provided alibi testimony, we note that the burden to establish alibi is with the appellee. Here, appellee has not offered evidence to establish the employment, hours, or presence of this witness at the bar, nor whether testimony, if offered, would have established an alibi. The trial court erred in suggesting the State had any duty to interview this witness. The burden of proof is with the State to establish the elements of the crime, not to refute or confirm potential defense thereto which could be interposed by the accused. Moreover, other courts have addressed this same issue. In United States v. Solomon, 688 F.2d 1171 (1982), the headnote of the case reads as follows: "9. Death of a witness alone is insufficient to establish actual prejudice arising from pre- indictment delay." And U.S. v. Valona, 834 F.2d 1334 (7th Cir. 1987), contains the following at p. 1337: "The trial court undertook the proper two-step analysis for determining the merits of a claim of prejudice based on pre-indictment delay. First, the defendant must establish that he has suffered - 6 - actual and substantial prejudice. Lovasco 431 U.S. at 789-90 *** Second, if the delay has caused such substantial prejudice to the defendant so, as to outweigh the government's reason for the delay, the indictment may be dismissed. ***." "It is clear that the death of a witness alone is insufficient to establish actual prejudice. See Williams 738 F.2d at 176 ***." In U.S. v. Muniz (1988), 690 F.Supp.482, the court ruled that a bare assertion that a now-deceased witness would have offered exculpatory information, without corresponding documentary evidence, was insufficient to meet a defendant's burden of showing actual prejudice. In the instant case, the record reflects appellee's claim that the now deceased bartender would have provided an alibi, but his assertion is not corroborated by any other evidence and hence cannot form the basis of showing actual prejudice to the appellee. We therefore believe the trial court erred in finding that appellee has established prejudice. In State v. Luck (1984), 15 Ohio St.3d 150, at 158, the court stated, "We believe, however, that a delay in the commencement of a prosecution can be found to be unjustifiable when the state's reason for the delay is to intentionally gain a tactical advantage over the defendant *** or, when the state *** ceases the active investigation of a case but later decides to commence prosecution upon the same evidence ***." (Emphasis added.) Here, the record is devoid of any suggestion that the State intended gain of a tactical advantage by delaying appellee's indictment. - 7 - The most compelling analysis, however, is the simplest. Neither the police department nor the prosecutor prompted reopening of this case. Rather, it was the unsolicited offer of new information from a new witness, Freddie Workman, the now adult son of the victim. When he wrote the Cleveland Police department requesting the investigation be reopened, and provided new information to the police, the State had a duty to pursue the matter to its conclusion. Since the indictment secured in 1994 was based in part upon new evidence not available in 1981, the trial court also erred in finding unjustifiable delay in the current prosecution. We conclude based upon the record before us and applicable case law that appellee has not demonstrated actual prejudice as a result of the death of the alleged alibi witness and, therefore, the trial court erred in making such a finding. We further conclude the delay in prosecution was justified because it was based upon newly discovered evidence from a new witness in the case. The decision of the trial court is therefore reversed and the matter remanded for further proceedings. So ordered. - 8 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J. ANN DYKE, J. CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .