Cherry v. State, CR-02-0374.

• Citation: 933 So.2d 377
• Decision Date: 01 October 2004
• Docket Number: CR-02-0374.
• Parties: Bobby Frank CHERRY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

933 So.2d 377

Bobby Frank CHERRY v. STATE of Alabama.

CR-02-0374.

Court of Criminal Appeals of Alabama.

October 1, 2004.

Opinion Denying Rehearing as Moot Dec. 17, 2004.

Certiorari Denied January 7, 2005 Alabama Supreme Court 1040342.

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Frank Myers, Birmingham (withdrew 10/01/2004); and Charles A. Flowers III, Birmingham, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and Marc A. Starrett, asst. atty. gen., for appellee.

COBB, Judge.

On the morning of September 15, 1963, four young girls, Carole Robertson, Cynthia Wesley, and Addie Mae Collins, all 14 years old, and 11-year-old Carole Denise McNair were downstairs in the ladies' lounge of the Sixteenth Street Baptist Church in Birmingham, Alabama, preparing to participate in the church's first Youth Day Service. At approximately 10:22 a.m., a bomb exploded near the church's 16th Street stairway, resulting in a "high order explosion" that killed Carole, Cynthia, Addie Mae, and Carole Denise, and injured Addie Mae's sister, Sarah. (R. Vol. 19, 371.) Reverend John Haywood Cross evacuated the church and discovered the victims' bodies.

In the late 1970s, Robert Edward Chambliss was convicted of murder for his involvement in the bombing. Chambliss v. State, 373 So.2d 1185 (Ala.Crim.App.1979). In 2001, Thomas Edwin Blanton was convicted of murder for his involvement the bombing. Blanton v. State, 886 So.2d 850 (Ala.Crim.App.2003). During the May 2000 session of the Jefferson County grand jury, Bobby Frank Cherry was indicted for the murders of Carole, Cynthia, Addie Mae, and Carole Denise.¹

On May 22, 2002, Cherry was convicted of four counts of murder, violations of Title 14, § 314, Ala.Code 1940. Cherry was sentenced to life in prison on each conviction; those sentences were to run consecutively.² Cherry filed a motion for a new trial; the hearing on the motion was continued two times by agreement of the parties. Ultimately, the trial court conducted a hearing on the motion on September 13, 2002, and denied the motion on the same day. This appeal followed. Cherry raises two issues on appeal.

I.

Cherry argues that the trial court erred by denying his motion to dismiss based on the preindictment delay between the 1963 bombing and his indictment in 2000.³ Cherry contends that he suffered actual and substantial prejudice from the preindictment delay; he also maintains that from the delay the State "intentionally garnered a tactical advantage." (Appellant's brief, p. 27.) Cherry raised this argument to the trial court in his motion to dismiss and in his motion for a new trial.

"The Supreme Court held in United States v. Marion, 404 U.S. 307, 92 S.Ct 455, 30 L.Ed.2d 468 (1971), that a defendant's Sixth Amendment right to a speedy trial applies only to prosecutions formally begun, not to pre-accusation delays. Appellant does not argue a speedy trial violation.

"Since appellant's prosecution is not barred by the statute of limitations, the possible due process violation must be addressed.

"Although Marion, supra, recognized a due process protection separate from the statute of limitations, the due process clause has a limited role against oppressive delay, United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, cert. denied, Ala., 373 So.2d 1211 (1979), and mere passage of time per se is not a constitutional violation. U.S. v. Lovasco, supra, United States v. Doe, 10th Cir., 642 F.2d 1206 (1981). A defendant is charged with a heavier burden of proof in showing a pre-indictment delay due process violation than in showing a denial of his speedy trial rights. The Marion court requires a showing by defendant of actual prejudice, not the mere possibility of prejudice, and that the delay `caused substantial prejudice to appellee's rights to a fair trial.' The proof of actual and substantial prejudice due to the loss of potential witnesses must be `definite and non-speculative.' This actual prejudice must be shown and cannot be presumed. Marion, supra; Chambliss, supra.

"The central question becomes whether appellant met the heavy burden of proof by showing an actual and substantial prejudice resulting from the lengthy delay."

"Moreover, even if appellant had proven actual prejudice, the Supreme Court has held that proof of actual prejudice is generally a necessary but not a sufficient element of a due process claim. Proof of actual prejudice is only the first step. If such proof is given, then the focus turns to the reasons for the delay. Lovasco, supra. Marion held that evidence of an intentional delay by the state to gain a tactical advantage would be a due process violation. Lovasco apparently includes evidence of `reckless disregard of circumstances known to the prosecution ...' 431 U.S. at 796, n. 7, 97 S.Ct. at 2048 n. 7."

"In any event, without any proof in the record, we will not assume from the record that the state intentionally delayed to gain a tactical advantage or made a knowingly reckless disregard of appellant's ability to defend himself. Appellant's bare allegations of improper tactical delay on the state's part is insufficient to establish the necessary malevolent purpose. United States v. Medina-[Arellano], 5th Cir., 569 F.2d 349 (1978)."

Stoner v. State, 418 So.2d 171, 179-80, 181, 182 (Ala.Crim.App.1982).

A. Actual Prejudice

Cherry quotes at length from his motion to dismiss, listing 12 witnesses who "are shown to have direct knowledge and/or involvement in the explosion" and who are now missing or deceased. He contends that the inability to interview these witnesses caused him actually prejudice. He speculates as to the "favorable" testimony of two of those witness: the first, an informant for the Federal Bureau of Investigation ("FBI"), would have testified that, when asked, Cherry stated that he "didn't know anything about" the bombing (Appellant's brief, p. 31.); and the second, a member of the Ku Klux Klan, would have testified that "he had solved the crime 14 years earlier, but ... it was never brought to trial because too many people in high places would [have been] embarrassed." (Id.) Additionally, Cherry lists several other witnesses, all family members of Cherry, and relates the favorable testimony, including alibi testimony, that they "would have been expected to give." (Appellant's brief, p. 30.)⁴

"A defendant must not only prove that the preindictment delay prejudiced him, but he must also prove that the resulting prejudice was substantial. Crawford v. State, [342 So.2d 450 (Ala.Crim.App. 1977)]; Arnold v. McCarthy, 9 Cir.; 566 F.2d 1377 [(1978)]; United States v. Catano, 5 Cir., 553 F.2d 497 [(1977)].

"A real possibility of prejudice will not suffice, actual prejudice must be shown, and cannot be presumed....

"Arnold v. McCarthy, [566 F.2d 1377 (9th Cir.1978)], holds that the assertion that a missing witness might have been helpful does not establish the actual prejudice required by the decision of the United States Supreme Court in [United States v.] Marion, [404 U.S. 307 (1971)]. Proof of actual prejudice due to the loss of witnesses must be `definite and nonspeculative.'"

Chambliss v. State, 373 So.2d 1185, 1203 (Ala.Crim.App.1979).

"Merely because appellant alleges that certain dead witnesses would testify for him and in a certain manner does not prove that the potential witnesses would testify in such a manner or even testify at all. We cannot accept such self-serving declarations as proof of actual prejudice resulting from the absence of these witnesses, and the affidavits alone do not satisfy the requirements of [United States v. Marion, 404 U.S. 307 (1971)]. United States v. Hauff, 7th Cir., 395 F.2d 555, 556 (1968); United States v. Mays, 9th Cir., 549 F.2d 670, 674 (1977); U.S. v. Hood, 8th Cir., 593 F.2d 293, 296 (1979), United States v. Revada [,] 10th Cir., 574 F.2d 1047 (1978); United States v. King, 7th Cir., 593 F.2d 269 (1979); United States v. Saunders, 9th Cir., 641 F.2d 659, 665 (1980); United States v. Mills, 9th Cir., 641 F.2d 785, 789 (198[1]); United States v. Surface, 5th Cir., 624 F.2d 23, 25 (198[0]); [s]ee also Judge Barnett's concurring opinion in United States v. Radmall, 10th Cir., 591 F.2d 548 (1978)."

Stoner, 418 So.2d at 180 (footnote omitted). Therefore, Cherry's self-serving declarations that some now unavailable witnesses would have given testimony favorable to Cherry are not sufficient to establish that Cherry was actually and substantially prejudiced by the preindictment delay.

B. Intentional Delay

Cherry makes the blanket assertion that the death of "a multitude of witnesses" worked "to the State's advantage." (Appellant's brief, p. 33.) He also asserts, without presenting proof of the assertion at the hearing, that, by "intentionally" failing to prosecute Cherry in the 1970s when Chambliss was prosecuted, the State successfully waited until "the jury changed to the State's benefit." (Id.)

"[W]ithout any proof in the record, we will not assume from the record that the state intentionally delayed to gain a tactical advantage or made a knowingly reckless disregard of appellant's ability to defend himself. Appellant's bare allegations of improper tactical delay on the state's part is insufficient to establish the necessary malevolent purpose. United States v. Medina-[Arellano], 5th Cir., 569 F.2d 349 (1978)."

Stoner, 418 So.2d at 182. There is no proof in the record before us that the State intentionally caused the preindictment delay. At trial, defense counsel alleged:

"How do we go about proving that the State deliberately delayed? I mean[,] it was deliberate. I mean[,] no one is going to come out and admit that. And I'm not here saying that [the present day prosecutors] made a conscious effort that they weren't going to prosecute this case until now."

(R. 82.) We are left, then, with mere bare assertions of intent on the part of the State; without more,...