Arrant v. Wainwright, 72-2207 Summary Calendar.

• Decision Date: 15 November 1972
• Docket Number: No. 72-2207 Summary Calendar.,72-2207 Summary Calendar.
• Citation: 468 F.2d 677
• Parties: Harvey D. ARRANT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

468 F.2d 677 (1972)

Harvey D. ARRANT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.

No. 72-2207 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

October 24, 1972.

Rehearing Denied November 15, 1972.

James L. Padgett, Orlando, Fla., (Court Appointed), Fla., for petitioner-appellant.

Robert L. Shevin, Atty. Gen., P.A. Pacyna, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This appeal raises one of the most difficult issues which may arise concerning the Constitution and the criminally accused defendant. Appellant Harvey Arrant was convicted of murder in the first degree on March 19, 1969, in the Circuit Court of Orange County, Florida, and sentenced to life imprisonment. Appellant now challenges this conviction, urging that his right to a speedy trial under the Sixth Amendment to the United States Constitution was clearly abrogated by the State of Florida. After a careful study of the record in this case, this court is compelled to agree.

I.

This case is before this court on appeal from the denial of a petition for a writ of habeas corpus by the United States District Court for the Middle District of Florida. Appellant had previously sought to press his claim of denial of a speedy trial in the Florida courts. Relief was denied. Arrant v. State, 234 So.2d 167 (4th DCA Fla., 1970). After exhausting all state remedies, appellant turned to the federal courts.

II.

In the recent case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) a unanimous Supreme Court, speaking through Mr. Justice Powell, sought to set out the criteria by which the speedy trial right was to be judged. The court recognized the great difficulty in adjudicating the claim of denial of a speedy trial and pointed out the need for balancing the competing interests involved through a detailed functional anaylsis of the factual situation. In attempting to provide guidelines, the court stated:

A balancing test necessarily compels courts to approach speedy-trial cases on an 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. 407 U.S. at 530, 92 S.Ct. at 2192.

Our discussion of the merits of appellant's claim will be organized around these suggested categories. Specific factual matters will be more relevant when discussed with the element on which they bear. At the outset, however, it is necessary to have a general overview of the facts, including the circumstances giving rise to the murder charge.

On March 30, 1967, an Orange County grand jury indicted appellant for the murder of one Kenneth Benson. On January 11, 1967, appellant, Mary Peak (a/k/a Mary Peak Arrant), Donald Edwards, and Joe Padgett arrived in Orlando and rented a room at the Log Cabin Motel. The testimony indicates that the group intended to lure someone with money into a card game.

Late that evening, appellant, Mary Peak, and Donald Edwards left the motel and went to a local eating place. They entered separately, with appellant and Edwards sitting together. The murder victim, Kenneth Benson, later joined Mary Peak. According to testimony, appellant and Edwards followed Peak and Benson to another restaurant and left when they left.

Testimony shows that appellant, Peak, Edwards, and Padgett left the motel around 2:00 A.M. on January 12, 1967. Around 2 o'clock that afternoon, Benson's body was found in his car on a lane near the motel. Time of death was fixed at about 1:00 that morning.

Around the end of January, 1967, Donald Edwards was seriously wounded in a gun battle unrelated to this case. He died after some 83 days of hospitalization.

On February 24, 1967, Mary Peak gave a sworn statement to Orange County officers implicating appellant and Edwards in Benson's death. Appellant was indicted on March 30, 1967. Mary Peak testified before the grand jury, allegedly again incriminating appellant and Edwards, but there is apparently no competent record evidence of her testimony. On April 13, 1967, Mary Peak gave a sworn statement to appellant's attorney which exonerated appellant in the death of Benson. On May 1, 1967, Mary Peak gave sworn testimony again exonerating appellant at a habeas corpus hearing following which appellant was released on $2500 bond.

Trial was set for May 8, 1967. On May 3, 1967, the state was granted the first of several continuances. Appellant was finally brought to trial, after several demands and some questionable maneuvers by the state, on March 17, 1969.

III. Length of the Delay

The length of the delay is primarily a "triggering mechanism" for a full inquiry into circumstances giving rise to the speedy trial claim. Barker v. Wingo, supra. The almost two-year gap from indictment until trial in this case is clearly sufficient to require serious consideration of appellant's claim. We now turn to the other elements involved.

Reasons Asserted for the Delay

As noted, on May 3, 1967, the state was granted a continuance in this case following its assertion of the need for more time due to the inconsistent statements of Mary Peak. There was apparently no objection by appellant and trial was reset for June 12, 1967. On June 1, 1967, the state requested another continuance, citing the death of Donald Edwards and the change in Mary Peak's testimony. Again there was apparently no objection and the trial was reset for October 16, 1967. The record and briefs are not clear as to exactly what transpired on that date but appellant, though present and allegedly ready to defend, was definitely not tried. The record does not contain an order granting a continuance or setting a new trial date. It is apparent, however, that the state was granted another continuance, with no reason therefor established by the record. No new trial date was set.

Beginning in January, 1968, appellant filed a series of four petitions demanding a trial. Apparently no action whatsoever was promptly taken on these requests. Finally, in November, 1968, petitioner's appointed attorney petitioned the court for release and payment. At the time this petition was granted, the court apparently did not directly consider appellant's request for dismissal for lack of a speedy trial. In its order dismissing the appointed attorney, however, the state court noted that the appellant had made application for a speedy trial and that

the State of Florida by and through Arthur L. Steed, State Attorney for the Ninth Judicial Circuit, has announced that the State would be unable to successfully prosecute the defendant at the present time or in the reasonable foreseeable future ... (emphasis supplied).

Despite this statement, and despite the fact that appellant's attorney was discharged, the indictment against appellant was not dismissed nor was any trial date set for him.

Finally, following the election of a new state attorney, a trial date was requested by the state on January 19, 1969, and trial was set for March 17, 1969.

In assessing the reasons asserted for the delay, it seems clear that the alleged change in the testimony of Mary Peak would be sufficient to justify some reasonable delay in the trial so that the state could further investigate the situation and possibly prepare a case for her impeachment. This, however, begins to seriously weaken as a justification after the October, 1967, trial was postponed. The state cannot use this sole excuse to indefinitely postpone trial.¹

The death of the possible witness participant Donald Edwards is not very convincing as a justification for the lengthy delay. He was not available before the grand jury which indicted appellant nor is there any evidence that the state had reasonable expectation that it would in any way benefit from testimony he might give.

Therefore, it seems that little if anything was left of either of these asserted justifications after the October trial was aborted. What reason is then to be assigned to the almost fifteen-month delay from this time until a trial date was even requested by the state? The obvious answer is, remarkably, the one given by the state at the hearing below. The state attorney who handled this case quite candidly stated to the district court under oath that he kept putting off trial because he "did not want to see him appellant be acquitted of this crime". Thus, this is the only viable excuse for the delay that this court will accept for the period after October 16, 1967. Needless to say, this court finds this asserted justification extremely unsatisfactory and will weigh this element heavily in the ultimate determination of appellant's claim.

Defendant's Assertion of the Right

As previously noted, appellant first made a demand to be tried on January 5, 1968. Other motions to the same effect were filed on February 6, 1968, and March 7, 1968. The record does not show any response at all from either the state or the court to these demands. Again on October 1, 1968, appellant filed another demand. This, too, was never directly addressed, although there was apparently some consideration of the speedy trial claim at the hearing in November, 1968, as previously discussed.

In Barker v. Wingo, supra, the Supreme Court treated fully the importance which attaches to an accused's demands for a speedy trial. It also went deeply into the question of waiver of the right. We find the arguments for waiver made in this case by the state to be totally unconvincing. Contrary to the state's claim, the appellant here was not "continually waiving his rights". Appellant began to demand...