Balasco v. State

• Decision Date: 29 January 1974
• Docket Number: 1 Div. 448
• Citation: 289 So.2d 666,52 Ala.App. 99
• Parties: William Lewis BALASCO, III v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 666

289 So.2d 666

52 Ala.App. 99

William Lewis BALASCO, III v. STATE.

1 Div. 448.

Court of Criminal Appeals of Alabama.

Jan. 29, 1974.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen. and Otis J. Goodwyn, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a judgment denying appellant's prayer for 'discharge . . . from further restraints and charges,' contained in appellant's petition for writ of habeas corpus.

Appellant-petitioner, pro se, filed the ten-paragraph petition on August 17, 1973, to which the State filed an answer on August 22. On September 5, a hearing on the petition and answer was conducted, the court rendered judgment and petitioner gave notice of appeal. Petitioner was represented at the hearing by court-appointed counsel, the same counsel who had previously represented him on hearings in connection with his efforts to obtain a release from his arrest on March 19, 1973, on a fugitive warrant growing out of an alleged crime allegedly occurring in Mississippi and his release from his status of arrest under a subsequent rendition warrant as to the same alleged crime issued by the Governor of Alabama pursuant to the requisition of the Governor of Mississippi. The court appointed different counsel to represent him on this appeal, it appearing that appellant was not satisfied with the services of his pervious counsel.

In the petition for writ of habeas corpus, appellant-petitioner charged that he was being restrained in violation of his rights under the Constitution of the United States, in that he was denied his 'sixth amendment right and his fourteenth amendment right to fundamental fairness and due process of law.' U.S.Const.Amend. VI and Amend. XIV, § 1. Relying upon the same provisions of the United States Constitution, as well as Article, 1, § 6 of the Constitution of Alabama of 1901, appellant here asserts that the trial court erred in refusing to grant the petition for writ of habeas corpus 'when it was shown that the State of Mississippi delayed eleven months in his (petitioner's) arrest and he (petitioner) was making no attempt to avoid process of law.'

The requisition from the Governor of Mississippi, which was introduced in evidence on the hearing of the habeas corpus petition was accompanied by a certified copy of an indictment charging appellant with the sale of heroin, which indictment was returned on March 15, 1973.

It seems that in the petition, in the evidence and in the record as a whole, as well as in petitioner's brief, the charge of illegal and unconstitutional detention of appellant is based primarily upon the claim that the time intervening between the commission of the alleged crime and the arrest of appellant was so great under all the circumstances that his constitutional rights were impaired. Appellant cites and relies upon Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. 1; Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Foster v. State, 45 Ala.App. 323, 229 So.2d 913; and Sellers v. State, 48 Ala.App. 178, 263 So.2d 156. All expressions and conclusions as to a delay that would impair the right of an accused to a speedy trial found in the opinions in those cases are referable to delay between institution of prosecution and time of trial, to the exclusion of any delay between the time of the crime and the time of the arrest or the initiation of a prosecution, which is the delay primarily complained of in this case. As to such delay, we are restrained from agreeing with appellant by the majority opinion in United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, wherein it was stated:

'. . . In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused,' an event that occurred in this case only when the appellees were indicted on April 21, 1970.'

and

'Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case.

'The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge . . ..'

It is to be noted that the minority opinion in Marion; relying to some extent upon Dickey v. Florida, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26, well discussed by Judge Tyson in Prince v. State, 50 Ala.App. 368, 279 So.2d 539, cert. denied, 291 Ala. 796, 279 So.2d 549, is to the effect that inordinate and inexcusable delay in the institution of a prosecution can constitute a violation of the speedy trial right, but even if we were controlled by the minority opinion in Marion, supra, which concurred in the result of the majority opinion, we would hold that there was no infringement upon appellant's right to a speedy trial resulting from the intervention of six months between the alleged crime and the arrest and the approximately concomitant indictment of appellant. In the minority opinion in Marion, supra, it was made clear that the three-year delay, or the more than two-year unnecessary delay, in the finding of an indictment would not have constituted an impairment of defendants' rights in the premises unless 'appellees could demonstrate actual prejudice,'. In this case there is no claim that the intervention of six months between the alleged crime and the return of an indictment was unreasonable or unnecessary, and there is neither contention nor showing that appellant is less able to defend the case than he would have...