Bishop v. State
| Decision Date | 30 September 1994 |
| Citation | 656 So.2d 398 |
| Parties | Leon BISHOP v. STATE. CR 92-1966. |
| Court | Alabama Court of Criminal Appeals |
Appeal from Morgan Circuit Court; Richard Hundley, Ted Bozeman and C. Bennett McRae, Judges.
Dwight Jett, Decatur (withdrew June 24, 1994), Lindsay Mussleman Davis, Florence, for appellant.
James H. Evans, Atty. Gen., and Tracy Daniel, Asst. Atty. Gen., for appellee.
ON RETURN TO REMAND
On original submission, this Court remanded this cause to the trial court with directions that the trial court conduct an evidentiary hearing to determine whether the appellant had been denied his constitutional right to a speedy trial. 656 So.2d 394. On July 27, 1994, that hearing was conducted. The appellant was present and was represented by counsel. In addition, this Court has been supplied with the transcript of the hearing held on April 30, 1992, which was not presented to this Court on original submission.
With commendable thoroughness, the trial court entered findings of facts and conclusions of law in denying the appellant's motion to dismiss based on the alleged denial of his right to a speedy trial. Remand C.R. 17-26. That order is attached to this opinion as an appendix and is supported by the record on appeal.
For the reasons stated in the order of the trial court entered August 30, 1994, this Court holds that the appellant was not denied his right to a speedy trial.
The judgment of the circuit court is affirmed.
All Judges concur.
Leon Bishop.
In the Circuit Court of Morgan County, Alabama.
COMES NOW the undersigned, having been instructed by the Honorable Court of 1. That on July 27, 1994, at 9:00 A.M., the appellant/defendant was present open court with his attorney of record, Lindsey Mussleman Davis, for hearing on the issue of speedy trial and that the State of Alabama was represented at said hearing by J. Patrick Lamb, Assistant District Attorney.
Criminal Appeals to enter specific and detailed written findings in accord with the Honorable Court's order of remand, and would show unto the Court the following:
2. That the parties were permitted to call witnesses and present arguments of counsel to the Court and said arguments and testimony were recorded by the Court's reporter.
3. That the Court hereby orders that a transcript of these proceedings be prepared and be included, together with copies of all exhibits and pleadings of counsel filed in conjunction with this hearing, as part of this Court's return to remand.
4. That the State's "Motion to Adopt Findings of the Court of Criminal Appeals to Supplement the Record and Take Judicial Notice of Appropriate Facts" was granted by the Court without objection from opposing counsel. In granting said motion the Court replaced the date of April 17, 1993, appearing in paragraph five of the State's motion with the correct date of April 19, 1993.
5. That, having taken said proceedings under advisement, the Court hereby enters the following findings of fact:
FINDINGS OF FACT
1. That appellant/defendant was arrested on the charges at bar on August 13, 1987, and was tried and convicted of sexual abuse in the first degree on April 22, 1993, a delay of five years and eight months.
2. That Ralph Slate, Esq., entered the case at bar as attorney of record on September 4, 1987, and remained as attorney of record until he withdrew on September 1, 1993.
3. That Ralph Slate, Esq., is a senior member of the Morgan County Bar Association and a lawyer in good standing with the Alabama State Bar and has practiced criminal law in this circuit since 1949.
4. That Ralph Slate, Esq., is the brother of Circuit Judge Rudolph Slate who presided over the criminal division of the Morgan County Circuit Court from the time that this case arose until April 19, 1993.
5. That Judge Rudolph Slate recused himself from this cause, defense counsel being his brother, and that said recusal caused the case to be assigned to the judge then presiding over the civil division, R.L. Hundley, who was then, and is still now, the presiding judge of the Eighth Judicial Circuit.
6. That the appellant/defendant was arraigned by Circuit Judge R.L. Hundley on January 15, 1988, and pled not guilty.
7. That, at all times during the pendency of this case, the appellant/defendant was afforded the benefit of a reasonable bail and, in fact, was not incarcerated prior to trial for any significant amount of time.
8. That the fact that the appellant/defendant was not incarcerated pending trial lowered his priority relative to other cases awaiting trial under the customs of this circuit and Rule 8, A.R.Crim.P.
9. That Judge R.L. Hundley tried his last felony case in June 1989.
10. That appellant/defendant's trial was set on the trial docket of Special Circuit Judge A. Ted Bozeman for March 30, 1992, together with a number of other cases from which Judge Rudolph Slate recused due to potential conflicts of interest with his brother's law firm.
11. That, oral motions notwithstanding, there is no evidence that the appellant/defendant filed any pre-trial motions.
12. That appellant/defendant's case was not reached for trial during the term of March 30, 1992.
13. That appellant/defendant first asserted his right to a speedy trial by motion to dismiss filed April 15, 1992, four years and eight months after arrest.
14. That there is now, and was during the pendency of the defendant's trial, a large case backlog in Morgan County.
15. That it is not unusual for a "non-jail priority" case to take three years to be tried in this circuit.
Regarding this element of the Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), analysis, it is an established principal of Alabama Law that a defendant is not denied a speedy trial merely because of the passage of time. Nichols v. State, 518 So.2d 851 (Ala.Cr.App.1987); Wade v. State, 381 So.2d 1057 (Ala.Cr.App.1980), cert. denied, 381 So.2d 1060 [1062] ; Haywood v. State, 501 So.2d 515 (Ala.Cr.App.1986); Noe v. State, 391 So.2d 151 (Ala.Cr.App.1980). In Barker, the U.S. Supreme Court explained that the significance of the length of delay is as follows:
This Court, however, needs to make no inquiry into the existence of presumptive prejudice. The Court of Criminal Appeals has already found presumptive prejudice in this case. Bishop v. State, [Ms. CR 92-1966, May 6, 1994] 656 So.2d 394 (Ala.Cr.App.). Additionally, the State has stipulated to the fact that the Barker threshold has been met. Therefore, the only analysis that remains for this Court, with regard to this prong of the Barker test, is to determine the amount or measure of presumptive prejudice, as this will have to be considered in the Court's balancing.
The United States Supreme Court has given us the following guidance for measuring presumptive prejudice:
"[T]he Court must ... consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim ... [t]his latter enquiry is significant to the speedy trial analysis because, ... the presumption that pretrial delay has prejudiced the accused intensifies over time." Doggett v. U.S. , 112 S.Ct. 2686, 2691 (1992).
Presumptive prejudice begins at the point at which ordinary prejudice, that which results from a case being prosecuted with "customary promptness," ends. Doggett [at 652, 112 S.Ct.] at 2690. In determining what constitutes customary promptness, the Court is aware that, during the pendency of this case, the Alabama Supreme Court made effective, on October 1, 1990, standards relating to delay and case management which established a goal of adjudicating felony cases within a year.
While the time standards mentioned above are only goals and do not secure any substantive rights for the defendant, they do indicate to this Court that, even under the best scenario, a delay of a year would probably never be enough alone to cause presumptive prejudice to attach.
The backlog of criminal cases in this county severely reduces the speed with which a non-jail priority case can be tried. The testimony of Faye Legg of the Circuit Clerk's office and Paul Matthews of the District Attorney's office indicates that it is not unusual at all for a felony case which is not a jail priority to take three years to be tried in this circuit. It is, therefore, the conclusion of this Court that a presumption of prejudice based upon the passage of time alone could not have attached until the three year mark was reached, given the caseload in this county.
The Court, therefore, finds that presumptive prejudice exists in this case for a period of two years and eight months. The Court will address the effects of this prejudice infra.
REASONS FOR DELAY:
The evidence presented at hearing indicates that the delay of this case resulted from the following reasons:
1. Morgan County Circuit Court had a large backlog.
2. Judge Slate recused from the case, as he was required to do by law, and the case was assigned to the docket of Presiding Judge R.H. Hundley who arraigned the defendant on January 15, 1988, but stopped trying felony cases sometime in June of 1989, before this case was reached.
3. That Presiding Judge R.L. Hundley assigned this case to the docket...
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