Byrd v. State, 6 Div. 776

• Decision Date: 29 June 1982
• Docket Number: 6 Div. 776
• Citation: 421 So.2d 1344
• Parties: Sidney Shawn BYRD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1344

421 So.2d 1344

Sidney Shawn BYRD v. STATE.

6 Div. 776.

Court of Criminal Appeals of Alabama.

June 29, 1982.

Rehearing Denied July 27, 1982.

Certiorari Denied, Nov. 19, 1982

Alabama Supreme Court 81-936.

Jake V. Bivona of Paden, Green & Paden, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

On the afternoon of June 26, 1980, Delores Argo gave a ride to two strangers, Sherry Ragland and the defendant, in Midfield. The defendant placed a knife to Ms. Argo's throat, and, with Ms. Ragland's willing assistance, took control of her automobile and robbed her of the money in her purse. The abduction ended when Ms. Argo escaped in Montgomery and the defendant wrecked her automobile in attempting to flee from the alert Montgomery police.

The defendant was indicted for first degree robbery. Sentence was 21 years' imprisonment.

I

The defendant contends that he was denied his Sixth Amendment right to a speedy trial. The chronology of facts and events governing this issue are:

June 26, 1980: The defendant was taken into custody ¹ for the robbery of Delores Argo.

December 5, 1980: Indictment returned for first degree robbery.

December 18, 1980: The defendant's case was placed on the circuit court's regular trial docket.

February 19, 1981: Counsel was appointed to represent the defendant.

February 23, 1981: The defendant was arraigned and his case set for trial. The defendant filed a motion for recusal directed to the trial judge.

March 4, 1981: The defendant's motion for recusal was granted.

April 7, 1981: The defendant's case was continued. The record reflects that the defendant was "in the penitentiary." No objection by the defendant appears in the record.

June 8, 1981: The defendant's case was continued with the record reflecting the same notation as that made on April 7. No objection by the defendant appears in the record.

June 22, 1981: The defendant filed a pro se motion for a speedy trial.

October 20, 1981: The defendant filed pro se motions for discovery, "for psychiatric examination of prosecution witnesses", and for a "copy of minutes of preliminary hearing without charge." Motions were also filed seeking to reveal any agreement between the State and a co-defendant to dismiss the indictment on the bases of a denial of a speedy trial and for failure of the State to prosecute and to suppress the confession. Additionally, the defendant filed a motion requesting his own psychiatric examination.

October 22, 1981: The defendant's case was continued with the same notations made in the record as that on April 7 and June 8. No objection by the defendant appears in the record.

December 1, 1981: The trial court ruled on the defendant's motions and empaneled a jury for his trial. His trial began and was recessed for the evening.

December 2, 1981: The defendant's trial continued and was recessed for the evening.

December 3, 1981: The jury returned a verdict of guilty against the defendant. The defendant was sentenced, notice of appeal was given, and appellate counsel different than trial counsel was appointed.

The general rules governing the issue of a speedy trial have been repeatedly stated. We find no need to reiterate them here except as they may particularly apply to the facts. See Smith v. State, 409 So.2d 958 (Ala.Cr.App.1981), and Vickery v. State, 408 So.2d 182 (Ala.Cr.App.1981), for a discussion of the applicable standards.

The defendant's motions raising this issue merely allege that an inordinate amount of time had passed since his arrest and their filing. No hearing was held during which evidence was presented in support of the motions. Rather, immediately before trial, the trial court, along with counsel from both sides, discussed the motions with the defendant's counsel making oral arguments.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), established the standards by which a claim of denial of the Sixth Amendment right to a speedy trial was to be reviewed. Such a review involves the assessment of four factors: (1) length of delay, (2) defendant's assertion of his right, (3) reasons for delay, and (4) prejudice to the defendant. A discussion of the latter three factors is unnecessary if the length of delay is not found to be "presumptively prejudicial" or "patently offensive". Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980); Corn v. State, 387 So.2d 275 (Ala.Cr.App.), cert. denied, 387 So.2d 280 (Ala.1980). United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), makes it clear that the right to a speedy trial is

"not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges."

It is unclear whether the delay between the defendant's arrest and his indictment was "made necessary by the law itself." Cook v. State, 333 So.2d 855, 858 (Ala.Cr.App.), cert. denied, 333 So.2d 858 (Ala.1976). The delays due to the several continuances are also unexplained. Assuming their occurrence rests with the State, mere inaction on its part is weighed less heavily against it than deliberate prosecutorial delay. Vickery, 408 So.2d at 185. The record reflects that a portion of the delay between the defendant's arrest and trial may be attributed to the normal procedures of the criminal justice system. However, part of the delay was a result of the multiplicity of pre-trial motions filed by the defendant himself.

Based upon the foregoing we do not find the delay between the defendant's arrest and trial long enough to be "presumptively prejudicial" and trigger inquiry into the other factors enumerated in Barker, supra. The delay is not "patently offensive" so as to require a determination of whether it is "justified". The delay in and of itself is insufficient to justify a finding that the defendant's Sixth Amendment right to a speedy trial has been violated. Boykin v. State, 398 So.2d 766 (Ala.Cr.App.), cert. denied, 398 So.2d 771 (Ala.1981); Whitley v. State, 392 So.2d 1220 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1225 (Ala.1981); Wade v. State, 381 So.2d 1057 (Ala.Cr.App.), cert. denied, 381 So.2d 1062 (Ala.1980); Washington v. State, 370 So.2d 342 (Ala.Cr.App.1979); Hawthorne v. State, 362 So.2d 1275 (Ala.Cr.App.1978).

Nevertheless, we have reviewed the record in light of the remaining factors of Barker, supra, and find no violation of the defendant's right to a speedy trial. The defendant failed to illustrate any prejudice as a result of the delay, which can be attributed in varying degrees to the State, the normal criminal case process, and the defendant. The circumstances of this case lend themselves to a showing of "affirmative prejudice." See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).

Important and significant factors which we have weighed heavily against the defendant in making our determination are the dilatory measures he exercised before trial. On the day the defendant's case was scheduled for trial he sought a continuance so that he could hire his own attorney although one had been appointed for him for more than ten months. Although the defendant argued that he thought his case had been dismissed, the record reflects that he had at least one week's notice that he was going to trial and during that time failed to even talk to any attorney.

Furthermore, the defendant subpoenaed a large number of witnesses for his trial. Some of these witnesses were inmates of the state penitentiary. From the record:

"THE COURT: Twenty-two witnesses called on rebuttal for a statement made at the preliminary hearing is an unusual number of witnesses. Not knowing the nature of the testimony, of course, I don't know as to the impact of that.

"However, I would suspect, looking at this list of witnesses, they are requested in the nature of a dilatory fashion. The Court having no further knowledge of this case than it does, that is just a presumption on my part."

In apparent verification of the trial judge's presumption of intentional delay is the fact that four of the witnesses the defendant had subpoenaed for trial were not called to testify because they either had no knowledge of the case or what knowledge they did have was based on rumor and hearsay.

II

The defendant contends that the trial court erred in admitting his confession into evidence because he was not adequately advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and because the statement was involuntary because he was "in pain" and "under sedation."

In attempting to escape from the police the defendant crashed Ms. Argo's automobile into a utility pole. The defendant was injured and unconscious. He was taken to an emergency room and treated. However, the defendant regained his senses in the emergency room. Officer John P. Linskey testified:

"At first when he came in he was hollering and screaming. He was in a lot of pain. Then as the pain subsided, he started getting more cocky instead of pain. So, apparently he was growing less--he was more of a cocky state."

Linskey stated that the defendant was "acting more smart-alecky. His answers would be more sharper in tone."

The defendant was at the Montgomery Police Department at 1:00 A.M. The record does not show what time he was released from the hospital or when he arrived at the police department, although Sergeant Fred House of the Jefferson County Sheriff's Department testified that it was his "impression" that the defendant arrived a "very few minutes" before 1:00...