Cain v. Smith

Decision Date07 July 1982
Docket NumberNo. 81-5145,81-5145
Citation686 F.2d 374
PartiesJames Leroy CAIN, Petitioner-Appellee, v. Steve SMITH, Steven L. Beshear, Respondent-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Michael R. Beiting, James L. Dickinson, Asst. Attys. Gen., Frankfort, Ky., for respondent-appellant.

Rodney McDaniel, Asst. Public Advocate, Frankfort, Ky., for petitioner-appellee.

Before KEITH, MERRITT and JONES, Circuit Judges.

KEITH, Circuit Judge.

The United States District Court for the Western District of Kentucky issued a writ of habeas corpus for James Leroy Cain, the petitioner-appellee, on the ground that the 111/2 months delay from the date of his arrest to trial violated his constitutional right to a speedy trial. We hold that the delay in this "mundane garden variety" robbery is more than sufficient to trigger further inquiry into the cause for the delay. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

It appears that the prosecution did not have a prima facie case against Cain during the initial seven months of his pretrial incarceration. Moreover, the prosecution obtained five continuances over the speedy trial objections of Cain. The present record, however, is fragmented and does not contain the court's rationale for granting the continuances. Therefore, we are unable to engage in the delicate balancing required to determine whether the lengthy delay constitutes a constitutional violation. See Barker, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Accordingly, we remand this action to the district court for further fact finding.


On November 1, 1975, two armed men robbed a Kroger grocery store in Louisville, Kentucky. A short time later, James Leroy Cain ("Cain") and Clarence Morrow ("Morrow") were arrested in the section of the city where the robbery occurred. Cain and Morrow were incarcerated immediately. Several days later, Cain filed a motion to dismiss claiming that he had been denied a speedy arraignment. The court overruled the motion. On November 10, 1975, the Jefferson County Grand Jury indicted Cain, Morrow, Robert Hayes, and his father, William R. Hayes for first degree robbery and first degree wanton endangerment. Bond for each defendant was set at $100,000.

The first trial date was set for December 12, 1975. On that date, Cain indicated that he was ready for trial. The trial, however, was postponed until March 23, 1976 on the Commonwealth's motion. The record does not indicate the basis on which the Commonwealth sought the continuance or the Court's rationale for granting the motion.

On March 23, 1976, the second trial date, Cain again announced that he was ready for trial. He also argued that "any further continuances would deny his (constitutional) right to a speedy trial." The case was again postponed at the Commonwealth's request. Cain objected, but the trial court denied Cain's speedy trial motion. Apparently, this second continuance was granted because a witness failed to appear. However, the record neither identifies the absent witness nor indicates his relative importance to the case.

The third date set for trial was April 23, 1976. Again, Cain was ready for trial. The trial, however, did not occur on April 23. At the Commonwealth's request, the Court postponed the trial until June 9, 1976. The record is not clear how the Commonwealth obtained a third continuance over the speedy trial objections raised by Cain.

Prior to the second continuance on March 23, the bonds for William and his son, Robert Hayes, were reduced from $100,000 to $2,000. The bond reductions were part of the Commonwealth's efforts to obtain the Hayeses' testimony. 1 The Commonwealth candidly admits that it could not prove Cain guilty unless William Hayes testified against Cain. 2 See Brief of Commonwealth at 23 n.4. The Commonwealth also admits that the delay from November to June was caused in part by the continuing negotiations to encourage Robert and William Hayes to testify against Cain and Morrow. Apparently, William Hayes did not agree to testify against Cain until seven months after Cain was incarcerated. On June 9, 1976, the Commonwealth consummated the deal with William and Robert Hayes. 3

That same day, Cain and the Commonwealth announced that they were ready for trial. However, the trial was not held. Morrow's counsel sought a continuance on the ground that the potential jurors had seen his client being led into the court in jail clothes. Counsel for Cain also objected due to Morrow's association with Cain. The court overruled both objections. Jury selection resumed immediately following the in-chambers discussion. Jury selection was halted a short time later. The precise reason for the interruption does not appear in the record. 4

Counsel retired to the judge's chambers. In chambers, Morrow sought a continuance while Cain sought a speedy trial. Cain explained that he was not attempting to "double play" the court and that he would not strenuously object to a continuance if his bond was reduced. The court replied, "I'm not going to let either one of them out, I'll tell you that right now. They're both going to stay in jail." Moments later, the court mentioned severing the cases of Cain and Morrow, but concluded that the prosecution would prefer a joint trial. The Commonwealth agreed, and amplified the Court's comment. Cain immediately renewed his motion for bond reduction. The court replied:

Well, I'm not saying you can't make the motion, and I have to go through a hearing, but I say the way I feel now, it won't be reduced because I've already had two hearings. Maybe you know something I don't, but the way I feel right now, these guys are going to stay in jail until we try them, if it's next year.

Undaunted, Morrow requested a bond hearing at the earliest possible date. The prosecutor suggested that the hearing be held immediately. Cain also sought an immediate ruling on his bond reduction request. He reminded the Court that it had previously indicated that a bond reduction would be given serious consideration if the trial were postponed.

The court rejected counsel's suggestions and continued the case. Cain immediately objected to the continuance on speedy trial grounds. The court recognized the objection, but stated that "the Commonwealth is entitled to try both (Cain and Morrow) at the same time." The court set June 18, 1976, as the date for the bond hearing.

The prosecutor subsequently blamed the continuance on Morrow. Allegedly, Morrow stated that he would strike sufficient jurors so that the case could not be tried that day. 5 Morrow, however, denied making the statement. The court exonerated Cain, but did not find that any party caused the failure to complete jury selection. All parties acknowledged that any party could create a shortage of jurors by using all of his preemptory challenges. Following this exchange, the prosecution renewed his request for an immediate trial. However, the court overruled Cain's speedy trial motion and continued the case until October. For some unexplained reason, the court did not follow its original plan to select additional jurors and conduct the trial the following morning.

Subsequently, the court proposed October 4, as the new trial date. Cain objected and requested an earlier date. 6 The case was continued until September 13, 1976. The record does not indicate what transpired at the bond hearing held on June 18, 1976.

On September 13, 1976, the trial was postponed for the fifth time. The reason the continuance was granted does not appear in the record. The trial was rescheduled for October 13, 1976. On that date, Cain filed a motion to dismiss for failure to grant a speedy trial. The court denied the motion. Cain was ultimately tried on October 13, approximately 111/2 months after his arrest.

Prior to his arrest, Cain was married and lived with his wife and two children in Chicago, Illinois. He was employed as a dental technician. He had no prior felony convictions.

At trial, the Commonwealth did not present one eyewitness who observed Cain's alleged involvement in the actual robbery. In fact, Rickie Mills was the only Kroger employee to place Cain anywhere near the Kroger store. He simply testified that Cain was in the store's parking lot five hours before the robbery. A police officer testified that Cain and Morrow were together several minutes after the robbery. William Hayes, however, provided the crucial testimony. He testified that minutes before the robbery, Cain and Morrow were in the "get-away car" in the Kroger parking lot. 7

The jury convicted Cain. Cain was sentenced to 20 years. Cain appealed his conviction to the Kentucky Supreme Court. The Kentucky Supreme Court affirmed the conviction on July 29, 1977. The court found that the Commonwealth had not deliberately delayed Cain's trial. The court acknowledged that Cain had diligently asserted his right to a speedy trial and regretted that he had "endured the oppression of languishing in jail for over 11 months." Nevertheless, the court concluded that the delay was not so unreasonable as to violate his constitutional rights.

On June 8, 1980, Cain filed a writ of habeas corpus in the district court contending that his right to a speedy trial had been denied. The district court concluded that 1) it was not possible to assume that the Commonwealth lacked some questionable motive; 2) the delay was disproportionate to the type of crime charged; 3) Cain was persistent and diligent in requesting a speedy trial; and 4) Cain was prejudiced by the 111/2 month pretrial incarceration. Subsequently, the district court issued a writ of habeas corpus directing the Kentucky state court to vacate Cain's sentence and dismiss the indictment. The State of Kentucky perfected this appeal. Presently Cain is on parole.


The Kentucky Supreme Court held that the 111/2 month delay between arrest and trial did not violate Cain's...

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