Corn v. State

Decision Date27 May 1980
Docket Number6 Div. 104
PartiesJohn Edwin CORN v. STATE.
CourtAlabama Court of Criminal Appeals

Fred Pickard, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for robbery (Circuit Court No. 79-00684) and sentenced to ten years' imprisonment. He pled guilty (with the understanding that he could appeal) to a second indictment for robbery (Circuit Court No. 79-00685) and was sentenced to ten years to run concurrent with the sentence previously imposed by the trial jury. The only issue argued on appeal, though others are presented but not argued in brief, is whether the defendant was denied his right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 6 of the Constitution of Alabama of 1901.

The facts are stated in chronological order.

May, 1969: The defendant is convicted and sentenced to 20 years' imprisonment in the State of Florida. The tentative release date is June 23, 1980.

January 10, 1975: A robbery detainer is placed on the defendant from Jacksonville, Florida.

The defendant escapes from Hillsboro and the Florida State Prison system.

April 23, 1975: The defendant is committed to a Florida State Mental Hospital.

June 21, 1975: The defendant commits three robberies and two kidnappings in Alabama while on escape from Florida.

July 10, 1975: The District Attorney of Jefferson County receives information that the defendant is in the custody of the U.S. Marshal in Cleveland, Ohio.

July 29, 1975: Alabama authorities are informed that the defendant has been extradited from Ohio and is in jail in Quincy, Florida, on a charge of escape.

August 11, 1975: The Jefferson County (Alabama) Grand Jury returns five indictments against the defendant who is an inmate of the Florida State Prison System.

November 21, 1975: The defendant is adjudged mentally competent to stand trial.

December 19, 1975: Alabama is informed that the defendant had been transferred to Green Cove Springs, Florida.

January 7, 1976: An Alabama detainer is filed against the defendant by teletype.

January 9, 1976: Florida informs Alabama that more than a teletype is necessary to file a detainer and indicates that there are prior trial commitments on the defendant: (1) An escape from Tampa, Florida detainer filed January 10, 1975; (2) a robbery from Jacksonville, Florida detainer filed January 10, 1975; and (3) an assault and armed robbery from Nashville, Tennessee detainer filed January 9, 1976.

January 21, 1976: The defendant contends that he communicated with the District Attorney of Jefferson County by letter on this date and requested that he be brought to trial on the charges then pending against him in Jefferson County.

The District Attorney denies that he ever received this letter. He states that the Florida authorities were sent certified copies of the indictment and warrant of arrest on this date in response to Florida's letter of 1-9-76.

January 27, 1977: The defendant alleges that he mailed a "Demand for a Speedy Trial" to the D.A. The D.A. maintains that this demand was never received.

According to the defendant, sometime during this month a number of charges are disposed of leaving only Alabama and Tennessee detainers remaining.

March 24, 1977: The defendant alleges that he made his third demand for a speedy trial. The District Attorney denies that his office received any such demand.

June, 1977: Extradition to Tennessee is denied by Florida authorities.

October 6, 1978: The defendant files a petition for writ of habeas corpus in the federal district court.

October 12, 1978: Order to show cause issued to the State of Alabama by the federal district court. The State responds on November 1, 1978, contending that the defendant has never requested a speedy trial and attaching the affidavit of the Circuit Clerk of Jefferson County stating that a search had been made but no demand found.

November 7, 1978: The Federal Court orders an additional response from the State which the State files on November 16, 1978.

January 11, 1979: The Federal Magistrate recommends that the defendant's petition for habeas corpus be taken under submission by the court for a period of 120 days. If the State of Alabama fails to take the necessary action to secure the defendant's presence for trial within the 120-day period, it is recommended that the petition be granted.

January 11, 1979: The defendant objects to the Report and Recommendation of the U.S. Magistrate.

April 2, 1979: The Federal Court grants the State an additional 30 days in which to bring the defendant to trial. This extension is allegedly necessitated by the defendant's refusal to sign a "detainer act form".

April 27, 1979: The defendant is returned to Alabama through the use of the "Uniform Agreement of Detainer Act". (The State alleges that Alabama had become a party to this Act during the litigation of the federal habeas corpus petition. The Alabama Code shows the Uniform Mandatory Disposition of Detainers Act became effective April 27, 1978.)

May 1, 1979: Counsel is appointed to represent the defendant and the arraignment is held. Trial is set for May 21, 1979, and "passed from time to time until June 6th". (The record shows no objection by the defendant to any continuance.)

June 5, 1979: The defendant is tried and convicted on June 6 for robbery (Case No. 79-00684).

June 11, 1979: The defendant pleads guilty to a second robbery charge (Case No. 79-00685).

The Circuit Court denied the defendant's petition for writ of habeas corpus and motion to quash the indictment. The judge found that the State of Alabama had not been negligent in bringing the defendant to trial and that the defendant had not been unduly prejudiced by the delay. The Circuit Court agreed with the Federal District Court in finding that the defendant had failed to establish that he requested a speedy trial in 1977. Both courts found that the first notice the State of Alabama had of the defendant's demand for a speedy trial was in October of 1978, in connection with the defendant's habeas corpus petition in federal court.

The usual factors to be evaluated in determining whether the defendant has been denied his Sixth Amendment right to a speedy trial are clearly stated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Length of Delay : The delay from the defendant's indictment until his trial is three years and ten months. This delay is long enough to be "presumptively prejudicial" and trigger inquiry into the other factors bearing on the alleged denial of a speedy trial. United States v. Palmer, 537 F.2d 1287 (5th Cir. 1976). Since this delay is "patently offensive" we must determine whether it is "unjustified". Prince v. State of Alabama, 507 F.2d 693, 702 (5th Cir. 1975). However, this delay is not sufficient in and of itself to justify a finding that the guarantee of a speedy trial has been violated. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Jones v. Morris, 590 F.2d 684, 686 (7th Cir. 1979); Andrews v. State, 370 So.2d 1070, 1072 (Ala.Cr.App.), cert. denied, 370 So.2d 1075 (Ala.1979).

Assertion of Right : Despite and contrary to the defendant's contentions, both federal and state courts found that the defendant failed to establish that he had requested a speedy trial in either 1976 or 1977. Both courts found that the first notice the State received was in October of 1978.

The defendant proved that he asserted his right to a speedy trial two years and nine months after he learned of the indictment.

"(T)he point at which the defendant asserts his right is important because it may reflect the seriousness of the personal prejudice he is experiencing. . . . To the extent that promptness in asserting the right is important, then appellant's silence during the entire pre-indictment period works against him because it suggests that any hardships he suffered were either minimal or caused by other factors."

Palmer, 537 F.2d at 1288.

This principle is applicable to this case.

Reason for Delay : The State contends, and there is no evidence to the contrary, that the District Attorney of Jefferson County had been informed by the authorities in Florida that Alabama would have to "wait its turn" to try the defendant because other states had previously filed detainers against the defendant. At the hearing in the Circuit Court, the Assistant District Attorney stated that, "We relied on the State of Florida to inform us when we could attempt to take custody of him. We are under the belief that he was involved in pending litigation there."

The law was stated in the Report and Recommendation of the U.S. magistrate:

"The controlling authorities with regard to a prisoner's right to a speedy trial are: Peyton v. Rowe, 391 U.S. 54 (88 S.Ct. 1549, 20 L.Ed.2d 426) (1968); Braden v. 30th Judicial Circuit, 410 U.S. 484 (93 S.Ct. 1123, 35 L.Ed.2d 443); Strunk v. U. S., 412 U.S. 434 (93 S.Ct. 2260, 37 L.Ed.2d 56); Klopfer v. N. C., 386 U.S. 213 (87 S.Ct. 988, 18 L.Ed.2d 1); May v. Georgia, 409 F.2d 203 (5th Cir. 1969); Beck v. U. S., 442 F.2d 1037; Dickey v. Florida, 398 U.S. 30 (90 S.Ct. 1564, 26 L.Ed.2d 26); Prince v. Bailey, (State of Alabama), 507 F.2d 693 (5th Cir. 1975); Smith v. Hooey, 393 U.S. 374 (89 S.Ct. 575, 21 L.Ed.2d 607) (1969). In summary, these authorities require state authorities who have filed a detainer against a prisoner in another jurisdiction to make a diligent good faith effort, upon demand, to secure the presence of such defendant for trial." (Emphasis added)

In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 609 (1969), the United States Supreme Court held that "on demand a State had a duty to make a diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial." Dickey v. Florida, 398 U.S. 30, 37, 90...

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