Crawford v. State, 6 Div. 71
| Decision Date | 01 February 1977 |
| Docket Number | 6 Div. 71 |
| Citation | 342 So.2d 450 |
| Parties | Johnny Otis CRAWFORD, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Spencer T. Bachus, III, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
Appellant was convicted of burglary of an inhabited dwelling in the nighttime and sentenced to imprisonment for ten years. His only contention on appeal is that he has been deprived of his right to due process of law guaranteed to him by U.S.Const. amend. V and Ala.Const. art. 1, § 6. He bases his contention on a pre-arrest delay of twenty-three months, the alleged crime having been committed on March 14, 1973, and his arrest having been made on February 14, 1975. He expressly disclaims any violation of his Sixth Amendment right to a speedy trial, acknowledging that such a contention is foreclosed by United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), in which it was said:
'. . . But we decline to extend the reach of the amendment (Sixth Amendment) to the period prior to arrest. . . .' United States v. Marion, 404 U.S., at 321, 92 S.Ct. at 464, 30 L.Ed.2d at 479.
According to the testimony of Reginald Eberhart, sixteen years old at the time of the crime, a man was seen by him in the hall outside his room at about one A.M. March 14, 1973. He 'hollered,' 'Momma, someone is in the house,' and the man ran down the steps and out of the house. The house had been broken into and property taken therefrom. The Police Department was notified; Reginald identified defendant from pictures shown him by the police. A warrant was issued for defendant that day, but the warrant was returned without service, it being shown thereon that defendant was not at the address given for him. On May 31, 1973, defendant was arrested and placed in the Jefferson County jail on another charge, a charge of grand larceny. He remained in jail on the larceny charge until conviction and transfer on January 15, 1974, to Draper Correctional Institute, where he remained until January 13, 1975. On February 14, 1975, he was arrested on another charge that was dismissed, but while under detention on the other charge, he was additionally restrained on the charge in this case. A preliminary hearing was conducted, for which he was appointed counsel, and he was bound over to the grand jury, which indicted him June 6, 1975. He was arraigned and pleaded not guilty June 13, 1975. His case was set for trial August 4, 1975. On July 29, 1975, he filed a motion to dismiss for delay in commencing the prosecution; a hearing thereon was conducted on August 4, 1975, prior to the trial of his case; after considering defendant's affidavit and his testimony on the motion, and argument of counsel, the court overruled the motion and proceeded with the trial.
No explanation was given for the twenty-three months delay in the execution upon defendant of the warrant for his arrest other than by a stipulation of parties that, 'Through some set of circumstances, through inadvertence, or carelessness, or whatever, he was not, back then, ever arrested on that warrant, through possible change of duties on the part of some detective, or something of that nature,' and that the warrant was 'assigned to officers in the Sheriff's Department who served, and they made an effort to serve the warrant, and it was returned the 21st day of March, 1973, being not found at that address,' and 'at that point it was filed.'
Realizing that he must show that the delay caused defendant substantial damage to his ability to present a defense, reliance is placed upon his affidavit, and his testimony on the pretrial hearing to the effect that he was not able to remember any events of that day, or surrounding days, but that he was able to recollect that he was living on that day with a 'girl named Betty Jones,' who had moved to Detroit, according to information obtained from a friend of defendant.
Young Reginald Eberhart positively identified defendant. He had seen defendant on occasions prior to...
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