Edmaiston v. Neil

• Decision Date: 03 December 1971
• Docket Number: No. 21041.,21041.
• Citation: 452 F.2d 494
• Parties: Freeman C. EDMAISTON, Petitioner-Appellant, v. William S. NEIL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

452 F.2d 494 (1971)

Freeman C. EDMAISTON, Petitioner-Appellant, v. William S. NEIL, Warden, Respondent-Appellee.

No. 21041.

United States Court of Appeals, Sixth Circuit.

December 3, 1971.

H. Fred Hoefle, Cincinnati, Ohio (Court appointed), for petitioner-appellant.

James M. Tharpe, Sp. Counsel, State of Tenn., Memphis, Tenn., for respondent-appellee; David M. Pack, Atty. Gen. and Reporter, State of Tenn., of counsel.

Before WEICK, CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from the District Court's denial of a writ of habeas corpus. On appeal Appellant's sole argument is that the District Court erred in ruling that he was not denied a speedy trial by the Tennessee courts. An evaluation of this claim requires a rather extended exposition of the facts surrounding Appellant's 1969 robbery conviction.

Late in March, 1960, Appellant was charged with the March 14, 1960 robbery of a liquor store employee in Shelby County, Tenn. A warrant was issued for his arrest, but was not executed because by the time Appellant was located he was in the custody of Illinois authorities, having been arrested on an Illinois robbery charge on March 20, 1960.

Once informed of the Illinois arrest two Memphis detectives journeyed to the Illinois jail where Appellant was held and informed him that he was wanted for the liquor store robbery. The record does not indicate that they (or any other Tennessee authorities) took any steps to secure Appellant's return for trial other than to cause a detainer to be lodged against him on March 23d.

Appellant was convicted on the Illinois charge later in 1960 and sentenced to twenty years imprisonment. On June 3, 1968 he was paroled and returned to Memphis. There, on June 11, 1968, some eight years and three months after charges were first filed against him. Appellant was indicted for the liquor store robbery. Counsel was then, for the first time, appointed to assist Appellant. Some six months later, on January 13, 1969, Appellant was tried and convicted and sentenced to a 5-10 year term in the Tennessee State Penitentiary, where he is presently incarcerated.

Before trial, Appellant moved to quash the indictment on the grounds that his right to a speedy trial had been violated; the motion was denied. Appellant pressed his speedy trial claim on appeal, but it was rejected by the Tennessee Court of Criminal Appeals. Edmaiston v. State, 452 S.W.2d 677 (1970). He then petitioned for a writ of habeas corpus in the United States District Court. The District Court granted Appellant an evidentiary hearing on his petition, but found that Appellant had waived his rights by failing to demand a speedy trial; it also found that Appellant had failed to establish that he was prejudiced by the delay. Basing its ruling on these findings the District Court refused to issue the writ.

Appellant urges that the failure to bring him to trial at an early date denied him the testimony of two alibi witnesses, a Mr. and Mrs. John Albright, who died in a 1965 auto accident. He contends that in 1961 and 1962, prior to the deaths of the Albrights, he demanded a speedy trial by letter addressed to the Circuit Court of Shelby County and to the State Attorney General. He also alleges that a more formal request was made by petition in 1966—after the deaths of the witnesses.

While the Tennessee trial court found that Appellant had made several requests for a speedy trial and the Court of Criminal Appeals agreed, the District Court was not persuaded. This apparent reversal of the State court on a finding which was favorable to Appellant raises interesting questions under 28 U.S.C. § 2254. Our treatment of the demand issue makes it unnecessary to reach that question, however.

I.

We first consider the threshold problem posed by the fact that the bulk of the delay complained of occurred after arrest, but before indictment. At least one Circuit has held that the speedy trial protection does not apply at all in such circumstances. Reece v. United States, 337 F.2d 852, 853 (5th Cir. 1964); United States v. Williams, 416 F.2d 4, 9 (5th Cir. 1969), cert. denied 397 U.S. 968, 90 S.Ct. 1008, 25 L.Ed.2d 262 (1970). We do not agree with that conclusion.

Several cases in this Circuit have held that the statute of limitations rather than the speedy trial clause governs preindictment delay in general. United States v. Harris, 412 F.2d 471, 473 (6th Cir. 1969); Hoopengarner v. United States, 270 F.2d 465 (6th Cir. 1959; Lothridge v. United States, 441 F.2d 919 (6th Cir. 1971). Only one of these cases dealt with a situation in which post-arrest, pre-indictment delay was complained of, however. In Lothridge (supra) a ten-month delay between the commission of the crime and indictment was held not to be governed by the Sixth Amendment. More than half of that delay was attributable to the period before charges were filed or an arrest was made, however and so the question of whether substantial post-arrest delay could give rise to a speedy trial violation was not reached. See Lothridge, supra, 441 F.2d at 922 fn. 3.

The great weight of authority supports the view that in the present situation "the right (to speedy trial protection) attaches upon arrest." Dickey v. Florida, 398 U.S. 30, 43, 90 S.Ct. 1564, 1572, 26 L.Ed.2d 26 (1970) Brennan, J. concurring;¹ Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959); Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233, 234 (D.C.Cir. 1964) cert. denied, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276; United States v. Sanchez, 361 F.2d 824, 825 (2d Cir. 1966); United States v. Colitto, 319 F.Supp. 1077 (E.D.N.Y. 1970).

These decisions, holding that speedy trial protection applies whenever an individual is charged with a crime, whether at the time of arrest or indictment, would seem to be consistent with the purposes which the Supreme Court has said underlie the Sixth Amendment. In United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), the Speedy Trial Clause was held to serve three major purposes. It prevents "undue and oppressive incarceration prior to trial," limits so far as possible the "anxiety and concern accompanying public accusation," and prevents the "impair(ment)" of the accused's "ability to defend himself" which would flow from a "long delay." 383 U.S. at 120, 86 S.Ct. at 776. The loss of concurrent sentencing possibilities or the limitations on parole terms which may flow from the filing of a detainer even in the absence of an indictment can certainly be included within the types of "oppressive incarceration" the Supreme Court alluded to in Ewell. See Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Similarly it is evident that "anxiety and concern" accompany any formal accusation—whether made through indictment or merely by arrest. Perhaps most importantly "long delay will impair the ability of an accused to defend himself" whether that delay occurs between arrest and indictment or after indictment.

While recognizing the applicability of some of these concerns even in the absence of both indictment and arrest this Circuit nevertheless has felt that the need for confidential pre-accusation investigation usually requires that speedy trial rights not attach until indictment. See United States v. Harris, supra, 412 F.2d 471. The feasibility of such secret evidence gathering, however, disappears in most cases once either arrest or indictment has taken place and an accused is acquainted with the general nature of the charges against him.

For these reasons we believe that allowing the speedy trial protection to attach upon arrest when arrest occurs before indictment is consistent with the purposes supporting the Sixth Amendment and places no undue burden upon prosecuting or law enforcement authorities.² Whether or not the protection has been abridged, of course depends on the specific facts of each case.

II.

Having determined that the speedy trial protection is available against post-arrest, pre-indictment delay we now turn to consideration of whether Appellant's rights were violated under the circumstances of this case.

In a series of rulings between 1967 and 1970 the Supreme Court greatly expanded the law applicable to persons in Appellant's situation. First the Court made speedy trial protection directly applicable in state proceedings. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); then, in 1969, it required states to use "due diligence" in securing the speedy return for trial of prisoners held in other states. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Finally, in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), it held that the failure to use such diligence, at least when coupled with some evidence of prejudice, justified the voiding of a conviction obtained after the delay.

Appellant's conviction was entered on January 13, 1969; the Smith v. Hooey decision was not announced until January 20, 1969 and the Dickey v. Florida decision, May 25, 1970. The Tennessee Court of Criminal Appeals, reviewing Appellant's conviction after Smith, but before Dickey had been announced, held that under these circumstances Smith did not control its decision. Edmaiston v. State, Tenn., 452 S.W.2d 677, 680 (1970). It held that it was free to follow pre-existing Tennessee law which placed no responsibility on the State to secure the return of out of state prisoners for trial. See Burton v. State, 214 Tenn. 9, 377 S.W.2d 900 (1964). It was the State Court's conclusion that Appellant's rights to a speedy trial had not been violated because no rights accrued until he was released from the Illinois prison.

We believe that Smith v. Hooey (and Dickey v. Florida) should be applied retroactively and therefore that Tennessee's failure to use due diligence in attempting to bring Appellant to trial promptly could constitute a...