Ex parte Apicella

• Decision Date: 30 March 2001
• Citation: 809 So.2d 865
• Parties: Ex parte Andrew Anthony APICELLA. (In re Andrew Anthony Apicella v. State of Alabama).
• Court: Alabama Supreme Court

809 So.2d 865

Ex parte Andrew Anthony APICELLA.

(In re Andrew Anthony Apicella v. State of Alabama).

1992273.

Supreme Court of Alabama.

March 30, 2001.

Rehearing Denied July 6, 2001.

Erskine R. Mathis, Birmingham, for petitioner.

Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for respondent.

Martha Morgan, Tuscaloosa, for amici curiae certain "Law Students" (Latisha Colvin, Melissa Hutchens, Neal Hutchens, Hallie Leavell, and Kacey Keeton), in support of the petitioner.

HOUSTON, Justice.

On the night of October 16, 1994, Anthony Apicella and a codefendant, who was later tried separately, robbed the Changing Times lounge in Birmingham. During the course of that robbery, five people were murdered. Apicella was convicted of capital murder, under § 13A-5-40(a)(10), Ala.Code 1975. The jury, by a vote of eight to four, recommended that Apicella be sentenced to life imprisonment without parole. After a delay of 14 months, the trial court overrode the jury's recommendation, as authorized by Ala.Code 1975, § 13A-5-47(e), and sentenced Apicella to death. The Court of Criminal Appeals affirmed the conviction and the sentence. Apicella v. State, 809 So.2d 841 (Ala.Crim. App.2000). See the opinions of the Court of Criminal Appeals for a more complete statement of the facts.

This Court granted certiorari review to consider three issues. The first two of these issues were raised by Apicella: Whether the 14-month delay between conviction and sentencing violated his right to a speedy trial and whether juror misconduct unlawfully influenced the jury's verdict. This Court raised the third issue ex mero motu: Whether the statutory provision allowing a trial judge to override a jury's recommendation in a capital case violates Art. I, § 11, of the Alabama Constitution of 1901 ("[T]he right of trial by jury shall remain inviolate.").

I. The Speedy-Trial Issue

Apicella claims he was prejudiced by the 14-month delay between his conviction and his sentencing. The Court of Criminal Appeals held that that delay did not deny him his right to a speedy trial; he argues that that holding conflicts with the holding of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the Supreme Court set out four factors a court should consider in deciding whether a defendant has been denied his right to a speedy trial: 1) the length of the delay; 2) the reason for the delay; 3) whether the defendant asserted his right to a speedy trial; and 4) the prejudice the delay caused the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182.¹ The right to a speedy trial encompasses the right to a timely imposition of sentence. Hurst v. State, 516 So.2d 904 (Ala.Crim.App.1987). Therefore, the Barker factors can be properly applied to Apicella's claim that the delay in sentencing denied him his right to a speedy trial.²

In considering the length of the delay as a factor in the speedy-trial analysis, Barker states that "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." 407 U.S. at 530, 92 S.Ct. 2182.

Alabama courts have found no presumptive prejudice in a number of cases in which the delays were longer than the 14 months at issue here. Ex parte Payne, 683 So.2d 458 (Ala.1996) (25 months); Kelley v. State, 568 So.2d 405 (Ala.Crim.App. 1990) (15 months); Arnett v. State, 551 So.2d 1158 (Ala.Crim.App.1989) (20 months); Dykes v. State, 452 So.2d 1377 (Ala.Crim.App.1984) (15 months). Considering that Apicella complains here of a postconviction delay and that he could have been sentenced to no term less than life without parole, we conclude that the 14-month delay was not presumptively prejudicial.

Although we have concluded that the delay was not presumptively prejudicial, we nevertheless elect to consider the other three factors, because Apicella was sentenced to death. Under Alabama law, sentencing may not occur until after the trial court has ordered and received a presentence investigation report. Ala.Code 1975, § 13A-5-47(b). The trial court did not receive Apicella's presentence investigation report until July 31, 1997. Apicella was sentenced on August 11, 1997. Our examination of the record indicates that it was the lack of a presentence report that caused the court to delay sentencing.

Apicella argues that the actual reason for the delay was a desire on the part of the trial judge to give identical sentences to Apicella and his codefendant. The sentencing order does not indicate that in sentencing Apicella the trial court relied upon the result of the trial of Apicella's codefendant. It does, however, reflect an extensive reliance by the judge upon the information found in the presentence report.³ The Court of Criminal Appeals did not err in finding no improper reasons for the delay.

During the 14 months between the date of the trial and the date the trial court sentenced Apicella, Apicella filed one motion asking that the sentence be imposed. The court denied that motion. A defendant need not assert his right to a speedy trial in order to preserve it, but the "frequency and force" of a defendant's efforts to obtain a speedy trial are factors a court should consider in determining whether a speedy trial was denied. Barker, 407 U.S. at 528-29, 92 S.Ct. 2182. Apicella's single effort does not, standing alone, indicate that he was denied his right to a speedy trial.

The fourth Barker factor is prejudice to the defendant. Apicella argues that he was prejudiced by being incarcerated in the county jail, which lacked the facilities of a state prison; by having his appeal delayed; by the possibility that, if on appeal he should win a new trial, witnesses' memories may have faded; and by experiencing anxiety over the possibility that he would receive a sentence of death.

Barker addresses the matter of prejudice as follows:

"A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired."

407 U.S. at 532, 92 S.Ct. 2182.⁴

We find in the record no evidence indicating that the delay in sentencing impaired Apicella's chances of winning on a retrial. While Apicella may indeed have felt "anxiety and concern" during the delay between his conviction and his sentencing, it was anxiety and concern about whether he would be sentenced to life imprisonment without the possibility of parole, which the jury recommended, or to death. We conclude that that anxiety and concern are insufficient to support a holding that the delay in sentencing constituted a denial of his right to a speedy trial.

After weighing the four factors set out in Barker, we hold that the delay in sentencing did not operate to deny Apicella his right to a speedy trial.

II. The Juror-Misconduct Issue

We granted certiorari review in part to examine the misconduct of juror S.B. During the guilt phase of Apicella's trial, before the jury began deliberations, S.B. spoke with an attorney, T.R., with whom S.B. was acquainted.⁵ The subject of their conversation was the law of complicity, an issue material to Apicella's trial.⁶

S.B. testified that his conversation with T.R. lasted approximately 2½ minutes, that T.R. was distracted during the conversation, and that they discussed the law of complicity only in the most general of terms. S.B. further testified that T.R.'s comments did not enter into his thoughts during deliberations and that the trial court's instructions on the law of complicity were "crystal clear." There is no question that S.B.'s actions constituted misconduct. At issue is whether this misconduct warrants a new trial.

Generally, under Alabama law, juror misconduct involving the introduction of extraneous materials warrants a new trial when one of two requirements is met: 1) the jury verdict is shown to have been actually prejudiced by the extraneous material; or 2) the extraneous material is of such a nature as to constitute prejudice as a matter of law. Knight v. State, 710 So.2d 511, 517 (Ala.Crim.App.1997). We conclude that neither of those requirements has been met in this case.

Apicella argues that when a court is determining whether a juror's conduct has caused actual prejudice the standard applied is whether the extraneous material "might have influenced that juror and others with whom he deliberated," Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932). Apicella relies heavily upon this statement in Roan:

"The test of vitiating influence is not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered."

225 Ala. at 435, 143 So. at 460.

On its face, this standard would require nothing more than that the defendant establish that juror misconduct occurred. As Apicella argues, the word "might" encompasses the entire realm of possibility and the court cannot rule out all possible scenarios in which the jury's verdict might have been affected.

However, as other Alabama cases establish, more is required of the defendant. In Reed v. State, 547 So.2d 596, 598 (Ala. 1989), this Court addressed a similar case of juror misconduct:

"We begin by noting that no single fact or circumstance will determine whether the verdict rendered in a given case might have been unlawfully influenced by a juror's [misconduct]. Rather, it is a case's own peculiar set of circumstances that will decide the issue. In this case, it is undisputed that the juror told none of the other members of the jury of her experiment until after the verdict had been

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