Glasgow v. State

Citation469 P.2d 682
Decision Date29 May 1970
Docket NumberNo. 1049,1049
PartiesBrice GLASGOW, Appellant, v. STATE of Alaska, Appellee.
CourtSupreme Court of Alaska (US)

Arthur Lyle Robson, Elinor B. Levinson, Fairbanks, for appellant.

Stephen Cooper, Asst. Atty. Gen., Anchorage, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.

OPINION

CONNOR, Justice.

Appellant Glasgow was convicted of two counts of an indictment charging four counts of larceny in a building on September 21, 1966, in violation of AS 11.20.150. On this appeal he asserts various claims of error by the superior court.

Because one of appellant's claims of error relates to his right to a speedy trial, it is necessary to set forth the procedural chronology of the case below.

An indictment charging appellant and two co-defendants with four counts of larceny in a building was returned on September 26, 1966, only a few days after the alleged offenses ocurred.

Appellant was arraigned on September 27, 1966, in the company of his court-appointed counsel, Mr. Dallas Phillips. An early trial was requested by the defense. The state notified the court that it required three weeks' notice of the setting of any trial. On December 27, 1966, the superior court notified both parties by letter that trial was set to commence on April 3, 1967. On this latter date appellant appeared with counsel and sought a continuance to arrange for other counsel from California to represent him because he felt there might exist a possible conflict of interest on the part of Mr. Phillips. The record reflects that Mr. Phillips was to contact appellant's California attorney and arrange for certificates of special admission and affiliation with local counsel. The trial was continued until June 5, 1967, to proceed with local counsel if appellant's California attorney did not appear.

On May 8, 1967, the superior court noted that administrative reasons compelled it to vacate the June 5th trial date. It was further noted that the case would be given priority for purposes of resetting, and counsel were invited to inform the court of any special considerations in that regard. On July 13, 1967, the court notified the parties by letter that trial was set for October 23, 1967. On this latter date Mr. Phillips appeared for the two co-defendants and Mr. E. R. Williams of California appeared as counsel for appellant. Although Mr. Williams explained that he had spoken with the appellant the foregoing Friday and had informed him that he was coming to Fairbanks, appellant was absent. A bench warrant was issued and bond was forfeited. Trial proceeded as to one of the co-defendants.

On November 10, 1967, appellant was extradited to Alaska and was incarcerated. On November 13, 1967, he appeared with Mr. Phillips, associate counsel with Mr. Williams of California, and explained that sickness had prevented his appearance on October 23, 1967. On November 22, 1967, he appeared with Mr. Phillips, at which time bail was reduced to $5000 for a period of sixty days, with appellant to keep in contact with the court. Glasgow was unable to procure bail, however, and was incarcerated.

By a letter dated November 30, 1967, Mr. E. R. Williams notified the District Attorney that he would probably not represent Glasgow because he had not heard from him or any of his family concerning this matter. He suggested that other arrangements should be made and stated that he would file the necessary certificate for special admission if he were to represent the appellant.

On January 1, 1968, appellant wrote to Judge Everett W. Hepp of the superior court requesting bail and a speedy trial. On February 2, 1968, Judge Hepp responded to this letter promising to advise the District Attorney to bring the case on as soon as possible. On May 14, 1968, appellant again wrote to Judge Hepp requesting a speedy trial. On June 12, 1968, the court notified the parties that trial was set for July 8, 1968.

By a letter dated June 25, 1968, appellant again wrote to the superior court asserting his indigence and his desire to have court-appointed counsel. He further stated that he desired an attorney other than Mr. Phillips. On July 1, 1968, he moved to dismiss the case for failure to prosecute. On July 8, 1968, he appeared with counsel, Mr. Phillips. His motion to dismiss the indictment was taken under advisement and his request for the grand jury minutes was denied because no such minutes had been kept. His motion to relieve Mr. Phillips as counsel was also denied, the court finding Mr. Phillips to be qualified. Trial proceeded.

On July 10, 1968, the court denied appellant's motion to dismiss the indictment, but did grant a judgment of acquittal on Count IV of the indictment. On July 12, 1968, the jury returned its verdicts, finding appellant not guilty on Count I and guilty on Counts II and III of the indictment. On August 13, 1968, a judgment of conviction was entered against him for larceny in a building as charged. He was sentenced to three years' imprisonment on each count, the sentences to run concurrently.

I

Appellant's first claim of error is that he was arrested in Canada when no warrant existed for his arrest in the United States or elsewhere. It has not been demonstrated either in the proceedings below or on appeal just how the arrest was unlawful or its products were tainted, or how appellant suffered prejudice as a result of his arrest in Canada.

We have noted that an arrest warrant was issued in Alaska the day after the alleged offense, and appellant was taken into custody by the Alaska State Police that same day. Appellant has not directed our attention to any authority which would overcome the rule that the mere illegality of an arrest will not of itself invalidate a conviction. Where a person is found within the territorial jurisdiction of a state and is held and prosecuted under process lawfully issued by the state, neither the jurisdiction of the court nor the right to try the person for the offense charged is impaired because of the manner in which he was brought into the jurisdiction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968).

But in any event no showing has been made that the arrest in Canada was unlawful or that the evidence used against appellant was obtained unlawfully. In the circumstances of this case we find no error.

In his second specification of error, appellant complains that a judgment of acquittal should have been entered on Counts I, II and III. He contends that there was insufficient evidence to support a guilty verdict. Since we reverse on other grounds, it is unnecessary to answer this contention.

Appellant also raises as error the fact that he was denied counsel of his choice, that the evidence before the grand jury was insufficient to support an indictment, and that a secret indictment was obtained against him. For the reasons stated immediately above, we need not consider these specifications of error.

II

Appellant asserts that because of the delays in bringing him to trial, he was denied his right to a speedy trial guaranteed by both the United States Constitution and the Alaska Constitution. 1

Under the recent case of Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the United States Supreme Court, through the due process clause of the Fourteenth Amendment, made applicable to the states the Sixth Amendment right to speedy trial. But it may have accomplished more than this. Before Klopfer and the more recent case of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), there were many bases on which defendants were denied dismissal of criminal proceedings even though delays were considerable. The case stressed the relativity of the right to jury trial; prosecutors' excuses for delay were often accepted with great readiness, and defendants were often required to prove that the delay in being brought to trial was actually prejudicial to the presentation of their defenses. 2 Additionally, waiver doctrines have been employed to hold that defendants who have failed to demand speedy trials shall be deemed to have waived such rights, one such precedent being a decision of this court. 3

The degree to which the earlier case law on speedy trial is still sound has been thrown into some doubt by the Klopfer and Hooey decisions. Both stress the burden resting upon the state to bring the accused promptly to trial. Neither case resorts to undue technicalities about the necessity of showing prejudice to the defense, nor are waiver doctrines apparently relied upon. 4

In Klopfer, the defendant was indicted for criminal trespass in connection with a civil rights demonstration. After a mistrial the case was postponed for two terms of court. Finally, the trial court granted the prosecutor's request for a 'nolle prosequi with leave,' by which the accused is discharged but remains subject to criminal prosecution at the discretion of the prosecutor. The United States Supreme Court held, speaking through Chief Justice Warren, that by indefinitely postponing prosecution, without an apparent justification, the state had denied Klopfer's right to a speedy trial. The decision of the Court was unanimous, although Justice Stewart concurred in the result and Justice Harlan concurred on the ground that the pendency of unliquidated criminal charges for an indeterminate period was in itself a denial of the requirement of fundamental fairness guaranteed by the Fourteenth Amendment.

The right to a speedy trial fulfills several purposes. One is to prevent harming the defendant by a weakening of his case as evidence and memory of witnesses grow stale with the passage of time. Another is to prevent prolonged pre-trial incarceration and the infliction of anxiety upon the accused because of long-pending charges. It was this latter element which was stressed in Klopfer almost to the exclusion of any others....

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