Goodson v. State

• Decision Date: 01 March 1991
• Citation: 588 So.2d 509
• Court: Alabama Court of Criminal Appeals
• Parties: Marvin GOODSON v. STATE. CR 89-1291.

Page 509

588 So.2d 509

Marvin GOODSON v. STATE.

CR 89-1291.

Court of Criminal Appeals of Alabama.

March 1, 1991.

Rehearing Denied April 26, 1991.

Certiorari Quashed Oct. 18, 1991

Alabama Supreme Court 1901212.

Joseph J. Gallo, Dothan, for appellant.

Don Siegelman, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Appellant Marvin Goodson was convicted of the unlawful distribution of a controlled substance, cocaine, a violation of § 13A-12-211, Code of Alabama 1975. He was sentenced to 15 years in prison.

The state's evidence tended to show that in late June 1988, the Dothan Police Department and an Alabama Alcoholic Beverage Control Board agent, Robert Chambers, were conducting an investigation into drug activity in the Dothan area. Chambers first saw an individual, whom he identified at trial as Goodson, in the front yard of a residence on Toad Street in Dothan. Chambers, who was accompanied by an unidentified confidential informant, stopped at the front yard of the residence. Goodson, who was talking to two other individuals, started walking toward Chambers's vehicle. Chambers asked Goodson for a "$40.00 piece of rock cocaine." Goodson said that he had the cocaine and asked Chambers to pull into the parking area. They went to the porch and Goodson pulled from his pocket a bottle that contained several pieces of white "rock substance." He told Chambers to take his pick of the pieces. They then concluded the transaction and Chambers bagged the substance so that it could be analyzed.

During the course of the transaction, Chambers was wearing a "body mike." At the time of the transaction, Chambers did not know the name of the individual who sold him the cocaine. After Chambers returned to his vehicle, he called Sheriff Hadden, who was monitoring the transaction through the body mike which Chambers was wearing, and gave him a description of the suspect. He told Hadden that the individual was a black man, wearing blue jeans, a red pullover shirt, and a black hat, and that he had a black and gray beard. Chambers knew the other two individuals who were with Goodson at the time Chambers approached the residence. Sheriff Hadden went to the residence and identified the individual as Marvin Goodson, the appellant. Chambers stated at trial that he saw the appellant again later that same night on Toad Street. In fact, the appellant again sold Chambers cocaine. (A conviction on that sale has recently been affirmed without opinion by this court. See Goodson v. State, 579 So.2d 709 (Ala.Cr.App.1991)). The appellant, as a result of the ongoing investigation in Dothan, had no warrant sworn out for his arrest until three months after the transaction. On appeal, he raises three issues.

I

Initially, the appellant contends that he was denied his constitutional right to a speedy trial. He was incarcerated on an unrelated offense when the warrant in this case was sworn out for his arrest on September 22, 1988. He was indicted for this offense on April 28, 1989. In the interim, he filed, pro se, several motions, such as a motion for speedy trial and a motion to dismiss for failure to prosecute. The right to a speedy trial is "triggered when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971)." Hayes v. State, 487 So.2d 987, 991 (Ala.Cr.App.1986). This right has been said to be activated when a warrant of arrest is issued, "because this is when the prosecution is commenced under § 15-3-7, Code of Alabama 1975." Steeley v. City of Gadsden, 533 So.2d 671, 678 (Ala.Cr.App.1988).

The date the prosecution was commenced in this case was September 22, 1988, the date of the original warrant of arrest. We must determine if the time between the commencement of prosecution and the date of trial, August 16, 1989, was so great that the appellant's Sixth Amendment right to a speedy trial was violated.

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), recognized four factors which should be analyzed when determining whether an individual's speedy trial right has been violated. They are "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530, 92 S.Ct. at 2192.

Regarding the first criterion, the Supreme Court stated:

"We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.... 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' "

Barker, 407 U.S. at 521-22, 92 S.Ct. at 2187-88.

This court noted in Arnett v. State, 551 So.2d 1158 (Ala.Cr.App.1989), that the length of the delay must be "presumptively prejudicial." In Arnett, we stated that 20 months was not too long a delay. However, as the Supreme Court noted in Barker and as this court noted in Arnett, these cases must be analyzed on a case-by-case method, since each involves circumstances which are unique to that particular case. A balancing test is used in which the "conduct of both the prosecution and the defendant are weighed." Barker, 407 U.S. at 530, 92 S.Ct. at 2192. We must look at the reasons for the delay. In the instant case the length between the issuance of the warrant and the trial date was 11 months. As the prosecution stated at the hearing on the motion to dismiss, the appellant had several charges pending against him. The time between the date of the issuance of the warrant issuance and the date of trial was spent in clearing up the other pending charges. He was tried in January for one offense and in July of the same year for another offense. " 'The period of delay attributable to disposition of the other charge in the other county, where reasonable, cannot be charged against the state as needless delay.' " Kimberly v. State, 501 So.2d 534, 536 (Ala.Cr.App.1986).

Although the length of the delay has been said to trigger the examination of the remaining factors, most courts do not analyze a speedy trial argument without taking into account all four factors discussed in Barker. The Supreme Court stated in Barker, "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533, 92 S.Ct. at 2193.

We have thus far taken into account the length of the delay and the reasons for the delay, and in regard to those two factors have found nothing to indicate a denial of the right to a speedy trial. We note that the third factor must be weighed in Goodson's favor; he himself filed several motions alleging that his right to a speedy trial was violated. Thus, he had asserted his right.

In regard to the fourth factor of the Barker analysis, we find that the appellant suffered no prejudice as a result of the delay. To show that an appellant has been prejudiced by the pre-trial delay, we must look at any oppressive pre-trial incarceration, any anxiety and concern suffered by the appellant, and any impairment of appellant's defense by reason of the delay. See Barker. The appellant had 13 years left to serve on an unrelated charge when this case came to trial. As in Broadnax v. State, 455 So.2d 205, 207 (Ala.Cr.App.1984), we cannot say that the delay caused prejudice to the appellant, since he was in prison and his freedom was already curtailed as a result of the conviction on the prior offense. Furthermore, he has failed to show that the delay caused any "anxiety and concern." Also, the appellant made several allegations that the delay impaired his defense, but he failed to substantiate the claims by evidence at the hearing on the motion.

The appellant contends that he was prejudiced by the court's delay in providing him with appointed counsel. The appellant argues that he was prejudiced because when he was appointed an attorney on June 7, 1989, his attorney did not have adequate opportunity to prepare for the trial in August, since no preliminary hearing was held. The record is quite confusing as to the motions which the appellant filed, for it appears that he filed many. From our review of the record we find no reference to any motion requesting counsel having been filed prior to the motion filed on August 16, 1989, which requested that counsel be appointed to represent the appellant. The record further shows that his counsel was appointed on June 7, 1989, prior to the filing of the August motion. The record reflects that on October 21, 1988, the appellant filed a motion to dismiss for failure to give him a speedy trial. This motion was filed prior to the appellant's indictment. The record shows that the appellant was indicted by the April 1989 term of the Houston County grand jury. On May 19, 1989, the appellant filed a motion to dismiss for failure to prosecute because, he argued, he was not granted a speedy trial. This argument was brought to the attention of the trial court in a pre-trial motion. The court stated:

"The Court: Let the record show that he again filed for a motion to dismiss on May 19, 1989, alleging his right to a speedy trial and that the indictment should be dismissed for lack of a speedy trial and that he be given--he be brought back to Houston County for a hearing.

"Okay. Whereupon, the Circuit Court of Houston County dismissed--not dismissed--denied his motion to dismiss on June 19, 1989, and he was arraigned on--or a waiver of arraignment was filed on July 6, 1989, by his court appointed attorney, Mr. James A. Ward.

"....

"Mr. Ward: (Defense Counsel). Could the Court address the issue of...