Hampton v. State of Oklahoma, Civ. No. 66-510.

• Decision Date: 02 May 1967
• Docket Number: Civ. No. 66-510.
• Citation: 267 F. Supp. 667
• Parties: James Dwain HAMPTON, Petitioner, v. The STATE OF OKLAHOMA and Ray H. Page, Warden, Respondents.
• Court: U.S. District Court — Western District of Oklahoma

267 F. Supp. 667

James Dwain HAMPTON, Petitioner, v. The STATE OF OKLAHOMA and Ray H. Page, Warden, Respondents.

Civ. No. 66-510.

United States District Court W. D. Oklahoma.

May 2, 1967.

John McKee, Oklahoma City, Okl., for petitioner.

Charles L. Owens, Asst. Atty. Gen., Oklahoma City, Okl., for respondents.

MEMORANDUM OPINION

DAUGHERTY, District Judge.

The petitioner, James Dwain Hampton, a state prisoner, complains that he was denied a speedy trial by the State of Oklahoma in violation of his constitutional rights. Pursuant to Hampton v. State of Oklahoma, et al., (Tenth Cir.1966) 368 F.2d 9, an evidentiary hearing was conducted in this Court after the case was transferred to this District from the Eastern District of Oklahoma pursuant to 28 U.S.C. § 2241(d). Counsel was appointed by the Court for the petitioner.

The Court finds from the evidence that an information was filed in Kiowa County, Oklahoma, on February 26, 1964, charging the petitioner and one Clarence Taylor with the crime of murder alleged to have been committed on February 25, 1964. The petitioner engaged privately retained counsel. A preliminary examination was requested and conducted before a Justice of the Peace. The petitioner was bound over to State District Court. On April 1, 1964, the petitioner was arraigned in State District Court, he entered a plea of not guilty and a severance was granted at the petitioner's request. On May 14, 1964, a petition in the nature of habeas corpus was filed in the District Court by the petitioner in which he requested his discharge or that bail be set. This petition was heard on June 3, 1964, and denied. Petitioner was tried before a jury on November 18, 1964, found guilty and sentenced to life imprisonment. The petitioner was confined from the time of his arrest on February 26, 1964, until his jury trial and thereafter by reason of his conviction. Kiowa County is a lightly populated county in southwestern Oklahoma with a population of approximately 18,000. The State District Judge serves Kiowa and three other counties. Normally only one jury term of Court is held each year in Kiowa County for both civil and criminal cases and such term is usually held in the month of November. No jury term of Court was held in Kiowa County from the date the information herein was filed until the November session at which the petitioner was tried and convicted. Five criminal and four civil cases comprised the entire jury docket for the November session.

The petitioner asserts herein that he made demand for an earlier trial and that he suffered prejudice by the lapse of time involved because he could not locate certain witnesses to support his defense of alibi. The defendants deny that the petitioner, or anyone for him, ever made a demand for an earlier trial and deny that the petitioner suffered any prejudice by the lapse of time involved because the petitioner after the time of the murder involved herein did not have and was not able to locate or identify or produce by name any witness to testify in support of his alibi defense.¹

The evidence is in conflict regarding the claim of the petitioner that he made a demand for an earlier trial. The record of the State case does not reveal that such a demand was made. The petitioner and his father testified that such a demand was made at the habeas corpus hearing, which hearing was not officially reported at the request of petitioner's counsel. The Clerk of the State Court knew of no such demand in the case. However, she was not personally present at the habeas corpus hearing. The prosecuting attorney testified that he did not, at any time, receive or hear such a demand by the petitioner or by anyone on behalf of the petitioner. This included the habeas corpus hearing which the prosecuting attorney attended.

From the evidence presented on this point, the Court finds and concludes that the petitioner did not at any time either make a demand for an earlier trial or object to the passage of time before he was tried to a jury. The Court further finds that the said habeas corpus hearing was devoted to the matter of requesting that bond be fixed for the petitioner and a demand for a speedy trial was not made at or involved in such hearing. The said Petition for Habeas Corpus made no mention of a request for a speedy trial. The Court further finds that no objection was made when the jury trial started that the petitioner had not been afforded a speedy trial. Nor was it mentioned on appeal. See Hampton v. State, Okl.Cr., 407 P.2d 210. Moreover, it does not appear reasonable or logical to the Court that the petitioner herein would be demanding a speedy trial when his defense was alibi and he had been unable and is still unable to locate or produce any witnesses to support such defense. It would be more logical and reasonable to conclude that the petitioner, instead of demanding a speedy trial in these circumstances, would be in the posture of requiring more time within which, through his attorneys and relatives, to locate his alibi witnesses if they, in fact, ever existed.

With reference to the claim of prejudice in being unable to locate certain witnesses, the evidence reveals that Taylor, who was charged with the petitioner, claims that on the afternoon of the murder he met a girl for the first time in a steak house in Oklahoma City whom he knew only as Blackie; that later about 6:00 P.M. of said day the petitioner claims he met Blackie for the first time at said steak house in Oklahoma City; that petitioner and Taylor claim that they drove that evening to Altus, Oklahoma from Oklahoma City with Blackie; that Taylor left Blackie and the petitioner in a restaurant in Altus, took the car and was gone for about two hours; that Blackie left the restaurant shortly after Taylor left and no one has seen or been able to locate her since. The murder took place that evening at Snyder, Oklahoma.

Regarding the Altus restaurant, the petitioner was unable to identify it by name and no one for him has ever been able to locate it by name or anyone connected with it who could testify that the petitioner was in the same on the night of the murder. The defendants offered evidence that the prosecution attempted to locate the alleged Blackie and the Altus restaurant and any witnesses therein all to no avail. The prosecution did not withhold or conceal any information as to the identity or location of the alleged Blackie or any restaurant witnesses and the Court so finds.

The petitioner testified that two witnesses saw Blackie with him in the steak house in Oklahoma City on the day of the murder. However, the evidence reveals that one of these witnesses was at the trial of the petitioner but was not used as a witness and the other was available in Oklahoma City but no attempt was made by the petitioner to procure his presence or testimony for the trial. These witnesses were, therefore, never lost to the petitioner.

Mere passage of time does not establish an unconstitutional denial of a speedy trial or due process. Hampton v. The State of Oklahoma, et al., supra; Story v. Hunter, (Tenth Cir.-1947) 158 F.2d 825; Wood v. United States, (Tenth Cir.-1963) 317 F.2d 736. Nor can a defendant sit by without effort to obtain an earlier trial and thereafter be heard to complain. Hampton v. The State of Oklahoma, et al., supra; Keller v. Tinsley, (Tenth Cir.-1964) 335 F.2d 144; Morland v. United States, (Tenth Cir.-1951) 193 F.2d 297; Pietch v. United States, (Tenth Cir.-1940) 110 F.2d 817, 129 A.L.R. 563. The right to a speedy trial is relative and must be determined in the light of the circumstances of each case. Hampton v. The State of Oklahoma, et al., supra; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Gorko v. Commanding Officer, Second H. F., Shreveport, La., (Tenth Cir.-1963) 314 F.2d 858. Where a defendant is tried as soon as the orderly conduct of the Court's business permits, the requirements of due process are met. Hastings v. McLeod, (Tenth Cir.-1958) 261 F.2d 627; Wood v. United States, supra; McDonald v. Hudspeth, (Tenth Cir.-1940) 113 F.2d 984.

The State of Oklahoma has constitutional provisions regarding the right to a speedy trial² and certain statutory provisions have been enacted to interpret and define the Oklahoma constitutional requirement for speedy trial. None of these provisions offend the United States Constitution and no claim is made herein that they do. 22 Oklahoma Statutes 812, which has been approved and applied in this Circuit, Hastings v. McLeod, supra, provides as follows:

"§ 812. Next term, dismissal when not brought to trial at

If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown."

"Term of court" as used in the foregoing statute, is defined in 20 Oklahoma Statutes 95, as follows:

"§ 95. Terms of district court—Time —Commencement and duration

Two regular terms of the District Court shall be held each year in each county of this state. The time of commencing or convening these two regular terms in each county shall be on the first Monday in January and the first Monday in July in each year. Each regular term shall commence and convene by operation of law at the time herein fixed without any act, order, or formal opening by the judge or other official thereof, and shall continue and be open at all times until and including the day preceding the next regular term, on which day it shall expire and adjourn sine die by operation of law."

The provisions of Oklahoma law (22 Oklahoma Statutes 812) requiring trial not later than the next term of court following indictment or information were met in this case. This law has been held to constitute the legislative construction...