Henager v. State

Decision Date04 February 1986
Docket NumberNo. F-83-436,F-83-436
Citation716 P.2d 669
PartiesHarold Richard HENAGER, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Patti Palmer, Deputy Appellate Public Defender, Larry Siria, Legal Intern, Norman, for appellant.

Michael C. Turpen, Atty. Gen., David W. Lee, Asst. Atty. Gen., Jean M. Leblanc, Legal Intern, Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Appellant, Harold Richard Henager, was tried and convicted in January 1983, in the District Court of Cleveland County, of Burglary in the Second Degree, After Former Conviction of a Felony, Case No. CRF-81-519, pursuant to 21 O.S.1981, § 1435, and of Feloniously Pointing a Weapon, After Former Conviction of a Felony, Case No. CRF-81-520, pursuant to 21 O.S.1981, § 1289.16. He was sentenced to twenty years on each count, sentences to run concurrently.

On the afternoon of September 18, 1981, James Hensley returned to his mobile home and noticed a strange vehicle parked in the drive. As he approached the home, a man burst through the back door, pointing a weapon at Mr. Hensley, and shouting at him to get inside and not to look at the perpetrator. Mr. Hensley entered the home, which appeared to have been ransacked. Four days later appellant was charged with the crimes, based on the victim's description of his assailant, his identification of the appellant from a photographic line-up, and appellant's admitted connection with the vehicle parked in Mr. Hensley's drive.

The appellant alleges seven assignments of error. We will consider them in the order presented.

I.

In his first assignment of error, appellant claims that the State failed to bring him to trial within the 180-day period provided in the Interstate Agreement on Detainers, 22 O.S.1981, § 1347, Article III(a), (b), & (c).

Appellant was first taken before the Cleveland County District Court on September 29, 1981. Appellant failed to appear at his preliminary hearing, which, after several postponements, was scheduled for January 4, 1982. At that time, the State learned the appellant was in custody at the El Reno Federal Correctional Facility. The hearing was continued to March 8, 1982, to allow the State to comply with the procedures set out in the Interstate Agreement on Detainers.

Appellant contends that he first wrote to the Cleveland County District Attorney on January 11, 1982, informing her that he was incarcerated in the Federal Correctional Facility at Texarkana, Texas, and asking for disposition of any charges pending. The only evidence in the record of this letter is found as an exhibit in a motion filed in January 1983.

On January 29, 1982, the State filed a detainer, in compliance with the Agreement, with the El Reno facility.

On March 11, 1982, appellant filed a motion to dismiss for lack of a speedy trial.

On May 5, 1982, the State filed a detainer with the Federal Correctional Facility at Texarkana, Texas, in compliance with the Agreement.

On June 9, 1982, an offer to Deliver Temporary Custody by the Federal Officials in Texarkana, dated June 4, 1982, was filed in Cleveland County.

The Interstate Agreement on Detainers provides that after a detainer has been filed with a facility, the defendant shall be brought to trial within 180 days of giving notice to the appropriate court of jurisdiction and the prosecuting officer thereof. The notice is to be forwarded by the defendant through the official having custody of him, and is to include certain details concerning his imprisonment.

Appellant's alleged notice of January 11, 1982, was not effective under the statute for two reasons. First, there was no detainer filed as of that time, and thus the Agreement was not yet applicable. The 180-day period is not triggered until a detainer is filed by the requesting state. Gilbreath v. State, 651 P.2d 699 (Okl.Cr.1982). Second, the notice was not accompanied by the Certificate of Inmate Status as required by Art. III(a) of the Agreement.

Although this Court has not yet looked at the issue of how strictly a prisoner must be held to comply with the statute we agree with the Delaware Supreme Court that "the Legislature has placed one, and only one burden on the prisoner, that is, to ask the prison official who has custody over him to prepare and send the forms to the jurisdiction from which a detainer is lodged against him." Pittman v. State, 301 A.2d 509, 512-13 (Del.1973). Mr. Henager's failure to comply with the Interstate Agreement on Detainers, however, is not fatal to his claim under it. We hold that where the prisoner fails to follow the procedure set out by statute and there is no neglect on the part of officials from either the sending or receiving State, the 180-day period is not triggered until the prosecutor and the appropriate court have received written notice of the prisoner's request and the Certificate of Inmate Status, as required under Art. III of the Agreement. Appellant's Motion of March 11, 1982, served as notice, but was not effective under the statute until a detainer was filed and the required information, forwarded by the warden at Texarkana, was received by the district attorney on June 9, 1982. The 180-day period ended on December 6, 1982.

Art. III(a) of the Agreement provides that "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance."

On October 1, 1982, appellant appeared pursuant to the Interstate Agreement on Detainers. The preliminary hearing was set for, and held on, October 14, 1982. At that time formal arraignment was set for October 29, 1982, and continued by Agreement until November 12, 1982. On that date, which was prior to the expiration of the 180-day period, a second continuance was granted, by joint agreement, thus tolling the running of the 180-day period. The formal arraignment was reset for January 13, 1983, at which time trial was set for, and held on, January 19, 1983. We hold that the State complied with the Interstate Agreement on Detainers and that this case does not present grounds for dismissal under the Agreement.

II.

In his second assignment of error, appellant contends that he was denied a speedy trial as guaranteed him by the Sixth Amendment, due to the lapse of time between the filing of the information on September 22, 1981, and his trial, on January 19, 1983.

In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the Supreme Court held the Sixth Amendment applicable to the states by operation of the Fourteenth Amendment. The Court there imposed the duties of good faith and diligence on the states in bringing criminal defendants to trial.

The prosecutor must make a diligent good faith effort to bring the accused to trial, even if he is incarcerated in another jurisdiction. A good faith effort includes an attempt to secure the prisoner through a writ of habeas corpus ad prosequendum, or by extradition procedures. Miracle v. Jackson County District Court, 521 P.2d 837 (Okl.Cr.1974).

The Smith v. Hooey requirement applies as soon as the State learns a suspect against whom it has a detainer is in custody within another jurisdiction. Richardson v. State, 600 P.2d 361 (Okl.Cr.1979). Appellant claims that he notified the Cleveland County District Attorney of his incarceration in the Federal Correctional Facility at Texarkana, Texas, on January 11, 1982. However, we do not feel that this claim is substantiated by the record. The District Court was aware of Mr. Henager's incarceration in some federal facility and attempted to obtain custody of him for trial, but, for whatever reasons, was unable to determine where the appellant was incarcerated until March when appellant filed his motion to dismiss. A detainer was filed with the officials at Texarkana on May 5, 1982. The procedure to gain temporary custody of appellant pursuant to the Interstate Agreement on Detainers was begun at that time. The State's actions in attempting to gain custody of Mr. Henager constitute a diligent, good faith effort to bring him to trial.

This Court, in Rose v. State, 509 P.2d 1368 (Okl.Cr.1973), adopted the test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to aid in determining whether a defendant's Sixth Amendment right to a speedy trial has been violated. The test requires the balancing of four factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the resulting prejudice to the defendant.

In considering the length of the delay we find that the lapse of 484 days from the filing of the information to the date of trial necessitates inquiry into the remaining factors set out in Barker.

From the record, appellant appears to be at least partially responsible for the delay. The length of the delay was due to failure of appellant to appear, his appearance without counsel, motions filed by the appellant, and continuances requested by each side and by joint agreement. There is no showing that the prosecution deliberately delayed commencement of the trial. We have held that a defendant who is responsible for a delay should not be allowed to claim violation of his rights to a speedy trial. Fields v. State, 648 P.2d 43 (Okl.Cr.1982); Jones v. State, 595 P.2d 1344 (Okl.Cr.1979).

A defendant who is incarcerated need not demand a speedy trial. It is presumed that the law makes the demand for him. McDuffie v. State, 651 P.2d 1055 (Okl.Cr.1982). However, we do take note of appellant's repeated requests for trial.

The final factor to be considered under Barker is the prejudice to the appellant as a result of any delay. Appellant claims prejudice due to the death of two witnesses. If a defendant raises the presumption of prejudice, the burden is on the State to rebut this. The death of a witness is an obvious prejudice, the type...

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