Holland v. State

• Citation: 615 So.2d 1313
• Parties: William Warren HOLLAND v. STATE. CR 91-194.
• Decision Date: 12 February 1993
• Court: Alabama Court of Criminal Appeals

Page 1313

615 So.2d 1313

William Warren HOLLAND v. STATE.

CR 91-194.

Court of Criminal Appeals of Alabama.

Feb. 12, 1993.

William Warren Holland, pro se.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

William Warren Holland, the appellant, was convicted of two charges of robbery in the first degree. He was sentenced as a habitual offender to imprisonment for life without parole in each case. Through appointed counsel, the appellant raises four issues on this appeal from those convictions.

I.

The appellant argues that he was denied his constitutional right to a speedy trial. The significant facts are set forth in chronological order as follows:

September 9, 1987, and December 31, 1987: Two separate robberies were committed in Montgomery, Alabama: Adams Pharmacy on Mitchell Drive was robbed on September 9, 1987, and Adams Pharmacy on Normandie Drive was robbed on December 31, 1987.

January 13, 1988: The appellant was arrested and charged with two instances of robbery in the first degree--pharmacy robbery.

April 1988: The appellant was indicted for "pharmacy robbery." R. 855.

1988: The "Pharmacy Robbery Act of 1982," Ala.Code 1975, § 13A-5-50 through § 13A-8-52, statute was declared unconstitutional by the circuit court. See Ex parte Coker, 575 So.2d 43 (Ala.1990).

June 7, 1989: Three indictments were returned against the appellant charging robbery in the first degree. Two involved Adams Pharmacies--CC89-2393 and 2394. The third involved Price's Drugs--CC-89-2392.

January 12, 1990: The appellant was arraigned in all three cases.

January 16, 1990: The two indictments in CC-89-2393 and 2394 were ordered consolidated for trial.

January 17, 1990: The appellant filed a motion requesting the trial court "to continue the trial of this case and to set the trial of this case to follow the trial of case no. CC 88-1385/89-2391,2." Supp.R. 14. Those cases involved another defendant.

February 5, 1990: The appellant filed a motion for a continuance (dated January 31, 1990). R. 502, 508; Supp.R. 25, 34.

January-February 1990: Following the order of consolidation, the appellant filed a number of motions including the following: a motion to produce; a motion for discovery; a motion for an evidentiary hearing; a motion for a line-up; a motion for a continuance; a motion for an order authorizing beard growth for identification purposes at all identification proceedings, hearings, and trial (pro se); a second motion for continuance (pro se), additional motions for evidentiary hearings; and numerous other pro se motions.

April 16, 1990: The appellant requested a motion for continuance (which was actually marked filed April 20, 1990), which was granted. Trial was re-set for June 21, 1990.

April 18, 1990: The appellant was tried and convicted for the robbery of Price's Drugs--CC89-2392. He was sentenced as a habitual offender to imprisonment for life without parole.

March 29, 1991: The appellant's conviction for the robbery of Price's Drugs was reversed on appeal. Holland v. State, 588 So.2d 543 (Ala.Cr.App.1991)

April 23, 1991: Trial was set for May 1, 1991.

May 1, 1991: On the day the appellant's case was scheduled for trial, defense counsel made an oral motion to dismiss based on the alleged denial of a speedy trial. That motion was denied. The appellant was convicted on May 2, 1991.

July 9, 1991: The appellant's "motion to dismiss for post-indictment delay and prosecutorial misconduct violating defendant's constitutional rights" was filed in the office of the circuit clerk. R. 853. This motion was dated April 29, 1991.

In deciding this issue, we apply the "balancing test" set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The length of delay in this case between the appellant's arrest and his trial was 40 months. No reason was offered in explanation for the delay. No testimony was presented at the hearing on the motion to dismiss. A portion of the delay can be attributed to the fact that the statute under which the appellant was originally indicted was declared unconstitutional. Additionally, the appellant, both pro se and through his appointed counsel, filed a large number of motions including motions seeking discovery and expert analysis, requests for continuances, and a motion to have his case tried after that of his codefendant. See Goodman v. State, 588 So.2d 550 (Ala.Cr.App.1991). There is nothing in the record that even implies that any delay resulted from any improper motive on the part of the prosecution.

The appellant asserted his right to a speedy trial only immediately before his trial jury was selected.

" 'The defendant's assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.' ... The failure of a defendant to assert his right to a speedy trial, however, does not demonstrate that there was no constitutional violation.... However, the Supreme Court has emphasized that 'the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.' ... The timeliness, vigor and frequency with which the right to a speedy trial is asserted are probative indications of whether a defendant was denied needed access to a speedy trial over his objection."

Redd v. Sowders, 809 F.2d 1266, 1270-71 (6th Cir.1987).

At the same time the appellant made his oral motion for a speedy trial he also requested a continuance. Immediately before trial, the following occurred:

"THE COURT: All right. How am I going to reconcile the motion to dismiss and the motion to continue that you've got me in a dilemma with today?

"MR. GILL [defense counsel]: Well, your Honor, the basis for the motion to continue is the fact that we have been deprived of discovery in this case up until just fairly recently. I did not acquire discovery in this case until March the 26th of 1991. That's the first time that I acquired the information that was ordered to be produced on December the 12th, 1990. This man was arrested on a Montgomery arrest warrant on or about January 13 or 14, 1988.

"THE COURT: Let me ask this question. Are y'all willing to waive any speedy trial issue if we reset the case, if I grant your motion to continue?

"THE DEFENDANT: Judge, the--the manipulation of the speedy trial issue--All I have ever wanted in this case was a fair trial. And the State--

"THE COURT: You are not answering my question.

"THE DEFENDANT: I'm trying to answer the question, Judge. All I have wanted was a fair trial. I have sought discovery from Mr. Belser [the prosecutor]. I've got numerous discovery motions pending. Never got a response out of Mr. Belser. And the reason I never asserted the speedy trial issue was because I was afraid if I did that I would never get the discovery. If I waive--

"THE COURT: You still haven't answered my question. My question, I think, is pretty simple, now. And I don't know if you are going to answer it or if your lawyer is going to answer it. The question is this. Y'all are making a motion to continue the case. Now, if I do that, you have also got a motion for speedy trial. So which one do you want? Do you want a continuance? Do you want a speedy trial? Because we are set to try this case right now. Y'all tell me which one you want.

"THE DEFENDANT: Judge, I would like to point out to you that I'm not ready to go to trial at this time on this case."

"....

"THE COURT: ... You want this case continued or do you want a speedy trial? Now, which of the two do you want?

"THE DEFENDANT: I want--I want an opportunity to make a defense, Judge.

"....

"THE DEFENDANT: My only objection is I'm not able to bring a defense today and that--

"THE COURT: Mr. Holland, you are the one that has been pursuing a speedy trial and you are going to get a speedy trial. This is the first opportunity I have had to try your case.

"THE DEFENDANT: I never asked for a speedy trial. All I wanted was a fair trial and the evidence to work with to go that way--to get that." R. 11-16, 77-78.

It is clear from the foregoing that the appellant was not vigorous in his assertion of his right to a speedy trial. Further, his request for a speedy trial was directly contradicted by his request for a continuance.

Finally, there is no evidence that the appellant was prejudiced by the delay. Under other circumstances, we might assume that a delay of this length was presumptively prejudicial. See Ex parte Carrell, 565 So.2d 104 (Ala.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). However, here the record shows that the appellant was not prepared for trial. The appellant requested a continuance and announced that he was "not ready to go to trial at this time on this case." Furthermore, after the State had rested its case, the appellant requested that defense counsel be allowed to interview defense witnesses. R. 351-52.

Under these circumstances, we find that the trial court acted within its discretion in denying the appellant's motion to dismiss.

II.

The appellant contends that his arrest was illegal because the warrant of arrest was improperly executed. On appeal, the appellant argues "that the trial court reversibly erred in denying his Motion to Dismiss, on the grounds of illegal arrest effected by illicit execution of the arrest warrants; as such execution was violative of Alabama statutory law." Appellant's brief at 53.

The appellant was arrested on January 13, 1988, in Mobile County pursuant to arrest warrants issued by a Montgomery County magistrate. The appellant was photographed in Mobile and that photograph was introduced at trial to show the appellant's appearance shortly after the commission of the robberies.

Ala.Code 1975, § 15-10-10, provides:

"A warrant of arrest shall be executed in the county in which it was issued, unless the defendant is in another county. When the defendant is in another county, it may be...