Houston v. Com.
| Decision Date | 15 January 1982 |
| Citation | 641 S.W.2d 42 |
| Parties | David F. HOUSTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Paul G. Tobin, Frank W. Heft, Jr., Louisville, for appellant.
Steven L. Beshear, Atty. Gen., Richard O. Wyatt, Asst. Atty. Gen., Frankfort, for appellee.
Before GANT, HOWERTON and WHITE, JJ.
Houston appeals from his conviction and sentence for theft of a pickup truck in Kentucky. His case began when he was arrested on May 15, 1980, in Indiana for the theft of a van from Vandalia, Ohio. On May 19, 1980, Kentucky authorities questioned Houston about a vehicular homicide which had occurred in Jefferson County on May 13, 1980. While being questioned, Houston admitted stealing the Kentucky pickup truck in Louisville on May 14, 1980. On May 20, 1980, a Jefferson County Grand Jury indicted Houston for the theft of the truck. A trial was conducted on April 9, 1981. A jury found Houston guilty of theft by unlawful taking over $100 and recommended that a sentence of five years imprisonment be imposed. Judgment was entered in accordance with the jury's verdict.
Houston asserts six errors were committed at his trial. He first alleges that he was denied a speedy trial. The facts indicate some delay in Houston's being brought to trial. No exact time limit defining a speedy trial can be predetermined. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), it was held that a determination of whether a defendant has been denied a speedy trial must be based upon four considerations. See also McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978).
The first consideration examines the length of the delay. Houston complains that although he was indicted on May 20, 1980, he did not learn of the indictment until October 8, 1980. He argues that the delay is inordinate and prejudicial in and of itself. We do not agree that the delay in itself prejudiced Houston or that it denied him his right to a speedy trial.
The second consideration examines the reason for the delay. It appears that the indictment against Houston lay dormant until October 8, 1980, when he brought it to the Commonwealth's attention. However, we do not find these five months to constitute prejudice or a deprivation of Houston's right to a speedy trial. Moreover, once Houston brought his indictment to the Commonwealth's attention and requested a speedy trial, the Commonwealth did act with due dispatch to prosecute him. We do not believe our proper response to the Commonwealth's unexplained delay of five months in prosecuting its case would be to dismiss the case on the grounds Houston advocates.
The third consideration is whether Houston asserted his rights to and desire for a speedy trial. We note that he did.
The fourth consideration is the resultant prejudice to Houston due to the delay. One of Houston's witnesses died between the time Houston requested a speedy trial and the trial date. Houston characterized the witness as crucial. The loss of the witness is certainly unfortunate. However, the loss of one potential witness because of death during the pendency of a trial is not so prejudicial that dismissal is necessarily warranted. Further, the Commonwealth cannot be blamed for the loss of the witness; neither can it be said that it deliberately delayed Houston's trial or that it knew that by doing so Houston's defense would be potentially weakened. Therefore, we do not find sufficient prejudice to have resulted to have resulted to warrant a dismissal of his conviction now or the charges against him earlier.
Significant in our consideration of this issue is the impact of the Interstate Agreement on Detainers. KRS 440.450. The IAD requires that a defendant who properly initiates procedures under its provisions must be tried within 180 days of such request. In this case, the Commonwealth initiated and concluded Houston's trial within the 180-day requirement once the IAD was invoked by Houston. We are troubled by the fact that Houston was the one initiating the prosecution of his case. We do not find, however, that Houston was prejudiced enough to grant him the relief he requests by the delay he encountered, as we find that the trial was not unduly delayed.
Houston next alleges that the evidence was insufficient to sustain his conviction for theft by unlawful taking over $100. Rather, he contends the evidence shows that he took the truck only temporarily for transportation and not with the intent to deprive the truck's owner of his truck or to appropriate its major value. How...
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