Howard v. State, CR-94-128
Decision Date | 09 February 1996 |
Docket Number | CR-94-128 |
Citation | 678 So.2d 302 |
Parties | Edward Earl HOWARD v. STATE. |
Court | Alabama Court of Criminal Appeals |
The unpublished memorandum of this court issued July 7, 1995, and the dissenting opinion of Judge Taylor issued the same day, are hereby withdrawn and the following is substituted therefor.
The appellant was convicted of two counts of murder, violations of § 13A-6-2, Code of Alabama 1975. He was sentenced to 99 years' imprisonment on each conviction.
The appellant argues that he was denied a speedy trial. Specifically, he argues that the 29-month delay from his arrest to trial was "presumptively prejudicial" and therefore triggers an explanation of the remaining factors of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):
Zumbado v. State, 615 So.2d 1223 (Ala.Cr.App.1993).
"Unless the length of time between the commencement of the prosecution and the trial is presumptively prejudicial, it is unnecessary to consider the other Barker factors." Zumbado, at 1234. In this case, the length of time between the issuance of the arrest warrant, in April 1992, and the trial, in September 1994, was roughly 29 months. See Vincent v. State, 607 So.2d 1290 (Ala.Cr.App.1992) ( ) Here, the appellant filed his motion to dismiss on December 9, 1993. On April 19, 1994, the State filed a motion to set the case for trial. Neither motion was ruled on and there is no indication in the record that the appellant had made an earlier request for a trial date. Additionally, the prejudice that the appellant alleges to have suffered due to the delay was the death of an alibi witness. Because, however, the appellant presented other alibi witnesses at trial, the testimony of the deceased witness would have been cumulative.
Considering all the Barker factors, particularly that factor dealing with prejudice, we conclude that the appellant's right to a speedy trial was not violated.
The appellant argues that the trial court erred in denying his motion in limine seeking to prevent the State from introducing prejudicial photographs of the victims because, he says, they were more prejudicial than probative.
Harris v. State, 632 So.2d 503, 530 (Ala.Cr.App.1992), affirmed, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).
The record indicates that the photographs corroborated the State's evidence and that they served to illustrate certain witnesses' testimony. The photographs also identified the victims, showed the nature and extent of their burns, and depicted the crime scene. Therefore, no abuse of discretion occurred in the admission of the photographs. Grice v. State, 527 So.2d 784 (Ala.Cr.App.1988).
The appellant argues that the trial court erred in denying his motion to disqualify the special prosecutor based on an alleged conflict of interest. He argues that the conflict arose out of a plea bargain offered by the prosecutor to George Cottrell, an accomplice of the appellant's, who agreed that he would, in exchange for the plea, testify against the appellant. He argues that the conflict existed because soon after the prosecutor negotiated the plea, he joined the firm that represented the accomplice.
The record contains the following motion to disqualify, filed on September 15, 1994, by the appellant:
(Emphasis added.)
Additionally, the record reveals that, on April 19, 1994, approximately five months before the filing of the aforementioned motion, the accomplice's attorney, Richard Gill, filed a motion to withdraw as counsel. That motion was granted. On April 28, 1994, the special prosecutor, Paul Copeland, requested an advisory opinion from the Alabama State Bar Association as to whether an apparent conflict existed that would prevent Mr. Copeland from prosecuting the appellant.
Mr. Copeland entered into plea negotiations with the appellant's accomplice while he was employed by the district attorney's office; hence, he represented the State. When Mr....
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