Ingram v. State

• Decision Date: 09 July 1993
• Parties: Eric Zachery INGRAM v. STATE. CR 92-523.
• Court: Alabama Court of Criminal Appeals

Page 800

629 So.2d 800

Eric Zachery INGRAM v. STATE.

CR 92-523.

Court of Criminal Appeals of Alabama.

July 9, 1993.

Rehearing Denied Sept. 3, 1993.

Certiorari Denied Dec. 3, 1993

Alabama Supreme Court 1921919.

Phyllis Parker, Opelika, for appellant.

James H. Evans, Atty. Gen., and Shirley Brown, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Eric Zachery Ingram, the appellant, was convicted of the illegal possession of a pistol in violation of Ala.Code 1975, § 13A-11-72(a), and was sentenced to five years' imprisonment. He raises two issues on this direct appeal from that conviction.

I.

The appellant contends that he was denied a speedy trial.

Although the appellant filed a motion seeking the dismissal of the indictment for failure to prosecute, the record contains no transcript of any hearing on this motion. We have gathered the following facts, which are presented in chronological order, from the record:

February 2, 1983: The appellant pleaded guilty and was convicted of burglary in the second degree and was sentenced to 12 years' imprisonment. C.R. 25; R. 36.

April 12, 1991: The appellant was arrested for public intoxication, parole violation, and illegal possession of a pistol. C.R. 2; R. 10, 23. At this time the appellant was on parole. R. 60, 64.

June 1991: The appellant's attorney demanded a preliminary hearing. R. 62.

July 30, 1991: The appellant was indicted for illegal possession of a pistol. C.R. 2, 8.

July 31, 1991: The trial court issued a discovery order. C.R. 2, 9.

August 2, 1991: The case action summary entry states: "Notice of arraignment to defendant and sureties." C.R. 2.

August 14, 1991: The appellant's parole was revoked. See paragraph 3 of "Notice of Motion Seeking Order Dismissing Indictment For Failure to Prosecute," C.R. 16.

August 15, 1991: The appellant failed to appear for arraignment and a writ was issued for his arrest. C.R. 2.

September 13, 1991: The case was continued on motion of the district attorney "pending the arrest of the [appellant]." C.R. 2.

November 8, 1991: The case was again continued on motion of the district attorney "pending the arrest of the [appellant]." C.R. 2.

December 12, 1991: The writ of arrest was issued for the appellant who, according to the case action summary entry, was "in prison in Bessemer, Alabama." C.R. 2.

February 27, 1992: On motion of the state, this case was "withdrawn and filed with leave to reinstate." C.R. 2.

July 2, 1992: The appellant, by pro se motion bearing this date, requested the production of certain documents. In this request, the appellant stated that he was incarcerated at the Ventress Correctional Facility in Clayton, Alabama. C.R. 10.

August 3, 1992: In response to the appellant's request for the production of documents, the circuit court ordered that the appellant be sent copies of the affidavit, warrant of arrest, and indictment and that this cause be reinstated to the docket. The court also indicated that it would issue an order to return the appellant for the purpose of trial at the next term of court. C.R. 2, 11. A copy of that order was ordered sent to the appellant and the district attorney. C.R. 11.

September 14, 1992: The case was continued on motion of the State "until November 2, 1992 term of court pending the arrest of the [appellant]." C.R. 2.

October 26, 1992: The appellant was arrested and appeared before the circuit court where counsel was appointed to represent him. The appellant was arraigned and was granted five days to file any additional pleas or motions. C.R. 3.

October 27, 1992: The appellant filed a request for discovery (C.R. 13) and a motion seeking dismissal of the indictment for failure to prosecute (C.R. 16).

October 28, 1992: The motion to dismiss was denied. C.R. 3.

October 30, 1992: The appellant filed a "motion to lower bond." C.R. 18.

November 9, 1992: The appellant was tried and convicted. C.R. 4.

December 16, 1992: The appellant was sentenced to five years' imprisonment. He was given credit for the 64 days he was incarcerated pending trial. C.R. 5.

December 22, 1992: The appellant filed a "motion to waive stayed sentence." This was a request to "waive the benefit of the stayed sentence and place the Defendant's sentence in effect" due to the appellant's inability to make his appeal bond. C.R. 26. That motion was granted on December 30, 1992. C.R. 27.

January 15, 1993: The appellant filed a "motion to suspend sentence and release defendant" on the ground that his mother was dying. C.R. 34. The record contains no ruling on this motion.

"Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is the yardstick by which any court must determine whether there was a denial of speedy trial in violation of the Sixth Amendment to the United States Constitution." Ex parte Slaughter, 377 So.2d 632, 633 (Ala.1979).

"In Barker v. Wingo, the Supreme Court announced a four-part test to analyze a defendant's Sixth Amendment speedy trial claim. The test balances: (1) the length of the delay; (2) the reason for the delay; (3) whether and how the defendant asserted the speedy trial right; and (4) the amount of prejudice the defendant has suffered. This balancing test requires courts to consider speedy trial claims on a case-by-case basis, thereby allowing consideration of factors other than those present in Barker."

Project, Twenty-Second Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1991-1992, 81 Geo.L.J. 853, 1171 (1993) (footnotes omitted).

In Alabama, "the speedy trial right is triggered by the issuance of a warrant of arrest, because this is when the prosecution is commenced under § 15-3-7, Code of Alabama 1975." Steeley v. City of Gadsden, 533 So.2d 671, 678 (Ala.Cr.App.1988). In this case, the length of the delay from the appellant's original arrest on April 12, 1991, to trial was approximately 19 months, with a delay of approximately 16 months between indictment and trial. We consider this delay presumptively prejudicial so as to "trigger" an inquiry into the remaining Barker factors. See Beaver v. State, 455 So.2d 253, 255 (Ala.Cr.App.1984) (16-month delay presumptively prejudicial).

However, this 19-month delay is not sufficient in and of itself to warrant a finding that the appellant has been denied a speedy trial. "The delay or passage of time alone does not constitute the denial of a speedy trial." Kimberly v. State, 501 So.2d 534, 538 (Ala.Cr.App.1986).

"Thus, for purposes of determining whether the defendant was denied his Sixth Amendment right to a speedy trial, we shall consider only the twenty-one month period between the reindictment in June of 1977 and the trial in March of 1979. 'Considering the lack of complexity of the factual and legal issues', this twenty-one month delay 'provides a sufficient springboard for inquiry into the other factors'. United States v. Edwards, 577 F.2d 883, 888 (5th Cir.1978). Although this delay is excessive, it is not sufficient in itself to warrant a finding that the defendant has been denied the right to a speedy trial. 'There is no fixed length of time that is considered to be per se unreasonable. Andrews v. State, 370 So.2d 1070, 1072 (Ala.Cr.App.), cert. denied, 370 So.2d 1075 (Ala.1979). Generally, the passage of time, standing alone, is not enough to justify a holding that the guarantee of a speedy trial has been violated. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Jones v. Morris, 590 F.2d 684, 686 (7th Cir.1979). 'Although the length of the delay weighs against the state, it is not so "inordinately lengthy" as to weigh heavily against the State.' Jones, 590 F.2d at 686."

Wade v. State, 381 So.2d 1057, 1059 (Ala.Cr.App.), cert. denied, 381 So.2d 1062 (Ala.1980).

In Beech v. State, 439 So.2d 1331 (Ala.Cr.App.1983), this Court held:

"Due to the nature of the state's case against the appellant, which was based primarily upon circumstantial evidence, and in comparing this 14 month delay to the delays in Byrd v. State, 421 So.2d 1344 (Ala.Cr.App.1982), Cofer v. State, 440 So.2d 1116 (Ala.Cr.App.1983), and Minnifield v. State, 439 So.2d 753 (Ala.Cr.App.1983), we have concluded that the delay in this instance was not 'presumptively prejudicial,' and that the appellant was not denied his right to a speedy trial. See, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the standards adequately discussed therein.

"Furthermore, the appellant was on parole for grand larceny at the time of his arrest for public drunkenness on the morning of the murders. A revocation of his parole would have, undoubtedly, justified his incarceration for part, if not all, of the period between July 27, 1980, and the day of the trial. Appellant's trial delay complaints were grounded upon the alleged hardships of incarceration, but he made no specific claims and presented no evidence of any actual prejudice caused by the delay. See, Scaloni v. State, 383 So.2d 586 (Ala.Cr.App.1980)."

Beech, 439 So.2d at 1334.

The record in this case is simply insufficient for this court to examine the totality of the circumstances surrounding the delay of the trial of the appellant.

The appellant's "Notice of Motion Seeking Order Dismissing Indictment for Failure to Prosecute" is not verified and contains the following allegations:

"Now comes the Defendant, ... and moves to dismiss the indictment in the above styled case for the following reasons:

"1. The indictment against him was returned on August 1, 1991.

"2. He was arrested on April 12, 1991.

"3. Due to the charge in the above styled case, his parole was revoked on August 14, 1991, on a Burglary II conviction which he had entered a plea of guilty to on February 2, 1983, Case No. CC 83-046, and he was subsequently returned to Ventress Correctional Facility [in Clayton, Alabama].

"4. At all times since his arrest defendant has been ready for trial, 14 months have passed since the indictment was returned.

"5. During the said 14 month delay a...