Johnson v. State
| Citation | 356 So.2d 769 |
| Decision Date | 21 March 1978 |
| Docket Number | 6 Div. 520 |
| Parties | Beauford Harold JOHNSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Mike W. McCormick, Birmingham, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
The appellant was convicted for robbery and sentenced to twelve years' imprisonment. On this appeal from his conviction the appellant argues that he was denied a speedy trial and that the failure of the trial court to grant his challenge for cause of a prospective juror constitutes reversible error.
The operative facts surrounding the issue of the alleged denial of speedy trial are set forth in outline form as follows:
1976
February 20 Appellant arrested and incarcerated
on the charge of robbery
April 30 Appellant posted bond but was held
in jail on a fugitive warrant for
an alleged parole violation in Oklahoma
May 7 Appellant indicated for robbery
May 21 Arraignment. Trial set for June 7
June 7 Case "continued from consent to be
reset" and passed until November 15, 1976
for trial
November 15 Case passed at the request of the
state, no reason appearing.
November 15 Appellant filed written demand for
speedy trial.
December 3 Appellant filed a "motion seeking
order dismissing indictment for
failure to prosecute, or in the
alternative for denial of right to
speedy trial".
1977
January 3 At the hearing on the motion for
speedy trial, the court specifically
found that the "first order for
witnesses" (Johnny Johnson) was
issued by the defendant on this
date.
January 24 Case set for trial but passed at request
of appellant when defense
witness could not be located. At
this time case passed under an
understanding between the defense
and the judge that the case
would be continued over for one
week to give the defense an
opportunity to locate their missing
witness.
April 11 The appellant was tried.
In his brief on appeal the appellant alleges the reasons for the delays.
An inflexible rule cannot be used to establish a defendant's right to a speedy trial, but can only be done on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The right to a speedy trial is a relative right which depends upon the circumstances of each case. The right is designed to prohibit arbitrary and oppressive delays caused by the prosecution but does not operate to deprive the state of a reasonable opportunity of prosecuting criminals. Braden v. State, 47 Ala.App. 466, 256 So.2d 425 (1971).
From the record it appears that the appellant did not assert his right to a speedy trial until approximately ten months after his arrest which was only four months before his actual trial. It does not appear that the appellant objected to any continuance at the time they were granted. After filing two written requests for a speedy trial, the only requests which appear in the record, a continuance was granted at the request of the appellant in order that the presence of an absent witness could be secured. Though obviously the appellant deemed this witness an important witness to his defense (or else why request a continuance?) the witness had only been initially subpoenaed in January of 1977, three months before the appellant was tried.
Although the appellant alleges that without the missing witness, Johnny Johnson, he was without a defense and that Johnson would probably have been available if the case had been tried at an earlier date, Johnson was not subpoenaed until three months before trial and there is no showing that he was ever available as a defense witness.
Reviewing the facts, we fail to see how Johnson could have provided any defense for the appellant. When the robbery occurred, a Birmingham police officer witnessed the crime from his hidden location inside the convenience store having received a tip from Johnson shortly before the robbery. The appellant was positively identified by both the cashier of the store and the police officer. Though the appellant managed to escape despite the fact that two police officers fired at him as he fled, the appellant was captured the next morning with a bullet wound in his buttocks. From the record we can conclude that Johnson was not working with or employed by the police and therefore no defense of entrapment would be involved. At trial no defense of any type was presented. In view of the foregoing and...
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Thomas v. State, 8 Div. 538
...juror's opinion must be fixed to the point that it would bias the verdict which the juror would be required to render. Johnson v. State, 356 So.2d 769 (Ala.Cr.App.1978); McCorvey v. State, 339 So.2d 1053 (Ala.Cr.App.), cert. denied, 339 So.2d 1058 (Ala.1976); Tidmore v. City of Birmingham, ......
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Pressley v. State
...juror's opinion must be fixed to the point that it would bias the verdict which the juror would be required to render. Johnson v. State, 356 So.2d 769 (Ala.Cr.App. 1978); McCorvey v. State, 339 So.2d 1053 (Ala.Cr.App.), cert. denied, 339 So.2d 1058 (Ala.1976); Tidmore v. City of Birmingham,......
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Wilson v. State
...juror's opinion must be fixed to the point that it would bias the verdict which the juror would be required to render. Johnson v. State, 356 So.2d 769 (Ala. Cr. App. 1978); McCorvey v. State, 339 So.2d 1053 (Ala. Cr. App.), cert. denied, 339 So.2d 1058 (Ala. 1976); Tidmore v. City of Birmin......
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Wilson v. State
...juror's opinion must be fixed to the point that it would bias the verdict which the juror would be required to render. Johnson v. State, 356 So.2d 769 (Ala.Cr.App. 1978); McCorvey v. State, 339 So.2d 1053 (Ala.Cr.App.), cert. denied, 339 So.2d 1058 (Ala.1976); Tidmore v. City of Birmingham,......