Johnson v. State

Decision Date09 August 1988
Docket NumberNo. F-84-825,F-84-825
Citation761 P.2d 484,1988 OK CR 145
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
PartiesWilliam J. JOHNSON, Appellant, v. STATE of Oklahoma, Appellee.
OPINION

BRETT, Presiding Judge:

William J. Johnson, appellant, appearing pro se in this appeal, was tried by jury for the crime of Robbery With Firearms in violation of 21 O.S.1981, § 801 in Case No. CRF-81-166, in the District Court of Cherokee County. The jury returned a verdict of guilty and set punishment at thirty-seven (37) years' imprisonment. The trial court sentenced appellant in accordance with the jury's verdict. From this judgment and sentence, he appeals.

Around noon on December 9, 1981, a man wearing a ski mask and carrying a shotgun robbed the Tahlequah Federal Savings and Loan. The man ordered the bank's vice-president to fill a bag with money. He then ordered the bank employees and customers into one central location and left without incident. He was observed by bank employees leaving the scene in a gold colored automobile.

At approximately 3:40 p.m. that same day, a Tahlequah Police Officer observed a gold colored automobile, with a driver and three passengers. The officer focused his attention upon the vehicle after he observed one of the passengers take a drink from a can of beer. The officer pulled the vehicle over and asked appellant, the driver, for a driver's license. When he was unable to produce his driver's license, the officer instructed him to come to the police station so that he could determine the truth of his claim that he had a Montana license. No one else in the car had a license either. When they got to the station, only appellant went inside. While they were inside, another detective entered the police station and informed the first officer that two of the other passengers appeared to be intoxicated. The officers went outside and asked the passengers to step out of the vehicle and come inside. As the passengers complied with the request, another officer observed a beer can on the floor of the vehicle. When he attempted to remove the beer can, he observed a partially opened purse stuffed with money lying on the floorboard.

As a result of seeing the purse, the officer ordered the other officers to guard the vehicle and let no one near it. The officer went back inside the station, and after some questioning, the owner of the vehicle signed a waiver allowing the officers to search the vehicle. The officers then questioned the owner of the purse, who also agreed to allow a search of her purse. Later, she admitted that appellant had given her the money. The officers interviewed appellant after having fully advised him of his rights, and he confessed to the robbery.

The State established its case-in-chief through the testimony of the young woman who owned the purse as well as others present at the crime. She also testified she had been living with appellant for about two weeks; that she had heard him talk about robbing the bank on numerous occasions; and that she was with him on the morning of the robbery. She further testified that she watched the appellant enter the bank and leave after he had committed the robbery. The appellant did not testify.

Under the appellant's first proposition, he alleges that he was denied the right of a speedy trial which is mandated by Okla. Const. Art. II, § 20. The long-established test in this state for determining whether a defendant has been deprived of his right to a speedy trial consists of a balancing of four considerations: the length of the delay, the reasons therefore, the party's assertion of his or her right to a hearing, and finally, the degree of prejudice suffered by the party. Cooper v. State, 671 P.2d 1168 (Okl.Cr.1983). However, the third factor bears little weight in our balancing process. It does not matter if appellant demanded a speedy trial, because the law makes a timely demand for a defendant who is incarcerated prior to trial. McDuffie v. State, 651 P.2d 1055 (Okl.Cr.1982).

Applying the other considerations to the present case, we must first look to the length of the delay: 22 months. There is no doubt that a delay of such length is substantial enough to constitute a deprivation of a right to a speedy trial and necessitates an inquiry into the remaining considerations.

In the present case, the record reveals that the information was filed on December 10, 1981, and the appellant was brought to trial on October 26, 1983. A further review of the record reveals that the appellant is partially responsible for the delay. He was scheduled on the Cherokee County District Court's jury docket in March, 1982. However, he escaped from the county jail on March 7, 1982.

The appellant was eventually captured and confined in the Tulsa County Jail on unrelated charges. Thereafter, per an application filed by his attorney, he was returned to the Cherokee County District Court on May 3, 1982, for a sanity hearing. From there he was committed to the Eastern State Hospital in Vinita, Oklahoma, for a determination as to his competence to stand trial. The medical staff at Vinita found him to be competent and released him from the hospital on May 17, 1982.

The appellant was again scheduled for trial on November 4, 1982. However, he was incarcerated in the Tulsa County Jail awaiting arraignment for charges concerning another matter. The district court's next jury docket was in March, 1983. The appellant was passed off the docket this time, at the request of his attorney, to provide an opportunity for them to reach a plea agreement with the federal authorities on federal charges filed against appellant. The appellant was finally brought to trial during the district court's next jury docket in August of 1983.

A review of the record reveals no bad faith effort by the prosecution to delay the trial or hamper the appellant's defense. This Court has held that a defendant who is responsible for a delay should not be allowed to claim a violation of his right to a speedy trial. Henager v. State, 716 P.2d 669 (Okl.Cr.1986).

The final consideration is the amount of prejudice, if any, suffered by appellant as a result of the delay. Appellant claims prejudice due to the death of one witness and the possible loss of memory by another. If a defendant raises the presumption of prejudice, the burden is on the State to rebut this. The death of a witness is an obvious prejudice. If the State fails to disprove the prejudice, then the presumption must stand. Henegar, 716 P.2d at 674. However, the appellant's bald assertions of prejudice, unsupported by either the record or affidavits as to what the deceased witness might have testified to, fail to raise any presumption of prejudice. Having properly and carefully balanced all considerations and relevant circumstances, we find that the appellant was not deprived of his right to a speedy trial.

The appellant's second proposition contends that the trial court erred in denying him his Sixth Amendment Right to secure the attendance of defense witnesses. The United States Supreme Court stated in Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967):

The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.

The Court went on to declare that a defendant has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law. See also Morse v. State, 63 Okl.Cr. 445, 77 P.2d 757 (1938).

What this Court must decide then is whether the Sixth Amendment guarantees a defendant the right under all circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court. To make this determination we must examine the posture of appellant's case when the lack of process arose.

The record reveals that the appellant informed both his attorney and the trial court, at the beginning of the trial, that he was claiming he had an alibi defense. Appellant alleged that there were two witnesses who were critical to his defense. One witness was deceased and the other was his eleven-year-old daughter, who was in Montana at the time of trial.

The applicable law on an alibi defense is set forth in 22 O.S.1981, § 585, as follows:

Whenever testimony to establish an alibi on behalf of the defendant shall be offered in evidence in any criminal case in any court of record of the State of Oklahoma, and notice of the intention of the defendant to claim such alibi, which notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense, shall not have been served upon the county attorney at or before five (5) days prior to the trial of the case, upon motion of the county attorney, the court may grant a postponement for such time as it may deem necessary to make an investigation of the facts in relation to such evidence.

Filing of the alibi notice is not mandatory. Connery v. State, 499 P.2d 462 (Okl.Cr.1972). The purpose of the statute is to erect safeguards against the wrongful use of a defense of an alibi and to give the prosecution time and information to investigate the merits of such defense. Id.

We find such an abuse of the defense of alibi in this case. The appellant claimed the defense the day of trial. Notice of this defense had not been given to his own attorney...

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