Kelley v. State
| Decision Date | 27 April 1990 |
| Docket Number | 8 Div. 485 |
| Parties | Arniz KELLEY and Maxwell Kelley v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Jerry S. Barclay, Huntsville, for appellant Arniz Kelley.
Bruce A. Gardner, Huntsville, for appellant Maxwell Kelley.
Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for appellee.
The Madison County Grand Jury returned a joint indictment charging Arniz Kelley and Maxwell Kelley, individually, with two counts of kidnapping in the first degree, in violation of § 13A-6-43, Code of Alabama 1975, and one count of robbery in the first degree, in violation of § 13A-8-41, Code of Alabama 1975. Maxwell Kelley was charged by a separate count of the indictment with rape in the first degree, in violation of § 13A-6-61, Code of Alabama 1975. Arniz Kelley was charged by a separate count of the indictment with sodomy in the first degree, in violation of § 13A-6-63, Code of Alabama 1975.
The appellants were jointly tried. The petit jury found each appellant guilty of two counts of kidnapping in the first degree and one count of robbery in the first degree. The jury found Maxwell not guilty of the rape charge and found Arniz not guilty of the sodomy charge.
The trial judge sentenced each appellant to three terms of life in prison, to run consecutively, as habitual felony offenders.
On May 27, 1988, at approximately 9:30 p.m., the two victims in this case were standing by the male victim's car outside the Tip Top Cafe in Huntsville, Madison County, Alabama. While standing there, three black males approached the couple and asked if they had a car. The male victim indicated that the car that they were standing beside was his. One of the black men, later identified as Maxwell, pulled a gun out and told the couple to get in the car. The male victim was told to drive. Maxwell got in the front seat with him. The female victim was placed in the middle of the back seat, between Arniz and a third assailant, later identified as Eric Farris.
The female victim, the prosecutrix, took her ring and her earrings off, at the insistence of Maxwell. She gave the earrings to Maxwell, and she gave her ring to Farris.
After driving a while, Maxwell ordered the male victim to stop, and the two got out of the car. Maxwell told him that he (Maxwell) would have to kill him since he did not have any money. Maxwell got back in the car in the driver's seat. He put the prosecutrix in the front seat with him. Arniz got into the back seat with the male victim. Farris took off running away from the car.
After driving for a short while, Maxwell stopped the car. He took the prosecutrix to a vacant lot, made her take her clothes off, and allegedly raped her three times.
Arniz drove off in the car with the male victim lying in the back seat. He stopped the car after a short distance. He then forced the male victim to pull his pants down, at which time he allegedly sodomized the male victim.
Maxwell took the prosecutrix back to the Tip Top Cafe and instructed her to go in and get some money. The prosecutrix went in and told the manager to call the police. The male victim was found a short time later, huddled in the back seat of his car. He appeared nervous and shaken.
Maxwell and Arniz now jointly appeal their convictions. They are represented, however, by separate counsel and have filed separate briefs. Several of their issues are similar and will be discussed together where possible.
Both appellants argue that the State failed to prove that the crimes were committed in Madison County, Alabama. Thus, the appellants aver that the trial court lacked venue. They insist that their convictions be set aside as a result.
To preserve an issue concerning venue (or lack thereof), the challenging party must object before a verdict is reached. Therefore, this issue is deemed waived because there was no objection at trial specifically raising this issue.
Moreover, there was ample evidence presented at trial that the crimes were committed in Madison County, Alabama. Both victims testified that they were abducted in front of the Tip Top Cafe in Madison County. The prosecutrix was raped at a vacant lot in Madison County and was taken back to the Tip Top Cafe by Maxwell. Also, the male victim was found in his car in Madison County, Alabama.
Both appellants also contend that they were denied the right to a speedy trial as guaranteed by the Sixth Amendment, U.S. Const., and article I, § 6, Ala. Const. (1901).
The charged crimes occurred on May 27, 1988. Both appellants were arrested on May 30, 1988, and charged with commission of these crimes. Soon thereafter bond was set for each appellant. Because they could not make the bond, both appellants remained incarcerated from May 30, 1988, until the time of the trial, August 25, 1989.
The relevant events pertaining to Arniz's and Maxwell's speedy trial claims are set out below.
May 30, 1988 The appellant was arrested and charged with two counts of robbery, and one count of sodomy.
September 23, 1988 the August 1988 term of the Madison County grand jury returned a true bill against this appellant for two counts of kidnapping first degree, one count of robbery first degree, and one count of sodomy first degree.
October 26, 1988 This appellant filed a motion to continue, requesting a determination of his sanity.
November 16, 1988 This appellant filed a motion to sever his trial from Maxwell's.
December 23, 1988 This appellant filed a motion for further mental evaluation because of a possible finding of some mental problems.
December 29, 1988 The trial judge entered an order requiring this appellant to be transferred to Taylor Hardin Secure Medical Facility for psychological evaluation.
January 23, 1989 The trial judge sent a letter to this appellant in response to the appellant's pro se motion to dismiss his appointed counsel. The trial judge informed the appellant that he would consider his motion after his evaluation at Taylor Hardin.
March 2, 1989 The trial judge entered an order that this appellant be transported to Taylor Hardin for an outpatient evaluation.
March 17, 1989 The appellant's counsel, by letter to the trial judge, requested a speedy trial.
March 29, 1989 This appellant was evaluated at Taylor Hardin, and a report was made disclosing the appellant's mental capacity and standing.
April 5 & 6, 1989 The Taylor Hardin report was completed and was forwarded to the Madison County circuit clerk's office.
April 20, 1989 This appellant's attorney moved to withdraw from this case because of apparent dissatisfaction by the appellant with his performance.
April 26, 1989 The appellant's counsel's motion to withdraw was granted by the trial judge, and a new attorney was appointed.
July 28, 1989 The appellant's newly-appointed attorney filed additional discovery requests.
August 1, 1989 The trial judge entered a second discovery order.
August 21, 1989 This appellant was arraigned and pleaded not guilty.
August 25, 1989 This appellant was tried and convicted of two counts of kidnapping first degree and one count of robbery first degree.
May 30, 1988 This appellant was arrested and charged with two counts of kidnapping, one count of robbery, and one count of rape.
September 23, 1988 The August 1988 term of the Madison County grand jury returned a true bill against this appellant for two counts of kidnapping first degree, one count of robbery first degree, and one count of rape first degree.
October 11, 1988 This appellant, through his attorney, filed a petition for psychiatric examination and a motion to suppress his statements to the police.
October 25, 1988 This appellant refiled the same two motions that he filed on October 11.
December 5, 1988 This appellant pleaded not guilty and not guilty by reason of insanity or mental defect.
January 23, 1989 The appellant, through counsel, filed an application for youthful offender status.
February 13, 1989 The appellant's application for youthful offender status was denied by the trial judge.
March 23, 1989 The State filed a certificate, noting that it had complied with the court's discovery order.
April 26, 1989 This appellant, through counsel, filed a motion for speedy trial.
August 16, 1989 This appellant, through counsel, filed a motion to dismiss for lack of a speedy trial.
August 21, 1989 This appellant was arraigned and pleaded not guilty.
August 25, 1989 This appellant was tried and convicted of two counts of kidnapping first degree and one count of robbery first degree.
There are four factors which must be weighed when reviewing an appellant's claim that he has been denied his constitutional right to a speedy trial. These factors are: (a) the length of the delay; (b) the reason for the delay; (c) the appellant's assertion of that right; and (d) the degree of prejudice to the appellant because of unnecessary delays. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1971).
Length of delay. Both of these appellants were arrested on May 30, 1988. They remained incarcerated from this date until the date of the trial, August 25, 1989. This period spanned 15 months.
We have held before that it is not necessary for us to review the remaining Barker factors if we fail to find the delay "presumptively prejudicial." "[T]he length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; Wilson v. State, 407 So.2d 584 (Ala.Cr.App.1981); Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980).
In determining if the delay is presumptively prejudicial, we must look at the facts and circumstances peculiar to this case. United States v. Eight Thousand Eight Hundred and Fifty Dollars in United States...
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Blackmon v. State
...U.S. at 528-29, 92 S.Ct. 2182, and not every assertion of the right to a speedy trial is weighted equally. Compare Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App.1990) ('Repeated requests for a speedy trial weigh heavily in favor of an accused.'), with Clancy v. State, 886 So.2d 166, 172......
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...See also Parker, supra. The decision to receive photographs into evidence is within the discretion of the trial court. Kelley v. State, 568 So.2d 405 (Ala.Cr.App.1990). In the case at hand, we find no abuse of this The appellant contends that the trial court's jury charge was inadequate in ......
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Blackmon v. State, No. CR-01-2126 (Ala. Crim. App. 8/25/2006)
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