Lewis v. State

• Decision Date: 20 March 1984
• Docket Number: 2 Div. 391
• Parties: Abe LEWIS, Junior and Arthur James Blake aka "Arthur James Jackson" v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1291

469 So.2d 1291

Abe LEWIS, Junior and Arthur James Blake aka "Arthur James Jackson" v. STATE.

2 Div. 391.

Court of Criminal Appeals of Alabama.

March 20, 1984.

Rehearing Denied May 8, 1984.

John E. Pilcher of Pilcher & Pilcher, Selma, for appellant Blake.

J. Patrick Cheshire, Selma, for appellant Lewis.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Arthur James Blake and Abe Lewis, Junior were indicted for robbery in the first degree and, following a consolidated trial, convicted of robbery in the second degree. Each defendant was sentenced to twenty years' imprisonment and ordered to make restitution in the amount of $3,000.

I

Blake contends that he was denied his Sixth Amendment right to a speedy trial. The events pertinent to this issue are set forth below:

December 21, 1981--Blake was arrested for first degree robbery.

January 6, 1982--Blake posted $5,000 bail and was released.

January 28, 1982--The grand jury indicted Blake and bail was set at $50,000.

February 2, 1982--Blake was arrested under the indictment.

March 11, 1982--The Honorable Blanchard McLeod was appointed to represent Blake at arraignment; trial was set for April 5, 1982. The trial court granted a continuance to the May 1982 docket requested by McLeod.

April 2, 1982--McLeod filed a motion to withdraw as Blake's counsel. The court granted the motion and appointed Honorable John E. Pilcher to represent the defendant; trial was set for July 26, 1982.

July 26, 1982--The State moved for a continuance because one of its witnesses was hospitalized; the court granted the continuance to November 1, 1982.

November 1, 1982--Blake and the State's attorney announced "ready" for trial. Out of the presence of Blake's lawyer, counsel for one of Blake's co-defendants requested a continuance, which was granted. The assistant district attorney then moved for a continuance of Blake's trial on the ground that the State wanted to try the co-defendant before it tried Blake. The continuance was granted.

November 5, 1982--Blake filed an objection to the continuance, a demand for speedy trial, and a motion to dismiss the indictment.

November 29, 1982--After a hearing, the trial court denied Blake's motions but inquired when the State would be ready for trial. The prosecuting attorney informed the court that the State would be prepared to try Blake as soon as it completed the trial of the co-defendant.

January 10, 1983--The State requested a continuance to the April 1983 docket in order to take advantage of A.R.Crim.P.Temp. 15.4 (effective March 1, 1983) (Joinder, consolidation, and severance of defendants), stating that it wished to try Blake and the two co-defendants together. Blake's counsel objected to the continuance in open court.

January 13, 1983--Blake's counsel filed a written objection to the continuance and to the consolidation of the trials of all co-defendants, along with a motion for speedy trial.

January 21, 1983--The trial court granted the State's request for continuance.

February 23, 1983--The court conducted an evidentiary hearing on Blake's motions.

March 25, 1983--The State filed a motion for consolidation of the trials of Blake and his two co-defendants.

March 30, 1983--Blake objected to the proposed consolidation and requested a hearing.

April 4, 1983--The State requested a one-week continuance in order to comply with the requirements of Rule 15.4(b) (court may order consolidation no later than seven days prior to trial).

April 11, 1983--The court entered an order of consolidation without a hearing. The State requested Blake's trial be continued due to an insufficient number of veniremen from which to strike a jury under Rule 15.4(h).

June 20, 1983--Blake filed a petition for writ of habeas corpus alleging denial of his right to a speedy trial.

August 1, 1983--The State requested a one-week continuance under Rule 15.4(b).

August 2, 1983--The court conducted a hearing on the State's motion for consolidation and the defense objections, after which an order of consolidation was entered and trial scheduled for August 11, 1983.

August 11, 1983--Blake was tried and convicted.

Applying the four-part test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude that the defendant was not denied his constitutional right to a speedy trial.

Length of the Delay--Although the interval between arrest and trial of approximately 19 1/2 months may not be "presumptively prejudicial", see Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192, it is excessive enough to provide "a sufficient springboard for inquiry into other factors", see Wade v. State, 381 So.2d 1057, 1059 (Ala.Cr.App.), cert. denied, 381 So.2d 1062 (Ala.1980) (quoting United States v. Edwards, 577 F.2d 883, 888 (5th Cir.1978), particularly in view of Blake's claim that the State "intentionally delayed (his trial) to gain some tactical advantage" over him, see United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971).

Reasons for the Delay--The initial delay between arrest and arraignment of nearly three months was not inordinately long, was not attributable to either the State or the defense, and was "made necessary by the law itself." Cook v. State, 333 So.2d 855, 858 (Ala.Cr.App.), cert. denied, 333 So.2d 858 (Ala.1976). Thereafter, the trial date was deferred by short postponements, including one continuance requested by Blake, one motion for withdrawal by defense counsel, and six continuances sought by the State.

The two-month delay occasioned by the continuance granted on Blake's behalf must, of course, be excluded from the total length of delay and counted against him. McCallum v. State, 407 So.2d 865, 868 (Ala.Cr.App.1981). On the other hand, the time lapse caused by defense counsel's motion for withdrawal must be considered a "neutral" reason; the record indicates that the motion was necessitated by the attorney's appointment to represent co-defendants in the same case.

In addition, a "neutral" reason can also be assigned to the three-month lag between July 26 and November 1, 1982. The State's motion for a continuance due to the hospitalization of a prosecution witness was appropriate and the delay was justifiable. See United States v. Sanchez, 392 F.Supp. 507 (S.D.N.Y.1974); Wade v. State, supra, at 1060. Thus, the ten-month delay from Blake's arrest until November 1, 1982, is chargeable either to Blake himself or to unavoidable "neutral" postponements. The fact that Blake did not assert his right to a speedy trial prior to November 1982, tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date. Stevens v. State, 418 So.2d 212, 214 (Ala.Cr.App.1982).

The nine and one-half month period after November 1982 presents an entirely different situation, however. Beginning with November 1, 1982, the State moved for the first of five continuances which prompted Blake's vigorous assertions of his right to a speedy trial.

The State's first request for a continuance was based on the prosecution's desire to try a co-defendant before Blake, gain a conviction and, no doubt, use the co-defendant's favorable testimony against Blake. This same prosecution strategy accounted for the trial delays in Barker v. Wingo. While we do not wish to be understood The next four continuance motions by the State were grounded in its wish to take advantage of newly-promulgated Rule 15.4(b) of the Alabama Temporary Rules of Criminal Procedure, providing that separately indicted defendants may, under some circumstances, be joined for trial. Blake objected strenuously to the State's attempts at consolidation, pointing out to the trial court his opposition to the delays caused by the prosecution's shift in trial strategy. Again, while we cannot fault the prosecution for wishing to avail itself of a procedural rule which it supposes will provide a trial advantage, see Ex parte Cofer, 440 So.2d 1121, 1125 (Ala.1983), we caution the State that a defendant's constitutional rights rank ahead of both the strategy and the policy favoring joint trials. While "joint proceedings cannot be deemed an unjustifiable cause of delay", see People v. Powell, 40 Cal.App.3d 107, 152, 115 Cal.Rptr. 109, 138 (Cal.Dist.Ct.App.1974), a "deliberate attempt by the State to ... enhance its own case", Corn v. State, 387 So.2d 275, 278 (Ala.Cr.App.), cert. denied, 387 So.2d 280 (Ala.1980), weighs heavily against the prosecution under the Barker analysis. See Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192.

as interfering with the trial tactics of the prosecution or dictating to the State the order in which it must try its cases, we must point out that the State's continued insistence upon such a course of action in the face of repeated demands for a speedy trial by the defense may violate a defendant's Sixth Amendment rights. In Barker, the Supreme Court noted that "(p)erhaps some delay would have been permissible under ordinary circumstances, so that Manning could be utilized as a witness in Barker's trial, but more than four years was too long a period ...." 407 U.S. at 534, 92 S.Ct. at 2194.

The perhaps otherwise excusable delay occasioned by the State's attempt to consolidate the trials of all co-defendants in this case becomes particularly unjustified in view of the prosecution's failure to see that the orders it sought complied with Rule 15.4. The State found it necessary to request three continuances because it had been derelict in not observing the time limits of Rule 15.4 and because it had been negligent in not summoning the proper number of veniremen for a consolidated trial.

In short, we believe that the nine and one-half month delay after November 1982 must be attributed solely to the prosecution and must be weighed heavily against the State.

Defendant's Assertion of Rights--As we have outlined above, Blake did not voice a...