Mayberry v. State
| Decision Date | 05 October 1971 |
| Docket Number | 6 Div. 246 |
| Citation | 264 So.2d 198,48 Ala.App. 276 |
| Parties | Harold MAYBERRY, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Elliott & Laird, Jasper, for appellant.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Grand larceny: sentence ten years imprisonment.
Mayberry was originally indicted in August, 1968 (State's Exh. #2, R. 58). The trial of instant concern was on issue joined on an indictment filed March 2, 1970. Presumably the former indictment was ordered reconsidered by another grand jury. See Code 1940, T. 15, §§ 257 and 258.
The complaint before indictment was filed January 22, 1968.
On August 26, 1968, a writ of arrest issued on the first indictment. The sheriff made a return of arrest and commitment of the defendant to jail on September 19, 1969. The defendant testified that as early as February 10, 1968, a detainer was put on him at the Jefferson County jail by the Sheriff of Walker County.
This delay was the basis of a defense motion to dismiss for lack of speedy trial. This motion was filed April 7, 1970.
Mayberry testified that he was released from Kilby Prison on the same day the Sheriff of Walker County picked him up on the indictment. We do not know whether the Circuit Clerk had complied with Code 1940, T. 13, § 207. Mayberry at no time made a demand for a speedy trial until his motion to dismiss.
However, under Foster v. State, 45 Ala.App. 323, 229 So.2d 913, and Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, there can be no waiver of the right to a speedy trial by a penitentiary prisoner unless he has knowledge of the indictment.
This the State did not show and hence on a silent record and in the absence of testimony we can only assume that § 207 was not complied with. The indictment is the critical accusation because in felonies it is the only made of accusation (except under Amendment 37 which permits informations on pleas of guilt Before indictment). See Foster, supra.
This case presents an unexplained delay of thirteen months; one of the defendant's alibi witnesses in the meanwhile went into the Atlanta Federal Penitentiary, another died.
We do not consider that we can on the instant record reverse the judgment below, nor in view of Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, and Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, as well as Foster, supra, and Ex parte State, etc., supra, can we affirm.
Since the Sixth Amendment via the Fourteenth is involved (Klopfer v. North Carolina, Supra), we feel that in the present case a further hearing should be had in the court below in reference to (but not necessarily limited to): (1) when did the Walker County authorities first know actually or constructively that Mayberry was in the penitentiary; (2) when did Mayberry enter the penitentiary; (3) when, if ever, did the Circuit Clerk comply with Code 1940, T. 13, § 207; (4) if so, did the agents of the Board of Corrections serve the indictment on Mayberry and, if so, when; (5) did Mayberry make any demand for speedy trial other than contained in his motion filed after he had been reindicted, and (6) was the first indictment pleaded to or nol prossed by the State with consent of the court.
The foregoing enumeration is intended to be only by way of suggestion and the court below may enlarge the scope of the enquiry as to any matter bearing on the speedy trial issue, and whether or not Mayberry may have acquiesced in the delay. This procedure has been analogized from that established in Jackson v. State, 285 Ala. 564, 234 So.2d 579 1; the instructions given in the last paragraph of that opinion are appropriate here.
Accordingly, the cause is remanded for further proceedings in accordance herewith.
Remanded with directions.
AFTER REMANDMENT HEARING IN THE CIRCUIT COURT
At the hearing on remandment the parties stipulated to the following chronological table (Remandment R. 58):
'1. Robbery--1/19/68 (in Walker County)
1a. Warrant issued 1/22/68
2. Defendant jailed in Decatur Feb. 4, 1968
3. Defendant transferred to Birmingham, Ala. Feb. 10, 1968
4. Defendant pleads guilty in Jeff. Co. case April 3, 1968
5. Defendant caused to remain in Jeff. Co. Jail Feb. 10, 1968--June 20, 1968
6. Deft. actually reached prison June 20, 1968.
7. (Walker County) Grand Jury returned indictment Aug. 23, 1968
8. Deft. to be released from prison on 9/19/69
8a. Defendant arrested on Walker County chg. 9/19/69
9. Attorney appointed for Mayberry on or about Oct. 2, 1969
10. Defendant arraigned on Oct. 2, 1969, plead not guilty, reserving right to file any motions or pleadings that might be deemed appropriate.
10a. Change of one attorney (see copy of order in case 3902)
11. Defendant files these motions on Oct. 6 & 7, 1969:
1. Motion to Produce
2. Motion to Dismiss
3. Motion to Suppress
Defendant also filed demurrers
11a. Special venire 12/15/69
Defendant filed additional demurrers on 12/24/69.
12. Case set for trial--1/12/70
1. Hearing on demurrer at which time demmurrer was sustained & Indictment ruled defective, dismissed without prejudice & D.A. ordered to re-submit to Grand Jury.
13. March 2, 1970--new indictment returned.
14. Trial on second indictment on April 12, 1970.' (Bracketed matter supplied.)
On August 25, 1969, the Board of Corrections had written the Sheriff of Walker County as follows:
Jasper, Alabama
Re: Harold Douglas Mayberry #96282
WM Jefferson County
Your Warrant 4479
Dear Sir:
The above named man is scheduled to be released September 19th, 1969 from Kilby Prison, Montgomery, Ala.
Our records show hold for your office. Please have your agent on hand between 8:00 A.M. and 12:00 Noon to take him into custody.
Please advise whether or not you intend to exercise your detainer.
Records & Identification
MSD/j
CC Sheriff Jefferson County.
Warden Kilby Prison.
(back of document)
Exec this 19 Sept. 69 committing him to jail.
(Signed) Evans & Poore
Defendant fingerprinted this 19 day of Sept., 1969.
HOWARD TURNER, SHERIFF.'
On direct examination Sheriff Turner testified as follows:
'Q. I will ask you if sometime between the time of the robbery and September 19, 1969, did you learn that Mr. Mayberry was in Decatur, in jail in Decatur?
A. Yes, sir, I learned he was in jail in Decatur, but I don't remember the date I learned this.
Q. Well, do you think it was between those dates? Was it between the time of the robbery was the time he was released from prison on September 19, 1968?
A. I have no memory of it.
Q. Sometime between the date of January 19, 1968 and the time he was released from prison did you learn he was in the Jefferson County Jail for a long period of time?
A. Yes, sir, somewhere along in this period I learned he was in jail in Jefferson County.
Q. Did you learn along in that time that he was in prison?
A. Yes.
Q. I will show you a letter and ask you to identify that.
Q. This is from the State of Alabama Board of Corrections, Montgomery, Alabama.
Q. All right. Let me see the letter. In the letter it did inquire whether or not you were going to exercise your hold, didn't it?
A. Yes, sir.
Q. Mr. Turner, * * *--When you received this letter did this indicate you had called the Board of Corrections and given them the information that Walker County had a hold on Mr. Mayberry?
A. Evidently it did. We have no record on it. Now, where we make telephone calls to prisons that way we don't--we have no record of it. Where we send a warrant or a detainer or one of our regular warrants we have a record of that. This must have been a record of conversation or either was placed by Birmingham, Jefferson County.
Q. Let me ask you this: In order for you to get a letter such as this do you feel that the Board of Corrections would have had to be notified by your office or some other office that had a hold originating from your office?
A. Yes, sir.'
Without objection Mayberry's attorney introduced the following document in evidence:
This is to certify that our records do not show that we have ever received a Grand Jury Indictment for Robbery from Walker County on Harold Douglas Mayberry.
Our records also do not show that any indictment was ever served on the subject.
This the 19th day of October, 1971.
(SEAL)
(Signed) Milford S. Dean
Sworn to and subscribed before me this 19th day of October, 1971.
(signed) Wallace L. Battle Notary Public
(SEAL)'
The original indictment was filed August 23, 1968. On August 26, 1968, the Circuit Clerk issued a writ of arrest 'To Any Sheriff of the State of Alabama.' Code of 1940, T. 15, § 170. The Sheriff did not fill in the space to show when it was received in his office. He showed only execution thereof on September 19, 1969.
We think it is reasonable to assume that the Circuit Clerk gave the writ of arrest to the Sheriff within a few days after August 26, 1968. The Sheriff had known of Mayberry's being in Decatur and Birmingham between February 4, 1968, and June 20, 1968.
Sometime thereafter he can also be assumed to have communicated with the Board of Corrections, directly or indirectly, as evidenced by the Board's reference to a 'hold' against Mayberry. It is clear, however, that he did not advise the Circuit Clerk of Mayberry's being in the penitentiary. Thus the clerk on the remandment hearing stated that even though he was ignorant of Code 1940, T. 13, § 207, nevertheless he had no...
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