McDonald v. Com.
Decision Date | 13 June 1978 |
Citation | 569 S.W.2d 134 |
Parties | Charles Samuel McDONALD, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Court | United States State Supreme Court — District of Kentucky |
Terrence R. Fitzgerald, Deputy Dist. Defender, Daniel T. Goyette, Associate Director, William C. Grimes, Asst. Public Defender, Louisville, for appellant.
Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
Charles Samuel McDonald was indicted and tried for the offenses of indecent and immoral practices, KRS 435.105, assault and battery, KRS 431.075, and rape, KRS 435.090. 1
A jury found McDonald guilty on all three counts and sentenced him to imprisonment for five years on the count of indecent and immoral practices, twelve months on the count of assault and battery, and life without parole on the count of rape. McDonald appeals. We affirm.
On June 6, 1974, McDonald was released on parole from LaGrange. In 1973, McDonald was convicted on a plea of guilty for two offenses of committing indecent and immoral practices upon his twelve-year-old stepdaughter, Renita Griffin. He was sentenced to three years' imprisonment on one charge and to ten years on the other charge which was probated.
On the morning of June 7, according to McDonald, he went to his wife Evelyn's house, where an argument ensued about his wife's relationship with another man. His wife's version was that McDonald forced his way into the house and proceeded to beat her and speak of revenge against her and Renita Griffin, the stepdaughter. McDonald admitted that he struck his wife several times. While this argument was proceeding, Renita and a girl friend were in an upstairs bedroom. McDonald, hearing movement upstairs, went up the stairs yelling for the other man to show himself and forced open the bedroom door to find Renita there. According to McDonald, he then left Renita and her girl friend and resumed the argument with his wife. According to the wife and Renita, he dragged both of them into another bedroom where he forced his wife to have oral sex with him and then proceeded to rape Renita. The scenario ended when the wife ran down the stairs and out of the house with McDonald in pursuit. The wife called the police and McDonald was apprehended and placed under arrest. Three years later, on June 7, 1977, McDonald was tried and convicted of the charge.
The first and most significant argument for reversal is the assertion that the delay between arrest and trial denied McDonald his constitutional right to a speedy trial.
The case was first set for trial on October 24, 1974, and the succeeding dates the case was set for trial appear as follows:
1. On October 24, 1974, case continued to January 15, 1975, on motion of Commonwealth.
2. On January 15, 1975, case continued to March 3, 1975, on motion of McDonald.
3. On March 3, 1975, case continued to May 14, 1975, on motion of McDonald.
4. On May 14, 1975, case continued to September 23, 1975, on motion of Commonwealth.
5. On September 23, 1975, trial of the case commenced. On motion of McDonald a mistrial was granted by the trial court and the case continued to January 14, 1976. McDonald's motion to dismiss for lack of speedy trial was overruled.
6. On January 14, 1976, the case was continued to April 5, 1976, on court's own motion. McDonald's motion to dismiss for lack of speedy trial overruled.
7. On April 5, 1976, the case was passed by the trial court for the purpose of subjecting McDonald to a psychiatric examination. After the results of the examination were filed with the trial court, the Commonwealth moved to have the case set for trial. The trial court then set the case for trial on October 25, 1976. In the interim, McDonald filed motion to dismiss for lack of speedy trial.
8. On October 25, 1976, the case was continued to February 9, 1977, on joint motion of the Commonwealth and McDonald.
9. On February 9, 1977, the case was continued to March 21, 1977, on motion of the Commonwealth.
10. March 21, 1977, the case was ordered transferred to another division of the court due to a conflict of interest on the part of the new judge sitting in the division, and the case was continued to April 1, 1977.
11. On April 1, 1977, the case was passed to April 4, 1977, on the trial court's own motion.
12. On April 4, 1977, the case was continued to June 6, 1977, on motion of the Commonwealth.
13. On June 7, 1977, the trial commenced resulting in the conviction here on appeal.
McDonald was in custody during the entire period. After the mistrial was granted by the trial court on September 23, 1975, the trial court revoked McDonald's probation of the previous charge and he was returned to the penitentiary.
We are in accord with the proposition that a delay of three years between arrest and trial dictates an inquiry into the circumstances of the delay in order to determine if there has been a violation of the constitutional guarantees of a speedy trial.
The Supreme Court of the United States, after considering the speedy trial issue on several occasions, finally in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), fashioned a set of factors to be considered in resolving the issue of speedy trial. These four factors which are to be considered are as follows:
1. The length of the delay;
2. The reasons for the delay;
3. The defendant's assertion of his right to a speedy trial; and
4. Prejudice to the defendant.
Barker was finally brought to trial more than five years after his arrest. From arrest in 1958 until 1963, when Barker was tried and convicted, the Commonwealth was granted a series of sixteen continuances of the Barker trial. Early in 1962, Barker moved to dismiss for lack of speedy trial. He had made no objection to the continuances until three and one-half years after he was arrested. There was no showing that any of Barker's witnesses had died or were otherwise unavailable owing to the delay. The reason for the delay in bringing Barker to trial was the belief by the prosecution that there was a stronger case against an accomplice, Manning, and that if Manning could not be persuaded to testify against Barker, it was unlikely Barker would be convicted. Manning was finally convicted of one of the murders in March 1962 after the fifth trial and was convicted of the other murder in December of 1962. Two of Manning's trials resulted in hung juries and two were reversed by this court for new trials during the period. Thereafter there was a delay due to the illness of a key prosecution witness; and, finally in 1963, Barker was brought to trial and convicted with his accomplice Manning as the chief prosecution witness.
In affirming the case, the U.S. Supreme Court applied the balancing factors, concluding that the delay was inordinate but that Barker had never asserted his right to a speedy trial, nor objected to the continuances until early in 1963, and that there was only minimal prejudice to Barker by reason of the delay. The controlling conclusion was that Barker did not want a speedy trial.
As to the length of the delay here, it is of sufficient duration to trigger an inquiry. The denial of the right to a speedy trial cannot be determined exactly in an all-inclusive time period. Whether this right has been violated must depend on the particular context of each case. It is a vague concept incapable of precise definition and must be balanced with the procedural safeguards provided an accused, which in themselves cause the process to move at a deliberate pace, and recognition of the fact that dismissal for a violation of the right to speedy trial is a severe remedy from the standpoint of society. In addition, delay can work to the advantage of a defendant. Consequently, the length of the delay must be balanced against the other factors.
The reasons for the delay here militate against McDonald. Throughout these proceedings it is apparent the Commonwealth was making a good-faith effort to bring McDonald to trial. Here McDonald did not object to any of the continuances. The record is vague as to the reasons for many of the continuances, but Barker recognizes that a valid reason for the continuance should serve to justify appropriate delay. McDonald does not argue that any of the continuances were inappropriate. Finally, on this factor McDonald participated in the delay. The continuance on March 3, 1975, was on McDonald's motion. On September 23, 1975, the case was continued after the trial court granted McDonald's motion for a mistrial. As late as October 25, 1976, McDonald participated in a continuance on a joint motion with the Commonwealth. Barker observed that if delay is attributed to the defendant, then his waiver may be given effect under standard waiver doctrine.
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