Sellers v. State

• Decision Date: 30 May 1972
• Docket Number: 4 Div. 40
• Parties: Foster SELLERS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 156

263 So.2d 156

48 Ala.App. 178

Foster SELLERS v. STATE.

4 Div. 40.

Court of Criminal Appeals of Alabama.

May 30, 1972.

Joseph A. St. Ana, Jacksonville, Fla., for appellant.

MacDonald Gallion, Atty. Gen., and Joseph Victor Price, Jr., Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant was indicted in Houston County, Alabama, for second degree burglary. After several years delay caused by his imprisonment in the State of Georgia appellant filed a motion to dismiss the indictment on the ground that the State of Alabama had denied him his constitutional right to a speedy trial. He also entered a special plea requesting discharge from the indictment on the ground that he had been discharged from an Alabama detainer by a Georgia court on a writ of habeas corpus based upon the denial to him of a speedy trial by the State of Alabama. After a hearing at which several witnesses testified the trial court overruled the plea and denied the motion. At a jury trial on appellant's plea of not guilty he was found guilty and the court sentenced him to seven years imprisonment.

Appellant was arrested by Dothan City Police Officers on the night of the offense, along with two other men in an automobile near the burglarized premises an office on a dead-end street which bore marks of forcible entry and from which several items were discovered missing. The missing items had been found shortly before appellant's arrest in a cache near the office. A search of appellant's person after his arrest produced a section of hose which was later identified by a former state toxicologist as having been severed from a section of similar hose found in the office by the police. Other evidence adduced by the State included testimony by the toxicologist that paint smudges on a crowbar found in the cache of the stolen articles were similar to paint scrapings taken by the police from the sill of an open window in the office. The toxicologist also testified that a plaster cast of a footprint found under the open window was similar in size and sole pattern to shoes which appellant was wearing when he was arrested.

Appellant's first contention on appeal is that the State denied to him his constitutionally protected right to a speedy trial by bringing him to trial in September, 1969, on an indictment returned in June, 1964. A full evidentiary hearing was held on appellant's motion to dismiss the indictment on this ground prior to the trial and the trial court denied the motion. At that hearing testimony was introduced which tended to show the following facts:

The offense was committed and appellant was arrested on May 20, 1964. He was indicted on June 10, 1964. While appellant was free on bond pending trial on the indictment he was convicted by a Georgia court for a separate offense on July 7, 1964. On September 28, 1964, the Sheriff of Houston County was notified that appellant had been released by Georgia prison authorities. In December, 1964, the sheriff attempted without success to locate appellant.

A Georgia appellate court reversed appellant's conviction on April 19, 1965. In July a detective of the Dothan Police Department traveled to Georgia to attend an extradition hearing but the hearing was cancelled. Appellant admitted in his later petition for habeas corpus that the Governor of Georgia had refused to extradite him on this occasion. Appellant was tried and convicted a second time for the Georgia offense on October 12, 1965. In December the Houston County Sheriff again tried to locate appellant and was again unsuccessful.

Neither the State nor appellant made any attempt to expedite trial on the burglary indictment for the next fourteen months (including all of 1966), during which time appellant was incarcerated in a Georgia prison. Then in February and March of 1967 the District Attorney of Houston County telephoned state and federal correctional authorities in an attempt to locate appellant and finally succeeded in identifying the facility at which he was being held. In April, 1967, the Houston County Sheriff placed a detainer on appellant with the Georgia Board of Corrections. Appellant became eligible for parole under the Georgia sentence in June, 1967, but parole was denied because of the Alabama detainer. On September 7, 1967, appellant wrote a letter to the Houston County, Alabama, District Attorney requesting a speedy trial on the 1964 burglary indictment. The district attorney did not answer the letter but during the following month he again contacted officials in Georgia with regard to obtaining custody of the appellant for trial. On November 17, 1967, the Houston County Sheriff received a letter from Georgia officials which indicated that they believed that his office had withdrawn its detainer on appellant. The sheriff had not in fact withdrawn the detainer and he called the Georgia Attorney General's office to make this clear. During the same month and the one following (December, 1967) the district attorney communicated by telephone and mail with a Georgia Assistant Attorney General and a legal advisor to the Governor of Georgia concerning Alabama's desire to bring appellant to trial and they promised to assist 'in every way.' The district attorney also learned from these communications that appellant was apparently being transferred from county to county to avoid extradition, that he 'had some kind of political help in certain counties where he went,' and that for this reason it would be difficult for the Alabama officials to gain custody. Nevertheless, authorities at the Georgia correctional institution where appellant was then being held agreed to give Alabama custody of the appellant when he had served his sentence there.

After several months of inactivity, in July, 1968, further correspondence and conversation passed between Georgia officials and the Houston County Sheriff and district attorney, and in August the Alabama authorities were informed that they could have custody of the appellant to try the case pending against him. They immediately filed for extradition. On September 16, 1968, Georgia correctional officials at the request of the Houston County District Attorney, asked appellant to sign a waiver of extradition to Alabama, but he refused. On October 7 he petitioned for habeas corpus in a Georgia court alleging that he was being confined not only under the Georgia sentence, which was to expire on October 11, but also by virtue of the charge still pending against him in Alabama. He further alleged that any further imprisonment in Georgia on the Alabama charge would be a denial of his right to a speedy trial guaranteed by the United States Constitution and the constitutions of Georgia and Alabama. On October 11, 1968, the day on which his Georgia sentence expired, the Tattnall County, Georgia, Superior Court granted habeas corpus and ordered appellant's release. Meanwhile the Houston County Sheriff sent detainers on appellant to the sheriffs of a number of counties in Georgia. The district attorney filed for extradition twice more in December, 1968, and a third time on January 2, 1969, apparently to no avail.

Finally, in February or April of 1969, appellant waived extradition, surrendered to Alabama authorities, and entered the plea and motion referred to above.

Article 1, § 6, Constitution of Alabama of 1901, provides in part: '(T)he accused has a right to . . . in all prosecutions by indictment, a speedy, public trial . . ..' In addition, the Sixth Amendment to the Constitution of the United States provides: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..' The federal constitutional guarantee applies to state prosecutions as well as federal by virtue of the Fourteenth Amendment. Klopfer v. North Carolina,386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). And if a person accused of a crime in one state is incarcerated in another state or in a federal correctional facility, the first state has a constitutional duty to make a diligent, good-faith effort to gain custody of the accused and bring him to trial. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Under the law of Alabama, however, the accused ordinarily must show that he made a demand for trial, or objected to postponement of the trial, or made some other effort to secure a speedy trial, before he is entitled to be discharged on the ground that his right to a speedy trial has been denied. Elliott v. State, 283 Ala. 67, 214 So.2d 420, cert. denied, 393 U.S. 1041, 89 S.Ct. 667, 21 L.Ed.2d 589; Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158; Washington v. State, 45 Ala.App. 173, 227 So.2d 805; Autrey v. State, 44 Ala.App. 53, 202 So.2d 88, cert. denied, 390 U.S. 1030, 88 S.Ct. 1422, 20 L.Ed.2d 287. And although there exists a body of opinion which questions the constitutionality of such a rule, see Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (concurring opinion), it has received at least the tacit approval of the United States Court of Appeals for the circuit in which we sit. See May v. Georgia, 409 F.2d 203 (5th Cir., 1969). In the instant case appellant made the requisite demand for a speedy trial by the letter he mailed to the Houston County District Attorney on September 7, 1967, some thirty-nine months after he was indicted and twenty-four months before he was tried.

In addition to showing a demand for speedy trial, to make a prima facie case for release an accused normally must also show that actual prejudice resulted from the fact that trial was delayed. Hoskins v. Wainwright, 440 F.2d 69 (5th Cir., 1971); United States v. King, 431 F.2d 734 (5th Cir., 1970); United States v. Fitzpatrick, 437 F.2d 19 (2d Cir., 1970); United States v. Penland, 429 F.2d 9 (9th Cir., 1970), cf. Dickey v. Florida, supra. According to Hoskins, supra, if the accused relies on passage of time alone to establish prejudice, he can meet...