Sims v. State, CR-92-0718

• Decision Date: 04 March 1994
• Docket Number: CR-92-0718
• Parties: Phillip R. SIMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 975

663 So.2d 975

Phillip R. SIMS v. STATE.

CR-92-0718.

Court of Criminal Appeals of Alabama.

March 4, 1994.

Timothy Fleming, Mobile, for appellant.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of two counts of robbery in the second degree, a violation of § 13A-8-42, Code of Alabama 1975. He was sentenced as a habitual offender to life imprisonment on each count, with the sentences to run consecutively. He was also fined $2,000, was ordered to pay $50 to the victims' compensation fund, and was assessed court costs.

I

The appellant argues that he was denied his right to a speedy trial because there was a 17 1/2-month delay between his arrest and his trial. The State, in its brief, sets our the pertinent facts as follows:

"3-8-91 appellant Sims arrested

appellant's bond set

"4-11-91 appellant Sims indicted

appellant's bond set at $40,000

appellant Sims's first defense attorney appointed

"4-26-91 appellant Sims waives arraignment, pleads not guilty

"5-23-91 appellant Sims transferred into temporary federal custody for federal criminal arson prosecution

"6-21-91 appellant Sims convicted of arson in federal criminal court

"7-3-91 appellant Sims's first defense attorney's motion to withdraw granted by trial court

"7-18-91 appellant Sims files pro se motion for speedy trial

"7-30-91 attorney Sims's second defense attorney appointed

"11-18-91 appellant's case set for trial on December 10, 1991

"12-10-91 appellant's trial date continued to February 3, 1992

"12-11-92 appellant Sims transferred to federal custody at U.S. penitentiary at Terre Haute, Indiana.

"2-__-92 [sic] appellant's trial date continued

"3-30-92 pro se motion to dismiss second defense attorney filed by appellant Sims

"__-__-92 [sic] appellant Sims's second defense attorney's motion to withdraw granted by trial court

"8-6-92 appellant Sims's third defense attorney appointed

"8-27-92 appellant Sims's trial commences"

In Vo v. State, 612 So.2d 1323, 1327 (Ala.Cr.App.1992), this court stated:

"The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 [2192], 33 L.Ed.2d 101 (1972), set forth four factors to consider in determining whether a defendant was denied his right to a speedy trial. These are (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his rights, and (4) prejudice to the defendant.

"In looking at the length of the delay, we look at the amount of time between the issuance of a warrant of arrest and the trial. Vincent v. State, 607 So.2d 1290 (Ala.Cr.App.1992)."

In Vo, delay between the appellant's arrest and trial was 15 months. This court, in Vo, held that such a delay was "not presumptively prejudicial." See also Manning v. State, 612 So.2d 1262 (Ala.Cr.App.1992); Arnett v. State, 551 So.2d 1158 (Ala.Cr.App.1989) (20-month delay from indictment to trial was not presumptively prejudicial). Although we conclude that the 17 1/2-month delay was not presumptively prejudicial, see Arnett, supra, the other three factors enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), will be examined because "the 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, 92 S.Ct. at 2192.

It appears that the reasons for the delay can be attributed to the appellant, whose twice requested to change appointed counsel was granted twice during this 17 1/2-month period. The appellant's trial commenced within 12 1/2 months of the filing of his motion for a speedy trial. Moreover, during that 12 1/2-month period, the appellant was transferred to federal custody to stand trial on pending charges. The record reveals that the appellant failed to take any action to invoke the Uniform Mandatory Disposition of Detainers Act. § 15-9-80 et seq., Code of Alabama 1975.

Moreover, although the appellant asserted his rights in a motion for a speedy trial, it is not apparent from the record whether he objected to any continuance granted by the trial court. Because he filed the motion for speedy trial, however, the factor regarding the defendant's assertion of his rights will weigh in the appellant's favor.

It does not appear from the record that the appellant has suffered any prejudice as a result of the delay; the appellant has failed to show that the delay caused any anxiety or concern or that the delay impaired his defense. Hence, after due consideration of all four factors stated in Barker, supra, and considering the circumstances of this case, we conclude that the appellant was not deprived of his constitutional right to a speedy trial.

II

The appellant argues that he was denied a fair and impartial trial because the trial court allowed what he considered to be an excessive number of police officers to be present at various times during the course of his trial. More particularly, he argues that "whenever the jurors entered or exited the courtroom, they had to pass by two armed guards stationed at the doorway with an attack dog and a metal detector." He further argues that the security was "uncalled for, unwarranted, and very influential in [the jurors'] decision [making] process."

The record indicates that the trial court had been informed by the Baldwin County Sheriff's Department that at the time of trial the appellant was incarcerated in a high security federal prison and that he had a substantial record. The trial judge stated that although none of the information given by the sheriff's department was verified, he had been informed that additional security was needed because of the appellant's proclivity for violence; specifically, he said the appellant was rumored to be a "hit man" on the gulf coast and to be an expert in martial arts.

In Goodwin v. State, 495 So.2d 731, 733 (Ala.Cr.App.1986), this court upheld the trial court's positioning several guards around the defendant during the trial.

"It is not necessary that there be a formal record of a certain type of misconduct to justify the posting of armed guards. Within constitutional limits, great weight must be accorded the discretion of the trial court, the trial judge is responsible for maintaining order in his courtroom. He understands infinitely better than we what is necessary to perform his duty."

See also Cooper v. State, 611 So.2d 460 (Ala.Cr.App.1992). In the present case, the trial court did not abuse its discretion.

III

The appellant argues that the trial court erred in denying his pre-trial motion to "elect or in the alternative to dismiss." Specifically, he argues that the indictment was multiplicitous and, thus, violated his constitutional protection against double jeopardy. The appellant bases his argument on the fact that he was "found guilty of 2 counts of robbery 2nd degree, involving the robbery of 2 people at the same time at the same place, by two alleged assailants, and that both victims had proprietary interests in the property (money and jewels) taken from both victims."

The appellant's argument is without merit, based on the authority of Ex parte McKinney, 511 So.2d 220 (Ala.1987). In McKinney, the Alabama Supreme Court adopted the position of the majority of states that allow for multiple convictions when more than one person is injured as the result of a single act. In so holding, the McKinney court stated:

"Adoption of the majority view would place Alabama among those states that have recognized that punishment for a criminal act should be commensurate with the act itself and the injury caused by that criminal act. Absent statutory or constitutional obstacles to the adoption of the majority view, logic and reason persuade us to henceforth apply the principle that a single criminal act that causes injury to more than one person may constitute more than one offense and may support more than one prosecution and conviction.

"... [W]e also hold that henceforth §§ 13A-1-8(b) and 15-3-8 will allow more than one prosecution and conviction when more than one person is injured as a result of a single criminal act."

McKinney, supra, at 225.

Therefore, the appellant's convictions were correct.

IV

The appellant contends that there was insufficient evidence presented by the State to sustain his convictions for robbery in the second degree.

Section 13A-8-42, Code of Alabama 1975, provides the following definition of robbery in the second degree:

"(a) A person commits the crime of robbery in the second degree if he violates section 13A-8-43 and he is aided by another person actually present.

"(b) Robbery in the second degree is a Class B felony."

Section 13A-8-43, Code of Alabama 1975, provides, in pertinent part:

"(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:

"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or

"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."

The evidence presented by the State tended to show the following: Joyce and Marral Langham, were approached as they arrived home from a local nightclub by two white males wearing dark-colored ski masks, who demanded that they each give them their jewelry and their money. Mrs. Langham testified that one of the males, who was later identified as the appellant, was wearing a dark plaid shirt and black shoes, while the other was wearing dirty high-topped tennis shoes, light-colored pants and gloves. Mrs. Langham testified that the robbers bound her hands with grey duct tape. Mrs. Langham further testified that on the morning after the robbery, she identified a plaid shirt found near her home as the shirt worn by one of the robbers. Additionally, there was evidence...