Smith v. State, 5 Div. 581
| Decision Date | 24 November 1981 |
| Docket Number | 5 Div. 581 |
| Citation | 409 So.2d 958 |
| Parties | Carson Eugene SMITH, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John A. Tinney, Roanoke, for appellant.
Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.
Buying, receiving or concealing stolen property; sentence: ten years' imprisonment.
The only issue appellant presents for review is whether the delay of two years and nine months between his arrest and trial was a denial of his constitutional right to a speedy trial. U.S.Const., amend. VI; 1901 Ala.Const., art. I, § 6. The facts governing this issue are set forth in chronological order as follows:
August 2, 1978-Appellant and two codefendants were discovered in possession of a Chevrolet pickup truck hauling a flatbed farm trailer to which a tractor was tied.
August 4, 1978-Appellant was arrested and charged with buying, receiving or concealing stolen property, to wit, the Chevrolet pickup truck. Appellant was also charged with other offenses arising from the same incident.
August 8, 1978-Defendant posted bond.
August 21, 1978-Defendant failed to appear at the preliminary hearing because he was incarcerated in Georgia.
September 18, 1978-Defendant's preliminary hearing was held and his case was bound over to the grand jury.
September 26, 1978-Defendant was tried and convicted of theft in Georgia. He was sentenced to six years' imprisonment.
October 4, 1978-Defendant entered the Georgia prison system.
October 4, 1978-May 1979-The Randolph County deputy district attorney was associated with defendant's attorney, Doc Davis, on several Georgia civil cases. Davis related to the deputy district attorney that the defendant was dying of cancer.
February 6, 1979-The Randolph County grand jury returned indictment charging the defendant with buying, receiving or concealing the Chevrolet pickup truck. This was the first grand jury term since the defendant's preliminary hearing. At this time defendant was incarcerated in Reidsville State Prison in Georgia.
February 13, 1979-The Randolph County circuit judge's bench notes reflect that arraignment was continued because the defendant was incarcerated in Georgia.
April 1979-One of the codefendants pleaded guilty in Randolph County and received a probationary sentence to run concurrently with a Georgia prison term.
May 1979-Defendant employed Georgia attorney, Frank H. Hester, replacing Doc Davis.
May 16, 1979-Defendant was released from Georgia prison system on appeal bond in the Georgia theft case.
May 16, 1979-Feburary 6, 1980-Defendant was free on the appeal bond. For two months during this time, defendant lived in Randolph County three-fourths of a mile from two deputy sheriffs whom he saw periodically. Defendant was in and out of Randolph County for the remainder of this interval.
February 6, 1980-Defendant was arrested by Heard County, Georgia, authorities pursuant to charges in Randolph County, Alabama. Defendant claims this was the first knowledge he had of pending Alabama charges.
February 22, 1980-Defendant's arraignment was continued awaiting his extradition from Georgia.
March 21, 1980-The Randolph County deputy district attorney mailed extradition papers to the Alabama governor's office since he had discovered that defendant was imprisoned in Franklin, Georgia. The extradition request stated that the defendant had charges pending against him in Randolph County of buying, receiving or concealing stolen property.
June 19, 1980-The Randolph County deputy district attorney had a telephone conversation with the Georgia governor's office wherein he learned that he incorrectly initiated extradition proceedings when he should have followed the procedure set forth in the Alabama Uniform Mandatory Disposition of Detainers Act, post. The deputy district attorney then mailed a letter to the Georgia Department of Offender Rehabilitation informing those authorities that Alabama was placing a detainer against the defendant on charges of second degree burglary and grand larceny.
June 20, 1980-The Alabama governor's office received the defendant's extradition papers which were returned from the governor of Georgia.
September 8, 1980-The Randolph County deputy district attorney received acknowledgment from Georgia authorities that a detainer had been filed with them against the defendant based on second degree burglary and grand larceny charges.
October 1980-Defendant was notified by Georgia authorities of the Alabama detainer.
November 17, 1980-Defendant filed a request to be brought to trial in Alabama on the burglary and grand larceny detainer pursuant to art. III of the Detainers Act.
February 16, 1981-Defendant was returned to Alabama.
February 17, 1981-Defendant was arraigned and an attorney was appointed for him by the court.
March 20, 1981-Defendant filed a motion to dismiss for lack of a speedy trial.
April 16, 1981-Defendant's motion to dismiss was denied. Defendant was tried and convicted of buying, receiving or concealing the Chevrolet pickup truck and was later sentenced to ten years' imprisonment. This was the first term of court since defendant's request for trial.
There is no talismanic rule pronouncing when a criminal defendant has been denied his constitutional right to a speedy trial. Instead, we must weigh the conduct of the prosecution against that of the defendant on a case-by-case basis. Whitley v. State, 392 So.2d 1220 (Ala.Cr.App.), cert. denied, 392 So.2d 1225 (Ala.1980); Noe v. State, 391 So.2d 151 (Ala.Cr.App.1980). This ad hoc balancing process prescribed by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), involves the assessment of four factors: (1) length of delay, (2) reason for delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant.
The length of delay acts as a "triggering mechanism," and the delay must be "presumptively prejudicial" in order to merit inquiry into the three other balancing factors. Barker, supra; Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980). A defendant's speedy trial clock is tripped "when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Watson, supra. In cases where a formal indictment has not yet been returned, a person becomes an "accused" when he is arrested and charged. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Prince v. State, 354 So.2d 1186 (Ala.Cr.App.), cert. denied, 354 So.2d 1193 (Ala.1977).
In the instant case the appellant's arrest on August 4, 1978, constituted the initiation of criminal proceedings for the purpose of applying the Barker test, rather than February 6, 1979, the date on which he was formally indicted. Therefore, the length of time between appellant's arrest and trial on April 16, 1981, was approximately two years and nine months. While we recognize that there is no fixed length of time that is considered to be per se reasonable, we conclude that this time span is "presumptively prejudicial," Foster v. State, 45 Ala.App. 323, 229 So.2d 913, cert. denied, 285 Ala. 754, 229 So.2d 915 (1969), and mandates an investigation of the remaining Barker factors.
Appellant was duly indicted at the first scheduled grand jury term following his preliminary hearing. This preindictment delay of seven months was not inordinate and must be considered as a delay "made necessary by the law itself." Cook v. State, 333 So.2d 855 (Ala.Cr.App.), cert. denied, 333 So.2d 858 (Ala.1976). The State claims that the delay between the date of the indictment, February 6, 1979, and May 1979, when appellant was incarcerated in the Georgia penitentiary and was available to Alabama process, must be blamed on the assertions of appellant's attorney, Doc Davis. Davis repeatedly told the Randolph County deputy district attorney, Sandy Holliday, that the appellant was dying of cancer. Holliday testified at the hearing on the motion to dismiss that he "remember(s) him (Doc Davis) saying that he (appellant) was going to die and we would be wasting our time to come get him." Holliday further reiterated that he was "led to believe Mr. Smith was in his death bed."
Holliday claims that, while the appellant was released from the Georgia penitentiary on appeal bond from May 16, 1979, until February 6, 1980, when he was rearrested in Georgia on the Randolph County charges, his office had no knowledge of appellant's whereabouts. However, Holliday and Sheriff I. B. Moore admitted that there were rumors during this time that appellant was in their county and was seen periodically. The State asserts that as soon as they discovered the appellant was in neighboring West Georgia in early 1980 they had him apprehended and incarcerated in the Heard County, Georgia, jail.
Apparently the appellant was charged with several sequences of criminal acts in East Alabama and West Georgia both before and after the crime charged herein occurred. Some of the delay during these thirty-three months was because of confusion arising from the different charges, some interrelated and some distinct. However, an accused's right to a speedy trial remains undiminished even when he is serving a prison sentence in a sister state. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Randolph County officials knew as early as September 1978 that appellant was tried and convicted in Georgia. Therefore, appellant was "realistically available" to Alabama for his return from Georgia for about eight months prior to his release on appeal bond. Nevertheless, Alabama authorities never attempted to have the appellant returned to answer the Alabama charges. However, mere...
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