State v. Foddrell

Decision Date18 November 1982
Docket NumberNo. 15495,15495
Citation171 W.Va. 54,297 S.E.2d 829
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Walter Alphonzo FODDRELL.

Syllabus by the Court

1. The right to a trial without unreasonable delay is basic in the administration of criminal justice and is guaranteed by both the state and federal constitution. U.S. Const.Amend. VI; W.Va. Const., Art. 3, § 14.

2. A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial.

Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

J. Franklin Long, Bluefield, for appellant.

McGRAW, Justice:

Walter Alphonzo Foddrell appeals from a final order of the Circuit Court of McDowell County which remanded the appellant to the state penitentiary to complete the sentence of imprisonment previously imposed upon him upon his conviction of the crime of armed robbery. The order of which the appellant complains was entered by the circuit court on February 4, 1981, following a hearing at which the only issue was whether the appellant was afforded a speedy trial. The appellant contends that the lower court erred in finding that the State used due diligence in seeking him for trial. We find no error in the circuit court's judgment, and we affirm.

On April 27, 1973, the Pocahontas Fuel Company store at Jenkinjones, McDowell County, was robbed. An indictment charging armed robbery was returned against the appellant and another individual by the McDowell County Grand Jury on July 10, 1973. A capias was issued for the appellant on July 14, 1973. The appellant was arrested on a fugitive warrant in Detroit, Michigan, on November 4, 1978 and was extradited to West Virginia to stand trial on the armed robbery charge in March 1979.

On May 15, 1979, the appellant was found guilty by jury verdict and was subsequently sentenced to a term of eighteen years imprisonment in the state penitentiary. The appellant brought an appeal in this Court alleging error at trial and denial of his right to a speedy trial. We affirmed the appellant's conviction but remanded the case for the sole purpose of holding a hearing to determine whether the State used due diligence in seeking the appellant so as to afford him a speedy trial. State v. Foddrell, 165 W.Va. 540, 269 S.E.2d 854 (1980).

A hearing was held on January 27 and 28, 1981. The appellant sought to demonstrate that the police and the prosecuting authorities could have easily discovered his whereabouts in the five and one-half years prior to his arrest if they had used reasonable diligence. The appellant introduced testimony that he had lived openly in Detroit under his proper name from the day of the robbery until his arrest and that numerous McDowell County residents knew or could have easily discovered his whereabouts and would have reported this information to the police if they had been asked to do so. The State introduced testimony detailing its unsuccessful efforts to locate the appellant between April 1973 and November 1978.

At the conclusion of the evidence the circuit court found that the State had used reasonable diligence to secure custody of the appellant for trial and that the delay between the indictment and trial had been occasioned by the appellant's refusal to assert his right to a speedy trial. The court found that the appellant had not been prejudiced by the delay. Consequently the court concluded that the appellant had not been denied his right to trial without unreasonable delay and ordered him remanded to the state penitentiary to serve the remainder of his sentence. The findings and the conclusions of the circuit court were incorporated into an order entered February 4, 1981. It is from this order that the appellant brings this appeal.

The law with respect to speedy trial claims was restated by this Court in the appellant's original appeal.

The right to a trial without unreasonable delay is basic in the administration of criminal justice and is guaranteed by both the state and federal constitutions. W.Va. Constitution, Article III, § 14; U.S. Constitution, Amendment VI. We have held that it is the duty of the prosecution to provide a trial without unreasonable delay rather than the duty of the accused to demand a speedy trial. State ex rel. Stines v. Locke, 159 W.Va. 292, 220 S.E.2d 443 (1975) and State ex rel. Farley v. Kramer, 153 W.Va. 159, 169 S.E.2d 106 (1969).

State v. Foddrell, supra, 165 W.Va. at 545, 269 S.E.2d at 858.

The standard for determining whether a defendant has been denied his constitutional right to a speedy trial was set forth in State v. Cox, 162 W.Va. 915, 253 S.E.2d 517, 519 (1979).

The controlling law on this issue is found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). There the United States Supreme Court adopted a balancing approach for speedy trial claims in which the conduct of the government and the defendant are weighed against one another on a case-by-case basis. Four factors are to be considered in this balancing process: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The Court made it palpably clear in Barker that it regarded none of the factors alone as either necessary or a sufficient condition to support a finding that there has been a deprivation of the right to a speedy trial.

The appellant does not contend that the circuit court failed to apply this four-factor test to the evidence adduced at the hearing below. * Rather he asserts that the evidence does not support the lower court's conclusion that the State acted with due diligence to secure custody of the appellant for trial.

The evidence shows that the police interviewed friends and relatives of the appellant in the McDowell County area on the day of the crime in an attempt to locate him. Based on information received from these interviews, the state police contacted the Martinsville, Virginia authorities to determine if the appellant was visiting his mother in that city. Within days, the Martinsville police informed the West Virginia investigators that the appellant had visited his mother the night of the robbery and had left Martinsville the next morning.

From their questioning of local residents, the investigators learned that the appellant might be in Detroit or New York. The state police entered the appellant's name and description in the NCIC computer, a nation-wide law enforcement communications system, on the day of the crime and placed a more detailed entry in the computer after they learned the appellant had left Martinsville. The state police contacted the FBI and a capias was issued several days after the indictment was returned.

In 1975, a New York City police detective contacted the state police in McDowell County about the appellant. He asked if the appellant was wanted in West Virginia for armed robbery and stated that he could locate the appellant if necessary. A state trooper testified that the detective had stated that he was making the inquiry at the appellant's request. At the detective's request, the prosecuting attorney's office wrote a letter which detailed the charges against the appellant and indicated the State's intent to seek extradition if the appellant were apprehended. The prosecuting attorney received no response to this letter. Local law enforcement officials testified that they continued to inquire casually of McDowell County residents as to the appellant's whereabouts throughout the five and one-half years between the robbery and the appellant's arrest without success.

The appellant attempted to show that he had made no attempt to hide from the West Virginia authorities. He testified that he had lived in Detroit openly from 1969 until his arrest in 1978, that he had changed addresses only once, in 1974, and that his proper name, address and phone number had appeared every year in the Detroit telephone directory. The appellant testified that he had used his proper name, address and Social Security number to apply for and receive a...

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28 cases
  • State v. Jessie, 34589.
    • United States
    • Supreme Court of West Virginia
    • November 24, 2009
    ...is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial." Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 7. "In those situations where there has been no arrest or indictment, the Sixth Amendment right to a speedy trial is not imp......
  • Frank A. v. Ames
    • United States
    • Supreme Court of Virginia
    • November 19, 2021
    ...is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial." Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982). 5. "In order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant mu......
  • State ex rel. Porter v. Farrell
    • United States
    • Supreme Court of West Virginia
    • June 3, 2021
    ...by both the State and federal constitution[s]. U.S. Const. Amend. VI ; W. Va. Const., Art. 3, § 14.’ Syl. Pt. 1, State v. Foddrell , 171 W. Va. 54, 297 S.E.2d 829 (1982)." Syl. pt. 3, State v. Holden , 243 W. Va. 275, 843 S.E.2d 527 (2020). See also U.S. Const. amend. VI ("In all criminal p......
  • State Of West Va. v. Elswick, 35014.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial.” Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982). 7. “ ‘Any term at which a defendant procures a continuance of a trial on his own motion after an indictment is retur......
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