State v. Johnson
Decision Date | 29 October 2004 |
Parties | STATE of Alabama v. Romekia Lashon JOHNSON. |
Court | Alabama Court of Criminal Appeals |
Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for appellant.
G. Hal Walker, Montgomery, for appellee.
The State appeals from the trial court's order granting a motion to dismiss the case against the appellee, Romekia Lashon Johnson.
The State argues that the trial court erroneously granted the appellee's "Motion to Dismiss for Violation of Defendant's Right to a Speedy Trial." Specifically, it contends that the appellee was not denied his right to a speedy trial and that the trial court erroneously granted the motion without first considering the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the United States Supreme Court set forth the following factors that must be weighed when reviewing a speedy-trial claim: (1) the length of the delay; (2) the reason for the delay; (3) the accused's assertion of his right to a speedy trial; and (4) the degree of prejudice the accused suffered due to the delay. See also Ex parte Carrell, 565 So.2d 104 (Ala.1990). Unless the delay is sufficiently lengthy to be presumptively prejudicial, it is not necessary to consider the remaining Barker factors. See Barker, supra; Zumbado v. State, 615 So.2d 1223 (Ala.Crim.App.1993). The pertinent dates and events were as follows:
A. LENGTH OF THE DELAY
To determine the length of the delay, time is measured either from the date of the formal indictment or from the date of arrest, whichever occurred first. See Nickerson v. State, 629 So.2d 60 (Ala. Crim.App.1993). Accordingly, the length of delay in this case is measured from the date the appellee was arrested on November 29, 2001, until the date the trial court conducted the hearing on his motion to dismiss, which was approximately 28 months. This court has previously found that similar delays were not presumptively prejudicial and did not require an examination of the remaining Barker criteria. See Campbell v. State, 709 So.2d 1329 (Ala. Crim.App.1997) ( ); Payne v. State, 683 So.2d 440 (Ala.Crim. App.1995) ( ); Coral v. State, 628 So.2d 954 (Ala.Crim.App.1992) ( ). Nevertheless, we will examine the remaining Barker factors.
B. REASONS FOR THE DELAY
During the hearing on the motion to dismiss, the following occurred:
(R. 7-9.) Clearly, the delay in this case was caused by a delay in testing by the Alabama Department of Forensic Sciences. Neutral reasons for delay do not ordinarily require a dismissal of the case based on a violation of the right to a speedy trial. See Pierson v. State, 677 So.2d 830, 831 (Ala. Crim.App.1996). Because the appellee has not shown that the State deliberately caused any delay, this Barker factor does not weigh in his favor.
C. THE APPELLEE'S ASSERTION OF RIGHTS
"Repeated requests for a speedy trial weigh heavily in favor of an accused." Kelley v. State, 568 So.2d 405, 410 (Ala. Crim.App.1990). In this case, the appellee asserted his right one time—almost one year after he was indicted. However, he did not allege any specific prejudice in this motion. The fact that the appellee did not pursue his speedy trial claim for nearly a year after he was indicted suggests that he "either acquiesced in the delays or suffered only minimal prejudice prior to that date." Lewis v. State, 469 So.2d 1291, 1294 (Ala.Crim.App.1984), aff'd, 469 So.2d 1301 (Ala.1985).
D. PREJUDICE TO THE APPELLEE
In his motion to dismiss, the appellee made only a general allegation that the delay "surely and substantially prejudices [his] ability to...
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