State v. McDonald

• Decision Date: 19 September 1974
• Docket Number: No. 2842,2842
• Citation: State v. McDonald, 526 P.2d 698, 111 Ariz. 159 (Ariz. 1974)
• Parties: STATE of Arizona, Appellee, v. Albert McDONALD, Appellant.
• Court: Arizona Supreme Court

Page 698

526 P.2d 698

111 Ariz. 159

STATE of Arizona, Appellee, v. Albert McDONALD, Appellant.

No. 2842.

Supreme Court of Arizona, In Banc.

Sept. 19, 1974.

Rehearing Denied Oct. 15, 1974.

Gary K. Nelson, Former Atty. Gen., N. Warner Lee, Atty. Gen., Moise Berger, Maricopa County Atty., and Joseph E. Abodeely, Deputy County Atty., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, Robert A. Hertzberg, Deputy Public Defender, John Foreman, Deputy Public Defender, Phoenix, for appellant.

LOCKWOOD, Justice.

Albert McDonald, the defendant in this case, was found guilty following a jury trial of armed robbery in violation of A.R.S. § 13--641 and § 13--643. He was sentenced to serve a term of from sixty years to life in the Arizona State Prison. Defendant now appeals from both his conviction and sentence.

The record reveals that on December 4, 1970, Dr. Cohn, his wife, and four children were at their home in Phoenix. At approximately 7:00 p.m. the doorbell rang. Dr. Cohn opened the door and was pushed backwards by two men who were armed with pistols. The robbers herded the entire family into the master bedroom where they were forced to lie face down on the floor. The two gunmen who were joined by a third accomplice, bound up the members of the family. Next they proceeded to take whatever valuables they could find including those in a wall safe located in the bedroom closet. Before leaving, the robbers told the family to wait ten minutes after they left before calling the police and that if they gave the police their description, they would get the children because they knew where they went to school.

On May 11, 1973, after the defendant was already in custody, Dr. Cohn identified the defendant at a photographic lineup as being one of the robbers. In separate lineups given each of Dr. Cohn's two teenage sons, they both identified the defendant as being one of the robbers. In a pre-trial hearing on a motion to suppress the proposed in-court identification of the defendant, the father testified that he had not seen the defendant at any time since the robbery occurred and that he was 70 to 80 per cent certain of his identification of the defendant. After the robbery but prior to the photo lineup of May 11th, Dr. Cohn had seen one corporeal lineup and one photographic lineup and that neither lineup included the defendant. The two sons had seen neither the defendant nor viewed any lineup prior to the lineup they viewed on May 11, 1973. The pre-trial motion to suppress was denied and the doctor and his two sons were permitted to make an in-court identification of the defendant at his trial which began on May 14, 1973.

In addition to the eye witness identification of the defendant by three of the victims, the prosecution presented the testimony of three accomplices of the defendant who testified to the effect that the defendant was one of the robbers.

The defendant presented an alibi defense. The defendant along with his sister and her boyfriend, all testified that the defendant was in Oklahoma at the time the robbery took place in Phoenix. After hearing all the evidence, the defendant was found guilty of armed robbery by the jury. Defendant's motion for a new trial based upon numerous grounds was denied. Defendant then filed a timely appeal to this court.

WAS DEFENDANT DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL?

It is defendant's first contention that he was denied his right to a speedy trial guaranteed to an accused by the Sixth Amendment to the United States Constitution. In order to address ourselves to the merit of this issue it is necessary to recite the sequence of events from the time the defendant was indicted until he was brought to trial.

The record indicates that the defendant was indicted by the Maricopa County Grand Jury on October 19, 1971, at which time an arrest warrant was issued. A fugitive warrant was forwarded to Oklahoma and the defendant was arrested the following day.

On November 12, 1971, the Governor of Oklahoma issued a warrant for the return of the defendant to Arizona to stand trial for armed robbery and two other charges. Defendant's attorney filed a writ of habeas corpus in the Oklahoma District Court seeking his client's release from custody under the fugitive warrants on November 16, 1971. The writ was denied on November 22, 1971, by the court. Appeal of the denial was taken on November 23, 1971.

On November 24, 1971, the defendant was charged with two counts of murder and one count of setting off an explosive device by the Oklahoma authorities.

The Governor of Oklahoma recalled his warrant of extradition on November 30, 1971, which he had issued on November 12th, pursuant to an agreement with the State of Arizona. It was stated that the warrant would be re-issued upon completion of the proceedings involving the three Oklahoma felony charges.

Due to numerous delays none of which were caused by the State of Arizona, the defendant did not go to trial on the first murder charge until January 8, 1973. On January 17, 1973, the defendant was acquitted by a jury. The remaining two charges were still pending on January 19, 1973, when the defendant filed motions to dismiss the three fugitive cases arising out of his activities in Arizona.

On February 2, 1973, a governor's Warrant was served on the defendant in connection with the Arizona cases. Three days later the defendant filed writs of habeas corpus. The hearing on the writs was set for February 14, 1973, but was postponed at the request of the defendant. At that time the writs of habeas corpus were denied and the defendant was ordered released to the Arizona authorities. The defendant then appealed the denial but on March 13, 1973, his writ of mandamus was denied. The following day he was taken into custody by the Arizona authorities and returned to Arizona. Trial of the defendant commenced on May 14, 1973 in Maricopa County Superior Court.

The United States Supreme Court has set out the criteria for determining whether a defendant has been denied the right to a speedy trial in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In evaluating the various factors to be weighed by the court on appeal in determining whether there has been a deprivation of the right to a speedy trial, the court has identified four factors which must be taken into account: the length of the delay; the reason or cause of the delay; whether there was a waiver of the right by the defendant; and if there was any actual prejudice to the defendant because of the delay.

In addressing ourselves to the multiple factors to be assessed, we note that the defendant was indicted on October 21, 1971, and brought to trial on May 14, 1973. Thus there was a period of some eighteen months between the time the defendant was held to answer and the time he was brought to trial. The length of delay is perhaps the least conclusive of the factors, and as in the instant case where the delay is substantial, it acts merely as a triggering mechanism requiring an analysis of the other factors. Barker v. Wingo, supra.

The record in this case indicates that the cause of the delay was occasioned by the inability of the State of Arizona to extradite the defendant from Oklahoma. It is abundantly clear from the record of the proceedings that the defendant attempted in every way possible to prevent his extradition to Arizona. In addition the State of Arizona was unable to extradite the defendant due to the fact that the defendant first had to stand trial in Oklahoma on a charge of murder before he could be extradited to the State of Arizona. Under the provisions of the Uniform Criminal Extradition Act which both Arizona and Oklahoma have adopted:

'If a criminal prosecution has been instituted against such person under the laws of this state and is still pending the governor, at his discretion, either may surrender him on demand of the executive authority of another state or may hold him until he has been tried and discharged or convicted and punished in this state.' A.R.S. § 13--1319; 22 Okl.St.Ann. § 1141.19.

It is clear that the State of Oklahoma chose to retain and try the defendant on a charge of murder rather than return him to Arizona. Thus the State of Arizona had no alternative but to respect the decision of the State of Oklahoma to retain the defendant until after he had been tried on the charge of murder.

The next factor to be analyzed is whether there was a waiver on the defendant's part of his right to a speedy trial. The fact that the defendant remained silent and did not demand that he be given a speedy trial cannot constitute a legal waiver of his right. Barker v. Wingo, supra. However the affirmative action on his part in attempting to block his extradition to the State of Arizona must certainly be construed as a waiver on his part of his right to a speedy trial.

The remaining factor is the prejudice to the defendant occasioned by the delay. In his brief the defendant alleges three possible areas of prejudice to his case. First he claims a lack of availability of witnesses for the defense. The only such witness the record reveals is his ex-wife who divorced him during the proceedings. However she was still available to testify in his behalf had he chosen to subpoena her which he did not. Thus we cannot see how the defendant was prejudiced by his voluntary refusal to call her as a witness. Defendant also alleges that the delay may be responsible for the failure of some of his alibi witnesses to testify completely and clearly about the events which took place on the night of the robbery. We do not find this critical to the case of the defendant or that it impaired the ability of the trier of fact to determine his guilt or innocence. The case turned on whether the jury believed the defendant's alibi, which it did not.

Finally the defendant contends that the long period of pre-trial incarceration caused personal...