State v. Stovall

• Decision Date: 03 February 2006
• Docket Number: CR-04-2268.
• Citation: 947 So.2d 1149
• Parties: STATE of Alabama v. Maurice STOVALL.
• Court: Alabama Court of Criminal Appeals

947 So.2d 1149

STATE of Alabama v. Maurice STOVALL.

CR-04-2268.

Court of Criminal Appeals of Alabama.

February 3, 2006.

Opinion on Return to Remand June 30, 2006.

Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellant.

Stacy Lott Reed, Montgomery, for appellee.

BASCHAB, Judge.

The State appeals from the trial court's order granting a motion to dismiss the indictment against the appellee, Maurice Stovall.

The State argues that the trial court erroneously granted the appellee's motion to dismiss an indictment against him for unlawful possession of a controlled substance. Specifically, it contends that the appellee did not establish that he was denied his right to a speedy trial; that the record does not indicate that the trial court considered and weighed the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); and that the trial court erroneously granted the motion to dismiss without making specific findings of fact. 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. In Ex parte Walker, 928 So.2d 259 (Ala.2005), the Alabama Supreme Court provided guidance as to the proper application of those factors.

The record before this court is sparse and does not include all of the dates and information relevant to the appellee's speedy trial claim. Also, although the trial court conducted a hearing on the appellee's motion to dismiss on August 1, 2005, the record does not appear to include a transcript of the entire hearing. Rather, it appears that the transcript begins in the middle of the hearing. Further, the portion of the hearing that is included in the record is confusing, includes only vague assertions by the people present at the hearing, and does not include evidence about each of the Barker factors. Finally, the trial court did not make any findings regarding each of the factors set forth in Barker.

Because the relevant dates and events in this case are not clear from the meager record before us, we cannot properly review the propriety of the trial court's ruling on the appellee's motion to dismiss in light of Ex parte Walker, supra, and Barker, supra.¹ Cf. Ex parte Walker, supra (noting that review was possible because the relevant dates and events were not in dispute). Accordingly, we remand this case to the trial court with instructions that that court conduct an evidentiary hearing during which it takes evidence concerning each Barker factor.² Thereafter, it shall make specific, written findings of fact as to each Barker factor with reference to the principles set forth by the Alabama Supreme Court in Ex parte Walker, supra. If possible, the trial court shall also provide this court with a complete transcript of the August 1, 2005, hearing. On remand, the trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include a transcript of the new evidentiary hearing; the trial court's specific, written findings of fact; and a copy of the complete transcript of the August 1, 2005, hearing, if one is available.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

1. Because the record on appeal is sketchy as to the facts surrounding this case, we have not attempted to discuss the facts of this case.

2. If we remanded this case only for the trial court to make specific, written findings of fact regarding each of the Barker factors, we still would not be able to properly evaluate the trial court's ruling on the motion to dismiss because the record includes very little relevant information.

On Return to Remand

BASCHAB, Judge.

The State appealed from the trial court's order granting a motion to dismiss the indictment for unlawful possession of a controlled substance against the appellee, Maurice Stovall.

In its brief to this court, the State argued that the trial court erroneously granted the appellee's motion to dismiss an indictment against him for unlawful possession of a controlled substance. Specifically, it contended that the appellee did not establish that he was denied his right to a speedy trial; that the record did not indicate that the trial court considered and weighed the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); and that the trial court erroneously granted the motion to dismiss without making specific findings of fact. Based on the sparse record before us on appeal, on February 3, 2006, we remanded this case to the trial court with instructions that that court conduct an evidentiary hearing to take evidence concerning each Barker factor and that it make specific, written findings of fact as to each Barker factor with reference to the principles set forth by the Alabama Supreme Court in Ex parte Walker, 928 So.2d 259 (Ala.2005). On April 6, 2006, the trial court submitted its return to remand.

The State argues that the trial court erroneously granted the appellee's motion to dismiss and that the trial court's findings of fact on return to remand "failed to fully encompass and balance all of the facts presented at the hearing under the four factors found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)." (State's brief at p. 2.) 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. In Ex parte Walker, supra, the Alabama Supreme Court provided guidance as to the proper application of those factors.

The pertinent dates and events in this case were as follows:

March 4, 2002: The appellee was arrested.

April 17, 2002: The appellee waived a preliminary hearing and consented to his case being bound over to the Montgomery County Grand Jury.

April 11, 2003: The certificate of analysis was issued by the Alabama Department of Forensic Sciences.

May 9, 2003: The appellee was indicted for unlawful possession of a controlled substance.

April 8, 2004: An initial attempt was made to serve the indictment on the appellee at the address listed on the indictment, which was the appellee's grandmother's residence. At that, time, the appellee's grandmother told officers that the appellee lived there "off and on." (R. 3.)

May 10, 2004: A second attempt was made to serve the indictment on the appellee at his grandmother's residence. At that time, there was no answer at that residence.

June 2, 2005: The indictment was served on the appellee after he was arrested on unrelated charges.

July 29, 2005: The appellee filed a motion to dismiss the indictment against him based on the denial of this right to a speedy trial.

August 1, 2005: The trial court conducted a hearing on the appellee's motion to dismiss and granted the motion.

A. LENGTH OF THE DELAY

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 length of the delay 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 March 4, 2002, until the date the trial court conducted the hearing on his motion to dismiss, which was approximately 41 months. This court has previously found that shorter delays than this were presumptively prejudicial and required an examination of the remaining Barker criteria. See, e.g., Vincent v. State, 607 So.2d 1290 (Ala.Crim.App. 1992) (holding that a 31-month delay was presumptively prejudicial). Therefore, we will examine the remaining Barker factors.

B. REASONS FOR THE DELAY

In Walker, 928 So.2d 259 at, the supreme court set forth the following standard for evaluating the reasons for the delay:

"Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531. Courts assign different weight to different reasons for delay. Deliberate delay is `weighted heavily' against the State. 407 U.S. at 531. Deliberate delay includes an `attempt to delay the trial in order to hamper the defense' or `"to gain some tactical advantage over (defendants) or to harass them."' 407 U.S. at 531 & n. 32 (quoting United States v. Marion, 404 U.S. 307, 325 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531; Ex parte Carrell, 565 So.2d [104,] 108 [(Ala.1990)]. Justified delay—which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible—is not weighted against the State. Barker, 407 U.S. at 531; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (`"Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker."') (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App. 1981))."

With regard to the reasons for the delay, the trial court found as follows:

"Defendant was initially arrested on March 4, 2002. There was a delay of approximately one year between his initial arrest and indictment. The delay between his arrest and indictment was a direct result of the time lapse between sending evidence to the Department of...