Taylor v. State, 1 Div. 10
| Decision Date | 01 May 1979 |
| Docket Number | 1 Div. 10 |
| Citation | 371 So.2d 971 |
| Parties | Eddie TAYLOR v. STATE. |
| Court | Alabama Court of Criminal Appeals |
W. Gregory Hughes, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., Montgomery, for appellee.
The main issue presented by the parties is whether appellant was denied a speedy trial which resulted in his conviction on October 12, 1978, of the crime of the sale of heroin.
The conduct of defendant furnishing the basis for the indictment occurred on September 7, 1976.
In support of his argument that he was denied a speedy trial, appellant emphasizes the twenty-five months between the alleged offense and his trial. By his own contention, it is to be readily observed that the case was hardly ever quiescent. Extraordinary activity is to be noted on the part of both parties from the beginning of the prosecution until defendant was tried and convicted. To give the details of all of such circumstances would extend this opinion beyond an appropriate length. We will summarize some of the significant circumstances. 1
Defendant was indicted promptly, on September 22, 1976; he was arraigned and, accompanied by attorney, pleaded not guilty on October 19. On December 30 defendant's attorney withdrew his appearance at defendant's request. On January 28, 1977, defendant's new attorney filed a composite motion, to dismiss, to release, for a more definite statement and for a bill of particulars. On February 28, he filed a motion "for a continuance of trial for a period of at least two weeks" and as one of the grounds stated that the "District Attorney and the attorney for the Defendant have not had adequate time to meet and comply with the Motion to Produce." The continuance was granted.
On March 23, defendant filed a motion entitled:
"MOTION TO DISMISS; MOTION TO PRODUCE; FOR MOVE OF DEFINITE STATEMENT; FOR BILL OF PARTICULARS,"
which was denied on April 1. Also on March 23, defendant filed a petition for examination of the evidence, which was granted on April 1. On April 19, defendant filed a motion for a continuance, which was granted.
The next motion of appellant was on April 21, which consisted of a motion to quash the indictment on the ground that the jury list from which the grand jury had returned the indictment against defendant of September 22, 1976, was unconstitutionally composed as "determined in Civil Action # 5059-68-H styled, 'George W. Preston, et al., Plaintiffs, vs. John E. Mandevile, et al., Defendants,' which decision was rendered on April 15, 1977, by U.S. District Judge W. B. Hand in the U.S. District Court for the Southern District of Alabama, Southern Division." The motion was granted and the indictment was quashed on April 29, 1977.
The foregoing summary of the course of the case from its beginning until quashing of the indictment suffices, we think, to show that there was no substantial delay by reason of any fault of the prosecution. It further shows that most of the delay was by reason of a great amount of activity on the part of defendant in seeking relief that would enable him to better defend the case. This is not stated in any derogation whatever of such activity but merely to set the record straight as to the occasion for the expiration of the time between the finding of the first indictment and its vitiation.
Defendant was indicted again for the same crime on July 1, 1977. No point seems to be made to the effect that the period of two months and one week between the quashing of the first indictment and the return of the second is chargeable as blameworthy to the prosecution, and we see no basis for such a contention.
The most nearly inactive period was between the indictment of July 1, 1977, and December 20 of the same year. Neither party satisfactorily explains to us the reason. We note, however, that there was another change of attorneys for defendant upon arraignment on December 20. At least one of his previous attorneys had withdrawn his appearance at the request of defendant. The attorney appointed for him on December 20, 1977, has continued to represent him until the present time. During the next four months he filed at least five motions, two of which were granted. One of the motions denied was filed Jan. 6, 1978, and presented for the first time a contention that he had been denied a speedy trial. On April 26, 1978, he was tried and convicted, but on May 2, defendant filed a motion for a new trial which was granted on June 9. We see nothing in the record that supports a contention that there was any substantial delay caused by the prosecution occurring between the time the first indictment was quashed and the grant of defendant's motion for a new trial.
On June 19, defendant filed a motion to dismiss, alleging primarily that he had been denied his constitutional right to a speedy trial but did not allege or imply any fault on the part of the prosecution. Furthermore, he did not ask for any dispatch in bringing him to trial again. On the contrary, he complained of the unavailability of a witness, whose unavailability he indicated would impair his defense of the case.
On August 28, 1978, defendant filed a Petition for Writ of Habeas Corpus. The theme of the petition was substantially the same as the motion to dismiss, that there had been a denial of defendant's right to a speedy trial. The petition was denied on October 2. His trial and conviction occurred on October 12, 1978.
Even if the time intervening between the commission of the crime and the trial resulting in the second conviction of defendant had been much more than the twenty-five months that actually intervened, we could not say that appellant was denied a speedy trial, without consideration of the three factors, in addition to the factor of length of delay, set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101, 117 (1972), namely, any assertion by the accused of his right to a speedy trial, the reason for the delay and any prejudice to the accused.
For any semblance of an Assertion by the accused of his right to a speedy trial the record is silent until January 19, 1978, when he filed a motion to dismiss in which one of the grounds was that he had been denied his constitutional right to a speedy trial. Even then, sixteen months after his indictment, he did not ask for a trial. Assuming that his motion should be construed as an assertion of his right to a speedy trial, it could not have served to have brought the attention of the prosecution, prior to the filing of the motion, to any desire on the part of defendant that he be tried as soon as feasible.
As to the Reason for any delay, appellant makes no serious charge against the prosecution but is apparently content with the statement that he was not responsible for the delay. This is not the criterion as to such factor. The existence of fault on his part weights against him, but the absence of such fault would have little weight, if any, in the absence of fault on the part of the State. Mr. Justice Powell in Barker v. Wingo, distinguishes between fault consisting of a deliberate delay in order to hamper the defense and a delay consisting of "negligence or over-crowded courts" and states:
" . . . Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117.
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