Turner v. State

Decision Date02 October 1979
Docket Number4 Div. 752
Citation378 So.2d 1173
PartiesAnthony TURNER v. STATE.
CourtAlabama Court of Criminal Appeals

James R. McKoon, Jr., Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Anthony Turner was indicted for assault with intent to murder. 1 The jury found him "guilty as charged" and he was sentenced to twenty years imprisonment by the trial judge. From that judgment and sentence he brings this appeal In forma pauperis.

On February 9, 1979, appellant moved the trial court to quash the indictment against him on the grounds that he had been denied his right to a speedy trial. This motion was argued immediately prior to appellant's robbery trial on February 22, 1979.

Appellant called William Page of the Russell County Sheriff's Department who testified that the sheriff's department had on file documents entitled Agreement on Detainers, forms I through V, but that he did not know the date the sheriff's department had received them. These documents were admitted into evidence without objection as Defense Exhibit No. 1.

Thomas Boswell testified that he was Chief Investigator of the Russell County District Attorney's office and that, as such, he had the responsibility of extraditing inmates from other states for trial. Boswell testified that Russell County authorities had knowledge of appellant's incarceration in Georgia "(w)hen the original case was made in 1977," but did not begin extradition proceedings until May 1978. (Tr. p. 10).

According to Boswell, in May, 1978, he filed extradition papers with Georgia authorities under a governor's side agreement, but in October, 1978, was informed by the State of Georgia that they were no longer honoring this agreement. 2 Georgia authorities advised Boswell to begin proceedings under the Uniform Mandatory Disposition of Detainers Act, §§ 15-9-80 through 88, Code of Alabama 1975, which was done on October 2, 1978.

Forms complying with the Act were completed and returned on October 17, 1978, and appellant was arraigned on February 9, 1979.

Boswell testified on re-direct that the District Attorney's Office had no record of appellant's Request for Disposition received by the sheriff's office in May of 1978.

No other evidence was presented on the motion to quash and the motion was denied March 1, 1979.

At trial, David Reid testified that on September 25, 1976, he was working the 11:00 P.M. to 7:00 A.M., shift at the front desk of a Holiday Inn in Phenix City, Alabama. He stated that on that date, while he and the night auditor were counting the day's receipts shortly after the shift began, appellant and a companion entered the motel, brandished pistols and demanded money. Reid recalled that after appellant had taken the money, he raised his pistol, took aim, and fired. (Tr. p. 27-32.) The bullet struck Reid in the base of the neck. Thereafter, Reid was taken to the hospital and treated.

Approximately two or three weeks later, at a lineup held in Columbus, Georgia, Reid identified appellant as the person who had robbed and shot him.

Dr. Kenneth Goldman testified that he is a surgeon in Columbus, Georgia, and that on September 25, 1976, he treated David Reid for a gunshot wound to the base of the neck. He also testified that a gunshot wound to the base of the neck was potentially fatal.

Appellant did not testify at trial, nor present any evidence in his behalf.

I

Appellant asserts that he was denied a speedy trial for this offense in violation of his rights under Art. I, § 6, of the Alabama Constitution and the Sixth Amendment to the United States Constitution.

A chronology of the events giving rise to this contention is as follows:

September 25, 1976 : David Reid was robbed and shot by appellant at a Holiday Inn in Phenix City, Alabama.

October 23, 1976 : Appellant was identified by Reid at a lineup held in Columbus, Georgia.

January 11, 1977 : The Russell County Grand Jury returned a true bill charging appellant with the offense of assault with intent to murder.

May 31, 1977 to June 8, 1977 : It is obvious from the record that the sheriff of Russell County received Agreement on Detainer Forms I through V sometime during this period. (Tr. p. 4.) Appellant's signature appears on Forms I and II and both are dated May 31, 1977. Form II is labeled "Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations, or Complaints" and is addressed to the Sheriff of Russell County. (Tr. pp. 105, 107.) Form V, "Request for Temporary Custody" is signed by M. L. Murphy, Sheriff of Russell County, and James H. Caldwell, Circuit Judge, and is dated June 8, 1977. Form V also bears the notation that the original was returned on June 9, 1977. (Tr. p. 102.)

April 27, 1978, Alabama's Uniform Mandatory Disposition of Detainers Act, §§ 15-9-80 through 15-9-88, Code of Alabama 1975, became effective.

May 30, 1978 : Russell County District Attorney attempted to gain custody of appellant pursuant to a governor's side agreement.

October, 1978 : Georgia officials telephoned Russell County officials to inform them that Georgia was no longer honoring the governor's side agreement. (Tr. pp. 13, 14.)

October 2, 1978 : Agreement on Detainers Form V, Request for Temporary Custody filed with Georgia authorities.

October 17, 1978 : Appellant again returned Agreement Detainer forms, including a request for disposition of indictments, Form II.

January 25, 1979 : Appellant was returned to Alabama.

January 29, 1979 : Appellant applied for treatment as a youthful offender.

February 9, 1979 : Appellant was denied youthful offender status. Appellant was arraigned, pleaded not guilty and moved to quash the indictment on grounds of denial of a speedy trial.

February 22, 1979 : Argument was heard on the motion to quash the indictment. Appellant was tried for robbery, convicted and sentenced.

March 5, 1979 : Appellant was tried for assault with intent to murder and convicted.

March 8, 1979 : Appellant was sentenced to twenty years imprisonment.

II

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), established a set of four factors to be considered by the courts in all cases in which a denial of the right to a speedy trial is claimed to have occurred.

In Barker v. Wingo, supra, the United States Supreme Court ruled that in weighing the conduct of the State and the accused, courts are to consider: (1) the length of the delay, (2) the accused's assertion of his right, (3) the reason for the delay, and (4) prejudice to the accused. Thus, our discussion of appellant's claim will be organized around these four factors.

1. Length of Delay.

The Speedy Trial Clause of the Sixth Amendment extends its protection to a person who has been "accused" in the course of a criminal prosecution. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Clearly, one way a Thus, in the present case, on January 11, 1977, when appellant was indicted for assault with intent to murder, his right to a speedy trial attached. From the record it appears that the district attorney of Russell County made no attempt, whatever, to bring appellant to trial until May, 1978, some fifteen months after indictment. Moreover, the first attempt to bring appellant to trial was unsuccessful because the district attorney's office apparently knew nothing of the existence of Alabama's Uniform Mandatory Disposition of Detainers Act until October, 1978, some six months after the effective date of the Act.

person becomes an "accused" in a criminal prosecution, is when an indictment is returned against him or her. Mayberry v. State, 51 Ala.App. 343, 285 So.2d 507 (1972), cert. denied 291 Ala. 792, 285 So.2d 512 (1973), cert. denied 415 U.S. 929, 94 S.Ct. 1438, 39 L.Ed.2d 486 (1974).

After the proper procedures were followed, appellant was finally returned to Alabama and stood trial for assault with intent to murder on March 5, 1979, twenty-five months after indictment. As we said in Prince v. State, Ala.Cr.App., 354 So.2d 1186 (1977), cert. den. Ala., 354 So.2d 1193 (1978):

"In our judgment, this delay is excessive, particularly in view of the fact that appellant's . . . offense was by no means complex, but was most akin to 'an ordinary street crime.' Barker v. Wingo, supra. At the very least, the delay is long enough to 'trigger' an inquiry into the other Barker factors." Id. at 1190.

2. Accused's Assertion of His Right.

"(T)he defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker v. Wingo, supra, 407 U.S. at pp. 531, 532, 92 S.Ct. at pp. 2192-2193.

As noted earlier, sometime between May 31, 1977, and June 8, 1977, appellant had caused to be delivered to Russell County officials certain forms requesting disposition of the indictments pending against him. Form II, appearing in the record as defense Exhibit No. 1 provided in pertinent part as follows:

"INMATE'S NOTICE OF PLACE OF IMPRISONMENT AND REQUEST FOR DISPOSITION OF INDICTMENTS, INFORMATION OR COMPLAINTS

TO: M. Lamar Murphy, Sheriff, Prosecuting Officer

-------------------------

Phenix City, Ala.

-----------------

(jurisdiction)

Russell County, Court Hpenix (sic) City, Ala.

---------------- -----------------------

(jurisdiction)

"And to all other prosecuting officers and courts of jurisdictions listed below from which indictments, informations or complaints are pending.

"You are hereby notified that the undersigned is now imprisoned in

-Montgomery Corr. Inst. at Mount Vernon, Ga.

----------------------- -----------------

(institution) (town and state)

"and I hereby request that a final disposition be made of the following indictments, informations or complaints now pending against me:

(Blank)

"Failure to take action in accordance with the Agreement on Detainers,...

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