Vincent v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: Vincent v. State, 607 So.2d 1290 (Ala. Crim. App. 1992)
• Decision Date: 15 May 1992
• Docket Number: CR-90-458
• Parties: Mathew VINCENT v. STATE.

Page 1290

607 So.2d 1290

Mathew VINCENT v. STATE.

CR-90-458.

Court of Criminal Appeals of Alabama.

May 15, 1992 Appeal Dismissed on Motion by Appellant Nov. 13, 1992.

David S. Luker and Tamera K. Erskine, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Mathew Vincent, was indicted for trafficking in marihuana and was convicted of the lesser offense of possession of marihuana. He was sentenced to a six-year split sentence, with nine months to serve in the penitentiary and five years to serve on probation. He was also fined $2500. He raises three issues on this appeal of that conviction.

I

Applying the four-part test set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), we hold that the appellant was not denied his Sixth Amendment right to a speedy trial. The following chronology of events is relevant:

August 14, 1987  Arrest
                January 8, 1988  Indictment
                February 24
                  1988 ......... Motion to suppress evidence filed by defendant
                March 9, 1988 .. Set for trial on April 11, 1988
                April 1, 1988 .. Continued to May 6, 1988
                May 6, 1988 .... Set for trial July 25, 1988
                July 25, 1988 .. Trial "rolled over" to August 1, 1988
                August 1, 1988 . Set for suppression hearing September 8, 1988
                September 8
                  1988 ......... Suppression hearing
                September 13
                  1988 ......... Continued to October 21, 1988
                October 21
                  1988 ......... Continued to December 16, 1988
                December 15,
                  1988 ......... Continued to February 3, 1989
                February 3,
                  1989 ......... Set for trial on March 27, 1989
                March 27, 1989 . Set for trial on April 17, 1989.
                                 Judge's bench notes recite, "This case will not be continued
                                   from this date."
                April 21, 1989 . Set for trial June 12, 1989
                June 14, 1989 .. Continued to September 11, 1989
                September 7,
                  1989 ......... Motions for assistance of a jury selection expert and for
                                   disclosure of impeaching information filed by defendant
                September 13,
                  1989 ......... Set for trial on December 4, 1989
                September 14,
                  1989 ......... Subpoenas issued for December 4
                December 6,
                  1989 ......... Oral motion to dismiss for failure to grant a speedy trial by
                                   defendant.  Denied. Case preferentially set for trial on
                                   February 26, 1990.
                                 Judge's bench notes recite, "This case was called out for
                                   trial on this date and [the court] was informed by the
                                   district attorney, Bill Neumann, that the State could not
                                   proceed due to unavailability of a key State's witness, Mary
                                   Holt from State Forensics office.  Mrs. Holt was unavailable
                                   due to the death of her grandfather.  Both sides were advised
                                   that the case would be tried on this date.  The court
                                   reluctantly grants the State's motion for continuance and is
                                   assured that this case will be tried on the next trial
                                   docket or it will be dismissed with prejudice."
                December 8,
                  1989 ......... Subpoenas issued for February 26, 1990
                February 9,
                  1990 ......... Written motion to dismiss for failure to grant a speedy trial
                March 2, 1990 .. First trial; mistrial declared because of hung jury
                March 20, 1990 . Set for trial June 4, 1990; consolidated for trial with
                                   CC"88"079
                March 23, 1990 . Subpoenas issued for June 4, 1990
                June 12, 1990 .. Set for trial on August 27, 1990
                June 13, 1990 .. Subpoenas issued for August 27
                August 27, 1990  Set for trial on September 17, 1990
                September 17,
                  1990 ......... Second trial; verdict of guilty.
                

Length of the delay. The rightto a speedy trial is triggered when a warrant of arrest is issued. Steeley v. City of Gadsden, 533 So.2d 671, 678 (Ala.Cr.App.1988) (adopting dissenting opinion of Bowen, J., in Watson v. State, 389 So.2d 961, 965 (Ala.Cr.App.1980)). The time from the appellant's arrest to his first trial was 31 months, slightly over two and one-half years. That time period is lengthy enough to trigger an inquiry into the remaining factors. See Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Arnett v. State, 551 So.2d 1158, 1159 (Ala.Cr.App.1989).

Reasons for the delay. After this case was originally set for an April 11, 1988, trial date, there appear to have been 12 continuances before December 6, 1989. The appellant first asserted his right to a speedy trial on December 6, 1989. At a hearing on the appellant's oral motion for a speedy trial, defense counsel made the following observations, undisputed by the prosecution or the court, regarding some of the reasons the case had been continued:

"MR. LUKER [defense counsel]: Up until the time Richard Bite's client pled guilty, this case was passed a couple of times at the defendant's request. And I made that request. We discussed it with the Court. Since Richard Bite's client has pled this case has been set I believe three times, one of which the case was passed because Mary Rhodes was unavailable because she was on maternity leave because she adopted a baby.

"Another time it was passed most recently because a state's witness, Harmon, I believe, Officer Harmon from Hoover was at the FBI academy. And I think at that time there was a problem with another case that was before the Court and we were going to get to it Thursday afternoon late or Friday.

"We were told on two occasions prior that this case was not going to be continued any more come high water or any other problem.

"THE COURT: Seems to have a hollow ring to it now, doesn't it?

"MR. LUKER: Yes, sir. And we have been prepared this week and we knew we were starting this week. In fact, I talked with the Court last Friday and we understood. We've got out-of-town witnesses, we've got out-of-state witnesses, and we've got a psychologist and jury selection expert that we've had on standby all week. And it's probably cost us in the neighborhood of seven to ten thousand dollars to be prepared, not counting attorney time, just getting ready for trial, to be prepared to go to trial today.

".... This continuance is extremely prejudicial to the defendant through no fault of his own on the last two occasions, maybe the last three occasions. It is prejudicial. It severely inhibits our ability to be prepared for trial and have our witnesses lined up and be ready to go.

"....

"THE COURT: .... I understand the position you are in because it does put you in a position of hardship, and it's under the most extreme circumstances that I would do it because I probably fuss[ ] at the defense more than I fuss[ ] at the state on this for getting ready and it's not necessarily your fault, I know that. It's not your fault because I don't know of any occasion where you have asked for a continuance.

"But I assure you that this case--I think I said that last time, didn't I?

"MR. LUKER: Yes, sir.

"THE COURT: In the event that the state is not ready to proceed on the next occasion it will be dismissed [with] prejudice or will go forward, when the state can't go any further and at that time I'll grant it. But in any event it will be disposed of with jeopardy on the next occasion.

"MR. LUKER: Your Honor, I move the Court at this time to declare [the appellant] indigent and provide extraordinary expenses available to [him] for the services of these experts that we've been paying to be here that was through no fault of our own, and attorney's fees in excess of the amount that is normally considered the limit for cases that are noncapital.

"THE COURT: Put it in a motion and let me consider it on a motion. I'll consider it. I don't know if I'll grant it. I'll look it over and see. I will consider it." R. 4-8.

From the foregoing exchange, it is evident that two of the continuances in this case were granted at the appellant's request and three of the continuances were granted at the State's request, because of the unavailability of prosecution witnesses. While we are unable to determine exactly which two postponements were requested by the defense and which three were requested by the State, we can fairly assume that the two defense requests occurred early in the case history and that the three State requests happened closer to December 6, 1989.

The unavailability of an essential prosecution witness is a valid reason for delay. Lewis v. State, 469 So.2d 1291, 1294 (Ala.Cr.App.1984), affirmed sub nom. Ex parte Blake, 469 So.2d 1301 (Ala.1985); Wade v. State, 381 So.2d 1057, 1060 (Ala.Cr.App.), cert. denied, 381 So.2d 1062 (Ala.1980). A neutral reason can be attributed to postponements because of the absence of prosecution witnesses who were on maternity leave, were attending the FBI Academy, and were experiencing a death in the family.

Although we cannot ascertain from the record either the reason for, or the party who requested, the remaining 7 of the 12 continuances, it appears likely that some of them may have been occasioned by the appellant's motion to suppress evidence. "[C]ourts have found reasonable the delay while pretrial motions ... are resolved." Ringstaff v. Howard, 885 F.2d 1542, 1544 (11th Cir.1989) (9-month delay pending state court decision on constitutionality of death penalty statute not unreasonable), cert. denied, 496 U.S. 927, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990); United States v. Guerrero, 756 F.2d 1342, 1349-50 (9th Cir.) (20-month delay during appeal of pretrial suppression order was justified and did not weigh at all against government), cert. denied, 469 U.S. 934, 105 S.Ct. 334, 83 L.Ed.2d 270 (1984).

Since defense counsel assigned to the State the responsibility for only three of the 12 continuances, accepted himself the responsibility for two of the continuances, and the State did not dispute this characterization of the case history, it is likely that some of the remaining seven continuances were due to the fact that ...