Vincent v. State
| Decision Date | 15 May 1992 |
| Docket Number | CR-90-458 |
| Citation | 607 So.2d 1290 |
| Parties | Mathew VINCENT v. STATE. |
| Court | Alabama Court of Criminal Appeals |
David S. Luker and Tamera K. Erskine, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for appellee.
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.
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) (). 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:
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) (), 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).
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