Wade v. State
| Decision Date | 22 January 1980 |
| Docket Number | 1 Div. 85 |
| Citation | 381 So.2d 1057 |
| Parties | Sidney Michael WADE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Donald E. Brutkiewicz, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
The defendant was indicted for assault with intent to ravish. He was convicted of assault and battery and fined five hundred dollars. After he defaulted in the payment of this fine, the trial judge imposed a term of one hundred forty days' imprisonment and added a term of ninety days' imprisonment as additional punishment. Although several arguments are presented on appeal, the major issue is the alleged denial of a speedy trial.
The facts governing this issue are set forth in chronological order:
November 13, 1976 - Date of the offense
November 15, 1976 - A warrant was issued for the
defendant's arrest by the Recorder's
Court of the City of
Prichard
March, 1977 - The record does not disclose
when the defendant was
initially indicted. However
the original indictment was
"thrown out" on the defendant's
motion to quash "sometime
about" March of 1977
June 10, 1977 - The defendant was reindicted
by the Mobile County Grand
Jury
November 21, 1978 - A"duplicate" warrant of arrest
was issued for the defendant
This warrant bears
the notation "N. F. moved
Vacant House."
December 30, 1978 - The above warrant was executed
by arresting the defendant
and committing him
to jail. The defendant was
released after making bail that
same day
January 17, 1979 - The defendant was arraigned
and trial was set for March
12, 1979. Additional time
was granted for the defendant
to file special pleas.
January 29, 1979 - The defendant filed a
Motion to Dismiss for Want of
Speedy Trial. A hearing was
held on February 9th. This
Motion was denied on
February 15, 1979.
March 12, 1979 - The defendant was tried and
convicted.
In determining whether a defendant has been denied the right to a speedy trial the Court must utilize a balancing test, weighing the conduct of the prosecution with that of the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is the "yardstick by which any court must determine whether there was a denial of speedy trial in violation of the Sixth Amendment to the United States Constitution". Slaughter v. State, 377 So.2d 632 (Ala. 1979). The factors enumerated in Barker to be considered are: (1) Length of delay, (2) reason for delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant.
Length of Delay : The length of delay is merely a threshold "triggering mechanism". Barker, 407 U.S. at 530, 92 S.Ct. at 2192. A court need not inquire into the other factors until there is some delay which is "presumptively prejudicial". Barker, id.
Here the original indictment was dismissed when the court granted the defendant's motion to quash. The record does not reveal the defect in the original indictment but there is no suggestion of improper motive or conduct on the part of the prosecution in drafting that accusation. Under these circumstances the new indictment gave rise to a new time period. See 21 Am.Jur.2d, § 245 (1965); Annot., 30 A.L.R.2d 462 (1953). Thus, for purposes of determining whether the defendant was denied his Sixth Amendment right to a speedy trial, we shall consider only the twenty-one month period between the reindictment in June of 1977 and the trial in March of 1979. "(C)onsidering the lack of complexity of the factual and legal issues", this twenty-one month delay "provides a sufficient springboard for inquiry into the other factors". United States v. Edwards, 577 F.2d 883, 888 (5th Cir. 1978). Although this delay is excessive, it is not sufficient in itself to warrant a finding that the defendant has been denied the right to a speedy trial. "There is no fixed length of time that is considered to be per se unreasonable." Andrews v. State, 370 So.2d 1070, 1072 (Ala.Cr.App.), cert. denied, 370 So.2d 1075 (Ala.1979). Generally, the passage of time, standing alone, is not enough to justify a holding that the guarantee of a speedy trial has been violated. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Jones v. Morris, 590 F.2d 684, 686 (7th Cir. 1979). "Although the length of the delay weighs against the state, it is not so 'inordinately lengthy' as to weigh heavily against the state." Jones, 590 F.2d at 686.
Reason for Delay : The reason for the twenty-one month delay does not clearly appear in the record. Although the evidence suggests two possible reasons for delay, the State offered no explanation for the eighteen month delay between the time the defendant was reindicted and his arrest.
One reason for the delay is the State's failure to locate the defendant. The warrant of arrest is marked "DUPLICATE" and bears the handwritten notation "N. F. moved Vacant House". There is no indication when this notation was made. There is no evidence where this warrant was finally executed. The State offered no explanation for this notation.
At the hearing on this motion, the defendant presented uncontradicted and corroborated evidence that he had been living at the same address since the date of the offense and was known by several officers of the Prichard Police Department. In brief on appeal, the defendant alleges that the delay between reindictment and arrest is a "bureaucratic error" and that the State was "derelict in not checking up on the Sheriff's return".
Negligence on the part of the State is considered somewhat of a "neutral" reason for delay and is not weighed as heavily against the State as a deliberate attempt to delay the trial in order to hamper the defense. A delay attributable to negligence "should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant." Barker, 407 U.S. at 531, 92 S.Ct. at 2192.
A second possible reason for the delay is the absence of a prosecuting witness. There is some indication in the record, and the defendant contends that the complaining witness was absent from the State of Alabama from early 1977 until the defendant's arrest in December of 1978. In his Motion to Dismiss for Want of a Speedy Trial the defendant alleges:
"The delay has enhanced the State's case because the Complainant, . . ., was without the State of Alabama during a goodly portion of 1977 and 1978, and would have been unavailable or somewhat inaccessible had the trial delay not occurred."
Delays otherwise excessive may be "tolled" by the unavailability of an essential prosecution witness. United States v. Bufalino, 576 F.2d 446, 453 (2nd Cir. 1978). A missing witness is a "valid reason" and will "serve to justify appropriate delay". Barker, 407 U.S. at 531, 92 S.Ct. at 2192; United States v. Avalos, 541 F.2d 1100, 1114 (5th Cir. 1976). Here there is no indication whether the witness was actually "missing", that is, whether the delay was due to inconvenience rather than the State's inability to produce. Consequently, there is no evidence as to whether the State made any good faith and diligent effort to find her. United States v. Lawson, 545 F.2d 557, 560 (7th Cir. 1975).
From the facts presented by the record we can only speculate at the actual cause of the delay. Whether the delay was merely negligent or actually justified is not answered. However, there is no contention or suggestion that the delay was a deliberate attempt by the State in order to either enhance its own case or prejudice the defense.
Assertion of Right : While a defendant has "no duty to bring himself to trial", Barker, 407 U.S. at 527, 92 S.Ct. at 2190, the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial". Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Here the defendant first asserted this right by a motion to dismiss filed two months after his arrest on the second indictment. This was after a date had been set for his trial. The record is silent as to whether or not the defendant had knowledge of his reindictment prior to this arrest. The State made no attempt to show when the defendant first learned that he had been reindicted. A defendant cannot waive his right to a speedy trial unless he has knowledge of the indictment. Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158 (1951); Mayberry v. State, 48 Ala.App. 276, 264 So.2d 198, cert. denied, 288 Ala. 746, 264 So.2d 207 (1972). Because we do not know on what grounds the original indictment was quashed, we have no indication of whether the defendant had any expectation of reindictment. We do know that the defendant was represented by the same retained counsel under both indictments. In the absence of any evidence that the defendant had some knowledge of the second indictment before his second arrest, we find no waiver of his right to a speedy trial.
Prejudice to the Accused : In his Motion to Dismiss the defendant states:
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