Walker v. State, 1 Div. 118
Decision Date | 22 April 1980 |
Docket Number | 1 Div. 118 |
Citation | 386 So.2d 762 |
Parties | Darrell Bernard WALKER v. STATE. |
Court | Alabama Court of Criminal Appeals |
Floyd C. Enfinger, Jr., of Lacey, Enfinger & Newell, Fairhope, for appellant.
Charles A. Graddick, Atty. Gen., James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for the first degree murder of Charles Phillips. Sentence was life imprisonment. Four issues are presented on appeal.
Our review of the facts clearly reveals that the defendant was not denied his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The fifteen month delay from the defendant's arrest until his trial was caused, at least in large part, by his appeal to the Alabama Supreme Court of the decision of the juvenile court transferring the defendant for criminal prosecution in the circuit court. Further delay was also caused by defendant's failure to hire an attorney. Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker. Argo v. State, 282 Ala. 509, 213 So.2d 244 (1968) ( ); Keene v. State, 277 Ala. 327, 169 So.2d 769 (1964) ( ); Hammett v. State, 45 Ala.App. 52, 223 So.2d 293 (1969) ( ); Love v. State, 44 Ala.App. 85, 203 So.2d 140 (1967) ( ). There is no evidence that the defendant demanded or made any attempt to obtain an earlier trial. Under these circumstances we find no merit in the contention that he was denied a speedy trial.
During the State's case in chief, the prosecuting District Attorney took the witness stand and testified to a confession the defendant made to him in the presence of the defendant's retained attorney. Before trial commenced, the District Attorney knew that he was going to be a witness. The rule is clearly stated in Maund v. State, 254 Ala. 452, 461, 48 So.2d 553, 561 (1950).
However, by allowing the District Attorney to testify without objection, the defendant waived any argument he might have with regard to this matter. Objection was only raised on motion for new trial and then it was too late. "The grounds urged for a new trial must ordinarily have been preserved at the trial by timely and sufficient objections." Fuller v. State, 365 So.2d 1010, 1012 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1013 (Ala.1979).
The confession of the seventeen year old defendant was properly admitted in evidence after the State proved the usual voluntariness and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), predicate and, additionally, that the defendant had been advised by counsel before the statement was made. Alabama Code 1975, Section 12-15-67. When a conflict occurs in the evidence with respect to the voluntariness of a confession, and the trial judge finds that the confession was voluntary, great weight must be given his judgment. His finding will not be disturbed on appeal unless this Court is convinced that the conclusion is palpably contrary to the weight of the evidence. Thompson v. State, 347 So.2d 1371, 1375 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977). We find no error in the admission of the confession into evidence.
Twice during his cross examination of the defendant, the District Attorney accused the defendant of lying.
The evidence presented by the State and that presented by the defense directly conflicted and was irreconcilable. Under the evidence, it was logical to conclude that someone was misrepresenting the facts. "The credibility of witnesses as shown by the reasonableness of their story and many other considerations, are legitimate subjects of criticism and discussion." Smith v. State, 344 So.2d 1239, 1242 (Ala.Cr.App.), cert. denied, 344 So.2d 1243 (Ala.1979). Counsel's...
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