Watson v. State

Decision Date07 October 1980
Docket Number6 Div. 947
Citation389 So.2d 961
PartiesRobert Lee WATSON, Jr. v. STATE.
CourtAlabama Court of Criminal Appeals

Charles W. Allen, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

The appellant was indicted by the grand jury of Jefferson County in May, 1978, and charged with robbery. Following a jury trial, he was found guilty of robbery on November 2, 1978, and was sentenced to ten years imprisonment in the penitentiary.

I

The first issue on this appeal is whether the appellant 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 events necessary in understanding the question presented is as follows:

March 24, 1975 : George Elston Blair was robbed by the appellant in Birmingham, Alabama.

April, 1975 : Appellant was arrested and charged in Eustis, Lake County, Florida on an unrelated matter. He was incarcerated then released on bond. He remained at Eustis, Florida through the first part of 1977.

May, 1975 : A complaint charging the appellant with robbery was sworn out by George Blair. A warrant of arrest, which stated,

"Defendant lives at large-2517 4th Ave. So., Birmingham, and 1420 McDonald Avenue, Eustis, Florida," was issued.

March, 1977 : Appellant was arrested on a federal check charge.

April 13, 1977 : The district attorney in Birmingham, Alabama, sent to the sheriff of Manatee County, Florida, in Bradenton, Florida, a letter stating that the district attorney understood that the appellant was in the custody of the sheriff. A warrant charging the appellant with robbery was enclosed with the letter. The district attorney stated in the letter that the warrant was to be placed as a detainer, and that he intended to begin extradition proceedings. No answer to the letter was ever received by the district attorney.

April, 1977 -June, 1977 : Appellant was brought from Manatee County, Florida to the Jefferson County, Alabama, jail in Birmingham where he was incarcerated on a federal charge. He pleaded guilty and was sentenced to two years.

June, 1977 -October, 1977 : Appellant was transferred from Birmingham to Atlanta. He was then sent back to Eustis, Florida, and was sentenced in Brandenton, Florida to two years. Next, appellant was sent to Jacksonville, Florida, where he was sentenced to two years.

October, 1977 : Appellant was sent to federal prison in Texarkana, Texas, where he learned of the robbery charge.

November, 1977 : Notice that a detainer in favor of the Birmingham district attorney had been lodged against the appellant was sent from the federal prison in Texarkana to the Birmingham district attorney.

November 16, 1977 : Birmingham district attorney received the notice regarding the detainer.

February 28, 1978 : Letter to the Birmingham district attorney from the appellant in which he inquires about the detainer lodged against him.

March 2, 1978 : A motion to dismiss by the appellant alleges the denial of his right to a speedy trial.

March 9, 1978 : Birmingham district attorney received appellant's letter dated February 28, 1978, and appellant's motion to dismiss dated March 2, 1978.

March 10, 1978 : Appellant filed a motion to dismiss for lack of a speedy trial.

March 13, 1978 : Indictment charging appellant with robbery.

May 8, 1978 : Writ of arrest issued against the appellant at the federal prison in Texarkana.

June 6, 1978 : Letter from the Birmingham district attorney to the appellant stating that the district attorney is in the process of arranging with the State of Alabama to return the appellant to Alabama for a speedy trial.

July 3, 1978 : Offer from the Bureau of Prisons to give temporary custody of the appellant to the Birmingham district attorney.

July 5, 1978 : Motion to dismiss by the appellant for lack of speedy trial.

July 6, 1978 : Birmingham district attorney received a letter dated June 29, 1978, from the federal prison in Texarkana stating that the appellant is incarcerated in that prison. According to the letter, the district attorney, on June 28, 1978, formally requested to take custody of the appellant under the interstate agreement on detainers. The prison authorities requested that the district attorney inform them of the date he will take custody of the appellant.

July 10, 1978 : Appellant's motion to dismiss dated July 5, 1978, was received by the district attorney.

September 15, 1978 : Indictment charging robbery was served on the appellant, and he was arraigned.

October 31, 1978 : A motion to dismiss for lack of a speedy trial was filed by the appellant in open court and was denied. Appellant was then tried by a jury.

At the hearing, conducted prior to the trial, on the appellant's motion to dismiss, the appellant testified that, from April, 1975 until 1977, he had resided at the same address in Eustis, Florida. According to the appellant, he was employed by Wilson Gaines Produce Company during that period and drove a truck from Eustis, Lake County, Florida, to Bradenton, Manatee County, Florida.

The appellant, who alleged that he was not in Alabama on the date of the robbery, stated that he was unable to obtain witnesses to corroborate his story because one potential witness was deceased and the others could not remember after a time lapse of over three years. No other witnesses testified for the appellant, and the State did not call any witnesses.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court ruled that, in order to determine whether an appellant's right to a speedy trial has been violated, courts should apply a "balancing test." In that balancing test the conduct of the prosecution and the conduct of the accused are weighed. Four factors to be assessed when deciding whether the appellant has been deprived of his right are length of delay, the reason for the delay, the accused's assertion of his right, and prejudice to the accused.

In Barker v. Wingo, supra, the court stated:

"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless ... the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case."

The protection of the speedy trial clause of the Sixth Amendment is triggered "when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.

Counsel for the appellant urges in his brief that, in the present case, the prosecution against appellant commenced on May 12, 1975, when a complaint was sworn out against him and a warrant of arrest was issued. We do not agree. In United States v. Marion, supra, we find the following:

"(I)t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.

"Invocation of the speedy trial provision thus need not await indictment, information or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest." (Emphasis added)

In light of this authority, we find that, in the present case, the appellant was designated an "accused" when a detainer was lodged against him in favor of the Jefferson County District Attorney on November 11, 1977. See Prince v. State, Ala.Cr.App., 354 So.2d 1186. On this date, appellant's right to a speedy trial attached. The district attorney did request, on April 13, 1977, that a detainer be lodged against the appellant, however, there is no evidence to show that this request was received. Thus, the length of delay, approximately eleven and one half months, was from November 11, 1977, to October 31, 1978, the date of appellant's trial. In our judgment, this delay was not "presumptively prejudicial" under the circumstance of this case; therefore, inquiry into the other factors that go into the balance is not necessary. See Barker v. Wingo, supra.

We hold that the appellant's constitutional right to a speedy trial was not violated; consequently, the trial judge was correct in overruling the appellant's motion to dismiss.

II

Appellant's second and third contentions are that the trial judge committed a gross abuse of discretion by failing to grant appellant's motions for a continuance. In the first motion, the appellant asserted that he should be granted a continuance because he had not had an adequate time to prepare for the trial and because he had not been able to locate all the necessary corroborating witnesses, nor to procure necessary supportive documents. In the second motion, made orally at the bench, the appellant requested a one day continuance so that a potential witness in charge of certain work records could attend the trial.

The record shows that, on September 15, 1978, the appellant was arraigned and was appointed an attorney; consequently, the appellant had six weeks to prepare for his trial. The transcript reveals that, according to the appellant, his wife was the bookkeeper for his former employer, and, if given the opportunity, she could produce the work records necessary at trial to show that appellant was in Florida at the time of the robbery. The trial court did allow the appellant to telephone his alleged former employer, Mr. Williams. According to the judge, Mr. Williams informed the court that he had no work records at all and that he did remember the appellant occasionally working for the company, but the employer could not remember "when, how or anything about it." Given the...

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