Wilson v. State, 7 Div. 861
| Decision Date | 24 November 1981 |
| Docket Number | 7 Div. 861 |
| Parties | Robert WILSON, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Lee Clyde Traylor, Fort Payne, for appellant.
Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
Burglary, second degree; sentence: four years' imprisonment.
The sole issue presented for review is whether the appellant was denied a speedy trial in violation of the sixth amendment to the United States Constitution and article I, § 6, of the 1901 Alabama Constitution. We hold that the seven-year delay between appellant's arrest and trial did deprive him of his right to a speedy trial.
The following timetable chronicles the facts of the case pertinent to this issue:
November 25, 1973-Defendant was apprehended and arrested by a Collinsville policeman at the burglarized National Guard Armory in Collinsville.
November 28, 1973-Defendant posted bond. Defendant's future attorney signed bond as surety.
December 20, 1973-Defendant retained Lee Clyde Traylor as his attorney.
January 17, 1974-Defendant indicted.
February 5, 1974-Defendant's attorney filed a motion to be released from bond. Motion indicated that defendant was incarcerated in the Hamilton County jail in Chattanooga, Tennessee, and a hold had been placed on defendant by DeKalb County authorities at attorney's request.
June 24, 1974-Defendant's attorney filed a motion to be released from bond. Motion reflected that defendant was being held at the Davidson County jail in Nashville, Tennessee. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney's request.
September 5, 1974-Defendant's attorney filed a motion to be released from bond. Motion stated that defendant was imprisoned at the Fulton County jail in Atlanta, Georgia. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney's request.
September 13, 1974-Letter from Fulton County, Georgia, sheriff's office to DeKalb County sheriff stating that defendant had been held in custody at the Fulton County jail since July 11, 1974, and that Hamilton County, Tennessee, had placed a hold on defendant. However, letter noted that Tennessee had not initiated any extradition proceedings as of this date.
September 24, 1974-The "Motion to be Released from Bond" of defendant's attorney was denied since "to grant the Motion would work an undue hardship upon the State of Alabama, or it might be reasonably anticipated that an undue hardship would be worked upon the State of Alabama in bringing the defendant back to this jurisdiction."
October 11, 1974-Defendant filed a motion for a speedy trial. Motion stated that defendant was incarcerated at the Fulton County jail in Atlanta, Georgia, on this date.
December 12, 1974-Defendant's attorney requested and was granted a continuance due to family illness.
January 27, 1975-Teletype message from Fulton County, Georgia, authorities informing the sheriff of DeKalb County that there would be no extradition hearing to Alabama or Kentucky because defendant had appealed his extradition to Tennessee. Message also said that defendant "indicated that he is not intending to waive extradition to any state."
September 19, 1977-Defendant's case set for trial. Bench note reflected that defendant was in a Kentucky penitentiary.
August 10, 1978-Arraignment was scheduled, but bench note reflected that defendant failed to appear "due to his incarceration elsewhere."
May 16, 1979-Defendant filed second motion for a speedy trial. Motion indicated that he was currently confined but did not specify where.
June 28, 1979-Defendant's case set for trial, but was not reached and was continued.
September 12, 1979-Case set for trial. Defendant failed to appear.
October 4, 1979-Forfeiture entered against defendant and his bond.
March 3, 1980-Case set for trial. Defendant failed to appear.
March 10, 1980-Forfeiture entered against defendant and his bond.
November 24, 1980-Defendant arrested pursuant to Alabama alias warrants. Defendant waived extradition from Fulton County, Georgia.
November 27, 1980-Defendant committed to DeKalb County jail.
January 29, 1981-Defendant filed motion to dismiss for lack of a speedy trial.
February 10, 1981-Motion denied.
February 12, 1981-Defendant arraigned, tried and convicted of burglary in the second degree.
March 5, 1981-Defendant sentenced to four years in the penitentiary.
March 10, 1981-Defendant filed a motion for a new trial alleging, inter alia, violation of his right to a speedy trial.
Four factors must be considered when determining whether a criminal defendant has been denied his right to a speedy trial; namely, (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of his rights, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are the basis for the ad hoc balancing process that we must employ in which the conduct of the prosecution and that of the defendant are weighed. Johnson v. State, 356 So.2d 769 (Ala.Cr.App. 1978).
The pretrial delay must be long enough to be "presumptively prejudicial" and thus "trigger" the court's inquiry into the other Barker factors. Watson v. State, 389 So.2d 961 (Ala.Cr.App. 1981). The right to a speedy trial attaches "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, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). Appellant's arrest on November 25, 1973, constituted the initiation of a criminal prosecution for the application of the Barker test in this case. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Prince v. State, 354 So.2d 1186 (Ala.Cr.App.), cert. denied, 354 So.2d 1193 (Ala.1977). Therefore, the time span between appellant's arrest and trial on February 12, 1981, was a period of about seven years and three months. Certainly, this inordinate delay is "presumptively prejudicial" and "patently offensive" requiring our inquiry of the remaining Barker factors to determine whether the delay was "unjustified." Corn v. State, 387 So.2d 275 (Ala.Cr.App.), writ denied, 387 So.2d 280 (Ala.1980).
As early as October 10, 1974, appellant filed a motion for a speedy trial. The motion indicated that the appellant was currently incarcerated in the Fulton County jail in Atlanta, Georgia. Courts have consistently held since the landmark case of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), that upon a defendant's demand state authorities must make a diligent good-faith effort to secure the presence of the defendant for trial regardless of his incarceration in another state. Furthermore, it has been held that ...
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