Dunaway v. CommonwealthDunaway v. Commonwealth
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Appellant, James Frank Dunaway, appeals his convictions from Jefferson Circuit Court of two counts of first-degree robbery and of being a first degree persistent felony offender. In this matter of right appeal, Dunaway argues that these convictions should be dismissed with prejudice because his right to a speedy trial— as articulated in
On June 26, 1998, Dunaway was arrested for his involvement in a series of armed robberies in Jefferson County. Russell Riggs and Terrence Tabb were also arrested in connection with the robberies. On August 27, 1998, the three men were indicted on three counts each of robbery in the first degree. In addition to the robbery charges, Dunaway was also charged with persistent felony offender in the first degree. Both co-defendants were charged with various other crimes.
At the time of his arrest, Dunaway was on parole for a prior offense. Consequently, Dunaway was returned to the North-point Training Center
1
to serve out his
On September 14,1998, Dunaway filed a
pro se
motion for a speedy trial in Jefferson Circuit Court. The motion asserted that a detainer had been filed against him at Northpoint and that he had a right to be tried on the robbery charges within 180 days of his motion pursuant to
On November 9, 1998, Dunaway made a motion to suppress statements due to the Commonwealth’s failure to provide discovery. Dunaway also made a motion for bond reduction, which had been set at $50,000, full cash. Trial was set for November 18,1998.
Because Dunaway, Riggs, and Tabb were all represented by attorneys employed by the Jefferson District Public Defender, a possible conflict of interest existed. Riggs and Tabb both signed waivers permitting multiple representation. Dunaway refused to sign a waiver.
On November 18, 1998, Dunaway was appointed private counsel. Due to a conflict in the trial court schedule, the case was passed to December 7, 1998, for a pretrial conference and bond hearing. At the pretrial conference, the trial date was rescheduled to March 17, 1999, and bond reduction was denied.
On January 8, 1999, Dunaway again made a motion for bond reduction. The motion was denied. Later that month Dunaway served out his term at North-point for the prior offense, but he was not released because he could not post bond for the offenses in the present case.
On February 8, 1999, counsel for co-defendant Tabb made a motion to reschedule the trial due to a professional training seminar. The court ordered the trial rescheduled to April 14,1999.
On March 22, 1999, Dunaway filed a “Motion to Dismiss Indictment Pursuant to
On March 26, 1999, co-defendant Tabb entered a guilty plea. Riggs followed suit on April 14, 1999. On that date, on Duna-way’s motion, the trial was reassigned to June 9, 1999. On June 9, 1999, Dunaway again made a motion to reschedule due to insufficient discovery and confusion in the trial court’s schedule. The trial was reassigned to August 10,1999.
On July 12, 1999, the Commonwealth moved to reschedule the trial so that the prosecutor could attend a seminar. The court reassigned the trial to August 17, 1999, which is the date the jury trial began. Dunaway was ultimately convicted of two counts of robbery; he plead guilty to one count of first-degree persistent felony offender.
Statutory Right to Speedy Trial Under
Dunaway first argues that his conviction was obtained in violation of
The right to a speedy trial is an important right that receives constitutional protection.
See
United States Constitution, Amendment Six; Kentucky Constitution, § 11. The right to a speedy trial can be even more important to prisoners who have new indictments brought against them if those indictments result in a de-tainer being lodged. (A detainer is “a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution to either hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.”
Carchman v. Nash,
473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985)). The General Assembly, recognizing this heightened need, provided some prisoners with additional guarantees to a speedy trial when it enacted
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in any jurisdiction of this state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered . . . his request for a final disposition . . .
There is no Kentucky case law addressing Dunaway’s claim that
The IAD is an agreement adopted by the overwhelming majority of states and the federal government. The IAD requires that a prisoner against whom an interstate detainer has been filed must be promptly notified of that fact and of his right to demand trial, and if he demands trial then trial must be had within 180 days; the request is a waiver of extradi
Prior to the IAD, there existed an unsanctioned practice of lodging detainers based on untried criminal charges that were unsubstantiated. The detainers were often withdrawn just before the prisoner was released. Though unfounded, the de-tainers would have a detrimental effect on the prisoner’s treatment. See
Carchman,
473 U.S. at 729, 105 S.Ct. at 3408, 87 L.Ed.2d at 526;
see also
Leslie Abramson,
The Interstate Agreement on Detainers: Narrowing its Availability and Application,
21 N.E.J. on Crim. & Civ. Con. 1 (1995). The purpose of the IAD is to “encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments . . .”
(1) deprived of an opportunity to obtain a sentence to run concurrently with the sentence being served at the time the detainer is filed; (2) classified as a maximum or close custody risk; (3) ineligible for initial assignments to less than maximum security prisons (i.e., honor farms or forestry camp work); (4) ineligible for trustee [sic] status; (5) not allowed to five in preferred living quarters such as dormitories; (6) ineligible for study-release programs or work-release programs; (7) ineligible to be transferred to preferred medium or minimum custody institutions within the correctional system, which includes the removal of any possibility of transfer to an institution more appropriate for youthful offenders; (8) not entitled to preferred prison jobs which carry higher wages and entitle [him] to additional good time credits against [his] sentence; (9) inhibited by the denial of possibility of parole or any commutation of his sentence; (10) caused anxiety and thus hindered in the overall rehabilitation process since he cannot take maximum advantage of his institutional opportunities.
Carchman, 473 U.S. at 730, 105 S.Ct. at 3409, 87 L.Ed.2d at 527, quoting Cooper v. Lockhart, 489 F.2d 308, 314, n. 10 (1973) (overturned on other grounds).
In summary,
Courts that have considered the issue of whether the IAD applies after a prisoner is no longer imprisoned for the prior offense(s) have overwhelmingly found that the IAD does not apply. Most of the cases involved a prisoner who was released on parole; however, a case involving a prisoner who completed his sentence — like Dunaway — would receive the same analysis. Once the prisoner has been released, the need for protection from detainers — substantiated or not—
Appellant cites
Davis
and
Snyder
— both IAD cases — in support of his argument that, since he was incarcerated when the detainer lodged, the protection of
Appellant’s reliance on Snyder is likewise unpersuasive. In that case, the court held that when a prisoner who has a de-tainer lodged against him is paroled during the 180-day period of the IAD, he continues to benefit from the statute’s protection. The court stated that the defendant’s “being placed on parole does not stop the clock as to his IAD[] rights.” Snyder at 1453. That case involved an interstate detainer and the court reached its decision based on concerns that permitting the sending state — the state where the prisoner is serving time — to parole the prisoner after it transfers the prisoner to the receiving state — the state which issues the detainer — would frustrate the purpose of the IAD.
We agree with the Supreme Court of Arkansas, which sidestepped the specious arguments in
Snyder:
“We simply do not share the
Snyder
court’s concerns that the IAD’s requirements can or will be so easily manipulated by the states, but more importantly, we believe that the rationale in
Snyder
ignores the plain language contained in Article III [sec. 1] of the [IAD] which by its own terms, provides the IAD only applies during the period when a prisoner continues to serve a term of imprisonment.”
Cunningham,
14 S.W.3d at 872;
see also United States v. Saffeels,
982 F.2d 1199, 1204 (8th Cir.1992),
vacated and remanded on other grounds,
510 U.S. 801, 114 S.Ct. 41, 126 L.Ed.2d 12 (1993) (“by its own terms, Article III only applies during the period when a prisoner continues to serve a term of imprisonment”). The statutes — both the IAD and
Constitutional Right to Speedy Trial
Though Appellant does not qualify for
We analyze a defendant’s constitutional rights to a speedy trial, under both the Federal and Kentucky constitutional provisions, by applying the four-factor Barker test. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). That test involves an examination of: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant caused by the delay. The factors are balanced and “[n]o single one of these factors is determinative by itself.” Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 70 (2000).
Length of Delay
The analysis begins by determining if the delay was presumptively prejudicial to the defendant; for if it was not, the defendant’s rights were not violated, and the inquiry ends. See id., 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. As the Court stated in Barker: “[Ljength 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.” Id. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. Determining whether a delay was presumptively prejudicial requires examining two elements: the charges and the length of the delay.
Whether a delay is presumptively prejudicial depends, in part, on the charges involved. That is, “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. In this case, Dunaway was charged with three counts of first-degree robbery and one count of persistent felony offender. We consider these charges to be serious and of moderate complexity.
The second element, length of the delay, is the time between the earlier of the arrest or the indictment and the time the trial begins.
Dillingham v. United States,
423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Dunaway was arrested on June 26, 1998, prior to his indictment. His trial began on August 17, 1999. Therefore, the delay between arrest and trial was approximately thirteen and one-half months. While courts differ in the length of delay they require to find presumptive prejudice, we believe that a thirteen and one-half month delay, under the facts of this case, is presumptively prejudicial.
Compare Graves v. United States,
490 A.2d 1086, 1091 (D.C.App.1984)
cert. denied,
474 U.S. 1064, 106 S.Ct. 814, 88 L.Ed.2d 788, (1986) (“a delay of more than a year gives prima facie merit” to a claim of denial of speedy trial);
State v. Goss,
245 Kan. 189, 777 P.2d 781, 785 (1989) (delay of “a little over a year” not presumptively prejudicial);
Salandre v. State,
111 N.M. 422, 806 P.2d 562, 568 (1991) (“nine months marks the minimum amount of time that may be considered presump
Reason for Delay
Having found that Dunaway’s thirteen and one-half month delay was presumptively prejudicial, we now examine the remaining three Barker factors, beginning with the reason for delay. The Court enumerated three categories of reasons for delay: (1) a “deliberate attempt to delay the trial in order to hamper the defense”; (2) a “more neutral reason such as negligence or overcrowded courts”; and (3) “a valid reason, such as a missing witness.” Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. The Court explained that different reasons should be allocated different weights (see id.) — even reasons within the same category. See Graves v. U.S., 490 A.2d 1086 (D.C.1984). For example, delay due to negligence, which is a neutral reason, would weigh more heavily in favor of a speedy trial violation than court overcrowding, which is also classified as a neutral reason. See Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990) (“bureaucratic indifference should weigh more heavily against the state than simply case overload”). Further, the Court was clear that even a neutral reason weighs against the state because “the primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial.” Barker, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 115. We now turn to the record to examine the reasons for delay in Dunaway’s case. 4
Appellant’s brief explains that there was a one-week delay (9/1/98 — 9/8/98) due to Dunaway’s failure to appear at his arraignment because of his incarceration. We find this to be a valid reason. There was a seventeen-day delay (11/20/98 — 12/7/98) by agreement of all parties due to a conflict in the trial court schedule. We find this to be a neutral reason. There was a delay of over three months (12/7/98 — 3/17/99) which appears to have been due to the trial court’s schedule. We find this to be a neutral reason. There was a one-month delay (3/17/99 — 4/14/99) due to a motion by co-defendant Tabb to reschedule trial. We find this to be a valid reason. There was a four-month delay (4/14/99 — 8/10/99) due to Dunaway’s two requests for a new trial date. We find this to be a valid reason. Finally, there was a one-week delay (8/10/99 — 8/17/99) so that the prosecutor could attend a seminar. We find this to be a neutral reason.
To summarize, deducting the four months due to Appellant’s delay leaves nine and one-half months. Of that time, one month’s delay was due to co-defendant Tabb and four months were due to conflicts with the trial court’s schedule. There is no evidence these court delays were either intentional or avoidable. Only one week of delay is attributable to the prosecution. None of the delay was due to a “deliberate attempt to delay the trial in order to hamper the defense.” Id.
Appellant argues that the real reason for delay was that the prosecution had insufficient evidence to proceed to trial at the time Dunaway asserted his right to a speedy trial. On August 18, 1998, co-defendant Tabb made statements implicating Dunaway in the charged robberies. At a suppression hearing on March 24, 1999, Tabb recanted his August accusations. On
We are unpersuaded by Dunaway’s argument. Assuming, arguendo, that the prosecution did not have sufficient evidence to go to trial prior to March 26—a claim the prosecution denies—the prosecution did have sufficient evidence on March 26, after the plea agreement. That date was well within Appellant’s constitutional speedy trial period. Further, at no time prior to March 26 did the prosecution seek a continuance, so it could not be held directly responsible for any of the preceding delays. Lastly, an appeal on speedy trial grounds is not the most fitting time to address an insufficiency of evidence claim, which appears to be the thrust of this argument by Appellant.
The final point we make about the reason for delay, and perhaps the most damning for Appellant, is that four months of delay are attributable to him. Trial postponements by the defendant “toll the running of the constitutional speedy trial clock.” DeLoach v. State, 722 So.2d 512, 517 (Miss.1998). The Barker Court also countenanced that a defendant’s own actions might thwart his speedy trial claim: “We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine . . .” Barker, 407 U.S. at 529, 92 S.Ct. at 2191, 38 L.Ed.2d at 115.
Defendant’s Responsibility to Assert the Right
The third Barker factor is defendant’s demand for a speedy trial. While the defendant has a right to a speedy trial regardless of whether he makes a demand, assertion of the right is a factor to consider. See Id. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
It appears from the record before us that Dunaway asserted his right to speedy trial. Because the Commonwealth does not dispute this fact, we do not discuss the propriety of defendant’s separate assertions of the right. Such assertions are “entitled to strong evidentiary weight” in deciding whether the defendant’s rights were violated. Id. This factor weighs in favor of the defendant. However, as the Sixth Circuit has noted, a defendant’s assertions “must be viewed in light of [defendant’s] other conduct.” United States v. O’Dell, 247 F.3d 655, 671 (6th Cir.2001), quoting United States v. Loud Hawk, 474 U.S. 302, 314, 106 S.Ct. 648, 656, 88 L.Ed.2d 640, 654 (1986). In that case, the court found that six months of frivolous petitions by the defendant reduced the sincerity of defendant’s assertion of his right. In the present case, Dunaway refers to delays at the trial court, but never mentions voicing a single objection. As we stated in Gabow: “If a defendant acquiesces in a delay, he cannot be heard to complain about the delay.” Gabow, 34 S.W.3d at 70. Also, Appellant repeatedly asserts in his brief that he was ready for trial by March 17, 1999. But by April he requested a continuance, and in June he requested another. Appellant’s two requested continuances belie his claim of being prepared and further deflate his speedy trial claim. For these reasons, we conclude that Dunaway’s assertion of his right weighs in his favor, but not as heavily as it might.
Prejudice to the Defendant
The
Barker
Court identified three interests bearing on the prejudice to the defendant caused by the delay: “(1) to prevent oppressive pretrial incarceration; (2) to
Appellant claims that all three prejudicial interests exist in his case. He first points to his eight-month pretrial incarceration, which for purposes of his speedy trial claim began after he completed his original sentence.
5
Dunaway also points to his “anxiety and concern over his predicament” as demonstrated by his repeated demands for a speedy trial. We agree that delay can cause anxiety and incarceration can prejudice the defense; however, we note that in
Barker
the Court found only minimal prejudice due to a ten-month pretrial incarceration and nearly four years of anxiety producing, post-indictment proceedings.
See Barker,
407 U.S. at 534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119. And as LaFave points out, “absent some unusual showing!, anxiety and concern] is not likely to be determinative in defendant’s favor.” LaFave et al.,
Criminal Procedure,
§ 18.2(e) at 684. Dunaway has made no showing of unusual anxiety in his case. As for the last and most important factor, Dunaway claims that he suffered impairment because if he had been tried earlier, co-defendant Tabb’s testimony would not have been available and Dun-away would have been “ensured” of an acquittal. Appellant seems to rely on the 180-day period of
We conclude, after balancing the Barker factors, that Dunaway’s constitutional rights to a speedy trial were not violated. Though Dunaway asserted his rights and the length of delay was presumptively prejudicial, the reasons for the delay were acceptable and the prejudice caused the Appellant was minimal.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
All concur.
Notes
. Northpoint Training Center is a correctional facility located in Burgin, Kentucky (Mercer County).
. Dunaway argues that he properly delivered his
pro se
motion for a speedy trial to both the court and the Commonwealth’s Attorney as per
. The IAD, though similar to
. We examine the record as submitted by the parties in their briefs. We do not detail all delays that occurred in the case, but only those we find noteworthy.
. Dunaway’s incarceration prior to January 29, 1999, when he completed his term at Northpoint, does not weigh toward his present speedy trial claim. See State v. Murchison, 541 N.W.2d 435 (N.D.1995) (pretrial incarceration for prior offense did not apply to calculation of speedy trial period).