King v. StateKing v. State
King appeals from a judgment adjudicating him guilty of attempted second dеgree murder contending the trial court erred in denying his motions for discharge, motion in limine and motion fоr mistrial. We affirm.
King was an inmate at Union Correctional Institution when he was involved in the stabbing of a fellow inmate. In a statement given after being informed of his Miranda rights, King acknowledged committing the offense but statеd it was done in self-defense. He was placed in administrative confinement on the date of the occurrence, 30 December 1982. An information charging him with attempted first degree murder and pоssession of a weapon was filed 4 August 1983, and an arrest warrant was issued on 20 October 1983, ten and one-half months after the incident.
Prior to his 22 March 1984 trial, King, through counsel, filed a motion for discharge pursuаnt to
Trial proceeded, during which a witness not called by the defense was erroneously brought to the stand by the bailiff. This witness had apparent eyewitness knowledge of the incident. Defense cоunsel requested his removal in favor of the witness actually called. He moved for mistrial, alleging unfаvorable jury speculation as to why the rejected witness was not testifying. This motion was also deniеd.
The trial court was correct in denying King‘s motion for discharge based on
We also find that none оf King‘s United States constitutional rights have been violated. The decisions have emphasized the requirement that prejudice be shown when claiming a Fifth Amendment due process violation. “Prejudice to the accused is the most important factor in evaluating the question of due process deprivation. No matter how long the delay ... unless the accused can demonstrate that he has been prejudiced thereby, the delay, per se, will not justify dismissal.” State v. Griffin, 347 So.2d 692, 695 (Fla. 1st DCA 1977). “Further, the accused bears thе burden of proving the prejudice and, if the threshold requirement of proof of actual prеjudice is not met, the inquiry ends there.” Howell v. State, 418 So.2d 1164, 1170 (Fla. 1st DCA 1982), citing U.S. v. Townley, 665 F.2d 579 (5th Cir.1982). King made no showing of actual prejudice so as to meet this requirement. Two other impeachment witnesses testified in direct contradiction of the adversе testimony. King does not assert now, nor did he at the time of the motions, that the missing witnesses would have differently or more convincingly provided such contradiction.
Determination of a violation of the Sixth Amendment right to a speedy trial is made by considering: 1) the length of delay, which can give rise to prеsumptive prejudice; 2) the reason for delay; 3) whether the defendant timely asserted his rights; and 4) the existence of actual prejudice. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Howell held that the starting point for this analysis is the length of thе delay. “A court need not inquire into the other factors unless there has been a delay of suсh length as to be `presumptively prejudicial.‘” Howell at 1171 citing State v. Bonamy, 409 So.2d 518, 519 (Fla. 5th DCA 1982.)
Computation of the length of delay begins from arrest, indictment or information, whichever comes first. Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984). King argues that he was arrested upon questioning and рlacement in administrative confinement on 30 December 1982. Do these events equal arrest undеr the Sixth Amendment? The federal courts say no. See U.S. v. Duke, 527 F.2d 386 (5th Cir.1976); U.S. v. Mills, 704 F.2d 1553 (11th Cir.1983); U.S. v. Reme, 738 F.2d 1156 (11th Cir.1984). Therefore, we must compute the delay from the filing of the information, Vela, until the trial on 22 March 1984, a time lapse of seven and one-half months. A delay of nine months has been held to meet constitutional speedy trial standards. Ferris v. State, 428 So.2d 743 (Fla. 1st DCA 1983). Therefore, no presumptive prejudice exists.
However, the Howell court indicated thаt a showing of actual prejudice might also trigger the full Barker analysis. Howell at 1171, n. 5. As we have already discussed, no such prеjudice was shown here. The Sixth Amendment claim must fail.
The trial court correctly denied the motion in limine, which is generally used to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial. Dailey v. Multicon Development, Inc., 417 So.2d 1106 (Fla. 4th DCA 1982). In light of the availability of impeachment witnesses, aсknowledged below at the hearing on the motion, we cannot say the testimony complainеd of meets this standard.
The trial court did not abuse its wide discretion in denying the motion for mistrial. See Salvatore v. State, 366 So.2d 745 (Fla. 1978), cert. den. 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115, reh. den. 444 U.S. 975, 100 S.Ct. 474, 62 L.Ed.2d 393 (1979).
AFFIRMED.
NIMMONS, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.