Nickerson v. StateNickerson v. State
On Sеptember 12, 1984, the appellant, Samuel James Nickerson, after a jury trial, was convicted on two counts of robbery in the first degree, in violation of
The appellant appealed his September 12, 1984, convictions for first degree robbery. On May 28, 1987, this Court remanded the appellant‘s case concerning those convictions to the trial court for that court to conduct an evidentiary hearing to determine whether the State had exercised its peremptory challenges in a racially nondiscriminatory manner. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). At the hearing held on October 13, 1987, the trial court found that the State had failed to supply race-neutral reаsons for its peremptory strikes and ordered that the appellant be granted a new trial. On October 26, 1989, the trial judge made the following notation in the appellant‘s file: “Close this file, no further action necessary. Def. in pen on other cases.”
On March 6, 1992, the appellant filed a petition for a writ of mandamus with the Alabama Supreme Court, requesting that the trial court be ordered to schedule a new trial. On March 10, 1992, the appellant filed a petitiоn for a writ of mandamus with this court. The Alabama Supreme Court granted the writ and trial was set for May 11, 1992. This court, in an order issued on March 16, 1992, instructed the State, pursuant to Rule 21, A.R.Cr.P., to answer and to show cause why the appellant had not been retried. The State‘s answer was not made a part of the record.
On May 11, 1992, the appellant pleaded guilty to both counts of robbery in the first degree and was sentenced to 20 years’ imprisonment on each count. The sentenсes were to run concurrently with the sentence imposed in the appellant‘s second degree robbery convictions received on September 21, 1984. When he entered his guilty pleas, the appellant reserved the right to appeal the issue of the denial of a speedy trial.
The issue in this case is whether a defendant has a constitutional right to a speedy trial when he is seeking a retrial and, if so, whether in this case that right was violated.
In other jurisdiсtions, where a defendant has claimed that he was denied his right to a speedy trial on retrial or on appeal and the claim was not based on an existing statute or on the federal Speedy Trial Act but rather on constitutional grounds, courts have consistently analyzed such claims pursuant to the
This Court, in State v. Clay, 577 So.2d 561 (Ala.Cr.App. 1991), considered an issue analogous to the one presented here. Clay initially pleaded guilty to and was convicted of theft of services in the secоnd degree, in violation of
For purposes of addressing the issue presented here, however, only the fourth time period considered in Clay is germane. In this case, like in Clay, this Court must determine whether the delay that occurred from the time the judgment in the appellant‘s original case was reversed on appeal until he entered his guilty plea (i.e., May 11, 1992) was presumptively prejudicial. See Judge Bowen‘s special concurrence in State v. Clay, wherein he stated:
“[T]he only period of time relevant in this case is the period of timе from the date the appellant‘s case was reversed on appeal until the date on which she would have been tried had the circuit court not dismissed the cause for denial of a speedy trial. That is clearly the period of time considered under the Federal Speedy Trial Act when a case is retried after appeal. See
18 U.S.C. § 3161(e) (1988). See generally Project: Nineteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1988-1989, 78 Geo.L.J. 699, 991 (1990).”
Under the Speedy Trial Act, the period that is to be measured in cases involving a retrial begins with the ” ‘action occasioning the retrial.’ ” United States v. Rivera, 844 F.2d 916, 919 (2d Cir. 1988). The Speedy Trial Act provides:
” ‘If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final. If the defendant is to be tried again following an appeal оr a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final.’ ”
Id. Thus, where an appellate court‘s action requires a retrial, the time period begins when the appellate court issues its mandate. U.S. v. Kington, 875 F.2d 1091, 1109 (5th Cir. 1989).
Moreover, “[t]he time between a conviction and a reversal which requires retrial is clearly not counted for speedy trial purposes. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).” United States v. Bizzard, 674 F.2d 1382 (11th Cir. 1982), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Other states that base their analysis of the speedy trial issue in situation on the constitutional standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), also begin the period on the date of reversal, where appellate action requires the retrial. State v. Ferguson, 576 So.2d 1252 (Miss. 1991).
However, in this case, it was not the appellate court‘s remand that constituted the action requiring retrial and triggered the beginning of that period for speedy trial purposes, but rather the trial court‘s determination that the State had failed to supply race-neutral reasons for its peremptory challenges and that the appellant was entitled to a new trial (October 13, 1987).
Furthermore, in this case, the appellant was clearly faced with a pending charge after the remand, despite the notation by the trial court in the appellant‘s file. Cf. United States v. Mize, 820 F.2d 118, 121 (5th Cir. 1987), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 355 (1987). In United States v. Mize, supra, the appellant‘s conviction was reversed on appeal, the appellate court noting that a retrial was prohibited by the Double Jeopardy Clause of the
Next, it must be determined if the delay of approximately four and one half years between the trial court‘s ordering a new trial and the entry of the appellant‘s guilty plea violated his constitutional right to a speedy trial. In Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court stated:
” ‘[T]he right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.’ (Footnote omitted.)
“Thus, an ‘inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case. . . .’ [Barker, at 522] . . . 92 S.Ct. at 2188. In adopting ‘a balancing test, in
which the сonduct of both the prosecution and the defendant are weighed,’ id. at 530, 92 S.Ct. at 2192, the Barker court identified ‘some of the factors’ which courts should assess in determining whether a particular defendant has been denied his right to a speedy trial: (a) length of delay; (b) the reasons for the delay; (c) the defendant‘s assertion of his right; and (d) prejudice to the defendant. Id.”
Hayes v. State, 487 So.2d 987, 991 (Ala.Cr.App. 1986).
(I) Length of Delay
In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971), the Supreme Court held: “The protection of the
Although Barker acknowledged that the seriousness and complexity of the offense should be considered in determining whether the delay was reasonable, here, the delay of over four and one-half years is clearly excessive, given the offense charged. This was not a case that ordinarily could require extra time to prepare for trial. Moreover, the State had previously been prepared to go to trial in this case and was thus familiаr with the appellant‘s case. Because we conclude that the delay was presumptively prejudicial, this factor must weigh against the prosecution.
(II) Reasons for Delay
Because of the “peculiar circumstances” surrounding this case, we must inquire as to why the appellant was not tried earlier. The State offered no explanation to the trial court for the delay, other than to say that the trial judge who presided over the original trial and the subsequent remand closed the appellant‘s file on October 26, 1989. However, there remained a period of two years during which the State could have tried the appellant (between October 13, 1987, and October 26, 1989). The record indicates that the appellant was incarcerated for other convictions that had occurred on September 21, 1984. The State has presented no legitimate reason for the delay, and none of the delay appеars attributable to the appellant. See State v. Woods, 600 So.2d 425, 427 (Ala.Cr.App. 1992).
(III) Assertion of the Right
“In determining this factor, we are guided by the following observations of the former Fifth Circuit Court of Appeals in Prince v. Alabama, 507 F.2d 693, 702-03 (5th Cir. 1975), cert. denied, 423 U.S. 876, 96 S.Ct. 147, 46 L.Ed.2d 108 (1975):
” ‘While the Court [in Barker] indicated that the absolute failure of the defendant to assert his right would “make it difficult for [him] to prove that he was denied a speedy trial,” the Court emphasized that the burden was upon the prosecution to show that the failure of the defendant to assert his right was a knowing failure:
” ’ ”In ruling that a defendant has some resрonsibility to assert a speedy trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made. 407 U.S. at 526 [92 S.Ct. at 2191]. . . .”
” ‘. . . [W]e are further guided by Barker and by the Court‘s subsequent decision in Strunk v. United States, 1973, 412 U.S. 434 [93 S.Ct. 2260, 37 L.Ed.2d 56 (1973)]. . . . In Barker, the Court noted that a flexible approach to determin[ing]
” ’ “would permit . . . a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. 407 U.S. at 526 [92 S.Ct. at 2191]. . . .”
” ‘In Strunk, the Court gave an implicit indication that the focus of the assertion inquiry might properly be directed toward the question whether the prosecution is put “on notice” of the defendant‘s speedy trial claim. . . .
” ‘We interpret these rulings as an indication that the courts should take a liberal view of convict-defendant‘s attempts to contact the prosecutors and courts in other jurisdictions regarding charges pending against them there. Such an approach would be consistent both with the concept that chargeable failure to assert a constitutional right must be knowing and intelligent, Johnson v. Zerbst [304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)], and with the realities of a defendant‘s incarceration, often distant from the prosecuting state and without the effective assistance of counsel.’ ” Hayes, 487 So.2d at 993-94 (emphasis added).
Although the appellant did not assert his right until over four years after the trial court had granted him a new trial, the State presented no evidence that the appellant‘s failure to assert his right earlier was a “knowing failure.” The State contends that this factor should be weighed heavily against the appellant because, it says, “had he invoked this right as he eventually did in 1992, then he would have had his trial within two months of his filing of the mandamus.”
“We recognize that a defendant has ‘some responsibility to assert a speedy trial claim.’ Barker, 407 U.S. at 529, 92 S.Ct. at 2191. However, we also recognize that ‘[a] defendant has nо duty to bring himself to trial; the State has that duty. . . .’ Id. at 527, 92 S.Ct. at 2190 (footnote omitted). This responsibility is ‘out of fairness to the accused and to protect the community interests in a speedy trial.’ Dickey v. Florida, 398 U.S. 30, 50, 90 S.Ct. 1564, 1575, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring). [Defendant‘s] silence, under the circumstances, does not render his position less viable. We think that the response of the State must be considered and, in fact, overshadows all else.”
Because the State has failed to prove a “knowing failure” by the appellant to assert his right, we do not consider this factor to weigh heavily against the appellant.
(IV) Prejudice
The appellant, at the hearing on his motion to dismiss based on speedy trial grounds argued that, although a transcript had been made of his previous trial, his memory had weakened because of the passage of time. The State argued that the appellant had suffered no prejudice because, it notes, he was incarcerated on two other terms of lifе imprisonment. On appeal, the appellant contends that “[p]rior to his new sentence, his parole date was September 1, 1992. Now it has been changed to May 1, 1998.” In effect, he maintained that he lost six years due to the government‘s delay.” The appellant further argues that he lost the right to serve his sentences concurrently. We consider these allegations on appeal, although they were not presented to the trial court, because in all likelihood these were facts not in existence at the time of the motion hearing.
“The Alabama Court of Criminal Appeals has adopted the delineation by the former United States Court of Appeals, Fifth Circuit, of the circumstances in which no showing of prejudice is required. See, e.g., Wilson v. State, 407 So.2d [584] at 588; Turner v. State, 378 So.2d [1173] at 1179. See also Prince v. State, 354 So.2d 1186, 1192 (Ala.Cr.App. 1977), cert. denied, 354 So.2d 1193 (Ala. 1978). The former Fifth Circuit held that ‘there must be some point of coalescence of the other three factors in a movant‘s favor, at which prejudice — either actual or presumed — becomes totally
irrelevant.’ Hoskins v. Wainwright, 485 F.2d 1186, 1192 (1973). See also United States v. Dennard, 722 F.2d 1510, 1513 (11th Cir. 1984); United States v. Avalos, 541 F.2d [1100] at 1116; Prince v. Alabama, 507 F.2d at 706-07. The rationale for dispensing with the prejudice requirement is set forth in Turner v. Estelle, 515 F.2d 853, 858-59 (5th Cir. 1975), cert. denied, 424 U.S. 955, 98 S.Ct. 1431, 47 L.Ed.2d 361 (1976), as follows: ” ‘The reason for dispensing with the prejudice requirement entirely when the other three factors point heavily toward a violation of speedy trial is deterrence: the prosecution should not be permitted to engage in inexcusable misconduct on the hope that the defendant will not be able to make out a case of prejudice. Where such misconduct has occurred, the state cannot complain that the legitimate interests of its criminal justice system, being pursued in good faith, are being sacrificed because of an honest mistake in a case in which no ultimate harm has been done.’ ”
Additionally, in Aaron v. State, 497 So.2d 603, 604 (Ala.Cr.App. 1986), this Court held:
“An accused‘s right to speedy trial remains undiminished even when he is already serving a prison sentence. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Byrd v. Martin, 754 F.2d 963 (11th Cir. 1985); Smith v. State, 409 So.2d 958 (Ala.Cr.App. 1981).
” ‘At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffеr from “undue and oppressive incarceration prior to trial.” But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Seсondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.
” ‘And while it might be argued that a person already in prison would be less likely than others to be affected by “anxiety and concern accompanying public accusation,” there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, 386 U.S. [213] at 221-222, 87 S.Ct. [988] at 992-993 [18 L.Ed.2d 1 (1967)]. . . .
” ‘. . . And, while “evidence and witnesses disappear, memories fade, and events lose their perspective,” a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time.’ Smith, 393 U.S. at 378-80, 89 S.Ct. at 577-78, 21 L.Ed.2d at 611-12.”
Additionally, in Ex parte Carrell, supra, the Alabama Supreme Court held:
“Although ordinarily a mere assertion of a loss of memory is not enough of a showing of prejudice to support a finding that a defendant has been denied due process, where the delay is excessive and is the result of unexcused inaction by the State, the delay is prima facie prejudicial.”
In the instant case, the appellant has suffered prejudice by the loss of an opportunity to serve his sentence concurrently with a sentence he was serving for his prior convictions. Moreover, he is now subjected to a delayed parole date because of the State‘s inaction in bringing him to trial.
“Article I,
§ 6 , of the Alabama Constitution and theSixth Amendment to the United States Constitution, will not sanction such prosecutorial conduct.” Turner v. State, 378 So.2d 1173, 1178 (Ala.Cr.App. 1979).
Under similar circumstances, other jurisdictions have held that defendants’ rights to a speedy trial were violated on retrial. In
Based on the foregoing, we hold that the appellant‘s right to a speedy trial was violated. The judgment of the trial court is reversed and a judgment rendered for the appellant.
REVERSED AND JUDGMENT RENDERED.
All Judges concur.