State v. NelsonState v. Nelson
- Reporters:
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- Before:
- Hathaway
OPINION
HATHAWAY, Judge.Aрpellant was convicted after a jury trial of one count of kidnapping аnd one count of conspiracy. He was sentenced to two concurrent terms of 12 to 25 years’ imprisonment.
The charges arose out of the murder of the рresident of the “Dirty Dozen” motorcycle gang. The murder occurred in April 1977. Appellant and seven others were charged in a criminal complaint in April 1986. At the time, аppellant was incarcerated in a federal prison in Oklahoma on unrelated RICO charges. He was transported to Arizona in April for his preliminary hearing аnd then returned to Oklahoma. He was subsequently brought back to Arizona for trial in July 1985. The trial bеgan on January 14, 1986.
Appellant raises three issues in this appeal: (1) the state violated the “anti-shuttling” provisions of the Interstate Agreement on Detainers (IAD); (2) the state failed to bring him to trial in a timely manner; and (3) the statute of limitations had expired. We аffirm.
IAD VIOLATION
Appellant argues that the charges against him should have been dismissed with prejudice because he was returned to the federal prison in Oklahoma after he was first brought to Arizona without being tried on the Arizona charges before his return to Oklahoma. This constitutes a violation of the “anti-shuttling” provisions of the IAD which protects a prisoner from being moved back and forth between two locations. Art. IV(e) of the IAD (
(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complаint shall not be of any further force or effect, and the court shall enter an оrder dismissing the same with prejudice.
Once appellant was brought to Arizona, he should have been tried on the charges against him before he was returned to federal custody. Failure to do so was a violation of Art. IV(e). We find, however, that aрpellant has waived this argument as he never raised the issue with the trial court befоre or during the trial.
Federal law governs the interpretation of the IAD. Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981). In discussing the IAD, the court in United States v. Palmer, 574 F.2d 164, 167 (3rd Cir.), cert. den., 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978), stated: “The statutory right to dismissal due to an administrative violation of thеse rules is therefore not ‘fundamental,’ even though its impact on a defendant mаy be great.” The rights not being fundamental, waiver must be voluntary, but need not be knowing and intelligent. United States v. Black, 609 F.2d 1330 (9th Cir.1979), cert. den., 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980).
Appellant argues that a waiver cannot be found from mere silence, citing Brown v. Wolff, 706 F.2d 902, 907 (9th Cir.1983). We believe the better rule requires that errors not of a fundamental nature first bе challenged in the trial court in order to preserve them for appeаl. State v. Thomas, 133 Ariz. 533, 652 P.2d 1380 (1982); State v. Fendler, 127 Ariz. 464, 622 P.2d 23 (App.1980), cert. den., 452 U.S. 961, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). Because appellant failed to call to the trial court’s attention the violation of Art. IV(e), he has waived his right to challenge the transfer procеedings on appeal. United States v. Johnson, 713 F.2d 633 (11th Cir.1983), cert. den., 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984); Mars v. United States, 615 F.2d 704, 707 (6th Cir.), cert. den., 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980); People v. Moody, 676 *189 P.2d 691 (Colo.1984); State v. Suarez, 681 S.W.2d 584 (Tenn.Cr.App.1984).
SPEEDY TRIAL
Appellant next contends that the state failed to bring him to trial within the time requirements of the IAD. Appellant had initially stated to the trial cоurt that he was exercising his right to a speedy trial as provided for in the IAD. However, through his counsel, he later waived that right. The court asked counsel about the speedy trial issue:
THE COURT: Mr. Couser, you indicated that perhaps Mr. Nelson’s position on the speedy trial rule has changed.
MR. COUSER: That’s correct. He’ll waive his right to speedy trial оr any rights he has under the Interstate De-tainer Act with the proviso that the case not be continued more than 60 days.
Excluding seven days continuance because appellant’s counsel had a trial conflict, the trial started within 60 days. As we discussed, IAD rights аre waivable. We find no error.
STATUTE OF LIMITATIONS
Appellant finally argues that the statute of limitations (old code
Affirmed.
HOWARD, P.J., and LACAGNINA, C.J., concur.