Strickland v. StateStrickland v. State
- Reporters:
- , ,
- Before:
- Brown
Appellant, Otis Strickland, was arrested on October 13, 1994, and charged with four counts of delivery of a controlled substance. He was tried by a jury on October 3, 1996, found guilty, and sentenced to three terms of forty years, to be served concurrendy. Prior to trial, Strickland filed a timely motion to dismiss the charges against him for violation of the speedy-trial rule. A hearing was held on the motion, and the trial judge deniеd it. Strickland appeals the denial of his motion to this court. We affirm the trial court.
Strickland’s claim on appeal is that his right to a speedy trial under Rule 28.1 of the Arkansas Rules of Criminal Procedure has been violated. Rule 28 is clear that an accused must be brought to trial within 12 months from the date of the arrest. See
Strickland clearly presented a prima facie case for a speedy-trial violation in that he was arrested on October 13, 1994, and was tried 721 days later on October 3, 1996. In response to his motion to dismiss, the State successfully presented to the trial court seven periods of time to be excluded under
a. February 26, 1996, to May 16, 1996 (19 days).
The first excluded time period contested by Strickland is the period between February 26 and May 16, 1996. We decline to consider the argument regarding this period because Strickland did not challenge this еxcluded period at the hearing on his motion. Nor did he contest the order excluding this period. Hence, the trial court did not have an opportunity to rule on any objection to this excluded period.
In criminal cases, issues raised, including constitutional issues, must be presented to the trial court to preserve them for appeal. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Moreover, it is incumbent upon аn appellant to obtain a ruling from the trial court in order to preserve an argument for appeal. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997); Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Because the trial court never ruled on an objection to the exclusion of this time period, the argument is not properly before us on appeal.
b. February 1, 1996, to February 26, 1996 (25 days).
Strickland also contends that the period between February 1 and February 26, 1996, should not have been exсluded because the order excluding this time was not date specific. Though eliminating the exclusion of these 25 days would still not cause a speedy-trial violation, we will consider the point. The triаl court’s order provides that on the court’s own motion the time from February 1 until the “next trial setting” should be excluded. The trial court excluded this time period based on the fact that Strickland’s court appointed counsel could no longer represent Strickland because he had been diagnosed with a terminal brain tumor. In support of his objection to this excluded period, Strickland cites
In response, the State presents two arguments. First, the State contends that the time excluded should not be considered under
Secondly, the State contends that the February 1, 1996 order was date speсific. Although the order does refer to the “next trial setting,” under the reasons explaining the exclusion of time, the trial court wrote that an arraignment would be scheduled for “February 26, 1996, to determine рresent ability to retain counsel or necessity of a court appointment.” We conclude that the order was sufficiently clear to establish that, at a minimum, the period of time from February 1, 1996, to February 26, 1996, would be excluded.
c. May 16, 1996, to August 29, 1996 (105 days).
Finally, Strickland contests the exclusion of the time period between May 16, 1996, and
In the instant case, the motion for a continuance was made because State Police Investigator Dennis Roberts would not be available for trial on that date. According to his testimony at the speedy-trial hearing, Investigator Roberts notified the prosecutor on March 29, 1996, that he would be unavailable to testify from May 10, 1996, through May 18, 1996, due to his having been chosen to represent the Statе of Arkansas at national police memorial week in Washington, D.C. and a planned meeting with President Clinton. According to the State, on or about April 3, 1996, Investigator Roberts was served with a subpoеna to appear and testify at trial set for May 16, 1996. Investigator Roberts confirmed that he did receive the subpoena.
Strickland argues that due diligence was not exercised in this case because the State did not make any effort to depose this witness for use at trial. The State responds that when the prosecutor became aware that Investigator Roberts plannеd not to attend the trial, the prosecutor issued a subpoena and requested a continuance. The State further maintains that it did not depose the witness because there was no guarantee that deposition testimony would be admissible in this situation.
Strickland relies heavily in his due diligence argument on Meine v. State, but we view the Meine case as being distinguishable from the case at bar. For the first trial setting in Meine, the witness at issue was never served with a subpoena. Here, Investigator Roberts was subpoenaed and never released from that subpoena. Then, in Meine the State unilaterally released the witness before the second trial setting on the basis of a scheduling conflict. We noted that the State might have availed itself of a deposition as an alternativе to five testimony. Also, in Meine when the matter finally came to trial, the pertinent witness was not called to testify, casting doubt on his materiality. In the instant case, Investigator Roberts was the State’s first witness.
Wе agree that whether a deposition might have substituted for live testimony in this case was problematic for the State. Investigator Roberts was a material witness for the State, and the State undoubtеdly wanted his credibility and demeanor on display before the jury. Moreover, this court has said that under some circumstances, an unavailable witness’s deposition testimony may be inadmissible. See Bеnnett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In Bennett, we refused to permit deposition testimony where (1) the testimony was damaging to the defendant, (2) there was a need for the jury to be able to evaluate the credibility of thе witness, and (3) there had not been a sufficient showing of unavailability. Though the Bennett decision does not disallow deposition testimony in all instances, it underscores the importance of having a jury аssess the demeanor of a critical witness. Investigator Roberts was the State’s first witness at the eventual trial and an important cog in the State’s case. We can readily see how it would be important to both parties for the witness to give his testimony in person.
Strickland does contest any assumption that Investigator Roberts was a material witness and, because of that, contends he was
We conclude that the State exercised due diligence in obtaining this material witness for trial. When it became apparent that the witness had a conflict and was unavailable, the trial court, in its discretion, had the authority to grant the continuance which it did. The faсt that the case was not reset for trial sooner was a matter for the trial court to decide in fixing its docket.
We hold that these three time periods were properly excluded for speedy-trial purposes.
Affirmed.