Parris v. State

885 So.2d 813

Brent Andre PARRIS v. STATE of Alabama.

No. CR-00-0406.

Court of Criminal Appeals of Alabama.

August 31, 2001.

Opinion on Return to Remand November 22, 2002.

As Modified on Denial of Rehearing March 21, 2003.

Marcus W. Reid, Anniston, for appellant.

William H. Pryor, Jr., atty. gen., and Sandra J. Stewart and Michael B. Billingsley, asst. attys. gen., for appellee.

COBB, Judge.

On April 12, 1997, Brent Andre Parris was arrested and, on September 5, 1997, Parris was indicted for attempted murder, a violation of §§ 13A-6-2(a)(1) and 13A-4-2, Ala.Code 1975. On August 31, 2000, Parris was convicted of attempted murder. On October 11, 2000, the trial court sentenced him to serve 35 years in prison and ordered that this sentence was to run consecutively with Parris's sentence in another case. On October 17, 2000, Parris filed a "Motion for Judgment of Acquittal Pursuant to Rule 20.3 A.R.Cr.P. or in the Alternative Motion for a New Trial Pursuant to Rule 24.1 A.R.Cr.P." and a "Motion for Leave to Supplement his Motion for Judgment of Acquittal or in the Alternative Motion for New Trial." The trial court summarily denied Parris's postconviction motions on November 15, 2000. This appeal followed.

Parris raises seventeen issues on appeal. However, we address only his argument that he was denied the right to a speedy trial, because we must remand the cause for further proceedings on the basis of that issue.

The following timeline contains the dates relevant to Parris's speedy trial claim:

April 12, 1997 Parris was arrested. September 5, 1997 Parris was indicted for attempted murder. October 20, 1997 The trial court granted Parris's fifth attorney's motion to withdraw. October 29, 1997 The trial court scheduled the trial to begin the week of November 17 1997. November 14, 1997 Parris's retained trial counsel filed his notice of appearance and a motion to continue. November 20, 1997 The trial court continued the case at Parris's request. January 6, 1998 The trial court rescheduled the trial for the week of January 26, 1998. January 29, 1998 The trial court continued the case without explanation. February 3, 1998 The trial court rescheduled the trial for the week of February 23, 1998. February 27, 1998 The trial court continued the case, apparently at Parris's request.¹ April 30, 1998 The trial court rescheduled the trial for the week of May 18, 1998.² May 29, 1998 Parris filed his first motion for a speedy trial. June 2, 1998 The trial court rescheduled the trial for the week of June 22, 1998. June 22, 1998 The trial court continued the case without explanation. August 3, 1998 The trial court rescheduled the trial for the week of August 24, 1998. August 17, 1998 The State filed a motion to continue. August 27, 1998 The trial court continued the case without explanation.³ September 22, 1998 The trial court lowered Parris's bond from $100,000 to $20,000.

September 23, 1998 The trial court released Parris on bond. October 13, 1998 The trial court revoked Parris's bond without a hearing. October 19, 1998 The trial court rescheduled the trial for the week of October 26, 1998. October 26, 1998 The trial court continued the case for trial and stated on the case action summary sheet, "Not Reached." November 2, 1998 Parris filed his first motion to dismiss, alleging that his right to a speedy trial had been violated. January 6, 1999 The trial court rescheduled the trial for the week of January 25, 1999. January 25, 1999 The trial court continued the case for trial and stated on the case action summary sheet, "Not Reached." April 7, 1999 The trial court rescheduled the trial for the week of April 27, 1999. April 30, 1999 The trial court continued the case for trial and stated on the case action summary sheet, "Not Reached." August 19, 1999 The trial court removed the case from its docket and ordered that "this case be continued generally and the Clerk is DIRECTED to not set this case except on a specific order of this Court." August 25, 1999 Parris filed his second motion for a speedy trial. September 21, 1999 The trial court denied Parris's second motion for a speedy trial. October 13, 1999 Parris filed his second motion to dismiss, alleging that his right to a speedy trial had been violated. October 22, 1999 The trial court denied Parris's second motion to dismiss. December 27, 1999 Parris filed his third motion to dismiss, alleging that his bond had been wrongfully revoked. January 19, 2000 The trial court denied Parris's third motion to dismiss. March 27, 2000 Parris filed his first petition for a writ of mandamus, alleging that his right to a speedy trial had been violated. June 26, 2000 The Court of Criminal Appeals, by order, dismissed Parris's petition for a writ of mandamus without prejudice to allow Parris to refile the petition if he was not tried by the week of August 28, 2000. August 7, 2000 The trial court rescheduled the trial for the week of August 28, 2000. August 10, 2000 Parris filed his fourth motion to dismiss "due to the death of a witness" and his second petition for a writ of mandamus. August 29, 2000 The jury was struck. August 30, 2000 The Court of Criminal Appeals, by order, denied Parris's second petition for a writ of mandamus. August 31, 2000 Parris was convicted of attempted murder.

October 11, 2000 The trial court sentenced Parris to serve 35 years in prison.

The Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." The Alabama Constitution guarantees the same. Article I, § 6, Ala. Const. 1901 ("In all criminal prosecutions, the accused has a right to... a speedy, public trial.") We apply the principles of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether a defendant has been denied his right to a speedy trial. In Barker, the United States Supreme Court prescribed a flexible balancing test which "comports with constitutional principles [and] places the primary burden on the courts and the prosecutors to assure that cases are brought to trial." 407 U.S. at 529, 92 S.Ct. 2182.

"A balancing test necessarily compels courts to approach speedy trials on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, the process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution."

407 U.S. at 530, 533, 92 S.Ct. 2182. Each factor is to be addressed in turn, weighing "the conduct of both the prosecution and the defendant." Id. at 530, 92 S.Ct. 2182.

We begin by evaluating the length of the delay in bringing Parris to trial. "The length of 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 that go into the balance." Barker, 407 U.S. at 530, 92 S.Ct. 2182. The right to a speedy trial was triggered, in this case, by Parris's arrest. Kimbrell v. State, 659 So.2d 1039 (Ala.Crim.App.1995). Parris was incarcerated from the time of his arrest on April 12, 1997, until he was convicted on August 31, 2000, except for a period of approximately three weeks when he was released on bond. Thus, the delay in Parris's case amounted to over 40 months. The State concedes in its brief to this Court that the 40-month delay was presumptively prejudicial, and states that this Court should evaluate the remaining Barker factors. We agree. See Mansel v. State, 716 So.2d 234 (Ala.Crim.1997) (26-month delay was presumptively prejudicial); Howard v. State, 678 So.2d 302 (Ala.Crim.App.1996) (29-month delay was presumptively prejudicial). Therefore, we proceed to "further inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530, 92 S.Ct. 2182.

We must now evaluate the reasons for the 40-month delay in bringing Parris to trial. As the Barker Court stated,

"Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay."

Barker, 407 U.S. at 531, 92 S.Ct. 2182 (footnote omitted).

"Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him....

"Barker made it clear that `different weights [are to be] assigned to different reasons' for delay. Ibid. Although negligence is obviously to be weighed more lightly

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