State of Alabama v. Joshua Lamont MacGrady (Appeal from Jefferson District Court: DC-22-1555)

Rel: May 3, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

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Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-2023-0867

_________________________

State of Alabama

v.

Joshua Lamont MacGrady

Appeal from Jefferson District Court

(DC-2022-1555)

On Return to Remand

WINDOM, Presiding Judge.

CR-2023-0867

The State of Alabama appeals the Jefferson Circuit Court's order

granting Joshua Lamont MacGrady's motion to dismiss the case against

him. 1

Facts and Procedural History

On December 15, 2021, MacGrady's wife rented a moving truck

from a rental company in Palm Beach County, Florida. The truck was

not returned as scheduled, and the rental company reported the truck as

stolen on January 28, 2022. Law enforcement initiated a traffic stop of

the truck in Jefferson County on February 21, 2022. MacGrady was

Judge Shanta Craig Owens, a Jefferson Circuit Court Judge,

1

signed the orders in this case as a "District Judge." Further, MacGrady's

motion and amended motion purported to have been filed in the circuit

court, yet the trial court's digital stamp indicated that the motions had

been filed in the district court.

Because the case had been bound over to the grand jury before the

motion to dismiss had been granted, the district court no longer had

jurisdiction of the case. See State v. Brown, 259 So. 3d 655, 659 (Ala.

2018) ("The district court does not retain authority over a case once the

case has been bound over to the grand jury."). Accordingly, this Court

remanded the case on April 15, 2024, for Judge Owens to clarify whether

she was sitting as a circuit judge or acting as a district judge at the time

she granted MacGrady's motion to dismiss.

On April 16, 2024, Judge Owens issued an order stating that she

was sitting as a circuit judge when she granted MacGrady's motion to

dismiss. Presumably, the case still carries a district court case number

because the case was dismissed before MacGrady was indicted.

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driving the truck at the time and was arrested for first-degree receiving

stolen property, see §13A-8-17, Ala. Code 1975.

MacGrady was released on bond on February 24, 2022. On March

28, 2022, MacGrady entered a written demand for a speedy trial.

MacGrady waived his preliminary hearing on May 10, 2022, and the case

was bound over to the grand jury.

On May 16, 2023, MacGrady filed a motion to dismiss the pending

charge because, he argued, his right to a speedy trial had been violated,

and he filed an amended motion on October 17, 2023, that included

several images of what appeared to be emails from a potential employer.

(C. 36-42, 20-29.) The circuit court held a hearing on MacGrady's

amended motion to dismiss on October 19, 2023. In a written order

issued on November 9, 2023, the circuit court granted MacGrady's motion

to dismiss. (C. 12.) The State timely appealed the circuit court's

judgment on November 15, 2023. See Rule 15.7, Ala. R. Crim. P.

Analysis

The State asserts on appeal that the circuit court erred in granting

MacGrady's motion to dismiss because, it argues, MacGrady failed to

prove that he was prejudiced by the delay in bringing him to trial. "The

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facts before us are undisputed. The only question to be decided is a

question of law, and our review is therefore de novo." Ex parte Heard,

999 So. 2d 978, 980 (Ala. 2003) (citing Ex parte Key, 890 So. 2d 1056,

1059 (Ala. 2003)).

In Ex parte Walker, 928 So. 2d 259 (Ala. 2005), the Alabama

Supreme Court explained:

"An accused's right to a speedy trial is guaranteed by the

Sixth Amendment to the United States Constitution and by

Art. I, § 6, of the Alabama Constitution, 1901. As noted, an

evaluation of an accused's speedy-trial claim requires us to

balance the four factors the United States Supreme Court set

forth in Barker [v. Wingo, 407 U.S. 514 (1972)]: '[l]ength of

delay, the reason for the delay, the defendant's assertion of

[his or her] right, and prejudice to the defendant.' 407 U.S. at

530, 92 S. Ct. 2182 (footnote omitted). See also Ex parte

Carrell, 565 So. 2d [104,] 105 [(Ala. 1990)]. 'A single factor is

not necessarily determinative, because this is a "balancing

test, in which the conduct of both the prosecution and the

defense are weighed." ' Ex parte Clopton, 656 So. 2d [1243] at

1245 [(Ala. 1995)] (quoting Barker, 407 U.S. at 530, 92 S. Ct.

2182).”

928 So. 2d at 263.

Length of Delay

The first factor to evaluate is the length of the delay. "In Alabama,

'[t]he length of delay is measured from the date of the indictment or the

date of the issuance of an arrest warrant – whichever is earlier.' " Ex

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parte Walker, 928 So. 2d at 264 (quoting Roberson v. State, 864 So. 2d

379, 394 (Ala. Crim. App. 2002)). MacGrady was arrested for first-degree

receiving stolen property on February 21, 2022, and the circuit court held

a hearing on his motion to dismiss on October 19, 2023.2 The delay in

this case was approximately 20 months.

In prior cases, this Court has held similar delays to be

presumptively prejudicial. See State v. Pylant, 214 So. 3d 392, 395 (Ala.

Crim. App. 2016), and the cases cited therein.

"A finding that the length of delay is presumptively

prejudicial 'triggers' an examination of the remaining three

Barker factors. 505 U.S. at 652 n.1, 112 S. Ct. 2686 ('[A]s the

term is used in this threshold context, "presumptive

prejudice" does not necessarily indicate a statistical

probability of prejudice; it simply marks the point at which

courts deem the delay unreasonable enough to trigger the

Barker enquiry.'). See also Roberson v. State, 864 So. 2d 379,

394 (Ala. Crim. App. 2002)."

Ex parte Walker, 928 So. 2d at 263-64. Because the length of delay in

MacGrady's case was presumptively prejudicial, this Court will examine

the remaining Barker v. Wingo, 407 U.S. 514 (1972), factors.

2 It does not appear from the record that MacGrady has been

indicted.

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Reasons for the Delay

Returning to Ex parte Walker:

"The State has the burden of justifying the delay. See

Barker, 407 U.S. at 531; Steeley v. City of Gadsden, 533 So.

2d 671, 680 (Ala. Crim. App. 1988). Barker recognizes three

categories of reasons for delay: (1) deliberate delay, (2)

negligent delay, and (3) justified delay. 407 U.S. at 531.

Courts assign different weight to different reasons for delay.

Deliberate delay is 'weighted heavily' against the State. 407

U.S. at 531. Deliberate delay includes an 'attempt to delay

the trial in order to hamper the defense' or ' "to gain some

tactical advantage over (defendants) or to harass them." ' 407

U.S. at 531 & n.32 (quoting United States v. Marion, 404 U.S.

307, 325, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)). Negligent

delay is weighted less heavily against the State than is

deliberate delay. Barker, 407 U.S. at 531; Ex parte Carrell,

565 So. 2d [104,] 108 [(Ala. 1990)]. Justified delay – which

includes such occurrences as missing witnesses or delay for

which the defendant is primarily responsible – is not weighted

against the State. Barker, 407 U.S. at 531; Zumbado v. State,

615 So. 2d 1223, 1234 (Ala. Crim. App. 1993) (' "Delays

occasioned by the defendant or on his behalf are excluded from

the length of delay and are heavily counted against the

defendant in applying the balancing test of Barker." ')

(quoting McCallum v. State, 407 So. 2d 865, 868 (Ala. Crim.

App. 1981))."

928 So. 2d at 265.

There is no allegation in the record that the delay in bringing

MacGrady to trial was deliberate. MacGrady conceded as much at the

hearing but did ask that the circuit court find the delay to be negligent.

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(R. 5.) The State pushed back on this point, arguing below that the delay

was justified because of the COVID-19 pandemic.

Indeed, after recognizing that jury trials in Alabama were

suspended by order of the Alabama Supreme Court from March 13, 2020,

to September 14, 2020, because of the COVID-19 pandemic, this Court

held in Quinnie v. State, [Ms. CR-21-0374, Dec. 16, 2022] ___ So. 3d ___,

___ (Ala. Crim. App. 2022), that the six months that had passed during

the suspension of jury trials could not be held against the State.

According to the State, grand juries in the Tenth Judicial Circuit were

suspended even longer, until November 2020.

Yet, MacGrady's case was initiated with his arrest on February 21,

2022, some 15 months after grand juries had resumed in the Tenth

Judicial Circuit. In truth, the State's explanation for the delay was a pre-

existing backlog of cases that had been exacerbated by the COVID-19

pandemic.3 The State asserted to the circuit court that, in attempting to

whittle down the backlog of pending cases, it had prioritized holding

trials for defendants who were incarcerated while awaiting trial and

3The circuit court agreed with the State that the "COVID-19

pandemic created a backlog of cases for grand jury presentment." (C. 12.)

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defendants who were charged with violent crimes4 – neither of which

applied to MacGrady.

In Quinnie, this Court held that only the six months that had

passed during the suspension constituted justifiable delay. Quinnie, ___

So. 3d at ___. The remainder of the delay, both before and after the

suspension of jury trials, was held to be negligent delay on the part of the

State. Id. Further, this Court commonly views delays resulting from a

congested court system as negligent "since the ultimate responsibility for

such circumstances must rest with the government rather than with the

defendant." Barker, 407 U.S. at 531. This is especially true in the instant

case because it involves a delay in presenting the case to the grand jury,

an act over which the State has greater control relative to the setting of

a case for trial. Nevertheless, this Court is sympathetic to the burdens

placed on an already strained criminal-justice system by the COVID-19

pandemic. Although the 20-month delay must weigh against the State,

given the nature of the delay, this Court holds that it should not weigh

heavily. See Draper v. State, 886 So. 2d 105, 115 (Ala. Crim. App. 2002)

("It appears that none of the 77-month delay was attributable to the

4 See Rule 8.1, Ala. R. Crim. P.

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prosecutor; rather, the delay was the result of a large backlog of cases in

Jefferson County and, therefore, should not weigh heavily against the

State.").

Defendant's Assertion of his Right

"[C]ourts applying the Barker factors are to consider in the

weighing process whether and when the accused asserts the right to a

speedy trial, 407 U.S. at 528-29, and not every assertion of the right to a

speedy trial is weighted equally." Ex parte Walker, 928 So. 2d at 265.

For instance, "[r]epeated requests for a speedy trial weigh heavily in

favor of an accused." Kelley v. State, 568 So. 2d 405, 410 (Ala. Crim. App.

1990) (citing Wilson v. State, 407 So. 2d 584, 588 (Ala. Crim. App. 1981)).

MacGrady first asserted his right to a speedy trial the month

following his arrest. MacGrady moved to dismiss the indictment for an

alleged violation of his right to a speedy trial 13 months after his arrest

and moved again to dismiss on the same ground 20 months after his

arrest. The State concedes on appeal that MacGrady's assertions of his

right to a speedy trial were timely and that this factor weighs in

MacGrady's favor. This Court agrees.

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Prejudice to the Defendant

The dispute between the parties on appeal lies with the final factor

– prejudice to MacGrady. The State asserts in its brief that MacGrady

failed to demonstrate sufficient prejudice to warrant the dismissal of his

charge. MacGrady, on the other hand, asserts that, because the other

three factors weigh in his favor, he is entitled to presumed prejudice. In

the alternative, MacGrady asserts that he has suffered and that he did

demonstrate prejudice. He points specifically to the attachments to his

amended motion to dismiss, which were purportedly emails from Texas

Pride Fuels, a diesel and lubricant supplier: "Mr. MacGrady had

apparently secured a lucrative position working for Texas Pride Fuels,

and even gone so far as to complete the orientation program. However,

Mr. MacGrady was apparently either terminated or denied employment

due to the then-pending felony allegation." (MacGrady's brief, at 8.)

This Court first will address MacGrady's assertion that he is

entitled to a presumption of prejudice. MacGrady relies on Hayes v.

State, 487 So. 2d 987 (Ala. Crim. App. 1986), in support of his argument

that he did not bear the burden of making "a showing of actual prejudice

to prevail on a speedy trial claim." (MacGrady's brief, at 7.) Quoting

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Hayes, MacGrady asserts in his brief that " '[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.' [Hayes] at

995-996." (MacGrady's brief, at 7.)

This Court's holding in Hayes, however, simply does not apply to

the facts of this case. Hayes, as the quotation suggests, dealt with a delay

that was found to be "deliberate and inexcusable, thus warranting heavy

weight against the State." Hayes, 487 So. 2d at 992-93. As this Court

has already held, and as MacGrady conceded at the hearing below, the

delay here was, at most, negligent on the part of the State. The holding

of the Alabama Supreme Court in Ex parte Walker addresses whether

prejudice may be presumed due to negligent delay on the part of the

State:

" '[T]o warrant granting relief, negligence unaccompanied by

particularized trial prejudice must have lasted longer than

negligence demonstrably causing such prejudice.' Doggett v.

United States, 505 U.S. [647,] 657 [(1992)], 112 S. Ct. 2686.

The Court concluded that 'the Government's egregious

persistence in failing [for 8 1/2 years] to prosecute Doggett

[was] clearly sufficient' to entitle the accused to relief. 505

U.S. at 657, 112 S. Ct. 2686. The Doggett Court did not,

however, establish a bright-line rule for the length of delay

caused by governmental negligence that will warrant a

finding of presumed prejudice under the fourth Barker factor.

Even so, when an accused alleges solely that [his] trial was

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delayed because of governmental negligence – as is the case

here – lower federal courts applying Doggett generally do not

presume prejudice under the fourth Barker factor unless the

postindictment delay is five years or more. [United States v.]

Serna-Villarreal, 352 F.3d [225,] 232 [(5th Cir. 2003)]

(refusing to presume prejudice under the fourth Barker factor

in a case in which prosecutorial negligence delayed the

accused's trial for three years and nine months and citing

Doggett, 505 U.S. at 658, 112 S. Ct. 2686 (presuming prejudice

after six-year delay caused by the government's negligence);

United States v. Bergfeld, 280 F.3d 486, 489-91 (5th Cir. 2002)

(presuming prejudice after a five-year-and-three-month delay

caused by the government's negligence, but noting that '[h]ad

the delay been considerably shorter, [the accused] might well

have been properly required to demonstrate prejudice');

United States v. Cardona, 302 F.3d 494, 498-99 (5th Cir. 2002)

(presuming prejudice where governmental negligence

resulted in a delay of more than five years); United States v.

Brown, 169 F.3d 344, 349-51 (6th Cir. 1999) (presuming

prejudice where governmental negligence resulted in five and

one-half-year delay); United States v. Shell, 974 F.2d 1035,

1036 (9th Cir. 1992) (presuming prejudice where

governmental negligence resulted in a six-year delay)). Like

the Doggett Court, we do not adopt a bright-line rule for the

length of delay that will result in a finding of presumed

prejudice. But we note that the four-year-and-two-month

delay in Walker's case is well within the five-year time period

generally established by federal cases for presuming

prejudice. Further, '[t]here is no indication from this record

that either the [State]'s negligence or the resulting length of

the delay here adversely affected the evidence so as to

undermine the fairness of a trial.' Serna-Villarreal, 352 F.3d

at 233."

Ex parte Walker, 928 So. 2d at 269-70.

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"[O]ur toleration of such negligence varies inversely with its

protractedness, cf. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333,

102 L. Ed. 2d 281 (1988), and its consequent threat to the fairness of the

accused's trial." Doggett v. United States, 505 U.S. 647, 657 (1992). The

delay here of 20 months is well short of any standard that would trigger

presumed prejudice. Additionally, '[t]here is no indication from this

record that either the [State]'s negligence or the resulting length of the

delay here adversely affected the evidence so as to undermine the

fairness of a trial.' [United States v. ]Serna-Villarreal, 352 F.3d [225,]

233 [(5th Cir. 2003)]." Ex parte Walker, 928 So. 2d at 269-70. In short,

MacGrady is not entitled to a presumption of prejudice.

Next, this Court will turn to whether MacGrady demonstrated

actual prejudice. The Alabama Supreme Court has stated:

"Because 'pretrial delay is often both inevitable and

wholly justifiable,' Doggett [v. United States], 505 U.S. [647,]

656, 112 S. Ct. 2686, 120 L. Ed. 2d 520 [(1992)], the fourth

Barker factor examines whether and to what extent the delay

has prejudiced the defendant. Barker, 407 U.S. at 532, 92 S.

Ct. 2182. The United States Supreme Court has recognized

three types of harm that may result from depriving a

defendant of the right to a speedy trial: ' "oppressive pretrial

incarceration," "anxiety and concern of the accused," and "the

possibility that the [accused's] defense will be impaired" by

dimming memories and loss of exculpatory evidence.'

Doggett, 505 U.S. at 654, 112 S. Ct. 2686 (quoting Barker, 407

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U.S. at 532, 92 S. Ct. 2182, and citing Smith v. Hooey, 393

U.S. 374, 377-79, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969); United

States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d

627 (1966)). 'Of these forms of prejudice, "the most serious is

the last, because the inability of a defendant adequately to

prepare his case skews the fairness of the entire system." ' 505

U.S. at 654, 112 S. Ct. 2686 (quoting Barker, 407 U.S. at 532,

92 S. Ct. 2182)."

Ex parte Walker, 928 So. 2d at 266-67.

MacGrady was not incarcerated, and he did not suggest that his

defense was impaired in any way by virtue of the delay. Instead,

MacGrady asserted the second type of harm – anxiety and concern of the

accused.

This Court notes that there was no sworn testimony offered at the

hearing in the circuit court. MacGrady did offer, as mentioned above,

images of emails from Texas Pride Fuels. The first email is a response to

an apparent application submitted by MacGrady for a position with

Texas Pride Fuels. The email details the work schedule, salary, and

benefits associated with the position. The email also states that the

applicant must have a "clean criminal history." (C. 27.) The second email

purports to be an email directing MacGrady to attend a new-hire

orientation.

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At the hearing, defense counsel alleged that MacGrady was

terminated from this position and another unnamed position because of

the pending criminal charge. Defense counsel also alleged that

MacGrady had been denied employment with "Coca-Cola, A&G Grocery,

Mercedes, and other employers. He can't find a job because this case is

still pending." (R. 6-7.) The State countered defense counsel's claims by

pointing out that the position with Texas Pride Fuels – the only one for

which MacGrady offered something that could be construed as evidence

– required a "clean criminal history." The State represented to the circuit

court that MacGrady has "a significant criminal history," including

"several felony convictions." (R. 11.) The State also pointed out that

MacGrady had offered nothing to demonstrate the specific reason he had

been denied employment with Texas Pride Fuels.

The circuit court, both at the hearing and in her order dismissing

the case, agreed with the State that MacGrady had a significant criminal

history. (R. 16; C. 12.) This completely undercuts MacGrady's only

specific claim of prejudice – that he was denied employment based on the

pending criminal charge. Certainly, MacGrady's prior felony convictions

would have been more harmful to his search for employment. The circuit

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court appeared to recognize this at the hearing, stating, "I don't think the

defendant was prejudiced, based upon the State's argument, that he had

a significant criminal history." (R. 16.)

Nevertheless, the circuit court found the existence of prejudice:

"While [MacGrady] does have some prior criminal history, the

disadvantage of having a criminal case pending for such a length of time

demonstrates prejudice to the defendant." (C. 12.) This was error. As

explained herein, the length of time involved did not warrant a

presumption of prejudice, and MacGrady offered no other evidence of

prejudice.

" 'With no presumed prejudice and minimal – if any – actual

prejudice in [MacGrady's] case, the delay did not violate [his] right to a

speedy trial.' See State v. Jones, 35 So. 3d 644, 659 (Ala. Crim. App.

2009) (citing Doggett, 505 U.S. at 656, 112 S. Ct. 2686 ('Our speedy trial

standards recognize that pretrial delay is often both inevitable and

wholly justifiable.')." State v. Crandle, 368 So. 3d 934, 946 (Ala. Crim.

App. 2021). "Consequently, 'balancing the four Barker factors, we cannot

say that the delay in this case experienced by [MacGrady] prejudiced

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[him] to the degree that would warrant the dismissal' of the … charge

against him at this time." Id.

Conclusion

The record before this Court does not contain sufficient evidence to

warrant the dismissal of the pending charge against MacGrady. Thus,

the circuit court improperly granted MacGrady's motion to dismiss based

on the denial of his right to a speedy trial. Accordingly, the judgment of

the circuit court is reversed, and this cause is remanded to that court for

proceedings consistent with this opinion.

REVERSED AND REMANDED.

Kellum, McCool, Cole, and Minor, JJ., concur.

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