Petition for Writ of Certiorari — Alabama v. Carrell

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me 90-4 4 i FILED

| SEP 13

IN THE SUPREME COURT OF THE B

UNITED STATES JOSEPH a spats. JR.

STATE OF ALABAMA .

PETITIONER,

vs.

JERRY RAY CARRELL

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

AND APPENDICES

DON SIEGELMAN

ATTORNEY GENERAL

YVONNE A. HENDERSON

ASSISTANT ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR PETITIONER

ADDRESS OF COUNSEL:

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 242-7300

STATEMENT OF ISSUES PRESENTED

1. Where a party is charged with a

certain offense, and the charges are

dismissed, but the party is subsequently

indicted on the original charges, is the time

between the dismissal of the original charges

and the subsequent indictment properly

considered for the purposes of the right to a

speedy trial?

2. For speedy trial purposes, does a

court err in finding prejudice solely on the

basis of a forty-three month delay of trial?

3. Where an indicted party is at

liberty and under no restraints of any sort,

and the indictment is secret so that neither

the indictee nor the public know of it and for

a considerable period of time the indictee

cannot be located for arrest on the capias

warrant, is the time between the return of the

secret indictment and the arrest of the

indictee properly considered for speedy trial

purposes?

THE PARTIES

The parties in all of the lower courts

were the same as those in this proceeding, the

same being set out in the caption.

TABLE OF CONTENTS

PAGES

QUESTIONS PRESENTED.................. ante I

aa oa sie' savas ese oes ante II

re rere ied.

TABLE OF CONSTITUTIONAL

PIS Liekia 6a s cscs cise cases vii

TAMER GP OTATUNES «ic. 5.6. 0...5..... vii

TABLE OF OTHER AUTHORITY............. vii

OPINION AND ORDERS BELOW............. 1

EE OE Ee 3

CONSTITUTIONAL PROVISIONS

ES rrr ree 3

STATUTORY PROVISIONS

Ns 28, his Gina Ss sivas vives oo 5

STATEMENT OF THE CASE................ 6

STATEMENT OF THE FACTS............... 13

gs Is $50). S015 5s 0 ein sc 13

II. EFFORTS TO LOCATE THE

I Gh 66a sss oo bee soe 14

III. PREJUDICE TO THE

SE 15

SUMMARY OF THE ARGUMENT..... Wie ope oes 4 19

ARGUMENT... cccccccccccccccs eecescces

REASONS FOR GRANTING THE WRIT........-

I. CONFLICTS WITH THE DECISIONS

AND OPINIONS OF THE SUPREME

COURT OF THE UNITED STATES.....

A. CONFLICT WITH UNITED STATES

V. MACDONALD (456 U.S. 1

PISSS}) 6 66 SF Be BOSS. o's

B. CONFLICT WITH BARKER V. WINGO

(407 U.8.. 3534 (2972}})...55:%

II. A. A NOVEL QUESTION...........

B. CONFLICTS AMONG THE

JURISDICTIONS... ec eevee

C. SPECIAL REASONS WHY THE

WRIT SHOULD ISSUE IN THIS

CASE ea oOo OC C8 oot ae @ eeeeest nerf 8 8 &© @

CONCLUSION... ccc ccc vcsccivccccccscccs

APPENDIX "A": ORDERS OF THE

COURT OF CRIMINAL APPEALS

OF ALABAMA... ...ccccccccccvccrececes

APPENDIX "B": OPINION AND ORDERS

OF THE SUPREME COURT OF .

APPENDIX "C": RELEVANT ALABAMA

STATUES: ccc cee scccsecceesesecscee

APPENDIX "D": IN RE: THE STATUTE

Ce ReRURE ORE BOI ss ow cee ec ec cccescccces

CERTIPICATE OF SERVICE... .ccccccccese

TABLE OF CASES

PAGE(S)

Barker v. Wingo

407 U.S. 514, 33 L.Ed.2d

101, 92 S.Ct. 2162 (1972)..... 19,20,

23,25,

26,26,

29,32

532 P.2d 434 (Okl. Cr, 1975).. 30

475 U.S. 1096, 89 L.Ed.2d

894, 106 S.Ct. 1493 (1986).... 35

Carrel] _v. State

1 Div. 842, 550 So.2d

1086 (Ala. Crim. App, 1989)... .; 30>

Carrel] _v. State

1 Div. 842, 553 So.2d

136 (Ala. Crim. App, 1989)..... 2,10,

Commonwealth v. Conant ~

12 Mass. App. 287, 423

& “se Se 3 6. o | Pe 34

429 U.S. 960, 50 L.Ed.2d

eo Pi eo. See | om el | >) 36

Daniels v. State

30 Md. App. 432, 352 A.2d

859 (1976)...... See 34

iii

| “ee

Dilling

TABLE OF CASES CONTINUED

ham v. United States

423 U.S. 64, 46 L.Ed.2d

205, 96 S.Ct. 303 (1975).......

61] P.2d 850 (Wyo, 1980).......

Ri, Secs cs ota ccd Saar

530 So.2d 865 (Ala, 1988)......

456 U.S. 994, 73 L.Ed.2d

1291, 102 S.Ct. 2279 (1982)....

425 U.S. 935, 48 L.Ed.2d

176, 96 S.Ct. 1666 (1976)......

386 U.S. 213, 18 L.Ed.2d 1,

87 S.Ct. 988 (1967)...........-

535 N.E.2d 144 (Ind.App, 1989).

429 U.S. 1050, 50 L.Ed.2d

766, 97 S.Ct. 762 (1977).......

414 U.S. 25, 38 L.Ed.2d

183, 94 S.Ct. 188 (1973).......

3,10-13,

21,37

19,26,

United §'

TABLE OF CASES CONTINUED

19 Cal. 3rd 588, 138 Calf.

Rptr. 885, 564 P.2d 1203 (1977)

60 Ill. App. 3rd 919, 18 Ill.

Dec. 330, 377 N.E.2d 815 (1978)

641 P.2d 943 (Colo, 1982).....

Russell _ vy, State

428 So.2d 131 (Ala, 1982).....

40 Cal. 3rd 239, 219 Calf.

Rptr. 420, 707 P.2d 793 (1985)

393 U.S. 374, 21 L.Ed.2d 607,

69 S.Ct. S75 (1969)...........

286 N.W.2d 702 (Minn, 1979)...

530 So.2d 861 (Ala. Crim.

DEE e Sete eden eeeeccesuees

Stewart v, State

354 N.E.20d 749 (Ind. App,

SUE SRS OSES oeSessrereceseccccs

tates v. Cordova

537 F.2d 1073 (9th Cir, 1976)

United States v. G

onzalez

671 F.2d 441 (llth Cir, 1982)

TABLE OF CASES CONTINUED

PAGE(S)

United States v. Hay

527 F.2d 990 (10th Cir, 1975) 21,37,

tes v. Jones

524 F.2d 834 (D.C. App, 1975) 37

431 U.S. 783, 52 L.Ed.2d 752,

97 S.Ct. 2044 (1977)......... 20,30,

456 U.S. 1, 71 L.Ed.2d

696, 102 S.Ct. 1497 (19862)... 20,23,

25,30,

31,41

404 U.S. 307, 30 L.Ed.2d

468, 92 S.Ct. 455 (1971)....... 410,30,

543 F.2d 577 (6th Cir, 1976)... 36

United States v. Milhim

702 F.2d 522 (5th Cir, 1983)... 36

United States v. Watson

599 F.2d 1149 (2nd Cir, 1979).. 21,38

Yarbor v. State

546 P.2d 564 (Alaska, 1976).... 34

TABLE OF CONSTITUTIONAL PROVISIONS

PAGE(S)

Constitution of the United States,

Amendment Six.........eeeeeees 3,4,42

Amendment Fourteen............ 3,4-5

, TABLE OF STATUTES

Code of Alabama, 1975,

Title 13A, Section 13A=-6-66... 5,6,74,

76-77

Section 13A-6-67... 5,6,

74=75,77

Title 15, Section 15-3-1..... 78

Section 15=3-2..... 78

Section 15-3-5..... 78-79

Section 15-8-70.... 8,75

United States Code,

Title 28, Section 1257........ 3

TABLE OF OTHER AUTHORITY

American Jurisprudence, Second....... 79

vii

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

JCTOBER TERM, 1989

STATE OF ALABAMA,

PETITIONER,

JERRY RAY CARRELL,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

OPINIONS AND ORDERS BELOW

The order of the Court of

Criminal Appeals of Alabama, entered

June 30, 1989, affirming, without

opinion, Respondent Carrell's

conviction is reported as follows:

1 Div. 842, 550 So.2d 1086, (Ala.

Crim. App, 1989)

A copy of the report of such order is

submitted herewith in Appendix "A".

The order of the Court of

Criminal Appeals of Alabama, entered

August 25, 1989, denying without

opinion, Respondent Carrell's

application for rehearing and request

for the finding of facts is reported as

follows:

Carrell, Jerry Ray v. State,

Div. 842, 553 So.2d 136 (Ala.

Crim. App, 1989)

A copy of the report of such order is

submitted herewith in Appendix “A”.

The opinion and order of the

Supreme Court of Alabama, entered May

1l, 1990, reversing the judgment of the

Court of Criminal Appeals of Alabama

and rendering judgment in favor of

Respondent Carrell and the order of

June 15, 1990, denying the State's

application for rehearing, are not as

yet reported but will be reported as

follows:

Ex parte Jerry Ray Carrell

Re: Jerry Ray Carrell v.

State, . So.2d ____ (Ala, 1990)

Copies of the same are submitted

herewith as Appendix "B".

JURISDICTION

The opinion and order of the

Supreme Court of Alabama was issued on

May 11, 1990, rehearing was denied on

June 15, 1990, and this petition is

filed within ninety (90) days of said

date. This Honorable Court's Juris-

diction is invoked under 28 U.S.C.

§1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Supreme Court of Alabama

believed that its decision was mandated

by the Sixth Amendment and Section 1 of

the Fourteenth Amendment to the

Constitution of the United States.

Your Petitioner is making.a claim under

the same said provisions. Said

constitutional provisions read:

“[AMENDMENT VI]

"I 1] imina} : tior

the accused shall enjoy the right

to a speedy and public trial, by

an impartial jury of the state

and district wherein the crime

shall have been committed, which

district shall have been

previously ascertained by law,

and to be informed of the nature

and cause of the accusation; to

be confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor, and to have the

assistance of counsel for his

defense." (Emphasis supplied)

"AMENDMENT XIV

"Section l.

"All persons born or natural-

ized in the United States, and

subject to the jurisdictions

thereof, are citizens of the

United States and of the state

wherein they reside. No state

shall make or enforce any law

which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any state deprive any

person of life, liberty,

or property, without due process

of law; nor deny to any person

within its jurisdiction the equal

protection of the laws."

STATUTORY PROVISIONS INVOLVED

No statutory provisions are at

issue in this proceeding. Respondent

Carrell was convicted under Sections

13A-6-66 & 67, Code of Alabama, 1975,

which are set out in Appendix "C" to

this Petition.

STATEMENT OF THE CASE

On August 2, 1984, Respondent

Carrell was arrested on inferior court

warrants? charging him with sexual

abuse of three underage females contrary

to Sections 13A-6-66 & 67, Code of

Alabama, 1975; Appendix "C”". The

warrants were issued by the District

Court of Mobile County on the complaint

of a

1. The Alabama Supreme Court's opinion

refers to these charges as having been

brought by indictment. (Appendix “B",

pages 50, 54, 55, 60, 63 & 64) This is

inaccurate. The brief filed in

Respondent Carrell's behalf in the

Alabama Supreme Court accurately states:

"The Petitioner [Carrell] first

appeared in the District Court of

Mobile County on these charges in

September of 1984, following his

August, 1984, arrest.” (Brief in

Support of the Petition, page 4)

citizen’. When the Respondent

appeared for preliminary hearing, in

September, 1984, the charges were

dismissed by the prosecution. ° (R.pp.

4-5 and 97-98) It is undisputed that

from the dismissal of the District Court

warrants in September of 1984, until his

arrest on the indictments on August 6,

1987, the Respondent was not in custody,

under bond or in any way deprived of his

liberty, when the secret indictments were

2. Such complaints are commonly filed

by citizens without any police or

prosecutorial involvement. Such appears

to be the case here. The prosecutor's

statement of the facts, made without any

defense objection, at the time of the

guilty plea mentions citizens and the

Alabama Departments of Human Resources

and Mental Health, but does not refer to

any police or prosecutorial official or

agency. (R.pp. 63-66)

3. The record does not show why the

charges were dismissed, but such

dismissals of charges based on citizens'

complaints are not remarkable.

returned, he had no knowledge of them

until his arrest. (Tr.p. 5)

On November 18, 1985, the

Respondent was separately indicted for

two instances of sexual abuse in the

first degree and one instance of sexual

abuse in the second degree involving

three female children. (R.pp. 1-6)

Under Alabama law, indictments are

secret until the indictee is arrested.

Section 15-8-70, Code of Alabama, 1975,

Appendix "C". Capias warrants were

issued on the indictments. (R.pp. 6,

front and back)

On August 6, 1987, the Respondent

was arrested on the capias warrants.

(R.p. 6)

On August 17, 1987, the

Respondent waived arraignment and

pleaded not guilty. (R.pp. 10-12)

On September 16, 1987, the

Respondent moved to dismiss the

indictments, claiming that the delay

from the time of his original arrest

until the date of the motion had denied

him a speedy trial. (R.pp. 41-42)

On January 8, 1988, the motion to

dismiss was heard before Honorable

Michael Zoghby, a Circuit Judge; the

motion was denied on February 1l, 1988.

{(R.pp. 43-44)

On April 7, 1988, the Respondent

pleaded guilty to all three indict-

ments. His pleas were accepted and he

was found and adjudged guilty and

sentenced to ten (10) years imprisonment

for each conviction for sexual abuse in

the first degree and one (1) year for

the conviction of sexual abuse in the

second degree. All sentences were

suspended and the Respondent was placed

on probation for five (5) years. (R.pp.

47-49 and Tr.pp. 49-72)

Subsequently, pursuant to a

motion for a new trial, the above

proceedings were re-affirmed, but the

Respondent's right to appeal was

Clarified. (R.pp. 50-61 and 73££)

The Respondent appealed his

convictions, and on June 30, 1989, the

Court of Criminal Appeals Alabama

affirmed the Respondent's convictions

without opinion. Carrel] v. State, l

Div. 842, 550 So.2d 1086 (Ala. Crim.

App, 1989); Appendix "A". On August 25,

1989, the Respondent's application for

rehearing and request for the finding of

facts were denied. Carrel] v,. State, 1

Div. 842, 553 So.2d 136 (Ala. Crim. App,

1987); Appendix "A".

On certiorari, the Alabama

Supreme Court reversed and rendered

the Respondent's convictions on May 11,

1990, on finding that the Respondent had

been denied a speedy trial. In reaching

this conclusion, the Alabama Supreme

Court held that the Respondent's right

to a speedy trial attached at the time

of his November 18, 1985, indictment, so

that the twenty-one months during which

the Respondent could not be located,

during which the indictments were secret

and the Respondent was under no sort of

restraint, were added to eight months

between his arrest and guilty plea for

speedy trial purposes. Although the

Court rejected the Respondent's claim

that his speedy trial rights attached at

the time of his original arrest in 1984,

the Court referred with concern to that

arrest and the time between the

dismissal of those charges and the

indictment some seven times in its

opinion. The Alabama Supreme Court gave

little credit to the Respondent's claim

of actual prejudice based on his alleged

faded memory, but found prejudice on the

basis of the delay from the time of the

Gismissal of the original charges in

1984. The Court wrote:

"(4)

. The defendant con-

tends that he was prejudiced by

the delay because, he says, his

memory has faded. Although

ordinarily a mere assertion of a

loss of memory is not enough of

a showing of prejudice to sup-

port a finding that a defendant

has been denied due process,

where the delay is excessive and

is the result of unexcused in-

action by the State, the delay

is prima facie prejudicial.

Murray v, Wainwright, 450 F.2d

465 (5th Cir.1971); United

States ex rel, Solomon v.

Mancusi, 412 F.2d 68 (2d Cir.),

cert. denied, 396 U.S. 936

(1969). We find that the delay

in this case was of such length

that defendant's right to a

speedy trial has been violated.

eee

charged again, and unexcused

inaction in a case involving

alleged sexual misconduct in-

volving children could be

especially prejudicial to a

defendant, because the prose-

cution must depend on the

in many cases...." (Mns. op. p.

11; Appendix “B", pp. 67-68;

emphasis supplied. )

Justice Janie L. Shores dissented from

the Court's decision. (Ex parte

Carrell, —.. 80.2d _.__—- (Alla, May 11,

1990; Appendix "B")

On June 15, 1990, the Alabama

Supreme Court denied the State's

application for rehearing. (Ibid.)

STATEMENT OF THE FACTS

IN GENERAL

The Respondent was initially

arrested on August 2, 1984, but those

charges were dismissed about a month

later in September of 1984. From then

until his arrest on the indictments on

August 6, 1987, he remained at liberty

and under no restraint of any sort. The

Respondent was indicted on November 18,

1985, but he knew nothing of this

indictment until his arrest under it on

August 6, 1987. (Tr.p. 5)

The Respondent moved to dismiss

the indictments on speedy trial grounds

on September 16, 1987, about one month

after his arrest. The same was denied,

and the Respondent pleaded guilty on

April 17, 1988, slightly over eight

months after his arrest.

II.

EFFORTS TO LOCATE THE RESPONDENT

The Petitioner is, of course,

bound by the Alabama Supreme Court's

finding that the Sheriff's Office was

negligent in its efforts to locate the

Respondent (Mns. op. p. 10; Appendix

"B", pp. 65-66), but the Supreme Court

also expressly rejected any suggestion

"...that the State deliberately delayed

his [Respondent's] trial in order to

gain a prosecutorial advantage....”

(Mns. op. p. 9; Appendix "B", p. 63)

From the record it is clear that,

while the officers did not do every

thing possible to locate the Respondent,

they did actively seek him, processing

his capias according to the Department's

usual procedures, except for a special

task force on outstanding warrants in

late 1986. (Tr.pp. 29, and 11-42)

Il.

PREJUDICE TO THE RESPONDENT

The only claim of actual

prejudice made by the Respondent was his

alleged dimmed memory. He testified:

"...Q. [By Defense Counsel]

Now, Mr. Carrell, in the three

years that transpired between

your Original arrest in August

of ‘84 and your next arrest in

August of ‘87, you have kept up

with your cases?

"A. I haven't heard anything on

the cases at all.

"Q. Do you remember everything

that happened as far as the

cases, as far as the little

girls, as far as your

statements, if any, to the

officers, do you remember all of

that now?

"A. No sir.

"Q. Did you remember it back in

August of ‘87 when they came and

got you again? Did you remember

all about the case?

"A. No sir.

"Q. You remembered you had been

arrested --

"A. Yes --

"Q. But you didn't remember all

of it. Is that a fair a

statement?

"A. Yes sir...." (Tr.pp. 6-7)

On cross-examination, he testified:

"...Q. [By the Prosecutor] Do

you remember essentially what

you were confronted with and

accused with doing to these

young ladies?

"A. Yes sir.

"Q. Okay, and do you remember

also talking to Department of

Human Resources workers

regarding these cases after the

accusations were made and before

charges were brought?

“A. I talked to several people.

"A. Okay, and do you remember

talking with the Human Resource

Worker and the parents of the

children after the accusations

were made but before the charges

were brought?

"A. Not really.

"Q. And do you remember certain

statements you made to them

regarding this matter and your

position in it?

"A. No.

"Q. Oh, you are saying you have

forgotten all of this? Is that

what you're saying?

“A. - Gee seit.

"Q. Okay, so in essence what

you're telling the Court is that

you have just forgotten all

about the accusations made --

“THE WITNESS: No, I have not.

"MR. HAAS: [Defense Counsel]

Judge, he didn't say that.

“THE WITNESS: I did not say

that.

"Q. You remember very well what

your part in this was, don't

you? You remember very well,

don't you?

"A. Fee Sbkccca” ..kaecees 0280)

And, of course, the Respondent

ultimately pleaded guilty. 4 (R.pp.

47-49 and Tr.pp. 49-72)

..A guilty plea is an admission

of all the elements of the

offense charged.... [Citations

omitted]

"The United States Supreme

Court in Boykin v. Alabama, 395

U.S. 238, 242, 89 S.Ct. 1709,

1711, 23 L.Ed.2d 274 (1969), held

that a guilty plea ‘is more than

a confession which admits that

the accused did various acts; it

is itself a conviction; nothing

remains but to give judgment and

determine punishment.

(Russell v. State, 428 So.2d 131,

134 [Ala, 1982))

SUMMARY OF THE ARGUMENT

I. (A) In finding prejudice on

the basis of the time from the dismissal

of the original charges, the Alabama

Supreme Court ruled contrary to this

Honorable court's clear teaching in

United States v. McDonald (456 U.S. 1,

71 L.Ed.2d 696, 102 S.Ct. 1497 [1982]).

I. (B) In finding prejudice

solely on the basis of the delay of

trial and, in effect, holding that a

certain period of delay was per se

prejudicial, the Alabama Supreme Court

ruled contrary to this Honorable Court's

rulings in Barker v. Wingo (407 U.S.

514, 33 L.Ed.2d 101, 92 S.Ct. 2182

(1972]) and Moore v. Arizona (414 U.S.

25, 38 L.Ed.2d 183, 94 S.Ct. 188 [1973]).

II. (A) It is well recognized

that an arrest triggers the right to a

speedy trial. Dillingham v. United

States, 423 U.S. 64, 46 L.Ed.2d 205, 96

S.Ct. 303 (1975). This Honorable Court

has never addressed the question of

whether an unarrested indictee has any

speedy trial rights for the period prior

to his arrest on the indictment. United

States v. Marion (404 U.S. 307, 30

L.Ed.2d 468, 92 S.Ct. 455 [1971]),

United States v. Lovasco (431 U.S. 783,

52 L.Ed.2d 752, 97 S.Ct. 2044 [1977]),

and United States v. McDonald (456 U.S.

1, 71 L.Ed.2d 696, 102 S.Ct. 1497

[1982]), which are often cited for the

proposition that speedy trial rights

attach on indictment, without more, did

not in fact involve this issue.

However, the concerns of speedy trial as

identified in cases like those and

Barker v. Wingo (407 U.S. 514, 532, 33

L.Ed.2d 101, 118, 92 S.Ct. 2182 [1972])

have no application to unarrested

indictees.

II. (B) There is a sharp

conflict among the jurisdictions over

the speedy trial rights of unarrested

indictees. However, in the only cases

reflecting any sort of analysis, United

States v. Hay (527 F.2d 990, 994 [10th

Cir, 1975); cert den. 425 U.S. 935, 48

L.Ed.2d 176, 96 S.Ct. 1666) and United

States v. Watson (599 F.2d 1149, 1156,

fn, 5 [2nd Cir, 1979]),- the courts

declined to give speedy trial credit to

unarrested indictees.

II. (C) The unarrested indictee

is a common problem in every juris-

diction in this Country. The instant

case presents an excellent vehicle for

addressing the question of speedy trial

in the context of the unarrested

indictee, because, the speedy trial

issue is the only issue in this case,

the speedy trial issue rises and

falls on the starting point of the

speedy trial clock, and this case

presents no unusual incidences.

ARGUMENT

The decision of the Alabama

Supreme Court is in clear constitutional

error on two points, in that it con-

flicts with the controlling decisions of

this Honorable Court. In addition, the

Court decided an important issue on

which this Honorable Court has never

passed. The purpose of this petition is

to draw this Honorable Court's attention

to this novel question, but we would be

remiss if we did not at least mention

the two other points. Therefore, we

briefly address these matters

immediately below.

REASONS FOR GRANTING THE WRIT:

CONFLICTS WITH THE DECISIONS

AND OPINIONS OF THE SUPREME

COURT OF THE UNITED STATES.

CONFLICT WITH UNITED STATES V.

MCDONALD (456 U.S. 1 [1982])

It cannot be disputed that the

Alabama Supreme Court expressly stated

the principle that the Respondent's

right to a speedy trial attached at the

time of his November 18, 1985,

indictment and formally counted the

length of the delay” as being the

twenty-nine months from that date until

his guilty plea on April 7, 1988.

However, it also cannot be ignored

5 "...{Wle identify four such factors

[as measuring a possible denial of

speedy trial]: Length of delay, the

reason for the delay, the defendant's

assertion of his right, and prejudice to

the defendant...." (Barker v. Wingo,

407 U.S. 514, 530, 33 L.Ed.2d 101, 117,

92 S.Ct. 2182 [1972]; emphasis supplied)

that the Alabama Supreme Court expressed

concern, relative to the speedy trial

issue, for the period preceding the

indictment. © Most importantly, in

addressing the issue of prejudice, the

Alabama Supreme Court gave little credit

to the Respondent's only claim of actual

prejudice and found prejudice solely on

the basis of the length of the delay,

from the time of the dismissal of the:

original charges’, a period of some

forty-three months.

The Alabama Supreme Court's

action on this point cannot be

6For example: “...It is apparent that

defendant's conviction occurred more

than four years after he was initially

indicted on the charges...." (Mns. Op.

p. 5; Appendix "B", p. 55; emphasis

supplied. )

7See the language quoted from the

opinion in our Statement of the Case,

pp. 12-13, above.

reconciled with this Honorable Court's

opinion in United States v. McDonald

(456 U.S. 1, 71 L.Ed.2d 696, 102 S.Ct.

1497 [1982]), wherein this Honorable

Court expressly held that where charges

against a person are dropped and the

person is subsequently indicted on the

original charges, the time prior to the

indictment is not cognizable for speedy

trial purposes. For this reason, the

writ should issue.

CONFLICT WITH

(407 U.S. 514 [1972])

In Barker v. Wingo (407 U.S. 514,

33 L.Ed.2d 101, 92 S.Ct. 2182 [1972])),

this Honorable Court ruled that claims

of denials of speedy trial were to be

measured against four basic factors:

The “...length of delay, the reason for

the delay, the defendant's assertion of

his right and prejudice to the

defendant. (407 U.S. 514, 530, 33

L.Ed.2d 101, 117). In Moore v. Arizona

(414 U.S. 25, 38 L.Ed.2d 183, 94 S.Ct.

1866 [1973]) this Honorable Court

reaffirmed the four factors and rejected

the notion that one is of controlling

Significance. In the instant case, the

Alabama Supreme Court found prejudice

solely, as a practical matter, on the

basis of the length of the delay.

This Honorable Court has

identified the prejudice against which

the right to a speedy trial is directed

as follows:

",..(i) to prevent oppressive

pre-trial incarceration; (ii)

to minimize enxiety and con-

cern of the accused; and

(iii) to limit the possi-

bility that the defense will

be impaired....” (Barker,

above, 407 U.&S. 514, 532, 33

L.Ed.2d 101, 1186)

To these must be added:

"..,.The pendency of the

indictment may subject him to

public scorn and deprive him

of employment, and almost

eb eee will force curtail-

ment of 8 Speech, associ-

ations and participation in

unpopular causes....”

(Klo

seeU-8, aid, fa2) 16 1 Ba 2a

1, 7, 87 8.Ct. 968 [1967])

In the instant case, the Respondent

Claimed no trial prejudice, except with

regard to an alleged impairment of his

defense by his alleged dimmed memory.

But, he contradicted himself on this

point on cross-examination and by his

guilty plea and his claim on this point

was rejected by the Trial Court and the

Court of Appeals and given little, if

any, weight by the Aiabama Supreme

Court. As to the other factors, they

Bit is most difficult to imagine a

person's being interviewed by a state

welfare agency concerning his allegedly

molesting three little girls and being

arrested for such acts and then forget-

ting everything about the incident in a

lifetime, let alone four years.

have no possible application except to a

period of about nine months at most,

about a month from the Respondent's

Original arrest until the charges were

dismissed and eight months from his

arrest under the indictment until his

guilty plea disposed of the charges.

For the remaining period, no matter how

it is calculated, the Respondent was not

in any way restrained, he could not have

been anxious or concerned about an

indictment of which he knew nothing, and

he could not be subjected to public

scorn, because the indictment was

withheld from the public.

The Alabama Supreme Court's

finding of prejudice was based almost

entirely, if not entirely, on the length

of delay, which it calculated from the

date of the dismissal of the original

charges. The Court's decision is in

effect a holding that a forty-four month

delay is per se so prejudicial as to

outweigh all other considerations. This

flies directly in the face of what this

Honorable Court wrote in Barker, above,

and Moore, above. The Alabama Supreme

Court's ruling on this point is in

particular conflict with Barker, wherein

this Honorable Court found "...that

prejudice was minimal....” (407 U.S.

514, 534, 33 L.Ed.2d 101, 119), even

though the delay of trial was "...well

over five years....” (Ibid.)

Due to this manifest conflict

with this Honorable Court's teachings,

the writ should issue in this case.

Il.

A NOVEL QUESTION

It is, of course, well

established that an arrest initiates a

prosecution and triggers the arrestee's

iia aaa ia

right to a speedy trial.” Dillingham

v. United States, 423 U.S. 64, 46

L.Ed.2d 205, 96 S.Ct. 303 (1975). In

United States v. Marion (404 U.S. 307,

30 L.Ed.2d 468, 92 S.Ct. 455 [1971]) and

United States v. Lovasco (431 U.S. 783,

52 L.Ed.2d 752, 97 S.Ct. 2044 [1977]),

this Honorable Court held that pre-

indictment delay did not come under

speedy trial. In United States v.

MacDonald (456 U.S. 1, 71 L.Ed.2d 696,

102 S.Ct. 1497 [1982]), this Honorable

Court reached the same conclusion with

regard to an indictee who had been

arrested prior to indictment but had

been released when the charges were

9"Arrest", of course, includes

detainers lodged against persons already

imprisoned on other charges. S§mith v.

Hooey, 393 U.S. 374, 21 L.Ed.2d 607, 89

S.Ct. 575 (1969). See Estrada v. State,

611 P.2d 850, 852-853 (Wyo, 1980) and

Bauhaus v. State, 532 P.2d 434, 439

(Gane GCE, Ble) -

dismissed. These cases, Dillingham,

Marion, Lavasco and McDonald, are

commonly cited for the proposition that

the right to a speedy trial is triggered

by an arrest or an indictment, whichever

comes first. This was the principle

applied by the Alabama Supreme Court in

this case, in applying speedy trial

principles to the twenty-one month

period when the Respondent was under

secret indictment but could not be

located or arrested.

However, Marion, Lavasco and

McDonald did not address the question of

post-indictment, pre-arrest delay.

Those cases were concerned with pre-

indictment delay only, the time between

indictment and arrest being in each of

these cases negligible. Indeed, the

rationale of these cases was that,

except for possible trial prejudice,

which is a general due process concern,

a person who is not in custody, not

under bond and is not yet indicted,

suffers none of the burdens to which

speedy trial is addressed.

Due process is concerned with

actual prejudice to an accused in

presenting his defense, but speedy trial

goes beyond that consideration and

addresses also the adverse effects of

being accused, e.g. loss of liberty,

anxiety over being charged, and public

scorn. Barker v. Wingo, 407 U.S. 514,

532, 33 L.Ed.2d 101, 118, 92 S.Ct. 2182

(1972). Where a person is not in

custody or under bond and is at large,

as free as any citizen, should his

Situation be judged by standards

designed to protect arrested persons

from prolonged loss of liberty? How

could a person suffer anxiety over

a secret indictment, about which he

knows nothing? Where an indictment is

withheld from public knowledge, how

could it occasion public scorn?

We respectfully submit that,

although this Honorable Court has never

addressed the question of whether the

time during which an indictee cannot be

located or arrested is subject to a

speedy trial analysis, this Honorable

Court's opinions clearly demonstrate

that the answer should be in the

negative.

CONFLICTS AMONG THE JURISDICTIONS

It must be conceded at the outset

that apparently most of state courts

which have actually addressed this issue

have concluded, like the Alabama Supreme

Court, that indictment triggers speedy

trial rights, even if the indictment is

secret and the indictee is unaware of

the indictment and under no restraints.

People v. Valasques, 641 P.2d 943, 951

(Colo, 1982); Commonwealth v. Conant, 12

Mass. App. 287, 423 N.E.2d 1035, 1036

(1981); State v. Brovillette, 286 N.W.2d

702, 706 (Minn, 1979); People v.

Nichols, 60 Ill. App. 3rd 919, 18 Ill.

Dec. 330, 377 N.Ed.2d 815, 819 (1978),

cert. den; Yarbor v. State, 546 P.2d 564

(Alaska, 1970); Daniels v. State, 39 Md.

App. 432, 352 A.2d 859, 862 (1976);

cert. den. However, the courts

invariably cite the principle without

analysis and actually find denials of

speedy trial on the basis of such delay

only rarely. For example, among the

cases cited above, only in People v.

Nichols was a denial of speedy trial

actually found. These state courts

often evidence a certain reluctance to

apply the principle they espouse. There

is an apparent hesitancy to apply

principles designed to protect people

from prolonged unreasonable restraint,

anxiety and public scorn, to individuals

who suffered none of these evils. For

example, in Stewart v. State (354 N.E.2d

749, 752-753 [Ind. App, 1978]), the

Court refused to decide whether to treat

post-indictment, pre-arrest delay as

speedy trial time or not. But, see

Kristek v. State, 535 N.E.2d 144, 145 ff

(Ind. App, 1989). California, on the

other hand, starts the speedy trial

clock with the filing of the complaint

in misdemeanor cases. (Serna v.

Superior Court, 40 Cal. 3rd 239, 219

Calif. Rptr. 420, 707 P.2d 793 [1985]

cert. den. 475 U.S. 1096, 89 L.Ed.2d

894, 106 S.Ct. 1493) but not in felony

cases. People v. Hannon, 19 Cal. 3rd

588, 138 Calif. Rptr. 885, 564 P.2d

1203, 1213°€£. (43977);

Like their state counterparts,

most of the U.S. Courts of Appeal recite

the principle, "...{tJhe right to a

speedy trial is not triggered by the

date of the alleged crime but by the

= , indict

Milhim, 702 F.2d 522, 525 (5th Cir,

1983). See also United States v.

Martin, 543 F.2d 577, 579 (6th Cir,

1976); cert. den. 429 U.S. 1050, 50

L.Ed.2d 766, 97 S.Ct. 762; United States

v. Cordova, 537 F.2d 1073, 1076 (9th

Cir, 1976); cert. den. 429 U.S. 960, 50

L.Ed.2d 327, 97 S.Ct. 385; United States

v. Gonzalez, 671 F.2d 441, 444 (llth

Cir, 1982); cert. den. 456 U.S. 994, 73

L.Ed.2d 1291, 102 S.Ct. 2279; United

States v. Jones, 524 F.2d 834, fn. 7,

839 (D.C. App, 1975). However, as with

the state courts, findings of denial of

speedy trial on the basis of

post-indictment, pre-arrest delay are

rare, and none of the above cases

produced that result.

In only two cases, so far as the

undersigned can discover, has the

problem of the speedy trial effect we a

secret indictment, on which no arrest

has been made, been addressed at any

length. In both of those cases United

States Courts of Appeal ruled that the

right to a speedy trial did not commence

until the indictees were arrested. In

United States v. Hay (527 F.2d 990 [10th

Cir, 1975); cert. den. 425 U.S. 935, 48

L.Ed.2d 176, 96 S.Ct. 1666), the Court

wrote:

“,...We do not include the time

from appellant's indictment to

his arrest because appellant

was not available for prose-

cution and because none of the

interests protected by the

sixth amendment guarantee were .

endangered during this

time.*...

"4. In this case the

indictment was ordered

sealed. Appellant was

subject to neither restraints

on his liberty nor public

accusation before his arrest.

See United States v. Marion,

404 U.S. 307, 92 S.Ct. 445,

30 L.Ed.2d 468 (1971)...."

(527 F.2d 990, 994)

The same conclusion was reached on the

basis of a similar analysis in United

States v, Watson, (599 F.zd 1149, 1156,

fn. 5, (2nd Cir, 1979]). It should be

noted that while Hay and Watson are the

only courts to reach this conclusion,

which is, of course, the Petitioner's

position in this case, they are also the

only courts to give this issue any

analysis at all.

There is an obvious conflict

among the jurisdictions on this

fundamental issue of constitutional

law. It is a conflict where the

quantity of the authority appears to be

on one side and the quality on the

other. It is a conflict which this

Honorable Court ought to resolve.

Cc.

SPECIAL REASONS WHY THE WRIT

SHOULD ISSUE IN THIS CASE.

The problem of the unexecuted

criminal process is an old one in this

Country, due to our mobility and size.

In every jurisdiction in this Nation

there are numerous outstanding

warrants. In some cases, the subjects

of these warrants are fugitives actively

avoiding discovery and arrest; in others

the subjects simply cannot be located,

and in most of these cases it is

difficult to know into which category a

given subject falls. This case presents

the issue of whether these persons have

the right to a speedy trial as to the

delay occasioned by unsuccessful efforts

to locate them and arrest them. As we

have shown above, this Honorable Court

has never examined this issue and there

is conflict among the jurisdictions

which have. The instant case presents a

particularly useful vehicle for such an

examination by this Honorable court, for

several reasons.

First, the speedy trial issue is

the only issue in this case. While that

issue is well presented by the short

record in this case, there are no other

questions of fact or law to confuse the

speedy trial issue.

Second, the speedy trial issue in

this case rises or falls on the starting

point issue. Obviously, the pre-indict-

ment delay must be excluded. United

States v, McDonald, 456 U.S. 1, 71

L.Ed.20d 696, 102 S.Ct. 1497 (1982). IE

the Alabama Supreme Court's holding in

this case is correct, then the delay of

the Respondent's trial was twenty-nine

months. However, if the Respondent's

speedy trial rights did not attach until

his arrest on the indictment, then the

delay was eight months.

The Alabama Supreme Court found

that the officers in this case were

negligent in their efforts to locate the

Respondent. Such negligence would be a

fact in any such case. If officers fail

to locate an indictee, then obviously,

their efforts were not effective, and it

will always be possible to point to

other things they could have and should

have done. Thus, the sort of negligence

the deputies were guilty of in this case

will be present in any case involving a

fugitive or unlocatable indictee.

For these reasons, we

respectfully submit that this important

issue should be addressed in this case.

CONCLUSION

In conclusion your Petitioner,

the State of Alabama, respectfully

submits that in this case the Supreme

Court of Alabama, decided two questions

under the Sixth Amendment in a manner

which conflicts sharply with the

teachings of this Honorable Court and

erroneously decided an important novel

question.

Therefore, Your Petitioner prays

that this Honorable Court will issue the

writ of certiorari and will review the

matters complained of and reverse the

decision of the Supreme Court of Alabama.

Respectfully submitted,

DON SIEGELMAN

ATTORNEY GENERAL

YVONNE A. HENDERSON

ASSISTANT ATTORNEY GENERAL

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR THE PETITIONER

APPENDICES

APPENDIX A

ORDERS OF THE COURT OF CRIMINAL

APPEALS OF ALABAMA

1086 Ala. 550 SOUTHERN REPORTER, 2d

SERIES

DECISIONS OF THE ALABAMA COURT OF

CRIMINAL APPEALS WITHOUT OPINIONS -

Continued

Carrell, Jerry Ray v. State....

1 Div. 842 6/30/89 Affirmed

* « -

136 Ala. 553 SOUTHERN REPORTER, 2d SERIES

DECISIONS OF THE ALABAMA COURT OF

CRIMINAL APPEALS WITHOUT OPINIONS -

Continued

TITLE NUMBER DATE DISPOSITION

Carrell, Jerry Ray v. State....

1 Div. 842 8/25/89 Reh.den;Rule

39(k) mot.

den.

APPENDIX B

OPINION AND ORDERS OF THE —

SUPREME COURT OF ALABAMA

RELEASED

MAY 11, 1991

CLERK

SUPREME COURT OF ALABAMA

THE STATE OF ALABAMA--JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1989-90

Ex parte Jerry Ray Carrell

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS

(Re; Jerry Ray Carrell

88-1549 Vv.

State)

(Mobile Circuit Court, CC-87-2103 through

-2105)

MADDOX, JUSTICE.

The sole issue presented in this

case is whether the defendant's right to

a speedy trial was violated.

18-1549

This Court granted the

defendant's petition for a writ of

certiorari to the Court of Criminal

Appeals, which had affirmed the

defendant's convictions in the Mobile

County Circuit Court for two counts of

first degree sexual abuse and one count

of second degree sexual abuse. The

Court of Criminal Appeals did not issue

an opinion in the case, see [Ms. 1 Div.

842, June 30, 88-1549 1989] So.2d (Ala.

Cr. App. 1989); therefore, we are

unaware of the reasons why that Court

denied defendant any relief.

In regard to any claim by a

defendant that his constitutional right

to a speedy trial has been violated, a

court must look at the specific facts

and circumstances surrounding the

particular claim and apply the four-part

test set out in the landmark case of

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

Barker sets out these determinative

factors: (1) the length of the delay;

(2) the reason for the delay; (3) the

defendant's assertion of his right; and

(4) the prejudice to the defendant

resulting from the delay.

FACTS

The facts are as follows:

Defendant was initially arrested in

August 1984, based on an indictment

charging him with the same offenses that

form the basis for his convictions in

these cases. He appeared in court to

answer the charges in September 1984,

but at that time the charges were nol

prossed on motion of the State. After

those first charges were dismissed, the

following events transpired:

November 18, 1985 Defendant reindicted by

the November 1985

Grand Jury of Mobile

County for two (2)

counts of first degree

sexual abuse and one

(1) count of second

degree sexual abuse.

88-1549

November 19, 1985 Sheriff's Department's

first attempt to serve

the Defendant.

March 1987 Second attempt by

Sheriff's Department to

locate defendant.

August 6, 1987 Defendant arrested for

the charges in the

indictment at the place

where he had worked for

18 years, and where he

had been arrested on

the 1984 indictments

that were nol prossed.

August 17, 1987 Defendant entered a

written plea of not

guilty and waived

arraignment.

September 4, 1987 Defendant entered a

plea of not guilty by

reason of a mental

defect.

September 16, 1987 Defendant filed a

motion to dismiss and

demanded a speedy trial.

January 8, 1988 Hearing on motion to

dismiss held and motion

taken under submission.

February 11, 1988 Motion to dismiss

denied.

April 7, 1988 Defendant entered a

plea of guilty.2

May 18, 1988 Defendant filed motion

for a new trial in

which he alleged: “The

parties have agreed

that the Defendant may

l The plea of guilty was entered without

the defendant's waiving his right to

appeal in regard to his “speedy trial”

claim. The record shows the following:

"Friday, May 6th, 1988

“This day in open court came the

State of Alabama by its District Attorney

and thereupon in open court on this day;

It is ordered by the Court that the .Order

of April 7th, 1988, be and the same is

hereby amended EX [MERO MOTU], and by

agreement of parties, to include

defendant's reservation of his right to

appeal the Court’s ruling of February

llth, 1988, denying defendant's Motion to

Dismiss filed September 16th, [1987].*

July 1, 1988

September l,

1988

take an appeal of the

denial of the court of

the Defendant's Motion

to Dismiss, and the

record is unclear on

this matter."

Motion for new trial

granted.

Defendant entered

guilty plea to the

charges. Defendant was

convicted.

July 1 conviction set

aside, defendant

pleaded guilty and upon

conviction reserved

right to appeal denial

of motion to dismiss

and defendant gave oral

notice of appeal, as

follows: “And

thereupon in open court

at the time of

sentence, the defendant

gave oral notice of

appeal of the [cJourt's

previous ruling of

February llth, 1988,

denying defendant's

Motion to Dismiss

filed September 16th,

1987, and moved the

court to suspend the

execution of the

sentence pending

appeal, and to fix the

amount of an Appeal

Bond."

September 8, 1988 Defendant filed a

written notice of

appeal in all three

cases.

It iS apparent from the facts set

out above that defendant's convictions

of sexual abuse came almost three years

after the return of the second

indictment against him by the grand

jury, and more than four years after the

initial indictment had been returned and

the defendant had been arrested thereon.

It is apparent from the record in

this case that the defendant, shortly

after his arrest on the second

indictment, filed a motion to dismiss,

in which he included as a ground for

dismissal the allegation that his right

to a “speedy trial” had been denied.

The defendant asks this Court to review

only the trial court‘s denial of his

motion to dismiss the indictment on the

“speedy trial“ ground. While the

defendant's convictions were based upon

his entry of pleas of guilty to the

charges, the record clearly shows that

the trial judge, the district attorney,

and the defendant all understood that he

had the right to appeal the denial of

his “speedy trial” claim.

It is apparent that defendant's

conviction occurred more than four years

after he was initially indicted on the

charges.

He was arrested on the original

indictment shortly after its return, at

his place of employment in August 1984.

As the facts set out above show, those

charges were nol prossed on motion of

the State‘s attorney in September 1984,

and the defendant was not reindicted

until November 18, 1985, over one year

later.

The record shows that within a

week of the return of the second

indictment, the sheriff's department

first attempted to serve it upon the

defendant and to arrest him. According

to testimony of sheriff's deputies, the

sheriff returned the warrant because the

address of defendant on the arrest

warrant was inaccurate. 7 The record

also shows that the sheriff had a task

force that made an attempt to serve all

outstanding arrest warrants, including

the defendant's, during the latter part

2There is nothing in the record

to indicate that the petitioner was

living in a different house or had

attempted, in any manner, to avoid

service, and the petitioner testified

that he did not know that the

indictments had been returned until he

was arrested upon them in August 1987.

of 1986 and the early part of 1987.°

The sheriff's justification for not

finding the defendant was based on a

Claim that the address on the warrant

was for a house number on Dewitt Street

and that the numbering system on that

street had been changed, and, although

defendant had not moved, the house

3There is some evidence that

there may have been an attempt to serve

this indictment in March 1987. The

record is silent regarding the person or

persons responsible for getting an

address on the arrest warrant, or for

checking with complaining witnesses to

learn the whereabouts of the petitioner.

number may have changed. 4 There was no

evidence presented to indicate that the

defendant attempted to avoid service of

the warrant, and the State does not

attempt to justify the delay on this

ground.

On August 7, 1987, the defendant

was arrested at his place of

employment. This was the same place of

4The appellant had moved at one

point from his mother's house to the

house next door, but neither address was

the one shown on the warrant, and there

is nothing in the record to indicate why

the officers of the State responsible

for getting the correct address of

persons charged in outstanding

indictments were unaware of governmental

action that may have changed the

numbering scheme on Dewitt Street or

that defendant was arrested on the first

indictment at his place of employment.

employment at which he had been arrested

by the sheriff in 1984.>

THE RIGHT TO A SPEEDY TRIAL

The State and the defendant agree

on one point of law: The right to a

speedy trial is triggered when a

Criminal prosecution has begun. Hayes

v. State, 487 So.2d 987 (Ala.Cr.App.

1986). citing United States v. Marion,

404 U.S. 307 (1971), in which the United

States Supreme Court stated, inter alia:

"({I})t is readily understandable

that it is either a formal

indictment or information or

else the actual restraints

imposed by arrest and holding to

answer a criminal charge that

engage the particular

protections of the speedy trial

provision of the Sixth

Amendment."

°The record does not show why

the sheriff had not attempted earlier to

serve the second indictment on the

defendant at the same place where the

sheriff had served him with the first

indictment.

United States v. Marion. 404 U.S. 307 at

320 (1971). We agree with the State

that the defendant's right to a speedy

trial was not triggered by the return of

the 1984 indictment, because those

charges were nol prossed by the State,

but we are not persuaded that the

dismissal of those charges, and the

delay of over a year before the new

indictment was returned, should be

completely ignored. °

6The record in this case does

not show why that first indictment was

nol prossed, but if it was nol prossed

in order to give the State a

prosecutorial advantage, then it would

not be completely clear that the delay

should not be counted in the total.

Petitioner contends that this period of

delay should be counted, but cites no

authority and presented no evidence

other than the fact that the original

charges were nol prossed.

In order to decide the precise

issue presented by this petition, we

accept November 18, 1985, as the date

when the defendant's constitutional

right to a speedy trial began; that was

the date when the second indictment was

returned. Although defendant was never

tried, because he entered a plea of

guilty, with leave to appeal his “speedy

trial” claim, we consider that he was

"tried" as of the date when he was

convicted and sentenced on his plea of

guilty on September 1, 1988.

The State and the defendant are

in agreement that whether he was denied

his right to a speedy trial must be

determined in accordance with the four

factors set forth in Barker v. Wingo,

407 U.S. 514 (1972), that is, (1) the

length of the delay, (2) the reasons for

the delay, (3) defendant's assertion of

his right, and (4) prejudice to the

defendant resulting from the delay.

Applying these factors to the

present facts, we find that the

defendant was denied the right to a

speedy trial.

(1) Length of delay. Whether the

length of delay violates the right eee

speedy trial is “necessarily dependent

upon the peculiar circumstances of the

case.” Barker v. Wingo, 407 U.S. at 530,

531. Although the Barker Court

recognized that the complexity of the

charge would have a bearing on whether

the length of delay was reasonable, we

find that the offenses charged here are

not unusually complex, and should not

have required any extra preparation time

beyond the time normally éllotted to the

State to prepare a case. Consequently,

we find that under the facts of this

case, the delay in this case was

presumptively prejudicial.

(2) Reasons for the delay. It is

clear from the facts presented here that

the defendant has not shown that the

State deliberately delayed his trial in

order to gain a prosecutorial

advantage.” The State argues that the

delay was justified because the address

on the arrest warrant was incorrect.

Defendant argues that the evidence

clearly shows that he lived at the same

7Defendant does argue that the

length of delay from the time of the

return of the first indictment should be

counted, but defendant has not shown the

reasons why the State nol prossed the

first indictment. We cannot assume that

the indictment was nol prossed to give

the State a prosecutorial advantage, but

we cannot assume otherwise, either. The

record just does not show why the

indictment was dismissed on motion of

the State and why the State decided to

seek indictment again approximately one

year later.

place where he lived when the first

indictment was returned, and that he

worked at the same place where he was

arrested on the first indictment, and

that the record is devoid of any

evidence that he deliberately attempted

to avoid service of the warrant. We

interpret the evidence the same way.

The delay, of course, was caused by the

failure of the State to serve the arrest

warrant on the defendant. The State

argues that the delay was justified in

this case because the sheriff's

department diligently tried to serve the

warrant on the defendant. We cannot

excuse so easily the failure of the

State to serve the warrant. The facts

show that the defendant was finally

arrested by the sheriff's department at

his place of employment. He had been

employed there for 18 years and had been

arrested there by someone in the

sheriff's department three years before

on the same charges. Also, although it

is not clear how the improper address

was placed on the warrant, it is clear

that this was not the fault of the

defendant. The failure of the sheriff

to serve the warrant was caused by the

State's failure to ascertain the

whereabouts of the defendant, who

admittedly was not trying to evade

service of process. The evidence shows

that officers of the State responsible

for discovering the place where

defendant could be found did not attempt

to find the defendant's former or

present address or to make any attempt

to locate him at his place of employment

where he had been located before. We

think this constitutes negligence by the

State, and although negligence is not

weighed as heavily against the State as

deliberate delay, it nevertheless must

be weighed against the State. Taylor yv.

State, 429 S0o.2d 1172 (Ala.Crim.App.

1983). cert. denied, 464 U.S. 950

(1983); consequently, we find that the

State's neglect to arrest the defendant

in this case in a timely manner is

weighty enough to raise a presumption of

prejudice to the defendant in this case.

(3) The defendant's assertion of

his right. The defendant timely

asserted his rights in this case by

filing his motion to dismiss demanding a

speedy trial approximately five weeks

after his arrest. He testified that,

prior to his arrest, he did not know

that the charges were outstanding, and

there is absolutely no evidence that he

knew that he had been reindicted on the

same charges that had been previously

dismissed.

(4) Prejudice to the defendant.

The defendant contends that he was

prejudiced by the delay because, he

says, his memory has faded. Although

ordinarily a mere assertion of a loss of

memory is not enough of a showing of

prejudice to su, port 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. Murray v. Wainwright, 450

F.2d 465 (5th Cir. 1971); United States

ex rel, Solomon v. Mancusi, 412 F.2d 88

(2d Cir.). cert. denied, 396 U.S. 936

(1969). We find that the delay in this

case was of such length that defendant'‘s

right to a speedy trial has been

violated. While the record does not

show why the initial charges were

dismissed, it would appear that

defendant, at the time of the dismissal,

had a right to assume that he would not

be charged again, and unexcused inaction

in a case involving alleged sexual

misconduct involving children could be

especially prejudicial to a defendant,

because the prosecution must depend on

the testimony of the alleged victims in

many cases. Defendant entered a plea of

guilty with @ reservation of his right

to insist on his “speedy trial” claim;

the validity of that claim does not

depend upon whether he is guilty or not

guilty of the charges levied against

him. The right to a speedy trial is a

right guaranteed to every citizen by the

state ana federal constitutions and it

acts as a limitation on State or

Government action without regard to the

ee SE

guilt or innocence of the defendant, and

in that regard is not unlike the right

of a defendant to have illegal drugs

excluded from evidence because they were

obtained unconstitutionally by State or

Government action.

Based upon the above, we find,

under all the facts and circumstances of

this case, that the defendant was denied

his right to a speedy trial. In making

this determination, of course, we do not

decide whether the defendant is guilty

of the charges levied against him. The

judgments are, therefore, reversed and

rendered.

REVERSED AND RENDERED.

Hornsby, C.J., and Jones, Adams,

Houston, and Kennedy, JJ., concur.

Shores, J., dissents.

THE STATE OF ALABAMA- JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

June 15, 1990

88-1549

Ex parte Jerry Ray Carrell

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS

(Re: Jerry Ray Carrell v. State)

(CRC 1/842 (Mobile CC-87-2103;

87-2104; 87-2105))

ORDER

IT IS ORDERED that the

application for rehearing filed in the

above cause on May 25, 1990, be, and the

same is hereby, overruled. NO OPINION.

MADDOX, J.- Hornsby, CJ., Jones, Adams,

Houston and Kennedy, JJ.,

concur;

Shores, J., dissents.

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama, do hereby

certify that the foregoing is a full,

true and correct copy of the

instrument(s) herewith set out as same

appear(s) of record in said Court.

Witness my hand this 5th day of Sept.

1990

/s/ Robert G. Esdale

Clerk, of the Supreme Court of

Alabama

THE STATE OF ALABAMA- JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

August 13, 1990

86-1549

Ex parte Jerry Ray Carrell

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS

(Re: Jerry Ray Carrell v. State)

(CCA 1/842 (Mobile CC-87-2103;

87-2104; 87-2105))

The respondent having filed a

motion to recall and stay certificate of

judgment in this cause pending review by

the U.S. Supreme Court, and said motion

having been duly considered by the Court,

IT IS ORDERED AND ADJUDGED that

said motion to regall and stay

certificate of judgment in this cause

be, and the same is hereby, denied.

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama, do hereby

certify that the foregoing is a frll,

true and correct copy of the

instrument(s) herewith set out as same

appear(s) of record in said Court.

Witness my hand this 13th day of Aug.

1990

/s/ Robert G. Esdale

Clerk, of the Supreme Court of

Alabama

APPENDIX C

RELEVANT ALABAMA STATUTES

CODE OF ALABAMA, 1975

TITLE 13A

§13A-6-66. SEXUAL ABUSE IN THE FIRST

DEGREE .

(a) A person commits the crime of sexual

abuse in the first degree if:

(1) He subjects another person to

sexual contact by forcible

compulsion; or

(2) He subjects another person to

sexual contact who is incapable of

consent by reason of being

physically helpless or mentally

incapacitated; or

(3) He, being 16 years old or older,

subjects another person to sexual

contact who is less than 12 years

old.

(b) Sexual abuse in the first degree is

a Class C felony.

§13A-6-67. SEXUAL ABUSE IN THE SECOND

DEGREE .

(a) A person commits the crime of sexual

abuse in the second degree if:

(1) He subjects another person to

sexual contact who is incapable of

consent by reason of some factor ,

other than being less than 16 years

Old; or

(2) He, being 19 years old or older,

subjects another person to sexual

contact who is less than 16 years

old, but more than 12 years old.

(b) Sexual abuse in second degree is a

Class A misdemeanor.

TITLE 15

§15-8-70. PRESENTATION TO COURT AND

ENDORSEMENT; LIMITATIONS ON

ENTRY IN MINUTES AND

INSPECTION.

All indictments must be presented to

the court by the foreman of the grand

jury in the presence of at least 1l

other jurors, must be endorsed “filed”

and must have the endorsement dated and

signed by the clerk; but no entry of an

indictment found must be made on the

minutes, nor must any indictment be

inspected by any other person than the

district attorney, the presiding judge

and the clerk of the court until the

defendant has been arrested or has given

bail for his appearance.

APPENDIX D

IN_RE: THE STATUTE OF LIMITATIONS

No issue was raised below

relative to the statute of limitations,

but the statute is reJevant under some

theories relating to the post-indict-

ment, pre-arrest speedy trial issue.

Therefore, we present here a brief

analysis of the statute of limitations

relative to the Respondent's crimes.

The Respondent committed sexual

abuse in the first degree on two little

girls on March 2, 1984. Sexual abuse in

the first degree, as is relevant to this

case, is defined as follows:

“§13A-6-66. SEXUAL ABUSE IN

THE FIRST DEGREE.

"(a) A person commits the

Crime of sexual abuse in the

first degree if:...

“(3) He, being 16 years old

or older, subjects another

person to sexual contact who

is less than 12 years old.

"(b) Sexual abuse in the

first degree is a Class C

felony.” (Code of Alabama,

1975)

On the same date, he committed sexual

abuse

child.

abuse

in the second degree on a third

This crime is defined as follows:

“§13A-6-67. SEXUAL ABUSE IN

THE SECOND DEGREE.

“(a) A person commits the

crime of sexual abuse in the

second degree 2 § ee

"(2) He, being 19 years old

or older, subjects another

person to sexual contact who

is less than 16 years old,

but more than 12 years old.

"(b) Sexual abuse in the

second degree is a Class A

misdemeanor.” (bid)

On the date of the crimes, sexual

in the first and second degree had

statutes of limitations of three years

and one year respectively. The relevant

statutes read:

“§15-3-1. FELONIES GENERALLY

“The prosecution of all

felonies, except those .

specified in sections 15-3-3

and 15-3-5, must be commenced

within three years after the

commission of the offense.”

(Ibid. )

And:

“§15-3-2. MISDEMEANORS.

“Unless otherwise

provided, the prosecution of

all misdemeanors before a

circuit or district court

must be commenced within 12

months after the commission

of the offense.“ (Ibid.)

These statutes had not run on January 7,

1985, when the Alabama legislature

amended Section 15-3-5 of the Code to

read, in pertinent part, as follows:

“§15-3-5. OFFENSES HAVING NO

LIMITATION.

“(a) There is no limitation

of time within which a

prosecution must be commenced

fee

"(4) Any sex offense

involving a victim under 16

years of age, regardless of

As is

whether it involves force or

serious physical injury or

death;...

"(b) The amendments made by

this act shall apply:...

"“(2) To all crimes committed

before January 7, 1985, for

which no statute of limita-

tions provided under pre-

existing law has run as of

January 7, 1985...."% (1bid.)

well recognized:

“Where a statute extends the

period of limitation, the

extension applies to offenses

not barred at the time of the

passage of the act, so that a

prosecution may be commenced

at any time within the newly

established period... Such a

statute, however, cannot

operate to revive offenses

that were barred at the time

of its enactment, since that

would make the statute ex

post facto...."% (21 Am.

Jur.2d, Criminal Law, Section

224) .

Therefore, the Respondent's

crimes have no statute of limitations.

See State v. Whitley, 530 So.2d 861, 864

(Ala.

Crim. App, 1987); reversed on

other grounds, sub nom Ex parte Whirley,

530 So.2d 865 (Ala, 1988).

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, ITI,

Assistant Attorney General of Alabama, a

member of the Bar of the Supreme Court

of the United States and one of the

Attorneys for the State of Alabama,

Petitioner, hereby certify that on

this day of September, 1990, I did

serve the requisite number of copies of

the forgoing on the Attorneys for Jerry

Ray Carrell, Respondent, by mailing the

same to said Attorneys, first class

postage prepaid and addressed as follows:

Honorable Thomas M. Haas &

Honorable N. Ruth Haas

Attorneys at Law

255 St. Francis Street

Mobile, Alabama 36602

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OF ALABAMA

| ADDRESS OF COUNSEL:

) Office of the Attorney General

Alabama State Howse

11 South Union Street

| Montgomery, Alabama 36130

(205) 242=7300

2309P

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