# Petition for Writ of Certiorari — Alabama v. Carrell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1040

## Text

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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

OF

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.

II

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

22

23

39

42

47

48

74

76
82

ii

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>
47
Carrel] _v. State
1 Div. 842, 553 So.2d
136 (Ala. Crim. App, 1989)..... 2,10,
47
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,

36

21,37

27

35

36

19,26,

29

iv

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)

34

18

35

30

34

79

35

36

36

TABLE OF CASES CONTINUED

PAGE(S)
United States v. Hay
527 F.2d 990 (10th Cir, 1975) 21,37,
38

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
Vv
404 U.S. 307, 30 L.Ed.2d
468, 92 S.Ct. 455 (1971)....... 410,30,
31
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

vi

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,
V.
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:

1

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

10

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

ll

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.

12

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
Ss
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
I,

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

13

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

14

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:

15

"...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:

16

"...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

17

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

19

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.

20

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

21

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.

22

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.
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)

23

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.

24

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

25

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:

26

"..,.The pendency of the

indictment may subject him to

public scorn and deprive him

of employment, and almost

eb eee will force curtail-
i

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.

27

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

28

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.
A NOVEL QUESTION
It is, of course, well
established that an arrest initiates a

prosecution and triggers the arrestee's
29

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) -

30

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,

31

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

32

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.

B.
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

33

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

34

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

35

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

36

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:

37

“,...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.

38

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

39

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

40

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

41

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

42

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

43

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.

47

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.

48

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

49

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

50

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.

51

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].*

52

July 1, 1988

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."

53

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

54

“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.

55

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.

57

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.

58

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.

60

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

61

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

62

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.

63

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

64

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

66

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

67

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

68

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.

69

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

70

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

71

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,

72

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

73

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 ,

74

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.

75

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:

Ҥ13A-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.

76

"(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:

Ҥ13A-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:

Ҥ15-3-1. 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:
Ҥ15-3-2. 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:

Ҥ15-3-5. 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

78

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

79

other grounds, sub nom Ex parte Whirley,
530 So.2d 865 (Ala, 1988).

80

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

81

| ADDRESS OF COUNSEL:

) Office of the Attorney General
Alabama State Howse

11 South Union Street

| Montgomery, Alabama 36130
(205) 242=7300

2309P

82

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2811%3A1. Public record. Not legal advice.