REL: 06/26/2009
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2008-2009
_________________________
CR-08-0006
_________________________
State of Alabama
v.
Darrius Mack
Appeal from Montgomery Circuit Court
(CC-08-848 and CC-08-1175)
WISE, Presiding Judge.
The State appeals from the trial court's order granting
a motion to dismiss the indictments against the appellee,
Darrius Mack.
CR-08-0006
The State argues that the trial court erroneously granted
Mack's motion to dismiss indictments against him on speedy
trial grounds.
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), the United States Supreme Court
set forth the following factors that must be weighed when
reviewing a speedy trial claim:
(1) the length of the delay;
(2) the reason for the delay; (3) the accused's assertion of
his right to a speedy trial; and (4) the degree of prejudice
the accused suffered due to the delay.
In Ex parte Walker,
928 So. 2d 259 (Ala. 2005), the Alabama Supreme Court provided
guidance as to the proper application of those factors.
The pertinent dates and events in this case were as
follows:
May 29, 2003
Mack was arrested for firstdegree rape, first-degree
sodomy,
and
first-degree
burglary for offenses that
occurred on April 22, 2003.
June 11, 2003
Mack was arrested for firstdegree rape for an offense
that occurred on April 8,
2003.
August 15, 2003
The
offenses that were
committed on April 22, 2003,
were waived to the grand
jury.
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CR-08-0006
June 11, 2004
Mack
was indicted for
attempted first-degree rape,
first-degree burglary, and
first-degree robbery in case
number CC-08-0848.
August 5, 2004
There is a certification on
the writ of arrest on the
indictment in case number
CC-08-0848
that
it
was
served on Mack on August 5,
2004.
August 9, 2004
Mack filed a "Motion for a
Speedy Disposition" of the
detainer against him.
March 28, 2005
Mack filed a "Motion for a
Preliminary Hearing."
August 17, 2005
Mack filed a "Motion for a
Speedy Trial and/or Final
Disposition" regarding the
charges in case number CC08-0848.
March 10, 2006
Mack was indicted for firstdegree rape, first-degree
sodomy,
and
first-degree
burglary in case number CC08-1175.
March 21, 2006
Mack filed a "Motion for
Speedy
Trial
or
Dismiss
Pending
Case,"
in
case
number CC-08-0848.
December 19, 2006
Mack filed a "Motion of
Final
Disposition
of
an
Untried Indictment or for a
Fast and Speedy Trial of the
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CR-08-0006
Same," in case number CC-08-0848.
May 29, 2007
Mack filed a "Motion for a
Speedy Trial and/or Final
Disposition" in both cases.
February 11, 2008
It appears that a court
employee
e-mailed
a
DOC
employee
as
follows:
"Please check on Darrius
Mack...
He says he's been
served with GJ 04-0600335
and he's complaining because
we have not set a court date
for him .... But we have not
gotten the served warrant
back. Can you please check
on this for me." (C.R. 70.)
April 22, 2008
Mack filed a "Motion to
Dismiss
for
Defect
in
Commencement."
July 1, 2008
The executed writ of arrest
on the indictment in case
number CC-08-0848 was filed
with the circuit clerk.
July 2, 2008
The
indictment in case
number CC-08-0848 was filed
with the circuit clerk.
August 14, 2008
The trial court appointed
Richard White to represent
Mack in case number CC-080848.
September 10, 2008
Mack was served with the
indictment in case number
CC-08-1175.
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CR-08-0006
September 11, 2008
The executed writ of arrest
on the indictment in case
number CC-08-1175 was filed
with the circuit clerk, and
the case was assigned to the
trial court.
September 18, 2008
The trial court conducted a
hearing on Mack's motions to
dismiss and dismissed the
indictments against him. It
also
appointed
White
to
represent
Mack
in
case
number CC-08-1175 during the
hearing.
During the hearing on the motions to dismiss, defense
counsel indicated that Mack had just been served with the
indictment in case number CC-08-0848 the week before; that the
prosecutor had given him discovery, but he had not read the
discovery for both cases; and that he assumed the court would
appoint him to represent Mack in that case.
Defense counsel
then waived reading of the indictment and entered a plea of
not guilty in case number CC-08-0848.
Afterward, Ronald McCoy testified that he is employed as
an identification officer and custodian of records with the
Montgomery County Sheriff's Department.
With regard to case
number CC-08-0848, he testified that his office received the
indictment on June 16, 2004; that his department learned that
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CR-08-0006
Mack
was
already
in
the
custody
of
the
Department
of
Corrections ("DOC"); that the indictment was mailed to DOC on
July 21, 2004; and that DOC placed a hold on Mack in reference
to that case on July 28, 2004.
McCoy explained that the fact
that DOC sent notice that a hold had been placed on Mack
indicated that the indictment had been served on Mack sometime
between July 21, 2004, and July 28, 2004.
He then stated that
his office normally did not take any additional action on a
case once a hold or detainer is placed with regard to that
case.
With regard to case number CC-08-1175, McCoy testified
that his office received the indictment on March 14, 2006;
that there was a notation in July 2006 that Mack was still in
Donaldson
Correctional
Facility;
that
Mack's
status
was
checked on October 17, 2006, and June 12, 2007; that there was
a notation on February 6, 2008, that indicated that a hold had
been placed on July 28, 2004, with regard to case number CC08-0848; that the indictment was sent to DOC to be served on
June 23, 2008; and that the indictment was served on Mack on
September 10, 2008.
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CR-08-0006
The State did not present any witnesses other than McCoy.
At the conclusion of McCoy's testimony, defense counsel argued
that the delay in the case had been too long.
After noting
that he had been incarcerated in DOC on another case, the
trial court inquired about why Mack had not been brought
before the court at an earlier date. The State indicated that
it did not know why; that Mack apparently "fell through the
cracks of the judicial system"; and that they had checked on
case number CC-08-1175, but Mack was not served until the
previous week.
Defense
(R. 16.)
counsel
then
started
addressing
the
Barker
factors, stating that it believed that the indictment in case
number CC-08-0848 was timely served on Mack, but that the
indictment in case number CC-08-1175 was not served until
shortly before the hearing date, even though the State knew he
was incarcerated in DOC.
Defense counsel argued that there
was not any evidence that the delay in bringing him before the
court was justified.
However, he conceded that the delay was
negligent rather than intentional.
Defense counsel also made
brief references to memory loss, the loss of exculpatory
evidence, and the age of one of the victims.
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CR-08-0006
After hearing defense counsel's argument, the trial court
stated:
"Well, that is their fault. They didn't bring him
back. I mean, [prosecutor], how are you guys going
to overcome that? I mean, that's a -- four years,
well, almost going on five actually."
(R. 22.)
The State conceded that the delay was lengthy.
The
trial court interrupted the response and stated that the delay
was "very lengthy" and that "these are really serious cases"
that need to be "done quickly while we've got good memories."
(R. 22.)
The State agreed that the cases were serious cases
and asserted that it had witnesses and evidence and was ready
to proceed to trial.
The trial court responded:
"But how
could the DA's office drop the ball on two very serious cases?
I mean, that's inexcusable."
(R. 23.)
Thereafter, the following occurred:
"THE COURT: But, I mean, the fact that they are
so serious just amplifies it for the DA's office;
why would we not be getting him here five years ago.
"I mean, I know you weren't there, [prosecutor].
But this is -- I mean, this is a major faux pas on
the part of the DA's office.
"[PROSECUTOR]: Judge, I would like to say that
although we are -- the State is at a bit of fault,
that it was the clerk's office that failed to docket
it on your trial docket.
Once they get a letter
back from the sheriff's office, it's a portion of
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CR-08-0006
their responsibility to make sure that it's
docketed.
And although the length of delay is
extremely long, there are three other prongs that we
haven't discussed --"
(R. 24.)
Defense counsel then argued that the length of the
delay was four years, that the reason for the delay was
negligence, and that Mack had been asserting his right to a
speedy trial since 2006. The State responded that it had only
one letter from Mack.
At that point, the trial court stated:
"Well, the problem is, [prosecutor], you know -and, Mr. Mack, these are serious cases. And, you
know, you stand there innocent. I don't know, you
know, if you're guilty or not.
That's not what
we're here about.
This is a motion for speedy
trial. But the Court has to follow the law, and I
think both of these cases are due to be dismissed.
I think [defense counsel] is due to have his motion
granted, and this is totally the ball dropped on the
part of the DA's office.
But the Court has to
follow the law."
(R. 25-26.)
The State then asked for and obtained permission to
continue to make its argument for the record, specifically
arguing that the defense had not made any showing of prejudice
to Mack.
With regard to case number CC-08-0848, the court
found that Mack showed prejudice from "the age of the victim,
the memory loss, that it's been four years."
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(R. 28.)
With
CR-08-0006
regard to case number CC-08-1175, defense counsel explained
that he was not as familiar with the facts because he had just
received the discovery that week and had just been appointed
to represent Mack on that case.
However, he argued that Mack
was prejudiced because memories fade over four years, and the
trial court appeared to agree with him.
Defense counsel then
called Mack to testify for purposes of the hearing.
Mack testified that he had been incarcerated in Donaldson
Correctional Facility for nearly six years; that he was served
with the indictment in case number CC-08-0848 in 2004; and
that he was served with the indictment in case number CC-081175 in 2008 while he was incarcerated at the county jail.
He
also stated that he had filed about eight motions for a speedy
trial, including a petition he filed in the Alabama Court of
Criminal
Appeals
and
a
civil
lawsuit
he
filed
against
Montgomery County based on the failure to take him to trial,
since he got notice of the charges in 2004.
Afterward, defense counsel argued that the State did not
do anything to bring Mack to trial even after he asked it to
and that the State had clearly violated Mack's right to a
speedy trial.
The trial court agreed, stating, "I mean, I
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CR-08-0006
think you're due to have it granted under the law.
going to grant it on both cases."
And I'm
(R. 32.)
The State then asked for and obtained permission to
respond to the defense's argument, even though the trial court
had already made its decision.
It agreed that the delay was
lengthy, but argued that there have been cases in which such
a delay has been found not to be too long.
Regarding the
reason for the delay, the prosecutor asserted, "I can't give
you anything beyond the clerk's office.
I agree the State
dropped the ball, but, again, it is a four-prong test."
33.)
(R.
The State also indicated that it had only one assertion
of the right to a speedy trial and that it was dated in 2007.
The prosecutor further argued that the defense had not made
any assertions of prejudice.
Finally, the trial court stated:
"Well, what we are going to do, like I said, I
think, legally, they are both due to be dismissed.
But, [prosecutor], ... let's see what the Courts
down the street say.
"And, you know, I'll be honest with you, Mr.
Mack, I hope they reverse me and bring them back,
you know, because they are serious cases, and, you
know, they need to be [disposed] of properly. But
I've got to follow the law, and I think [defense
counsel] is correct under the law. I think they're
11
CR-08-0006
due to be dismissed because they have violated your
right to a speedy trial."
(R. 35-36.)
Defense counsel then sought and obtained permission to
make further arguments about case number CC-08-1175 at a later
date because the indictment had just recently been served on
Mack and he had just obtained discovery and been appointed to
represent Mack on that case.
The trial court conducted an
additional hearing in this matter on October 18, 2008, to
allow
defense
counsel
to
establish
how
Mack
had
been
prejudiced by the delay in getting the cases before the court.
However, this court struck the record of those proceedings,
noting that the trial court did not have the authority to
conduct the proceedings because this court had jurisdiction
over the case at that time.
From the limited record before us, we cannot properly
review the propriety of the trial court's ruling on Mack's
motion to dismiss in light of Ex parte Walker, supra, and
Barker, supra.
The reasons for the delay are not all clear,
presumably because the prosecutor who represented the State
during the hearing had not been assigned to the cases from
their inception.
Also, the State had only one of the motions
12
CR-08-0006
seeking a speedy trial that Mack purportedly filed.
Further,
as he noted during the hearing, defense counsel did not have
an
adequate
opportunity
to
present
any
evidence
about
prejudice to Mack because he had just been appointed to
represent Mack on case number CC-08-1175.
And, in fact, the
trial court conducted a hearing later for that very purpose.
Finally, the record does not affirmatively indicate that the
trial court weighed each of the factors as required by Barker
and Walker.
Rather, the trial court stated that it was going
to dismiss the case and, thereafter, it allowed the parties to
present any additional evidence and argument they wished to
present as to the various Barker factors.
Accordingly, we remand this case for the trial court to
make specific, written findings of fact as to each Barker
factor with reference to the principles set forth by the
Alabama
Supreme
Court
in
Ex
parte
Walker,
supra.
See
generally Coventry v. State, 903 So. 2d 169 (Ala. Crim. App.
2004); Parris v. State, 885 So. 2d 913 (Ala. Crim. App. 2001).
If it determines that it needs to conduct a hearing to take
additional evidence or hear additional arguments, the trial
court may do so.
On remand, the trial court shall take all
13
CR-08-0006
necessary action to see that the circuit clerk makes due
return to this court at the earliest possible time and within
28 days after the release of this opinion.
The return to
remand shall include the trial court's specific, written
findings of fact; a transcript of any additional hearing; and
copies of any additional documents or evidence that may be
submitted to the trial court.
REMANDED WITH INSTRUCTIONS.
Welch, Windom, Kellum, and Main, JJ., concur.
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