State of Alabama v. Gedarin Kenardo Robinson, alias
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REL: 02/25/2011
Notice: This opinion is subject to formal revision before publication in the advance
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2010-2011
_________________________
CR-09-1651
_________________________
State of Alabama
v.
Gedarin Kenardo Robinson
Appeal from Montgomery Circuit Court
(CC-10-653)
PER CURIAM.
The State appeals from the trial court's order dismissing
the indictment charging Gedarin Kenardo Robinson with seconddegree
forgery
for
allegedly
obtaining
identification card in his brother's name.
a
non-driver's
CR-09-1651
The State argues that the trial court erroneously granted
Robinson's motion to dismiss the indictment against him on
speedy-trial grounds. In Barker v. Wingo, 407 U.S. 514(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.
See also Ex parte Walker, 928 So. 2d 259
(Ala. 2005) (providing a lengthy analysis as to the proper
application of those factors in Alabama).
The following timeline is helpful for our examination of
the issue in this case:
January 15, 2004 -- Robinson allegedly obtained an
Alabama non-driver identification card in the name
of Eric Delano Robinson by forging the name "Eric
Robinson" on documents required to obtain the
identification card.
April 18, 2008 -- An arrest warrant was issued in
Montgomery County seeking Robinson's arrest for the
January 14, 2004, offense.
June 5, 2008 -- Robinson filed an appearance bond in
Elmore Circuit Court regarding burglary charges in
Elmore County.
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CR-09-1651
August 21, 2008 -- Robinson was indicted in
Montgomery County for second-degree forgery for the
January 14, 2004, offense.
May 12, 2010 -- Robinson was arrested in Montgomery
County for the January 14, 2004, offense.
June 8, 2010 -- Robinson filed a "Motion to Dismiss
for Failure to Provide a Speedy Trial." A hearing
was set for June 29, 2010.
June 24, 2010 -- The State filed a motion to
continue the speedy-trial hearing scheduled for June
29, 2010, because its key witness would be out of
town until July 2, 2010.
The hearing was
rescheduled for July 7, 2010.
July 14, 2010 -- The trial court conducted a hearing
on Robinson's motion to dismiss.
July 21, 2010 -- The trial court dismissed the
indictment against Robinson.
During the hearing on the motion to dismiss, Diana Hough
testified that she is employed by the Montgomery County
Sheriff's Department as a fingerprint classifier and as the
assistant to the identification officer, Ron McCoy.
She
further testified that she had reviewed the records regarding
Robinson's forgery charge and that she was the custodian of
those records.
According to Hough, the original
arrest
warrant was issued April 18, 2008; that warrant was replaced
by a grand-jury indictment on August 21, 2008.
She stated
that the only address the department had for Robinson was a
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CR-09-1651
North Carolina address, so his information was entered into
The National Crime Information Center ("The NCIC") on December
17, 2008; Hough testified that the NCIC system periodically
required the department to confirm that the warrant was still
valid and that her records reflected that the department
verified the continued validity of the warrant on January 21,
2009, on April 16, 2009, and on March 25, 2010.
Hough
stated
that
in
preparation
for
the
present
proceedings, the sheriff's department ran a criminal history
to review Robinson's contact with law enforcement.
According
to
had
Hough,
that
history
revealed
that
Robinson
been
arrested in Elmore County on June 5, 2008; she stated that the
records indicated that Robinson was booked in Elmore County
under
the
name
Kenardo
Robinson,
and
that
records
Montgomery County listed him as Gedarin Robinson.
in
Hough
further indicated that the records indicated that Robinson was
arrested in North Carolina on April 4, 2010, and then by
Montgomery County authorities on May 11, 2010, for the forgery
charge.
On cross-examination, Hough indicated that she did not
have any knowledge of the procedures used in Elmore County,
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CR-09-1651
that she did not have an explanation for the variations of
Robinson's name between the entries in the Elmore County
records, and the Montgomery County records, and that she did
not know the disposition of the Elmore County charges or
whether Robinson came to Montgomery County before going to
Elmore County to face the Elmore County charges.
Robinson also testified at the hearing on his motion to
dismiss.
Defense counsel asked Robinson about the Elmore
County charges, and the following exchange occurred:
"[Robinson]: Well, initially, I was arrested in
North Carolina on a fugitive warrant. All they said
was Alabama wanted me. So I came -- I didn't know
what county wanted me. I came to Montgomery first
and then they told me Elmore County wanted me, so -"[Defense counsel]: Where did you go in Montgomery?
"[Robinson]: Here to the jail.
"[Defense counsel]: Came to the jail?
"[Robinson]: Yes, sir.
"[Defense counsel]: Did you identify yourself?
"[Robinson]: Yes.
"[Defense counsel]:
identify yourself?
All
right.
And
how
did
you
"[Robinson]: With my name, Gedarin Kenardo Robinson.
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CR-09-1651
"[Defense counsel]: All right. What is your full
name?
"[Robinson]: Gedarin Kenardo Robinson.
"[Defense counsel]: All right. So Kenardo is your
middle name?
"[Robinson]: Correct.
"[Defense counsel]: All right. And was there any
attempt to serve you with any papers or to arrest
you on a Montgomery warrant at that time?
"[Robinson]: No."
(R. 12-13.)
According to Robinson, he pleaded guilty in
Elmore County to misdemeanor possession of a forged instrument
to resolve those charges. Robinson indicated that he had been
unaware of the charge against him in Montgomery County and
that he was not aware of any attempts to serve him with any
papers or to arrest him on the Montgomery charge.
On cross-examination, the prosecutor questioned Robinson
as to why he came to Montgomery County to check on cases when
he claimed that he was unaware of any cases against him in
Montgomery.
Robinson responded:
"I was arrested in North Carolina on a fugitive
warrant out of the state of Alabama. I knew I lived
in Montgomery before. So they had a hold on me, and
-- but they gave me bail in North Carolina on the
condition that I came down here to straighten out
what was going on. So once I got out of North
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CR-09-1651
Carolina, I came here to Montgomery County jail to
turn myself in, but they told me the warrants were
Elmore County. So once I went to Elmore County, I
turned myself in there, and then used a property
bond for property we have in here Montgomery to bail
me out in Elmore County."
(R. 14-15.)
Robinson further indicated that he came to
Montgomery County on the same day he was arrested in Elmore
County.
The trial court inquired of the prosecutor as to why
Robinson had not been indicted until approximately four years
after the commission of the offense, and the prosecutor
engaged in a dialogue with the trial court regarding the
continuing nature of the offense.
The trial court also asked
Robinson if he lived in North Carolina, to which Robinson
responded affirmatively.
The prosecutor noted that Robinson had not asserted his
right to a speedy trial until recently, and that he had not
shown any prejudice caused by the delay.
The trial court
asked defense counsel how Robinson had been prejudiced, to
which defense counsel stated that the allegation was that
Robinson had obtained the identification card in his brother's
name, and that the defense viewed the brother as a possible
witness but the brother was no longer subject to the subpoena
7
CR-09-1651
power of the court because he did not live in Alabama and,
according to defense counsel's understanding, was presently
non compos mentis.
The trial court took the matter under advisement, and the
hearing was concluded.
Later that same day, defense counsel
submitted to the trial court a copy of the United States
Supreme Court opinion in Doggett v. United States, 505 U.S.
647 (1992).1
The case-action summary contains the following
entry dated July 21, 2010: "Order Grant Mo To Dismiss."
3.)
(C.
The record also contains a copy of Robinson's motion to
dismiss for failure to provide a speedy trial, with what
appears to be a stamp indicating that the motion was granted
and bearing a line for the date and the trial judge's name;
the
corresponding
lines
in
the
stamped
area
contain
handwritten notations of "7-21-10," "case dismissed," and the
trial judge's signature.
(C. 30.)
The record does not affirmatively indicate that the trial
court weighed each of the factors as required by Barker,
1
The trial court had requested a copy of the opinion
during the hearing on Robinson's motion to dismiss the
indictment, and defense counsel indicated that he did not have
a copy in court but would submit a copy after the hearing.
8
CR-09-1651
supra. See also Ex parte Walker, supra. Therefore, 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 Parris v. State, 885 So.
2d 813 (Ala. Crim. App. 2001).
that
it
needs
to
If the trial court determines
conduct an additional hearing
to
take
additional evidence or to hear additional arguments, it may do
so.
On remand, the trial court shall take all necessary
action to see that the circuit clerk makes due return to this
Court at the earliest possible time and within 35 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, P.J., and Windom and Kellum, JJ., concur.
9
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