Goston v. State

Lee GOSTON v. STATE of Arkansas

CR 96-440                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Criminal procedure -- speedy-trial motion properly denied --
     appellant tried within required twelve-month period. -- Where
     appellant conceded that 178 days had been properly excluded
     from the speedy-trial period because the parties were awaiting
     the results of appellant's mental examination to determine his
     competency to stand trial, appellant was instrumental in
     obtaining continuances that totaled an additional 290 days,
     and it was appellant who, on the day of trial, asked for
     another continuance and received it, thereby excluding another
     177 days under Ark. R. Crim. P. Rule 28.3(c), the sum total of
     these excludable periods, when deducted from the original 940-
     day period of delay, reflected that appellant was tried within
     295 days, well within the required twelve-month period.

2.   Criminal procedure -- excludable periods under Ark. R. Crim.
     P. 28.3(i) -- failure to set forth excludable periods in
     written order does not result in automatic reversal. --
     Arkansas Rule of Criminal Procedure 28.3(I) provides that all
     excludable periods shall be set forth by the court in a
     written order or docket entry; however, a trial court's
     failure to comply with Rule 28.3(i) does not result in
     automatic reversal; where a case is delayed by the accused and
     that delaying act is memorialized by a record taken at the
     time it occurred, that record may be sufficient to satisfy the
     requirements of Ark. R. Crim. P. 28.3(i); a defendant may not
     agree with a ruling by the trial court and then attack that
     ruling on appeal. 

3.   Criminal procedure -- trial court noted in docket notations
     what time period was excluded from speedy-trial period --
     appellant cannot complain about delays he himself caused. --
     Where the trial court specifically noted in its docket
     notations that the time period did not apply to speedy trial
     because appellant was granted a continuance, and as to the
     other delays, the record clearly demonstrated that these were
     attributable to appellant or were legally justified, appellant
     could not complain about the delays he requested for
     psychiatric evaluations or continuances.


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
affirmed.
     Chris Tarver, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     On April 13, 1993, appellant Lee Goston was arrested (and
bonded out the next day) for the aggravated robbery of One Bank in
Little Rock which occurred on March 29, 1993.  On July 14, 1993,
Goston requested a state mental health evaluation, which was
granted on July 20, 1993.  Goston had five other criminal cases
pending against him, and he asked that a full mental evaluation be
done in all the cases.  
     On October 4, 1993, another hearing was held for the purpose
of resetting a date for obtaining a report in this case, and the
parties agreed upon December 27, 1993.  The trial court noted that
all pending cases would be continued to the same date.  On
January 14, 1994, the State Mental Health Services filed its report
in this case, finding Goston competent to stand trial, and that
Goston did not lack the capacity to conform his conduct to the
requirements of the law.  In conformity with the earlier
proceedings, the present case was continued further until the
remainder of Goston's evaluations were received by the court.  The
trial court actually held four hearings so as to check on the
progress of the evaluation reports and to determine when a trial
date could be set.  On March 7, 1994, the trial court held such a
hearing, but granted another evaluation at Goston's request, and
the court continued the case until April 25, 1994.  At the April 25
hearing, it was determined one evaluation was still out in a
separate pending case and both Goston and the prosecutor agreed
this case could not go forward; the court granted another
continuance until June 20, 1994.  On June 20 and on August 1, 1994,
Goston and the State again agreed to a continuance because an
evaluation in another pending case remained outstanding.  Finally,
on October 31, 1994, all evaluations had been completed and filed,
so the trial court set the present case for a jury trial to be held
on May 16, 1995.  
     On May 16, 1995, Goston asked for a dismissal, claiming his
speedy-trial rights had been violated.  After the trial court
denied his motion, Goston then moved for a continuance, stating
that, during one of his other cases tried only four weeks earlier,
he had caused a disturbance which had been witnessed by several of
the veniremen who were prospective jurors in the present case.  The
trial court granted Goston's continuance motion, agreeing he
probably could not receive a fair trial, considering his earlier
disruption, but, at the same time, it repeated its ruling that the
speedy-trial period had been tolled.  On June 26, 1995, the trial
court set a new trial date for November 9, 1995.
     Goston's jury trial commenced on November 9 when, again,
Goston moved that his case be dismissed for lack of a speedy trial. 
Once again, the trial court denied Goston's motion, and
subsequently Goston was convicted of aggravated robbery and theft
of property.  His only point on appeal is that his constitutional
right to a speedy trial had been violated; therefore, he is
entitled to dismissal of the charges against him.
     Goston, citing Ark. R. Crim. P. 28.1(c) and 28.2(a), argues
these rules established that he was entitled to have his charges
dismissed because he was not brought to trial within twelve months
from when he was arrested on April 13, 1993.  He further argues
that, once he established that he was not tried within the twelve-
month period, the burden shifts to the State to show that any delay
was the result of Goston's conduct or was otherwise justified. 
Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991).  Here,
Goston's trial date was held on November 9, 1995, or 940 days after
his arrest, so Goston submits the State must show excludable
periods authorized under Ark. R. Crim. P. 28.3 that would
permissibly reduce the 940-day period to the twelve-month period
required by law.
     The excludable periods under Rule 28.3 relevant to the present
case are as follows:
          (a)  The period of delay resulting from other
     proceedings concerning the defendant, including but not
     limited to an examination and hearing on the competency
     of the defendant and the period during which he is
     competent to stand trial, hearings on pretrial motions,
     interlocutory appeals, and trial of other charges against
     the defendant.  (Emphasis added.)
          (c)  The period of delay resulting from a
     continuance granted at the request of the defendant or
     his counsel.  All continuances granted at the request of
     the defendant or his counsel shall be to a day certain,
     and the period of delay shall be from the date the
     continuance is granted until such subsequent date
     contained in the order or docket entry granting the
     continuance.
          (h)  Other periods of delay for good cause.
     To establish whether any delays may be excluded from the
speedy-trial period under Rule 28.3, we chronologically list the
following significant events:
          4-13-93:  Goston arrested for aggravated robbery and
     theft of property.  
          7-20-93:  Per Goston's request, court orders
     competency evaluation for Goston for the present case and
     all other pending cases (five in all).
          1-14-94:  Competency evaluation for the present case
     filed with the court.
          3-7-94:   Hearing to determine whether trial may be
     scheduled.  Court grants another mental evaluation at
     Goston's request.  The case is continued until 4-25-94.
          4-25-94:  Hearing to schedule trial.  The court
     determines that one mental evaluation for another pending
     case is still outstanding.  Goston argues, and the court
     and prosecution agree, that the case cannot go forward
     until all competency evaluations are filed with the
     court.  Continuance until 6-20-94.
          6-20-94:  Hearing to schedule trial.  One mental
     evaluation still outstanding.  The court, prosecution and
     Goston all agree case cannot go forward until all
     evaluations are in.  Continuance until 8-1-94.
          8-1-94:  Hearing to schedule trial.  One mental
     evaluation still outstanding.  Continuance until 10-17-
     94.
          10-31-94:  Hearing to schedule trial.  All mental
     evaluations have been received by the court.  Trial date
     is set for 5-16-95.
          5-16-95:  Goston brings motion to dismiss for lack
     of speedy trial.  Court denies motion.  Court grants
     continuance at the request of Goston.  Court rules speedy
     trial tolled.
          6-26-95:  Goston is represented by new counsel. 
     Court reschedules trial date for 11-9-95, and determines
     speedy trial tolled until that date.
          11-9-95:  Jury trial.  Goston brings motion to
     dismiss for lack of speedy trial.  Motion denied.  Goston
     tried and convicted.
     First, we point out that Goston concedes the period between
July 20, 1993 and January 14, 1994, or 178 days, is properly
excluded from the speedy-trial period because the parties were
awaiting the results of Goston's mental examination to determine
his competency to stand trial.  However, citing Johnson v. State,
27 Ark. App. 217, 769 S.W.2d 37 (1989), he claims any further
excludable time ended when his evaluation report was filed in this
case on January 14, 1994.  The record fails to support Goston's
argument.
     As has been thoroughly set out above, Goston, from the time he
first requested a mental evaluation in this case on July 20, 1993,
insisted that such an evaluation in his other pending criminal
cases be completed and filed before going forward with the trial. 
As a matter of strategy, Goston obviously believed if he were found
incompetent to stand trial in one of his five pending cases, he
could not be forced to trial in the others.  The trial court
accommodated Goston's requests in this respect, but continued to
schedule periodic hearings to monitor the various cases and missing
reports and assure itself that a trial date would be set as soon as
possible.  In fact, when, on October 31, 1994, the evaluations had
been filed in all of Goston's cases, the trial court set a trial
date of May 16, 1995.  Because Goston was instrumental in obtaining
these continuances from January 14, 1994 to October 31, 1994, that
290-day period, too, was authorized and excludable under either
Rule 28.3(a), (c) or (h).  
     In addition, as previously discussed, it was Goston who, on
the day of trial, May 16, 1995, asked for another continuance and
received it.  Again, it was Goston's own antics at an earlier trial
which purportedly tainted the jury panel he faced on May 16.  Thus,
the time period between May 16, 1995 and his trial date on
November 9, 1995, 177 days, is also excluded under Rule 28.3(c)
because he requested the continuance.  When this period and the
other excludable periods are deducted from the original 940-day
period of delay, it reflects Goston was tried within 295 days, well
within the required twelve-month period.
     Finally, Goston argues that in denying his motion to dismiss
on speedy-trial grounds, the trial court failed to make a written
order or docket entries reflecting the number of days to be
excluded as required by Ark. R. Crim. P. 28.3(i).  Goston contends
that the trial court's actions make the State's burden of
establishing excludable periods moot, as the State cannot point to
any stated reasoning for the Court's refusal to try Goston in a
timely fashion under the speedy trial rule.  
     Goston is correct in that Ark. R. Crim. P. 28.3(I) provides
that "[a]ll excludable periods shall be set forth by the court in
a written order or docket entry."  However, a trial court's failure
to comply with Rule 28.3(i) does not result in automatic reversal. 
Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996); Wallace v.
State, 314 Ark. 247, 862 S.W.2d 235 (1993).  This court has held
that where a case is delayed by the accused and that delaying act
is memorialized by a record taken at the time it occurred, that
record may be sufficient to satisfy the requirements of Ark. R.
Crim. P. 28.3(i).  Id. at 254; Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991).  This is based on the familiar principle that a
defendant may not agree with a ruling by the trial court and then
attack that ruling on appeal.  Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990).  
     In the present case, the trial court specifically noted in its
docket notations that the time period between June 26, 1995 and
November 9, 1995, did not apply to speedy trial because Goston was
granted a continuance.  As to the other delays, the record clearly
demonstrates that these were attributable to Goston or were legally
justified.  Thus, Goston cannot now complain about the delays he
requested for psychiatric evaluations or continuances.
     We affirm.