Durdin v. State

Charles DURDIN v. STATE of Arkansas

CA CR 97-308                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered November 19, 1997


1.   Criminal procedure -- speedy trial -- prima facie case -- burden shifts to
     State. -- Once a defendant presents a prima facie case of a
     violation of his right to a speedy trial, the burden shifts to
     the State to show that the delay was legally justified or the
     result of defendant's conduct.

2.   Criminal procedure -- speedy trial -- State failed to meet its burden of
     proving period was excludable. -- Where, regarding one speedy-trial
     interval in appellant's case, the State acknowledged at a
     pretrial hearing that it knew appellant was in the custody of
     Illinois authorities, and where, although it asserted that it
     had received several contacts concerning appellant from
     Illinois law enforcement officials and that detainers and
     governorþs warrants were issued to return appellant to
     Arkansas, the State presented no tangible proof in the record
     to document these assertions, the appellate court, noting that
     statements and arguments of counsel are not evidence, held
     that the State had failed to meet its burden of proving that
     this period of time was excludable from the speedy-trial
     calculation under Ark. R. Crim. P. Rule 28.3.

3.   Criminal procedure -- speedy trial -- record devoid of requisite proof --
     conviction reversed and dismissed. -- Because the record was devoid
     of the requisite proof with respect to legal justification for
     periods of delay resulting from the absence or unavailability
     of appellant, the appellate court reversed appellantþs
     conviction and dismissed the charges against him.

4.   Criminal procedure -- speedy trial -- out-of-state prisoner -- prosecutor's
     obligations. -- Although an accused in prison in another state,
     for a different crime, must affirmatively request trial in
     order to activate the speedy-trial rule, it is also incumbent
     upon the prosecutor promptly to file a detainer upon learning
     that an accused is imprisoned elsewhere and to request that
     the official having custody of the accused advise the prisoner
     of the filing of the detainer and of the prisoner's right to
     demand trial; the prisoner then has the right to demand trial,
     which must be had within 180 days unless there is good cause
     for a delay.

5.   Criminal procedure -- detainer -- Interstate Agreement never triggered. --
     Where there was no proof in the record that the State filed a
     detainer or that appellant was served with a detainer while
     incarcerated in Illinois, the appellate court held that the
     Interstate Agreement on Detainers was never triggered.

6.   Appeal & error -- sufficiency-of-evidence argument not addressed. -- Where
     the appellate court held that appellantþs motion to dismiss
     based on lack of speedy trial should have been granted, it did
     not address the sufficiency-of-the-evidence argument.


     Appeal from Jefferson Circuit Court; Berlin C. Jones, Judge;
reversed and dismissed.
     Victoria Cochran-Morris, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Margaret Meads, Judge.
     Appellant, Charles Durdin, was convicted in a jury trial of
aggravated robbery and theft of property and sentenced to five
years and thirty years respectively, to be served concurrently in
the Arkansas Department of Correction.  On appeal, he argues that
the trial court erred in denying his motion to dismiss for
violation of his speedy-trial rights; that the Interstate Agreement
on Detainers is not applicable in this case;  and that the trial
court erred in denying his motion for directed verdict due to
insufficiency of the evidence.  Because we find appellantþs speedy
trial and Interstate Agreement on Detainers arguments to be
persuasive, we reverse and dismiss his convictions.
     With regard to appellantþs speedy-trial argument, Rule 28.1(c)
of the Arkansas Rules of Criminal Procedure provides:
     Any defendant charged . . . in circuit court and held to
     bail, or otherwise lawfully set at liberty, . . .  shall
     be entitled to have the charge dismissed with an absolute
     bar to prosecution if not brought to trial within twelve
     (12) months from the time provided in Rule 28.2,
     excluding only such periods of necessary delay as are
     authorized in Rule 28.3.   

      For speedy-trial purposes, the time for bringing Durdin to
trial began to run November 6, 1992, when a criminal information
was filed and a bench warrant issued for appellant on charges of
aggravated robbery and theft of property.  Ark. R. Crim. P.
28.2(a).  Thus, appellant should have been brought to trial no
later than November 6, 1993, barring only periods of necessary
delay.  However, appellant was not tried on these charges until
September 10, 1996.  Once a defendant presents a prima facie case
of a violation of his right to a speedy trial, the burden shifts to
the State to show that the delay was legally justified or the
result of defendant's conduct.  Bradford v. State, 329 Ark. 620,
___ S.W.2d ___ (1997);  Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).
     Appellantþs motion to dismiss was argued orally to the court
prior to the commencement of trial, but no testimony or documentary
evidence was offered by either party.  At the time the information
was filed on November 6, 1992, Durdinþs whereabouts were unknown. 
The State asserted that appellant's location remained unknown until
April 1, 1993, when it learned that he was in custody in Chicago
and that he was fighting extradition.  The State further asserted
that it placed a detainer on appellant but that on June 29, 1993,
it received notice from Chicago that appellant had been released. 
After his release from custody in Chicago, appellant's whereabouts
were unknown until December 16, 1993, when the outstanding bench
warrant was served on him in Pine Bluff, Arkansas, and he was taken
into custody.  Appellant posted bond and was released sometime
after December 16, 1993.  
     Appellant's first appearance before the court was January 3,
1994, at which time his case was continued until February 7, 1994. 
When appellant failed to appear for his February 7 court date, an
alias warrant was issued for his arrest.  His whereabouts remained
unknown until November 4, 1994, when, according to the State, it
was notified that appellant was serving time on unrelated charges
in the Illinois Department of Correction and that he was waiving
extradition.  The State asserted that an officer was dispatched
from the sheriffþs department to retrieve appellant, only to be
informed upon arrival that he had time remaining to be served on
his sentence in Illinois and would not be released.  The State
asserted that a second detainer was placed on appellant at that
time; however, it was not until November 3, 1995, that the State
learned appellant was fighting extradition, and thus it began
preparing governorþs warrants to obtain appellant's presence for
trial in Arkansas.
     Appellant was returned to Arkansas on February 8, 1996, and
his case was set for February 16, 1996; however, he was
hospitalized at that time and unable to appear.  Because of
appellantþs illness, the trial judge continued the case from
February 16, 1996, until June 3, 1996; this is evidenced by an
amended order filed of record on April 10, 1996.  On June 20, 1996,
an order was entered setting trial for August 29, 1996.  On August
28, 1996, the State requested and received a continuance, and trial
was rescheduled for September 10, 1996.                         
     Portions of this time period are unquestionably chargeable to
the State for purposes of calculating the time for speedy trial. 
From June 20, 1996 (when the judge set trial for August 29, 1996)
until August 28, 1996 (when the State requested a continuance), and
from August 28, 1996, until September 10, 1996, is a total of
eighty-two days chargeable to the State and thus includable in the
speedy-trial calculation.  Regarding the November 4, 1994, to
November 3, 1995, interval, the State acknowledged at the pretrial
hearing that it knew appellant was in the custody of Illinois
authorities.  Although the State asserted that it received several
contacts concerning appellant from Illinois law enforcement
officials and that detainers and governorþs warrants were issued to
return appellant to Arkansas, it presented no tangible proof in the
record to document these assertions.  Because statements and
arguments of counsel are not evidence, Robinson v. State, 49 Ark.
App. 58, 896 S.W.2d 442 (1995), we find that the State failed to
meet its burden of proving that this period of time was excludable
from the speedy-trial calculation under Ark. R. Crim. P. Rule 28.3. 
These two time periods alone place the State outside the requisite
twelve-month period to bring appellant to trial.  Because it would
unnecessarily lengthen this opinion and is not necessary to the
outcome, we do not address the other time intervals between
November 6, 1992, and September 10, 1996.
     In order to establish legal justification for periods of delay
resulting from the absence or unavailability of appellant, the
State could have offered the testimony of local or out-of-state law
enforcement authorities, as in Caulkins v. Crabtree, 319 Ark. 686,
894 S.W.2d 138 (1995), and Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988); or the testimony of the prosecuting attorney, as in
Wilson v. State, 10 Ark. App. 176, 662 S.W.2d 204 (1983).  It could
have introduced copies of the detainers which were purportedly
issued, or extradition materials as in Gooden v. State, 295 Ark.
385, 749 S.W.2d 657 (1988).  Because the record is devoid of the
requisite proof, appellantþs conviction must be reversed and the
charges against him dismissed.
     The State further argued that the Interstate Agreement on
Detainers, Ark. Code Ann.  16-95-101--107 (1987), applies and
that appellantþs time for a speedy trial did not begin to run until
his return to Arkansas on February 8, 1996.  This agreement
provides, in pertinent part:
     Whenever a person has entered upon a term of imprisonment
     in a penal or correctional institution of a party state,
     and whenever during the continuance of the term of
     imprisonment there is pending in any other party state
     any untried indictment, information, or complaint on the
     basis of which a detainer has been lodged against the
     prisoner, he shall be brought to trial within one hundred
     eighty (180) days after he shall have caused to be
     delivered to the prosecuting officerþs jurisdiction
     written notice of the place of his imprisonment and his
     request for a final disposition to be made of the
     indictment, information, or complaint . . . .

Ark. Code Ann.  16-95-101, Art. III(a) (emphasis added).  The
State contends,  citing Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991), that because appellant did not affirmatively request
trial, his right to a speedy trial did not begin to run until his
actual return to Arkansas on February 8, 1996.  
     This argument must fail.  The Arkansas Supreme Court has held
that an accused in prison in another state, for a different crime,
must affirmatively request trial in order to activate the speedy-
trial rule.  White v. State, 310 Ark. 200, 833 S.W.2d 771 (1992);
Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991); Dukes v.
State, 271 Ark. 674, 609 S.W.2d 924 (1981).  Yet, it is also
incumbent upon the prosecutor to promptly file a detainer upon
learning that an accused is imprisoned elsewhere and to request
that the official having custody of the accused advise the prisoner
of the filing of the detainer and of the prisoner's right to demand
trial.  Ark. R. Crim. P. 29.1(b); Dukes v. State, 271 Ark. at 677,
609 S.W.2d  at 925.  The prisoner then has the right to demand
trial, and such trial must be had within 180 days unless there is
good cause for a delay.  Id. 
     There is no proof in the record that the State filed a
detainer or that appellant was served with a detainer while
incarcerated in Illinois; therefore, we find that the Interstate
Agreement on Detainers was never triggered.  
     Because we find that appellantþs motion to dismiss based on
lack of speedy trial should have been granted, we do not address
the sufficiency-of-the-evidence argument. Horn v. State, 294 Ark.
464, 743 S.W.2d 814 (1988).
     Reversed and dismissed.    
     Pittman and Jennings, JJ., agree.