Gary Roberts v. State of Arkansas

ar02-830

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

GARY J. ROBERTS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-830

MAY 19, 2004

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT

[CR-99-231]

HONORABLE F. RUSSELL ROGERS, CIRCUIT JUDGE

REVERSED AND DISMISSED

Karen R. Baker, Judge

On January 8, 2002, a jury convicted appellant, Gary J. Roberts, of delivery of a controlled substance, cocaine. He raises four points on appeal. He first argues that the trial court erred by denying his motion to dismiss for lack of a speedy trial. Because we find merit to his argument, we reverse on that issue and the remaining arguments are moot.

The charge for which appellant was convicted arose from a drug sale and stop of a vehicle on May 28, 1999. Special Agent Newton of the Arkansas State Police received information from a confidential informant that appellant and another individual, Dakari Warner, were in possession of an ounce of crack cocaine. In connection with that information, he had the confidential informant set up a sale transaction and laid out the plans for the transaction to take place. The sale took place to the west side of the hospital located in Stuttgart.

The delivery of the contraband took place at 7:00 p.m. while it was still daylight. Special Agent Newton was sitting in his undercover vehicle when appellant, Warner, and the informant pulled up in a green Cadillac beside Newton's vehicle in the parking lot. Appellant was driving the Cadillac. The informant got out of appellant's car and into Newton's vehicle. The informant and Newton discussed the amount of money and Newton flashed the money to appellant and Warner in the Cadillac.

At that point, Warner exited the Cadillac, the trunk of the Cadillac popped open, Warner went to the trunk of the Cadillac, and then entered the backseat of the undercover vehicle. Warner produced an ounce of crack cocaine and a mobile scale. Newton told him he had his own scales and used them to weigh the substance. Warner and Newton discussed the price of the sale, and Newton handed Warner $1,200 in cash. Warner and the informant exited the vehicle and returned to the Cadillac.

After the appellant drove the Cadillac off of the parking lot, Special Agent Newton radioed the Arkansas County Sheriff's office, who was assisting in the investigation, providing a description of the Cadillac and its occupants and instructing the Sheriff's office to start a mobile tail. Deputy Allen Cheek with the Arkansas County Sheriff's Department trailed the Cadillac from the hospital. He initiated a stop of the vehicle when appellant stopped the car in the middle of the road and was talking with a young lady. When he walked up, he told them he could smell the odor of marijuana and obtained permission from appellant and Warner to search the vehicle. He found no marijuana. He did, however, find the scales and cash in the amount of $3,800 in the trunk of the Cadillac. The $1,200 provided by Special Agent Newton was included in that amount of cash and identified by the serial numbers of the bills used in the transaction.

On May 28, 1999, appellant was arrested on a drug-paraphernalia charge for the scales found in the trunk of the Cadillac. On October 11, 1999, appellant was arrested on the charge of delivery of a controlled substance for which he was ultimately tried and convicted. Both charges arose out of the events that transpired on May 28, 1999, described above. The State argues that the time period from May 28, 1999 to October 11, 1999 is an excludable time period because the criminal information against appellant on the charges for which he was convicted was not filed until October 11, 1999. The State cites Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002), for the proposition that the time between the arrest for crimes not part of the same criminal episode and the arrest for the crime charged are excludable for purposes of speedy trial. While Nelson applies that proposition, it has no application to this case.

In this case, appellant's arrest on the night of May 28, 1999, for possession of drug paraphernalia arose from the same criminal episode of selling cocaine to the Special Agent Newton in the parking lot of the hospital. The county sheriff's deputy was apprised of the situation and was waiting to begin a tail of the target vehicle after the transaction was completed. After the sale of the contraband, Special Agent Newton directed the deputy to begin the tail of appellant as he left the hospital. Special Agent Newton testified that he radioed for the separate tail because he wanted to preserve his undercover status at that time. At the time that appellant was arrested, in order to protect Special Agent Newton's role, any information of the immediately preceding drug transaction could not have been revealed. While the State's protection of an undercover agent may have been necessary for ongoing investigative purposes, it does not transform the nature of the events into separate criminal episodes. Therefore, the time for speedy trial began to run on May 28, 1999.

Generally speaking, a defendant who is lawfully at liberty must be brought to trial within twelve months of his arrest or being charged, whichever occurs first. See Ark. R. Crim. P. 28.1(c) (2003). Arkansas Rule of Criminal Procedure 28.2(a) delineates the date from which speedy trial begins to run, and it provides in relevant part:

The time for trial shall commence running, without demand by the defendant, from the following dates:

(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.

See also Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

Rule 30.1 of the Rules of Criminal Procedure explains the consequences of the State's failure to bring a criminal defendant to trial within twelve months. The Rule provides:

[A] defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution for the offense charged and for any other offense required to be joined with that offense.

Id.

In Burmingham v. State, 346 Ark. 78, 57 S.W.3d 118 (2001), the supreme court explained the rationale behind the relevant law:

The basic rule regarding speedy trial is that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entitled to have the charges dismissed with an absolute bar to prosecution. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified.

....

It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion.

Burmingham, 346 Ark. at 83-84, 57 S.W.3d at 122 (internal citations omitted); see also Rule 28.1 of the Arkansas Rules of Criminal Procedure.

Once a defendant demonstrates a prima facie case of a speedy trial violation, the burden is on the State to show that the delay was the result of the defendant's conduct or was otherwise justified. Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003). The time period from May 28, 1999, to the trial on January 8, 2002, is in excess of the one-year speedy trial requirement, and the burden is on the State to explain and justify the delay.

In its brief, the State identifies several time periods and asserts various reasons as to why they should be excluded. We appreciate the State's acknowledgment that "[t]his is a difficult case to decipher." This need to decipher the case accounts for the difficulty the State faced in justifying the delay for trial. The lack of orders setting forth excludable time periods contributed to that difficulty, even though it does not require dismissal. See Bowen v. State, 73 Ark. App. 240, 42 S.W.3d 579 (2001) (stating trial court should enter written orders or make docket notations at the time the continuance is granted to detail reasons for the continuance, but a trial court's failure to comply with subsection (i) does not result in automatic reversal).

Given the record and difficulties of this case, we decline to address each of the State's assertions individually. We are all agreed that under no analysis has the State established that appellant was afforded a speedy trial. 1 In this case, it is sufficient to illustrate the State's inability to justify the trial delay by noting that the State's argument includes statements such as "some of the excludable periods overlap one another;" and that a certain period "is unexplained and nothing in the record or docket sheet reflects this was excluded," however, "appellant does not dispute that [certain portions of the time period] was not an excludable period." There are no transcripts of proceedings referencing alleged requests by defendant for a continuance. No address for appellant appeared on at least one court notice to appellant, subsequent notices had a Pine Bluff address although the bench warrant and felony information identify a Texas address for appellant. Nothing in the record identifies the source of the Pine Bluff address or that the address was ever associated with appellant. When appellant failed to appear at a May 1, 2000 status hearing, the court issued a warrant and appellant was subsequently taken into custody in Texas. With proof such as this, see, e.g., Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002)(holding the appellate court does not take notice of gratuitous assertions based on matters not in the record); Ballard v. State, 75 Ark. App. 15, 53 S.W.3d 53 (2001) (state failed to demonstrate that notice of plea and arraignment was actually sent to defendant), we must conclude that the State failed to meet its burden.

We will uphold excluded periods without a written order or docket entry where the record clearly demonstrates that the delays were attributable to the defendant or legally justified and where the reasons for the delays were memorialized in the proceedings at the time of the occurrence. See Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002); Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002); Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). However, a record in a case that must be deciphered to justify the delay does not clearly demonstrate that the delays were legally justified.

Therefore, this case must be reversed and dismissed.

Hart and Vaught, JJ., concur.

Larry D. Vaught, Judge, concurring. I agree that this case must be reversed and dismissed because of a violation of the speedy trial rule. I write separately because, although difficult to decipher, the trial court's docket does give enough information to examine the State's attempt to justify the delay in this appellant's trial.

As set forth in the majority opinion, the appellant was arrested on May 28, 1999, and finally came to trial on January 8, 2002, a period of 954 days. Rule 28.1(c) of the Arkansas Rules of Criminal Procedure requires the defendant to be brought to trial within twelve months of the date of arrest or the date charged, whichever occurs first. Therefore, after subtracting 365 days from 954 days, the State must justify 589 days of delay to have brought appellant to trial within the rule. The 954 days can be divided into three separate periods for analysis: (1) from May 28, 1999, to October 11, 1999, the period from arrest on related charges until the information on the current charges was filed, a total of 135 days; (2) from October 12, 1999, to September 10, 2001, the time from charging until the filing of the motion to dismiss for speedy trial violation, a total of 700 days; (3) from September 12, 2001, to January 8, 2002, the time from denial of the motion to dismiss until trial, a total of 119 days.

In the first period there are no days attributable to the appellant. In the second period of 700 days, there are six different docket entries indicating that the defendant requested a continuance in order to hire an attorney. The periods covered by these entries are:

October 11, 1999, to November 15, 1999. 35 days.

November 15, 1999, to December 20, 1999. 35 days.

December 20, 1999, to January 18, 2000. 29 days.

February 16, 2000, to April 18, 2000. 62 days.

July 10, 2000, to July 19, 2000. 9 days.

August 1, 2000, to August 31, 2000. 31 days.

These periods total 201 days that are attributable to the appellant. However, I would note that even though the docket entries are sufficient to sustain the State's argument that the delays are justified, and even though the record does not reflect that appellant ever requested appointed counsel, at some point justice requires the trial court to inquire into a defendant's efforts and ability to obtain hired counsel.

The second period also reflected that the appellant failed to appear, an alias warrant was issued, and he was apprehended in Texas and brought back. The majority discusses the various notices and the addresses the court had for the appellant. However, that argument was not developed below, and the docket reflects only that appellant failed to appear. This period is from May 1, 2000, to July 10, 2000, a total of seventy (70) days.

After August 31, 2000, Kandice Bell represented appellant, and she requested continuances to prepare as follows:

August 31, 2000, to October 2, 2000. 32 days.

October 2, 2000, to October 30, 2000. 28 days.

October 30, 2000, to November 20, 2000. 21 days.

These periods total eighty-one (81) days that are attributable to appellant.

On November 20, 2000, appellant filed pre-trial motions which were heard on January 23, 2001. The motions were taken under advisement and some were eventually ruled on and others were not. Rule 28.3(a) of the Arkansas Rules of Criminal Procedure provides that the time is charged to the defendant up to thirty (30) days after the motions are heard while under advisement. Therefore the time from November 20, 2000, until February 22, 2001 is attributable to appellant, a total of ninety-four (94) days.

Finally, under the second period, there are two periods that were continued at the request of the co-defendant. Rule 28.3 (g) of the Arkansas Rules of Criminal Procedure provides that these are excluded periods, and it appears that the first of these two periods, May 8, 2001, to June 21, 2001, is clearly noted in the docket. However, the second of the two from July 30, 2001, to September 11, 2001, is difficult to determine because at some point the two defendants were severed, and there is no docket entry or order that reflects when that happened other than that only appellant was scheduled for trial on September11. Therefore, although eighty-four (84) days are covered, I believe that only forty-two (42) have been sustained by the State. I, therefore, would attribute a total of 488 days to the appellant for the period from October 12, 1999, to September10, 2001.

The final period begins after the motion to dismiss was denied on September 11, 2001. The case was proceeding to trial, and five jurors had been seated when the court was made aware of the developing tragedy at the World Trade Center and the Pentagon. Because of reports of highways and public facilities being shut down, the trial judge made a decision to stop the trial to allow jurors to get to their families without further worry. The judge stated that he was either declaring a mistrial or a continuance, and although the State now argues it was in the nature of a mistrial, case law indicates that it was a continuance because the jurors had not been sworn and jeopardy had not attached. See Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002). The case was reset for October 23, 2001, and this period of forty-two (42) days is excluded. However, the period from October 23,2001, until trial on January 8, 2002, is attributable to the State.

Adding the 488 days from the second period to the forty-two (42) from the third period, there are 530 days attributable to the appellant out of 954. Therefore the State has not sustained its burden of proving that appellant was brought to trial within twelve months.

1 Judge Vaught's concurrence sets forth some excludable periods that the majority does not find excludable; nevertheless, the majority concludes that the case must be reversed and dismissed for violation of the speedy trial rule.