Gary Crawford v. State of Arkansas

Annotate this Case
ar04-315

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

GARY CRAWFORD,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-315

FEBRUARY 23, 2005

APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT,

(NO. CR2002-135)

HON. HAROLD S. ERWIN, JUDGE

AFFIRMED

Sam Bird, Judge

On October 1, 2002, Gary Crawford was arrested on charges of rape, kidnapping, and battery in the second degree. On December 3, 2003, the Jackson County Circuit Court conducted a hearing on a motion by Crawford to dismiss for lack of a speedy trial. The court subsequently ruled that two periods of time were excluded from the speedy-trial rule, and the case proceeded to trial on December 11, 2003.1 Crawford was acquitted of rape and kidnapping but was convicted of second-degree battery. He now appeals, contending that the trial court erred in denying his motion to dismiss for lack of a speedy trial. We disagree and affirm.

Rules 28.1(c) and 28.2(a) of Ark. R. Crim. P. (2004) specify that a defendant charged in circuit court must be brought to trial within twelve months from the date of arrest or the date charges were filed, excluding only such periods of necessary delay as are authorized in Rule 28.3. Among the excluded periods of Rule 28.3 are these:

(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel....

(d) The period of delay resulting from a continuance ... granted at the request of the prosecuting attorney, if:

(1) the continuance is granted because of the unavailability of evidence material to the state's case, when due diligence has been exercised to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date[.]

Once the defendant establishes a prima facie case of the speedy-trial violation, the burden shifts to the State to show that the delay was the result of the defendant's conduct or was otherwise legally justified. See DeAsis v. State, ___ Ark. ___, ___ S.W.3d ___ (Jan. 13, 2005).

Crawford was tried on December 11, 2003, which was 435 days after the date of his arrest and seventy days beyond the limitation of twelve months. His arguments center around two periods of time that the trial court found to be excludable. First, Crawford argues that he sought a speedy trial and did not assent to his attorney's agreement to a continuance of sixty-three days from December 2, 2002, through February 3, 2003.

Rule 28.3(c) clearly states that a period of delay is excludable if it results from a continuance granted at the request of the defendant or his counsel (emphasis added). The supreme court explained in Matthews v. State, 268 Ark. 484, 490, 598 S.W.2d 58, 61-62 (1980):

This rule is a clear recognition that there will be occasions, such as this one, on which a defendant's attorney will be compelled to seek a continuance, because of his own situation. If such a provision were not made, a defendant represented by an attorney who was required to honor a prior setting (perhaps of another criminal case) or who was temporarily ill, would, in order that he be given a speedy trial, be put to trial without counsel, or without adequately prepared substitute counsel. Even though such a defendant, if convicted, would probably be entitled to a new trial on account of ineffective assistance of counsel, he would probably be worse off than he would have been by suffering a delay in order that he might be represented by his regular counsel, who presumably is prepared for the trial. We have indicated that such a delay should not exclude a full term of court, if that can be avoided.

Here, Crawford's counsel informed the trial court that he signed the continuance order when Crawford did not appear "in order for an alias warrant not to be issued and my client be put in jail and then he reappeared after that time frame and reasserted his right to speedy trial." Because the sixty-three-day period of delay resulted from a continuance granted at the request of the defendant's counsel, it was properly excluded by the trial court.2

The second period that the trial court found to be excludable from the speedy-trial rule was a period of ninety-three days from August 12 until November 12, 2003, from the date the State filed a motion seeking Crawford's DNA samples until the date that the results were obtained from the state crime lab. Crawford asserts that because the State waited ten and a half months to request the sample, it neither exercised due diligence to obtain the evidence nor had reasonable grounds to believe that such evidence would be available at a later date; thus, he concludes that the period was not excludable under Rule 28.3(d)(1). The State responds that although the issue of speedy trial was discussed at the hearing on the motion to obtain DNA samples, neither Crawford nor his counsel raised a speedy-trial objection or claimed that the State failed to exercise due diligence.

A contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion if defense counsel is present at the hearing and has an opportunity to object. Bowen v. State, 73 Ark. App. 240, 42 SW.3d 579 (2001). The failure to object at the time of the ruling operates as a waiver and is not timely when raised for the first time at a speedy-trial hearing. Id. Here, the abstract shows no objection by Crawford or his attorney at the hearing to obtain DNA samples. Thus, he waived any later objection to the exclusion of the ninety-three-day period. We affirm the exclusion of this second time period from the speedy-trial rule.

As noted earlier in this opinion, Crawford was tried seventy days beyond the speedy-trial limitation of twelve months. Because the excludable time periods of sixty-three and ninety-three days account for a total of 156 days, Crawford was afforded a speedy trial. The trial court did not err in denying his motion to dismiss for lack of a speedy trial.

Affirmed.

Crabtree and Baker, JJ., agree.

1 Calculations in the State's brief, Crawford's brief, and our own figures differ by one to two days for the excluded time periods and for the number of days from the date of arrest until the date of trial. It is unnecessary to resolve these discrepancies because our decision would remain the same if any of these sums were applied. For simplicity's sake, we have used the State's computations in our opinion.

2 The trial court also ruled that the speedy trial would have been tolled on the alias warrant anyway, so counsel's signing the continuance order was not in derogation of Crawford's rights.