Barry A. Ross v. State of Arkansas

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ar04-977

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

BARRY A. ROSS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-977

April 27, 2005

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. CR 2002-495]

HON. JOHN S. PATTERSON

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Barry A. Ross was convicted in a Pope County jury trial of delivery of a controlled substance, for which he received a sentence of 330 months in the Arkansas Department of Correction. On appeal, he argues that his right to a speedy trial was violated when the trial court excluded 191 days, the time between when the information was filed and when he was actually served with an arrest warrant. We affirm.

It is undisputed that 544 days elapsed between when Ross was charged, and when he was finally brought to trial. The record shows that on September 19, 2002, Ross was charged by information with delivery of a controlled substance, crack cocaine. A bench warrant issued for his arrest the day before. The warrant, however, was not served until March 29, 2003. On March 15, 2004, Ross filed a motion to dismiss for lack of speedy trial. Ross was finally tried on March 16, 2004. He concedes that fifty-eight days may properly be attributed to a continuance that he secured prior to trial.

At a hearing on Ross's speedy-trial motion, Officer Chris Goodman testified that in 2002, he was a narcotics officer with the Russellville Police Department, and he was the lead investigator in the case that led to the issuing of an arrest warrant for Ross. According to Goodman, he attempted to serve the warrant "discreetly" so as not to jeopardize other investigations. Goodman stated that the police looked for Ross in an area where they had previously encountered him and "drove by" two residences, one in Dardanelle and one in the "Independence area" of Russellville at 806 West Third. Goodman estimated that they attempted to serve the warrant for "probably one or two months." Eventually, he turned the warrant over to Officer Kevin Hobby, who was the Russellville Police Department warrants officer. On cross-examination, Goodman admitted that he knew sheriff's deputy Lieutenant Gary Whorton but did not contact him about the warrant. Goodman also admitted that he had Ross's social security number but did not check to see if he was getting federal or state disability benefits.

Officer Hobby testified that when he received the arrest warrant from Goodman, he looked for Ross at the West Third Street address and also at a residence on Second Street, visiting each location just once. He also checked for Ross at Ross's mother's residence. According to Hobby, Tiffany Ward of the warrants division entered the warrant into the ACIC/NCIC system. Hobby stated that he then called the Dardanelle Police Department and requested that they locate Ross's longtime girlfriend, Summer Moore, to see if Ross was staying with her. The Dardanelle police reported that they contacted Moore, but she told them that Ross was not there. Hobby stated that he passed out a picture of Ross to the patrol officers at "shift change." He also put a picture of Ross in the local newspaper for "a few months stretches," along with a notice asking people to contact the warrants division if they had any information on his whereabouts. Hobby also stated that on three occasions he asked Sharon Moore, Summer Moore's mother, about Ross's location. Hobby estimated that he spent a total of four hours looking for Ross. On cross-examination, Hobby also admitted thathe knew Lieutenant Whorton and that Whorton was married to Summer Moore's sister, but he did not contact Whorton about locating Ross. Hobby also admitted that he was unaware that Ross was receiving Social Security disability.

Sharon Moore testified that from September 2002 until April 2003, her daughter Summer was living with her in her trailer house along with Ross. Moore stated that Summer and Ross had a falling out, and Summer moved out; however, Ross continued to live with her for three months. In August of 2003, Ross went to live with his mother. Moore further testified that during that time, one of her other daughters, Dawn, was married to a Pope County Sheriff's Deputy, Gary Whorton, and that Dawn worked "at 911." According to Moore, Ross socialized with Deputy Whorton. She also asserted that during this time, law enforcement authorities were pressuring Ross to work for them "undercover," but Ross declined. Moore claimed that Ross was not hiding from authorities and that nobody came out to talk to her about Ross. She also recalled that Dardanelle police were summoned to her residence in the summer of 2002 on a domestic disturbance call when Ross and Summer had an argument. Moore also testified that Ross was receiving Social Security disability benefits and that ARVAC had taken control of Ross's money and "knew where he was."

At the conclusion of the hearing, the trial judge denied Ross's speedy-trial motion. He found that "there could have probably been more done," but "there was effort," and the State's "efforts fall within the exception."

On appeal, Ross argues that the trial court erred in excluding the 191day period between when he was charged and when he was arrested. He contends that it is undisputed that 543 days passed from the time he was charged until the time he went on trial and that fifty-eight days can be attributed to the continuance that he obtained. Nonetheless, he asserts, that leaves 191 days that were improperly excluded by the trial court because the police failed to "put forth a good faith, diligent, effort to serve the arrest warrant." Ross argues that the "one or two months" that police attempted "some sort of `discreet' arrest" should not have been excluded because during that time "they" knew where he was and it was only after he refused to work with the prosecuting attorney's office that he was arrested. He also points to the fact that the police could have easily traced his address through ARVAC, which was in receipt of his Social Security Disability, or by contacting the Pope County Sheriff's Office and enlisting the aid of Deputy Whorton.

Under Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Rule 28.3. Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003). In pertinent part, Rule 28.3(e) of the Arkansas Rules of Criminal Procedure allows to be excluded:

The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial."

If a defendant is not brought to trial within the requisite time, the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that offense. Ark. R. Crim. P. 30.1. Once the defendant presents a prima facie case of a speedy-trial violation, i.e., that the trial is or will be held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

We find Ross's argument unavailing. In the first place, it is not apparent that the trial court charged the State with knowledge of Ross's whereabouts, and we hold that the trial court's failure to make such a finding was not clear error. Both Officer Goodman andOfficer Hobby testified that they did not know Ross's whereabouts. While it is true that Sharon Moore testified that the State knew where Ross was residing, the trial court was not required to believe this testimony; it is well settled that the resolution of credibility issues is within the province of the trial court. See, e.g.,Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000).

This brings us to the question of whether the State used due diligence in determining Ross's whereabouts. The State has a duty to make a diligent, good faith effort to bring an accused to trial. Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). Here, we agree in part with Ross's argument concerning the efforts undertaken by the police prior to the arrest warrant being assigned to Officer Hobby. It is obvious to us that despite his efforts to make more palatable his reasons for failing to serve the warrant, Officer Goodman made no meaningful effort to arrest Ross. However, once the warrant was assigned to Officer Hobby, we believe that the police did make a reasonable effort to determine Ross's whereabouts and effectuate his arrest. Accordingly, even if a full sixty days were excluded, which is the most time that could possibly be ascribed to the period in which the warrant was being handled by Officer Goodman, there nonetheless remains more than 130 days of pre-arrest time that we hold was properly excluded. This time brings his trial to within the twelve months required by our speedy-trial rule. Ark. R. Crim. P. 28.1(b).

Affirmed.

Vaught, and Crabtree, JJ., agree.