Raymond R. Douglas v. State of Arkansas

ar05-554

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

RAYMOND R. DOUGLAS

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR 05-554

January 25, 2006

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SIXTH DIVISION [CR 03-1014]

HONORABLE TIMOTHY D.

FOX, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Raymond Douglas, was tried by a jury and found guilty of the offense of second-degree domestic battering. For his sole point of appeal, he contends that the trial court erred in denying his motion to dismiss for lack of a speedy trial. The issue was not preserved for our review, and therefore we affirm.

The State has twelve months within which to bring a defendant to trial, unless there are periods of delay that are excluded. Deasis v. State, ____ Ark. ____, ____ S.W.3d ____ (Jan. 13, 2005); Ark. R. Crim. P. 28.1. The speedy trial period begins to run on the earlier of the date the defendant is arrested or the date he is charged. Deasis, supra; Ark. R. Crim. P. 28.2. Once a defendant establishes a prima facie case of a speedy-trial violation, the State bears the burden of showing that the delay was the result of the defendant's conduct or otherwise justified. Deasis, supra. In order to preserve a speedy-trial objection for appeal, the defendant must make a contemporaneous objection at the hearing where the time is excluded. Id. The reason for requiring a contemporaneous objection is to inform the trial court of the reason for a disagreement

with its proposed action prior to making its decision or at the time the ruling occurs. Id. The idea is to give the trial court the opportunity to fashion a different remedy. Id; see also Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995).

Appellant was arrested and set at liberty on February 13, 2003, the date on which the speedy-trial period began to run for him. He was tried on October 13, 2004. Between the date of his arrest and the date that he was tried, a total of 608 days elapsed - - 243 days beyond the 365-day limit for speedy trial. In examining this issue, we focus our attention upon the delay attributable to the absence of a police detective due to military duty because that is the period of time upon which appellant focuses his appeal, and it amounts to 285 days, which is well beyond the 243 days that exceeded the speedy-trial limits.

On September 22, 2003, an omnibus hearing was held in which the State informed the court that a witness, one of the detectives involved in the case, was on active military duty. The following colloquy occurred:

Prosecutor: That witness, but we would - he is - pursuant to the defense's motion to suppress, he would be a necessary witness for that hearing. I'm not exactly sure, I did talk with folks over at the Little Rock Police Department. He was activated in June of this year, and they anticipate that being a year-long service over there, Your Honor. So at some point, maybe sooner than later, the State would move to have this time excluded under Hill v. State, with a necessary witness being out of the country.

The Court: Well, what I'm trying to decide right now is if we need a failure to appear warrant out on him.

Defense Counsel: Well, Your Honor, I would ask if the Court would consider waiting until Thursday is when I think is the jury trial date. We have another matter anyway set for that. And I'll contact him. I didn't contact him because I thought it wasn't an issue.

. . . .

The Court: Then how are we going to know if we can use the statement on Thursday if we haven't had a suppression hearing involving this witness prior to that date?

Prosecutor: That's obviously the problem, Your Honor.

The Court: Okay. Well, we'll change the jury trial date to a report date then because he is noticed to be here, [defense counsel]. He was noticed for here today too as well by separate notice.

On September 25, 2003, which had been set for the trial date, the court reviewed the reasons why the trial was not proceeding and the following colloquy occurred:

Prosecutor: Your Honor, I guess we'd just ask for a - - I guess the way this one sits, it could properly be termed as a joint motion to continue. We would ask that speedy trial be tolled, one, under Hill versus State, the fact that the State has a necessary witness out of the country. But I guess, on the other, that necessary witness is really more necessary to the defense at this point than it is to the State. So we'd just ask that it be continued with speedy trial tolled and maybe a report date a few months down the road to see if there's any change in the status of the witnesses.

The Court: [Defense counsel], is there any dispute factually that this particular witness is out of the country on military duty?

Defense Counsel: No.

The Court: Okay.

Defense Counsel: And I would just say he's not a necessary witness to us for the purpose of the suppression hearing because the burden of the suppression is on the State. But we understand that under Hill v. State, it would really be an excludable period because the officer is on military leave. So we would ask for a new omnibus date and a new trial date.

Prosecutor: My information, Your Honor, is that the witness will be out of the state at least until June. His orders were for one year from June. So I would say that maybe for efficiency it might be best just to set a report date a few months away just to see if his orders have been cut short or something. And then if he is back, then maybe we could set a trial date at that point, however, the Court wanted to handle that.

(Emphasis added.)

A "report date" was set for, and a hearing held on, January 26, 2004. At that hearing the State reported that the witness was still out of state on military duty, requested a new report date in six months, and asked that speedy trial be tolled. The court set a new report date for "six months down the road," on July 6, 2004, and tolled speedy trial. There was no objection raised by defense counsel.

At the hearing on July 6, 2004, the State reported that the witness had returned from military duty. The jury trial was set for October 13, 2004, and an omnibus hearing was set for August 30, 2004. No objection was raised by defense counsel.

On September 15, 2004, appellant filed a motion to dismiss for lack of a speedy trial. A hearing on that motion was held on September 27, 2004. At that hearing, appellant's new counsel stated: "I haven't been on the case that long, but just from reading your docket sheet, I couldn't draw any information that was presented that said when the unavailable witness was unavailable specifically and when the unavailable witness was back in a position to testify." It was agreed at the hearing that from February 13, 2003, to September 25, 2003, only one day was excluded for speedy-trial purposes. The court then stated:

All right. Now, it is clear from the record that from that point [September 25, 2003] forward, Mr. Thompson, that it was the defendant that was asking for the presence of the officer for purposes of the motion to suppress. The transcript that I have a copy of, I think that even confirmed - "[defense counsel], is there any dispute factually that this particular witness is out of the country on military duty?," that was my question to defense counsel. "No. But we understand that under Hill v. State, it would really be an excludable period because the officer is on military leave." So, we reset it. We had a couple more of report dates.

The trial court denied the motion to dismiss based on speedy-trial violation.

Here, the detective's absence due to military duty was first raised at a hearing on September 22, 2003, and first discussed at the September 25, 2003 hearing. It was at the September 25 hearing that the deputy prosecutor described the motion before the court as "a joint motion to continue," and asked "that speedy trial be tolled, one, under, Hill versus State, the fact that the State has a necessary witness out of the country." The court then pointedly asked defense counsel if there was any dispute factually that the witness was out of the country on military duty, and counsel replied, "No." In addition, defense counsel stated, "we understand that under Hill v. State, it would really be an excludable period because the officer is on military leave. So we would ask for a new omnibus date and a new trial date." No objection was raised by defense counsel concerning the excludability of the period, and in fact counsel acknowledged its excludability and asked for a new omnibus date and trial setting. The State reported that the witness would be out of state at least until June 2004 because his orders were for one year from June 2003. On January 26, 2004, a report hearing was held concerning the witness's absence due to military duty. The State reported that he was still out of state and asked that speedy trial be tolled, which the trial court did. No objection was raised by defense counsel. At a hearing held on July 6, 2004, the State informed the court that the detective had returned from overseas deployment. The jury trial was then set for October 13, 2004. No objection was raised by defense counsel.

In short, 608 days elapsed between the date appellant was arrested and the date he was tried, which is 243 days beyond the 365-day limit for speedy trial. However, it was only with the filing, on September 15, 2004, of the motion to dismiss for lack of speedy trial that defense counsel raised any speedy-trial objection. Moreover, it was only at the hearing on that motion, on September 27, 2004, that defense counsel first objected to the excludability of the periods of time concerning the witness's absence due to military duty. That was too late to preserve the issue for our review. At a minimum, the period of time between September 25, 2003, the date that the State characterized as a "joint motion" the request for a continuance due to the witness's absence due to military duty, and July 6, 2004, the date that the State informed the court that the witness had returned from active duty, amounts to 285 days, well beyond the 243 days that exceeded the speedy-trial limits. Consequently, because appellant's counsel did not make contemporaneous objections, the excludability of this period of time was not preserved for our review, and because this period of time brings the State within the speedy-trial limits, we affirm the trial court's denial of the motion to dismiss.

Affirmed.

Hart and Baker, JJ., agree.