Strickland v. State

Otis STRICKLAND v. STATE of Arkansas

CR 97-501                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Criminal procedure -- right to speedy trial -- burden shifts
     upon showing prima facie violation of right. -- Under Rule
     28.1 of the Arkansas Rules of Criminal Procedure an accused
     must be brought to trial within 12 months from the date of the
     arrest; when a defendant presents a prima facie case of a
     speedy-trial violation, the burden shifts to the State to
     explain the delay. 

2.   Criminal procedure -- prima facie case for speedy-trial
     violation clearly presented -- State responded with excludable
     periods. -- Where appellant clearly presented a prima facie
     case for a speedy-trial violation, in that he was arrested on
     October 13, 1994, and was tried 721 days later on October 3,
     1996, the State successfully presented to the trial court
     seven periods of time to be excluded under Rule 28.3, totaling
     452 days. 

3.   Appeal & error -- criminal cases -- issues must be presented
     at trial in order to preserve for review. -- In criminal
     cases, issues raised, including constitutional issues, must be
     presented to the trial court to preserve them for appeal; it
     is incumbent upon an appellant to obtain a ruling from the
     trial court in order to preserve an argument for appeal.
4.   Appeal & error -- trial court never ruled on objection to 
     exclusion of time period -- argument not preserved for review.
     -- The supreme court declined to consider appellant's argument
     concerning the first excluded period because appellant did not
     challenge this period at the hearing on his motion, nor did he
     contest the order excluding this period; because the trial
     court never ruled on an objection to the exclusion of this
     time period, the argument was not properly before the supreme
     court on appeal.

5.   Criminal procedure -- right to speedy trial -- second period
     properly excluded -- trial court's order sufficiently clear. -
     - The trial court excluded the second time period for good
     cause based on the fact that appellant's court appointed
     counsel could no longer represent appellant because he had
     been diagnosed with a terminal brain tumor; the order was date
     specific where the trial court wrote that an arraignment would
     be scheduled for "February 26, 1996, to determine present
     ability to retain counsel or necessity of a court
     appointment"; the order was sufficiently clear to establish
     that, at a minimum, the period of time from February 1, 1996,
     to February 26, 1996, would be excluded.

6.   Criminal procedure -- right to speedy trial -- time excludable
     upon a motion by prosecutor when evidence material to State's
     case unavailable. -- Arkansas Rule of Criminal Procedure
     28.3(d)(1) allows for time to be excluded upon a motion by the
     prosecutor when evidence, material to the State's case, is
     unavailable; the State must exercise due diligence in
     obtaining the material evidence and there be reasonable
     grounds to believe that the evidence will be available at a
     later date; a witness's testimony is evidence for purposes of
     this rule; the two factors looked to in determining whether
     due diligence was exercised in obtaining an unavailable
     witness are the issuance of a subpoena for that witness and
     the lack of any effort to depose that witness. 

7.   Witnesses -- use of deposition testimony -- when unavailable
     witness's deposition testimony may be inadmissible. --      
     An unavailable witness's deposition testimony may be
     inadmissible where (1) the testimony is damaging to the
     defendant, (2) there is a need for the jury to be able to
     evaluate the credibility of the witness, and (3) there has not
     been a sufficient showing of unavailability; deposition
     testimony is not always unavailable, but it is important that
     the be able to jury assess the demeanor of a critical witness.

8.   Criminal procedure -- speedy-trial violation -- due diligence
     exercised in obtaining unavailable witness -- time period
     resulting from continuance properly excluded. -- Where the
     unavailable police investigator was clearly a material
     witness, it was important for both parties that the witness
     give his testimony in person, and upon learning of the
     witness's unavailability, a subpoena had been issued and was
     never released, the supreme court concluded that the State
     exercised due diligence in obtaining this material witness for
     trial; when it became apparent that the witness had a conflict
     and was unavailable, the trial court, in its discretion, had
     the authority to grant the continuance requested by the State,
     which it did; this time period was properly excluded for
     speedy-trial purposes.

     Appeal from Bradley Circuit Court; Don Glover, Judge;
affirmed.
     Katharine C. Day, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     Appellant, Otis Strickland, was arrested on October 13, 1994,
and charged with four counts of delivery of a controlled substance. 
He was tried by a jury on October 3, 1996, found guilty, and
sentenced to three terms of forty years, to be served concurrently. 
Prior to trial, Strickland filed a timely motion to dismiss the
charges against him for violation of the speedy-trial rule.  A
hearing was held on the motion, and the trial judge denied it. 
Strickland appeals the denial of his motion to this court.  We
affirm the trial court.
     Strickland's claim on appeal is that his right to a speedy
trial under Rule 28.1 of the Arkansas Rules of Criminal Procedure
has been violated.  Rule 28 is clear that an accused must be
brought to trial within 12 months from the date of the arrest.  See
Ark. R. Crim. P. 28.2.  When a defendant presents a prima facie
case of a speedy-trial violation, the burden shifts to the State to
explain the delay.  Duncan V. Wright, 318 Ark. 153, 883 S.W.2d 834
(1994); Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992);
McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990).
     Strickland clearly presented a prima facie case for a speedy-
trial violation in that he was arrested on October 13, 1994, and
was tried 721 days later on October 3, 1996.  In response to his
motion to dismiss, the State successfully presented to the trial
court seven periods of time to be excluded under Rule 28.3,
totaling 452 days.  Thus, according to the State, Strickland was
tried on the 269th day, after the 452 days were excluded.  The
trial court agreed.  On appeal, Strickland contests the exclusion
of three of those seven time periods.

a. February 26, 1996, to May 16, 1996 (79 days).
     The first excluded time period contested by Strickland is the
period between February 26 and May 16, 1996.  We decline to
consider the argument regarding this period because Strickland did
not challenge this excluded period at the hearing on his motion. 
Nor did he contest the order excluding this period.  Hence, the
trial court did not have an opportunity to rule on any objection to
this excluded period.
     In criminal cases, issues raised, including constitutional
issues, must be presented to the trial court to preserve them for
appeal.  Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). 
Moreover, it is incumbent upon an appellant to obtain a ruling from
the trial court in order to preserve an argument for appeal.  Akins
v. State, 330 Ark. 228, 955 S.W.2d 483 (1997); Newman v. State, 327
Ark. 339, 939 S.W.2d 811 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996).  Because the trial court never ruled on an
objection to the exclusion of this time period, the argument is not
properly before us on appeal.

b. February 1, 1996, to February 26, 1996 (25 days).
     Strickland also contends that the period between February 1
and February 26, 1996, should not have been excluded because the
order excluding this time was not date specific.  Though
eliminating the exclusion of these 25 days would still not cause a
speedy-trial violation, we will consider the point.  The trial
court's order provides that on the court's own motion the time from
February 1 until the  "next trial setting" should be excluded.  The
trial court excluded this time period based on the fact that
Strickland's court appointed counsel could no longer represent
Strickland because he had been diagnosed with a terminal brain
tumor.  In support of his objection to this excluded period,
Strickland cites Rule 28.3(c), which requires all orders excluding
time for a continuance granted at the request of the defendant or
the prosecutor to be date specific.
     In response, the State presents two arguments.  First, the
State contends that the time excluded should not be considered
under Rule 28.3(c) because it was excluded on the trial court's own
motion and not by request for continuance by either party.  Thus,
the State argues that the exclusion should be considered only under
Rule 28.3(h) which allows for the exclusion of "other periods of
delay for good cause."  Surely, the fact that the court's appointed
defense attorney has been diagnosed with a terminal brain tumor
constitutes good cause.  In addition, Rule 28.3(h) does not require
that an order be date specific.
     Secondly, the State contends that the February 1, 1996 order
was date specific.  Although the order does refer to the "next
trial setting," under the reasons explaining the exclusion of time,
the trial court wrote that an arraignment would be scheduled for
"February 26, 1996, to determine present ability to retain counsel
or necessity of a court appointment."  We conclude that the order
was sufficiently clear to establish that, at a minimum, the period
of time from February 1, 1996, to February 26, 1996, would be
excluded.
c. May 16, 1996, to August 29, 1996 (105 days).
     Finally, Strickland contests the exclusion of the time period
between May 16, 1996, and August 29, 1996.  According to an order
dated May 6, 1996, this time period was excluded because of the
unavailability of a key witness for the State.  Strickland,
however, claims that the State did not act with due diligence in
obtaining the testimony or presence of the witness.  
     Rule 28.3(d)(1) allows for time to be excluded upon a motion
by the prosecutor when "evidence," material to the State's case, is
unavailable.  This rule also requires that the State exercise due
diligence in obtaining the material evidence and that there be
reasonable grounds to believe that the evidence will be available
at a later date.  See also Meine v. State, supra.  We have held
that a witness's testimony is evidence for purposes of this rule. 
White v. State, 330 Ark. 813, ___ S.W.2d ___ (1997); see also Meine
v. State, supra.  We have also stated that two factors we will look
to in determining whether due diligence was exercised in obtaining
an unavailable witness are the issuance of a subpoena for that
witness and the lack of any effort to depose that witness.  Meine
v. State, supra.
     In the instant case, the motion for a continuance was made
because State Police Investigator Dennis Roberts would not be
available for trial on that date.  According to his testimony at
the speedy-trial hearing, Investigator Roberts notified the
prosecutor on March 29, 1996, that he would be unavailable to
testify from May 10, 1996, through May 18, 1996, due to his having
been chosen to represent the State of Arkansas at national police
memorial week in Washington, D.C. and a planned meeting with
President Clinton.  According to the State, on or about April 3,
1996, Investigator Roberts was served with a subpoena to appear and
testify at trial set for May 16, 1996.  Investigator Roberts
confirmed that he did receive the subpoena.
     Strickland argues that due diligence was not exercised in this
case because the State did not make any effort to depose this
witness for use at trial.  The State responds that when the
prosecutor became aware that Investigator Roberts planned not to
attend the trial, the prosecutor issued a subpoena and requested a
continuance.  The State further maintains that it did not depose
the witness because there was no guarantee that deposition
testimony would be admissible in this situation.  
     Strickland relies heavily in his due diligence argument on
Meine v. State, but we view the Meine case as being distinguishable
from the case at bar.  For the first trial setting in Meine, the
witness at issue was never served with a subpoena.  Here,
Investigator Roberts was subpoenaed and never released from that
subpoena.  Then, in Meine the State unilaterally released the
witness before the second trial setting on the basis of a
scheduling conflict.  We noted that the State might have availed
itself of a deposition as an alternative to live testimony.  Also,
in Meine when the matter finally came to trial, the pertinent
witness was not called to testify, casting doubt on his
materiality.  In the instant case, Investigator Roberts was the
State's first witness.
     We agree that whether a deposition might have substituted for
live testimony in this case was problematic for the State. 
Investigator Roberts was a material witness for the State, and the
State undoubtedly wanted his credibility and demeanor on display
before the jury.  Moreover, this court has said that under some
circumstances, an unavailable witness's deposition testimony may be
inadmissible.  See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799
(1988).  In Bennett, we refused to permit deposition testimony
where (1) the testimony was damaging to the defendant, (2) there
was a need for the jury to be able to evaluate the credibility of
the witness, and (3) there had not been a sufficient showing of
unavailability.  Though the Bennett decision does not disallow
deposition testimony in all instances, it underscores the
importance of having a jury assess the demeanor of a critical
witness.  Investigator Roberts was the State's first witness at the
eventual trial and an important cog in the State's case.  We can
readily see how it would be important to both parties for the
witness to give his testimony in person.
     Strickland does contest any assumption that Investigator
Roberts was a material witness and, because of that, contends he
was not unavailable for Rule 28.3(d)(1) purposes.  Suffice it to
say that Investigator Roberts testified at the speedy-trial hearing
that he was the case agent and the lead officer in this matter and,
in addition, was the custodian of the records, the supervisor of
the buy money, and the supervisor of the evidence.  At trial, he
was the State's first witness and testified extensively about his
role as an undercover agent on the cases involving Strickland. 
Through him, the State introduced six State exhibits.  His
testimony appears to us to have been clearly material.
     We conclude that the State exercised due diligence in
obtaining this material witness for trial.  When it became apparent
that the witness had a conflict and was unavailable, the trial
court, in its discretion, had the authority to grant the
continuance which it did.  The fact that the case was not reset for
trial sooner was a matter for the trial court to decide in fixing
its docket.
     We hold that these three time periods were properly excluded
for speedy-trial purposes.
     Affirmed.