Opinion
6 Div. 66.
November 4, 1969.
Appeal from the Circuit Court, Jefferson County, E. L. Ball, J.
Orzell Billingsley, Jr., Birmingham, C. H. Erskine Smith, Birmingham, Charles Morgan, Jr., Reber F. Boult, Jr., Atlanta, Ga., and David Hood, Jr., Bessemer, and Robert L. Carter, New York City, of counsel, for petitioner.
The judgment is unsupported by the evidence, particularly in that there was neither evidence that petitioner was represented by counsel from August 1966 to the filing of this action nor that he was other than indigent, the evidence affirmatively showing the contrary; therefore the decision is contrary to law and the constitutional right to due process of law. Fields v. City of Fairfield, 375 U.S. 248, 84 S.Ct. 360, 11 L.Ed.2d 311; Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. To try an indigent defendant who has been incarcerated for a capital offense for eleven years, including almost nine years under invalid death sentences and it being three years and four months since his sentence was declared invalid by a federal district court and two years and three months since affirmance of the invalidity by a federal court of appeals, during which time he was unrepresented by counsel, would deny him the fair and speedy trial guaranteed by Ala. Const. Art. 1, §§ 6, 13 and U.S. Const. Amends. VI, XIV, and, further, is in violation of the decision of the United States District Court for the Middle Dist. of Alabama. Klopfer v. N. Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; United States v. Banks, 4 Cir., 370 F.2d 141; Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259; United States v. Richardson, 4 Cr.L. 2145 (S.D.N.Y. Oct. 23, 1968); Needel v. Scafti, 4 Cr.L. 3001; Washington v. Holman, 245 F. Supp. 116 (M.D.Ala. 1965) Id. 5 Cir., 364 F.2d 618; United States v. Dillon, 183 F. Supp. 541 (S.D.N.Y. 1960); United States v. Chase, 135 F. Supp. 230 (N.D.Ill. 1955); Tiner v. State, 279 Ala. 126, 182 So.2d 859; Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158; Jones v. State, 17 Ala. App. 283, 84 So. 627; Fulton v. State, 178 Ark. 841, 12 S.W.2d 777; Commonwealth v. Green, Mass.Adv.Sh. (1968) 309, 234 N.E.2d 534; People v. Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849; Duncan v. State, 4 Cr.L. 2189 (Tenn.Crim.App., Nov. 18, 1968); Duncan v. State, 4 Cr.L. 2089 (Tenn.Crim.App., Nov. 11, 1968); Sexton v. State, 4 Cr.L. 2126 (Tenn.Crim.App., Oct. 22, 1968); A. Amsterdam, B. Segal M. Miller, Trial Manual for the Defense of Criminal Cases, § 311 (1967). Under the circumstances set forth in proposition II, petitioner has been denied the assistance of counsel in violation of Ala. Const. Art. 1, § 6 and U.S. Const. Amends. VI and XIV. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Taylor v. United States, 238 F.2d 259; Needel v. Scafati, 4 Cr.L. 3001; Sexton v. State, 4 Cr.L. 2126. Under the circumstances set forth in proposition II, petitioner's confinement or any continuation thereof is cruel and unusual punishment prohibited by Ala. Const. Art. I, § 15 and U.S. Const. Amend. VIII. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630; Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon the circumstances. The delay must not be purposeful or oppressive. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393. While justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed. Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041. Demand for trial or objection to postponement of trial or some other effort to secure speedy trial on part of the accused ordinarily must be affirmatively shown in order to entitle accused to discharge on ground of delay. Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158.
The petitioner, Caliph Washington, was indicted in September, 1957. He was convicted of the crime of murder and was sentenced to death. The conviction was reversed February 12, 1959, in Washington v. State, 269 Ala. 146, 112 So.2d 179. He was retried, again convicted and sentenced to death on December 9, 1959. The conviction was affirmed in Washington v. State, 274 Ala. 386, 148 So.2d 206.
Petition for writ of habeas corpus was filed in the United States District Court and was granted. Washington v. Holman, D.C., 245 F. Supp. 116. The writ was granted for two reasons; that the doctrine in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, was to have retroactive application, and that the trial court erred in permitting the testimony of Furman Jones, a witness in the first trial, to be read into evidence in the second trial without the laying of a proper predicate. On appeal to the United States Circuit Court of Appeals for the Fifth Circuit, the ruling that the trial court erred in permitting the testimony of Furman Jones to be read into evidence was affirmed, but of course, Escobedo was not retroactive. Holman v. Washington, 5 Cir., 364 F.2d 618.
On October 8, 1968, a petition for writ of habeas corpus was filed in the Circuit Court of Jefferson County, Alabama, Bessemer Division, in which petitioner requested his discharge. This petition was heard on November 11, 1968, and denied.
At the habeas corpus hearing the Clerk of the Circuit Court, Jefferson County, Bessemer Division, testified the case was set for trial June 17, 1968; that he did not know whether or not petitioner had an attorney at that time; that no attorney came to see him between the time Caliph Washington was re-arrested upon his release by the Federal Court until present counsel filed petition for habeas corpus; that he has held his position as Circuit Clerk for sixteen years and that no request for a trial has been made by petitioner or by anyone on his behalf.
The witness answered on cross examination that to his knowledge the court had not appointed an attorney for petitioner from the time of the order of the United States Court of Appeals in 1966 until the habeas corpus hearing.
The judgment of the court, in pertinent part recites:
"3. That at the time of the proceeding in the United States District Court of Appeals the petitioner here was represented by Morel Montgomery, Esq., and Fred Blanton, Esq., both of whom are licensed practicing attorneys of the State of Alabama; and in the instant proceedings in this court, the petitioner is represented by Orzell Billingsley, Jr., Esq., David H. Hood, Esq., Erskine Smith, Esq., and Charles Morgan, Jr., Esq., all of whom are practicing attorneys.
"It is therefore, the opinion of the Court that the petitioner has not been indigent since the original proceedings in the United States District Court for the Middle District of Alabama.
"4. That even though the petitioner has had all of the aforementioned counsel available to him since August of 1966, it appears without dispute that the petitioner has made no effort and had made no formal request or motion for an earlier setting of his case.
"5. That it is further without dispute that the case was set for trial June 10, 1968, and that the District Attorney made several efforts to secure the identity of any attorney or attorneys who represented the defendant and was unsuccessful in getting that information from the family of the defendant."
In Hampton v. State of Oklahoma, D.C., 267 F. Supp. 667 (1967), the court said:
"The failure of a defendant to demand an earlier trial is fatal to his request for discharge under habeas corpus, made either by a defendant convicted in State Court or by a defendant convicted in Federal Court. * * * The rule in the federal courts is to the effect that an accused is not entitled to a discharge for delay in bringing him to trial unless it appears that he has resisted postponement, demanded a trial, or made some effort to procure a speedier trial than the State accorded him. It is, therefore, ordinarily deemed that a defendant, in the absence of such effort, has waived his right to a speedy trial under the Constitution and statutes in aid thereof. 57 A.L.R.2d 302 at page 326."
In Hampton v. State of Oklahoma, 368 F.2d 9 (10 Cir. 1966), the court said:
"Mere passage of time does not establish an unconstitutional denial of a speedy trial or due process. * * * nor can a defendant sit by without effort to obtain an earlier trial or himself contribute to the delay and thereafter be heard to complain."
The Alabama Supreme Court has said that ordinarily a demand for a trial or objection to postponement of trial, or some other effort to secure a speedy trial on the part of the accused must be affirmatively shown to entitle him to a discharge on the ground of delay.
The only question here is whether defendant has been denied a speedy trial and there is no claim that petitioner or anyone on his behalf has made a request for a speedy trial.
We are of opinion the trial court's conclusion that the petitioner was not entitled to discharge on habeas corpus is correct. The order appealed from is affirmed.
Affirmed.