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02/24/95 EX PARTE WALLACE ROBERT CLOPTON (RE

February 24, 1995

EX PARTE WALLACE ROBERT CLOPTON (RE: WALLACE ROBERT CLOPTON
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Baldwin Circuit Court, CC-91-1176, Court of Criminal Appeals, CR-92-1462). Pamela W. Baschab, Trial Judge.

As Corrected. Released for Publication June 25, 1995.

Kennedy, Hornsby, C. J., and Houston, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Kennedy

KENNEDY, JUSTICE.

We have granted certiorari review of a judgment of the Alabama Court of Criminal Appeals affirming Wallace Robert Clopton's conviction for unlawful distribution of a controlled substance, a violation of Ala. Code 1975, § 13A-12-211(a). See Clopton v. State, [Ms. CR-92-1462, Dec. 3, 1993] 656... So. 2d 1239 (Ala.Crim.App. 1993). That court determined, in pertinent part, that a delay in bringing Clopton to trial had not violated Clopton's right to a speedy trial under the Sixth Amendment to the United States Constitution, and, therefore, that the trial court had not erred in denying Clopton's motion to dismiss, which had asserted that ground. Clopton argues that the Court of Criminal appeals erred, because, he says, the approximately three-year period between the indictment and his arrest on the indictment, i.e., service of notice of the indictment, caused his trial to be unconstitutionally delayed.

The facts underlying this matter are as follows:

In January 1988, Jennifer Dillon, who had mutual acquaintances with Clopton, agreed to cooperate with law enforcement officials by buying cocaine from Clopton, while she and Clopton were under surveillance. Dillon, who did not know where else to locate Clopton, went to the Flora-Bama lounge, which is located in Florida, just across the state line from Baldwin County, Alabama. There, Dillon found Clopton, and he agreed to sell her cocaine. Dillon then lured Clopton from the Flora-Bama into Baldwin County, where Clopton sold her one-eighth of an ounce of cocaine as, by prearrangement with Dillon, a Baldwin County Sheriff's Department investigator, A.D. Long, and a Gulf Shores police officer, Steve Stewart, observed the transaction.

Clopton was not arrested at the time. It is undisputed that Clopton did not thereafter evade arrest, and that he was unaware that a Baldwin County grand jury had indicted him on November 4, 1988, in pertinent part, for the unlawful distribution of a controlled substance. Additionally, Clopton was unaware that a capias warrant had been issued for his arrest on the day of the indictment.

Dillon believed that Clopton lived in Florida. Based on that information, months before the indictment Officer Stewart had "'used the NCIC computer' to check an address for [Clopton] in Florida." Clopton, So. 2d at . Officer Stewart did not find a current physical address for Clopton, but determined that Clopton had post office boxes in Baldwin County. Officer Stewart then abandoned efforts to locate Clopton. The record reveals no subsequent attempts by the State to locate Clopton.

In late 1991, as Clopton was returning from a foreign vacation, customs officials discovered the outstanding capias warrant from November 1988 and detained Clopton for arrest. The capias warrant was executed by the Baldwin County Sheriff's Department on October 9, 1991.

On October 24, 1991, Clopton filed a motion to dismiss this case on the ground that the State's delay in his arrest had violated his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. That motion was summarily denied, and was reasserted by Clopton on November 21, 1991. *fn1 The trial court held a hearing on the motion to dismiss on March 19, 1992. At that hearing, Clopton indicated that during the delay he had had a memory loss that prejudiced his ability to defend himself at a trial of this case. He indicated that because of the delay he had no recollection as to events that might be relevant at trial or as to the identity of any potential defense witnesses as to relevant events in 1988.

The factors to be considered in determining whether a delay violates the right to a speedy trial are "1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of his right to a speedy trial, and 4) prejudice to the defendant resulting from the delay." Ex parte Carrell, 565 So. 2d 104, 105 (Ala. 1990), cert. denied, 498 U.S. 1040, 112 L. Ed. 2d 701, 111 S. Ct. 712 (1991). A single factor is not necessarily determinative, because this is a "balancing test, in which the conduct of both the prosecution and the defense are weighed." Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).

The State does not dispute that factors one and three weigh

in Clopton's favor. *fn2 The parties disagree as to whether factor two, "the reason for the delay," and factor four, "prejudice to the ...


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