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03/25/95 DOUGLAS KIMBRELL v. STATE

March 25, 1995

DOUGLAS KIMBRELL
v.
STATE



Appeal from Elmore Circuit Court. (CC-93-238). Steve Drinkard, TRIAL JUDGE.

Released for Publication August 25, 1995.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Douglas Kimbrell, was convicted of escape in the first degree, a violation of § 13A-10-31, Code of Alabama 1975. He was sentenced to life imprisonment in the penitentiary pursuant to the Habitual Felony Offender Act.

The state's evidence tended to show that on June 5, 1990, the appellant escaped from the Elmore County Correctional Facility while serving a 15-year sentence for receiving stolen property in the second degree. He escaped while on a work release with the City of Wetumpka Parks and Recreation Department. On April 26, 1993, he was arrested in Yuma, Arizona, and was returned to Alabama.

The appellant raises four issues on appeal.

I

The appellant first contends that the trial court erred in denying him a speedy trial in violation of the Sixth Amendment to the United States Constitution.

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), set forth four factors to be weighed in determining whether an accused has been denied his constitutional right to a speedy trial. Those factors are: (1) the length of the delay, (2) the reason for the delay, (3) the accused's assertion of his right to a speedy trial, and (4) the degree of prejudice suffered by the accused due to the delay.

In determining the length of the delay, time is measured from the date the arrest warrant was issued. Jackson v. State, 650 So. 2d 593 (Ala. Cr. App. 1994). In this case, the appellant escaped from custody on June 5, 1990. A writ of arrest was issued on July 3, 1990. The appellant was arrested on April 26, 1993, in Yuma, Arizona. His trial began on May 16, 1994. Under the measure of delay in Barker, the delay in this case was approximately 3 years and 10 months. This court has held delays of 19 months to be "presumptively prejudicial," and to prompt an inquiry into the remaining factors in Barker. Jackson, ___ So. 2d at ___; Ingram v. State, 629 So. 2d 800, 802 (Ala. Cr. App. 1993). Therefore, we must look at the reasons for the delay.

A delay of almost three years in this case was due to the appellant's voluntary absence from this jurisdiction as a result of his escape and flight. "'Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.'" Zumbado v. State, 615 So. 2d 1223, 1234 (Ala. Cr. App. 1993), quoting McCallum v. State, 407 So. 2d 865, 868 (Ala. Cr. App. 1981). Therefore, the appellant's actual delay from capture to trial was approximately 13 months.

The record reflects that the appellant first asserted his right to a speedy trial by filing an "Official Notice and Request for a Speedy Disposition" on July 15, 1993. However, the record also reflects that this case was continued twice, first on October 26, 1993, upon a motion to continue filed by the appellant, and again on January 4, 1994, because the appellant's trial counsel was ill. The record reflects no evidence of any intentional delay on the part the state in order to gain a tactical advantage. The appellant's trial was delayed primarily by the appellant's own actions.

Furthermore, the appellant has failed to show how he was prejudiced by the delay. Barker set out three interests that the right to speedy trial was intended to protect and by which the level of prejudice is to be measured: (1) "to prevent oppressive pretrial incarceration"; (2) "to minimize anxiety and concern of the accused"; and (3) "to limit the possibility that the defense will be impaired," Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L.Ed.2d at 118. The appellant was serving a 15-year sentence for a previous felony when he escaped, so any pretrial incarceration could not ...


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