Welborn v. State
Welborn v. State
Opinion
James Welborn was convicted in four cases of the possession of a forged instrument, in violation of Alabama Code 1975, §
Hutchinson testified that "one day" in 1985 the defendant came to his house in Wilmer. It was "about 4:00 one evening" on a "weekday" that was "warm." This was the extent of the predicate for the admission of the conversation between Hutchinson and the defendant.
"The time and place of the making of an extrajudicial admission and the circumstances surrounding the admission bear only on its weight and not on its competency as evidence. . . ." 31A C.J.S. Criminal Law § 298 (1964). "The state may not only prove admissions and incriminating statements by accused but also may show when and where they were made, but, where testimony of admissions by accused is of a substantive nature, it is not necessary to fix the time when and the place where the statements were made." 22A C.J.S. Criminal Law § 730 (1961). "That the witness who testifies to such declarations [against interest] cannot remember the time when or the place where they were made, is a circumstance going to the credibility of his testimony, but it cannot render the declarations themselves inadmissible." Walker v. Blassingame,
The defendant now objects to the admission of Howell's testimony on the ground that the State failed to connect the defendant to the check deposited to Howell's bank account. Since this is not the objection that was made at trial, that ground is not preserved for review and cannot be raised on appeal. "The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial." Ex parte Frith,
June 28, 1985 Indictment. July 22, 1985 Arraignment. October 31, 1985 Case "reset at the defendant's request to next available docket." December 16, 1985 The defendant made new bond. January 9, 1986 "Reset by agreement due to absence of" defense counsel. March 10, 1986 Defendant filed a motion for exculpatory material. March 11, 1986 Motions to continue and consolidated filed by State. March 13, 1986 "Reset trial to next available Docket." March 18, 1986 Motion for handwriting exemplar filed by defendant. April 4, 1986 Hearing on motion for exculpatory material filed by defense counsel was continued after defense counsel "failed to appear." Hearing was ordered "to be reset when requested" by defense counsel. May 12, 1986 Motion for handwriting exemplar was reset. At a "status hearing," the defendant represented he would go to trial. June 9, 1986 "State's motion for continuance — GRANTED." December 16, 1986 State's motion for continuance granted over defendant's objection. Pursuant to the defendant's motion for a handwriting exemplar, the trial court ordered that the case not be reset for trial until the samples had been returned from the Alabama Department of Forensic Sciences. May 14, 1987 The defendant's motion for a speedy trial (filed April 14, 1987) was reset because defense counsel was in federal court. The motion merely requested that the defendant's case be set for trial "as soon as possible." The motion did not allege a denial of speedy trial or request other relief. May 21, 1987 The defendant's motion for speedy trial was "reset by agreement." May 28, 1987 "Defendant's motion for speedy trial is granted." October 6, 1987 "Case continued on defendant's motion." December 9, 1987 "Trial of case was continued on defendant's motion." April 4, 1988 "Trial continued on state's motion over objection of defendant." June 20, 1988 Trial began. The defendant was convicted on June 22, 1988.
These times and events have been reconstructed from the case action summary sheets of the trial court contained in the record on appeal. Although the defendant did request a speedy trial, we find no instance where he alleges that he was denied a speedy trial or where he sought to have the indictment dismissed on that ground. From the record, it appears that the allegation of the denial of a speedy trial was never presented to the trial court. On that basis, we find that the issue of the alleged denial of speedy trial has not been preserved for review.
Even if this court were to find that the matter had been properly preserved for review, we would find no violation of the defendant's right to a speedy trial. Although there was a three-year delay between the defendant's indictment and his trial, at least 15 months of that delay is attributable to the defendant's requests for continuances. Some period of delay must also be credited to the defendant's request for discovery. Because the speedy trial issue was not presented to the circuit court, the record contains no explanation for the delays sought by the State or the defendant. Neither has the defendant shown any prejudice caused by or resulting from the delay. Moreover, we consider that the request for speedy trial was waived when two continuances were granted at the defendant's request after the motion for speedy trial had been granted.
The defendant now argues that trial counsel was ineffective because he was not adequately prepared to try the case because he was standing in for his law partner, because he did not object to the testimony of Fred Howell (See Part III), because he did not object to a leading question asked of the victim which assumed the checks were forged, because he had not seen two exhibits (checks) introduced by the State, and because he asked a handwriting expert to perform some comparisons during a lunch recess during the trial.
Although we intend no criticism and understand the position of defendant's appellate counsel in raising this issue, we find that it is without merit and is based on speculation and hindsight. The test for determining ineffectiveness is set out in Strickland v. Washington,
We are convinced that the defendant received a fair trial. The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
Reference
- Full Case Name
- James Welborn v. State.
- Cited By
- 4 cases
- Status
- Published