O'BARR v. State
O'BARR v. State
Opinion
The appellant, Roger Dale O'Barr, was convicted of robbery in the first degree, in violation of §
The state's evidence tended to show that on July 6, 1990, Fowler Drugs, a drugstore in Hartselle, Alabama, was robbed by two men. One man entered the store, went to the pharmacy area of the store, and forced the pharmacist to fill a 30-gallon garbage bag with prescription drugs. Another man, identified by three people in the store as the appellant, pulled a gun on two people who were in the store and said that this was a "stick up." He told them not to say anything or he would shoot them. The appellant then pointed his gun at a customer who had walked in during the robbery. He tied up all three people and had them sit on the floor. The two robbers then left the store with the bag of prescription drugs.
At the time that the appellant was indicted in this case in Morgan County, Alabama, he was serving a sentence on a prior conviction in Madison County. Both the now-charged offense and the prior offense occurred in Alabama. The appellant argues that according to Turner v. State,
However, the Alabama Supreme Court in Ex parte Springer,
Goodson v. State,"This court noted in Arnett v. State,
551 So.2d 1158 (Ala.Cr.App. 1989), that the length of the delay must be 'presumptively prejudicial.' In Arnett, we stated that 20 months was not too long a delay. However, as the Supreme Court noted in Barker and as this court noted in Arnett, these cases must be analyzed on a case-by-case method, since each involves circumstances which are unique to that particular case."
The right to a speedy trial is triggered when a warrant of arrest is issued. Goodson. In this case, the warrant was issued on June 14, 1991. The appellant was tried 16 months later, in October 1992. A 16 month delay is not "presumptively prejudicial" under the facts of this case. Arnett v. State,
In this case, the appellant asserted his right to a speedy trial on July 1, 1991, when he filed a pro se motion for a speedy trial. Throughout the entire delay the appellant was incarcerated in an Alabama prison serving a sentence on a previous conviction. The record does not contain the reasons for the delays. However, there is no indication that any requests for continuances were made by either party. The docket sheet reflects that the lengthiest delay occurred when the appellant filed a motion to dismiss for lack of jurisdiction. After a review of all the facts, we hold that this appellant was not denied his constitutional right to a speedy trial.
"The Court: Are you asking for a continuance because of the failure to receive the discovery?
"Mr. Conner [Defense counsel]: No, sir. What I asked for was a motion to dismiss.
"The Court: Well, I would overrule that motion. From there where do you want to go?
"Mr. Conner: Well —
"The Court: I think that the remedy there would at most be to exclude that evidence if it is offered. If it is not being offered yet, I couldn't even rule on that, rather than a dismissal of the indictment."
The trial court clearly intended to consider any motion to exclude evidence because of the state's failure to comply with discovery when that evidence was offered at trial. However, at no point during trial did the appellant move to exclude any testimony or physical evidence on the grounds that the state had violated the discovery order. The *Page 536
appellant has failed to preserve this issue by his failure to object at the time of the admittance of the evidence.Wright v. State,
Furthermore, the appellant could have requested a continuance but instead chose to proceed. No reversible error occurred here.
For the foregoing reasons, the judgment in this cause is due to be affirmed.
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Roger Dale O'Barr v. State.
- Cited By
- 1 case
- Status
- Published