Opinion
CR-20-0502
03-11-2022
Jonathan Horton v. State of Alabama
Appeal from Jefferson Circuit Court (CC-20-882)
MCCOOL, JUDGE.
Jonathan Horton appeals his conviction for third-degree domestic violence. See § 13A-6-132, Ala. Code 1975. Horton was sentenced to 12 months' imprisonment; that sentence was suspended, and Horton was ordered to serve 24 months of unsupervised probation.
Facts and Procedural History
On August 24, 2016, a warrant was issued in the Jefferson District Court authorizing Horton's arrest on a charge of domestic violence by strangulation or suffocation. See § 13A-6-138, Ala. Code 1975. On April 7, 2017, Horton learned of the warrant and turned himself in at the Jefferson County Sheriff's Office. Later that day, Horton was brought before the district court for his initial appearance, and he was released on bond the next day. On July 27, 2017, the district court issued an order indicating that Horton had waived his right to a preliminary hearing and that the case was being bound over to the grand jury. The grand jury subsequently indicted Horton, but, "due to a clerical error in the District Attorney's Office" (R. 5), Horton was not indicted until March 6, 2020.
On March 25, 2020, Horton filed in the Jefferson Circuit Court a motion to dismiss the indictment. In support of that motion, Horton argued that an analysis of the factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), indicated that the State had deprived him of the right to a speedy trial enshrined in both the Sixth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901. The circuit court held a hearing on Horton's motion, where the parties stipulated to certain undisputed facts. In addition, the circuit court heard testimony from Horton and accepted a letter from Horton's wife, and the State did not dispute any of the factual allegations in Horton's testimony or in his wife's letter. Following that hearing, the circuit court denied Horton's motion and, in support of its ruling, stated that it had "analyzed and applied the factors necessary to determine if [Horton's] constitutional right to a speedy trial ha[d] been violated." (C. 14.)
On March 1, 2021, Horton pleaded guilty to third-degree domestic violence after reserving his right to appeal the denial of his motion to dismiss based on speedy-trial grounds. Horton subsequently filed a timely notice of appeal.
Discussion
On appeal, Horton reasserts his claim that the circuit court should have dismissed the indictment because, he says, the State violated his right to a speedy trial. We review this claim de novo because the relevant facts are undisputed and because the only question to be decided is a question of law. State v. Pylant, 214 So.3d 392, 394 (Ala.Crim.App.2016).
"In determining whether a defendant has been denied his constitutional right to a speedy trial, we apply the test established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the following four factors are considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his or her right to a speedy trial; and (4) the prejudice to the defendant.
"In Ex parte Walker, 928 So.2d 259, 263 (Ala. 2005), the Alabama Supreme Court stated:
"' "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.'" Ex parte Clopton, 656 So.2d [1243] at 1245 [(Ala. 1985)] (quoting Barker, 407 U.S. at 530).' "State v. Jones, 35 So.3d 644, 646 (Ala.Crim.App.2009).
I. Length of the Delay
" 'In Doggett v. United States, the United States Supreme Court explained that the first factor -- length of delay -- "is actually a double enquiry." 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first inquiry under this
factor is whether the length of the delay is" 'presumptively prejudicial.'" 505 U.S. at 652, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). A finding that the length of delay is presumptively prejudicial "triggers" an examination of the remaining three Barker factors. 505 U.S. at 652 n.1, 112 S.Ct. 2686 ("[A]s the term is used in this threshold context, 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry."). See also Roberson v. State, 864 So.2d 379, 394 (Ala.Crim.App.2002).
" 'In Alabama, "[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant -- whichever is earlier -- to the date of the trial." Roberson, 864 So.2d at 394.' "Wilson v. State, 329 So.3d 71, 77 (Ala.Crim.App.2020) (quoting Ex parte Walker, 928 So.2d 259, 263-64 (Ala. 2005)). In a case where the defendant pleads guilty, the "trial" date is the date he or she pleads guilty. See Wilson, 329 So.3d at 77; and Ex parte Walker, 928 So.2d 259, 264 (Ala. 2005) (both calculating the length of the delay up to the date the defendant pleaded guilty).
In this case, the length of the delay is measured from August 24, 2016 -- the date the arrest warrant was issued -- to March 1, 2021 -- the date Horton pleaded guilty. Thus, the length of the delay was 54 months. The State concedes that such a delay is presumptively prejudicial (State's brief, p. 16), and that concession is supported by Alabama caselaw. See Ex parte Walker, 928 So.2d at 264 (holding that a 50-month delay was presumptively prejudicial). Therefore, because the delay in this case is presumptively prejudicial, that delay is sufficient to trigger an examination of the remaining Barker factors. Wilson, 329 So.3d at 77.
Both Horton and the State calculate the length of the delay to be 45 months because they incorrectly conclude that the delay ended on June 1, 2020 -- the date of the hearing on Horton's motion to dismiss.
II. Reason for the Delay
" 'The State has the burden of justifying the delay. See Barker, 407 U.S. at 531, 92 S.Ct. 2182; Steeley v. City of Gadsden, 533 So.2d 671, 680 (Ala.Crim.App.1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531, 92 S.Ct. 2182. Courts assign different weight to different reasons for delay. Deliberate delay is "weighted heavily" against the State. 407 U.S. at 531, 92 S.Ct. 2182. Deliberate delay includes an "attempt to delay the trial in order to hamper the defense" or" 'to gain some tactical advantage over (defendants) or to harass them.'" 407 U.S. at 531 & n.32, 92 S.Ct. 2182 (quoting United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Negligent delay is weighted less heavily against the State than is deliberate
delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182; Ex parte Carrell, 565 So.2d [104, ] 108 [(Ala. 1990)]. Justified delay --which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible -- is not weighted against the State. Barker, 407 U.S. at 531, 92 S.Ct. 2182; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (" '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.' ") (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).' "Wilson, 329 So.3d at 77-78 (quoting Ex parte Walker, 928 So.2d at 265).
In this case, it is undisputed that the State negligently delayed prosecuting Horton's case "due to a clerical error in the District Attorney's Office." However, Horton concedes that not all of the 54-month delay was attributable to the State's negligence. Instead, Horton contends that the State's negligence did not arise until July 27, 2017 -- the date his case was bound over to the grand jury. (Horton's brief, p. 14.) Therefore, only the delay from July 27, 2017, to March 1, 2021 -- a delay of 43 months -- is attributable to the State's negligence. The fact that the State negligently delayed Horton's case for 43 months weighs against the State, but it "does not weigh as heavily as it would have had the delay been found to be ... intentional." State v. White, 962 So.2d 897, 902 (Ala.Crim.App.2006) (delay of 42 months).
III. Horton's Assertion of His Right to a Speedy Trial
" 'An accused does not waive the right to a speedy trial simply by failing to assert it. Barker, 407 U.S. at 528, 92, 92 S.Ct. 2182. Even so, courts applying the Barker factors are to consider in the weighing process whether and when the accused asserts the right to a speedy trial, 407 U.S. at 528-29, 92 S.Ct. 2182, and not every assertion of the right to a speedy trial is weighted equally. Compare Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App.1990) ("Repeated requests for a speedy trial weigh heavily in favor of an accused."), with Clancy v. State, 886 So.2d 166, 172 (Ala.Crim.App.2003) (weighting third factor against an accused who asserted his right to a speedy trial two weeks before trial, and stating:" 'The fact that the appellant did not assert his right to a speedy trial sooner "tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date."' ") (quoting Benefield v. State, 726 So.2d 286, 291 (Ala.Crim.App.1997), additional citations omitted), and Brown v. State, 392 So.2d 1248, 1254 (Ala.Crim.App.1980) (no speedy-trial violation where defendant asserted his right to a speedy trial three days before trial).' "Wilson, 329 So.3d at 79 (quoting Ex parte Walker, 928 So.2d at 265-66).
Horton's arrest occurred on April 7, 2017, but he did not assert his right to a speedy trial until March 25, 2020 -- almost three years later. Despite that lengthy delay, Horton contends that he asserted his right to a speedy trial "as soon as practically possible" because he did so "19 days after the indictment." (Horton's brief, p. 17.) However, the right to a speedy trial attaches on either the date the indictment is returned or the date the defendant is arrested, whichever is earlier. See Jones, 35 So.3d at 655 (holding that the trial court "should have considered the time between [the defendant's] initial arrest[, which preceded the indictment, ] ... and the filing of her motion [to dismiss] ... as the period during which [she] could have raised her speedy-trial concern"); Prince v. State, 354 So.2d 1186, 1190 (Ala.Crim.App.1977) (noting that, in Dillingham v. United States, 423 U.S. 64 (1975), the United States Supreme Court "established that arrest constitutes the initiation of a criminal prosecution for the purposes of applying the test of Barker ..., regardless of whether a formal indictment has been returned"); Baker v. McCollan, 443 U.S. 137, 144 (1979) (holding that "invocation of the speedy trial right need not await indictment or other formal charge; arrest pursuant to probable cause is itself sufficient"); United States v. MacDonald, 456 U.S. 1, 7 (1982) ("In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim."); and Betterman v. Montana, 578 U.S. 437, 441 (2016) (noting that the right to a speedy trial attaches at the time of arrest or indictment, whichever is earlier). Thus, Horton's right to a speedy trial attached when he was arrested on April 7, 2017, and the fact that he waited almost three years from that date to assert that right "tends to suggest that [he] either acquiesced in the delay or that he suffered only minimal prejudice as a result of the delay." Wilson, 329 So.3d at 79. Accordingly, the third Barker factor weighs against Horton. See Jones, 35 So.3d at 655 (holding that the third Barker factor weighed against the defendant because she waited approximately two years and five months to assert her right to a speedy trial).
We acknowledge Horton's argument that, although his right to a speedy trial attached when he was arrested, it would have been futile to assert that right in the district court because, he says, the district court --as a court of limited criminal jurisdiction, see § 12-12-32, Ala. Code 1975 --had no authority to dismiss the case on that basis. However, the district court lost its limited jurisdiction over Horton's case once the case was bound over to the grand jury on July 27, 2017. See State v. Brown, 259 So.3d 655, 659 (Ala. 2018) ("The district court does not retain authority over a case once the case has been bound over to the grand jury."); and Rule 5.4(e), Ala. R. Crim. P. ("Within fourteen (14) days after waiver or conclusion of the preliminary hearing, all original papers and records shall be transmitted to the circuit court."). Thus, even if we ignore the time that the district court had jurisdiction over the case, Horton still waited more than two years and seven months to assert his right to a speedy trial in the circuit court -- a fact that weighs against him in the speedy-trial analysis. Jones, 35 So.3d at 655.
It is clear from his briefs to this Court that Horton believes a circuit court has no authority to act in a felony case until an indictment is returned. This belief is incorrect and, if it were true, would result in a period of "legal limbo" between a preliminary hearing and an indictment in which no court has the authority to act in a felony case. See § 12-11-30(2), Ala. Code 1975.
IV. Prejudice to Horton
In evaluating the fourth Barker factor, we must first determine whether prejudice is to be presumed from the State's negligent delay or whether Horton had the burden of demonstrating actual prejudice. See Wilson, 329 So.3d at 81 ("If the facts of a particular case do not warrant a finding of presumed prejudice under the fourth Barker factor, the defendant must demonstrate actual prejudice to prevail on a speedy-trial claim."). Regarding the facts that will support a finding of presumed prejudice, this Court recently reiterated that"' "[n]egligent delay may be so lengthy -- or the first three Barker factors may weigh so heavily in the accused's favor -- that the accused becomes entitled to a finding of presumed prejudice." '" Wilson, 329 So.3d at 80 (quoting Pylant, 214 So.3d at 397-98, quoting in turn Ex parte Walker, 928 So.2d at 268). Although there is no" 'bright-line rule for the length of delay caused by governmental negligence that will warrant a finding of presumed prejudice, '" the Alabama Supreme Court has noted that federal courts generally do not presume prejudice under the fourth Barker factor unless the delay is at least five years. Jones, 35 So.3d at 656 (quoting Ex parte Walker, 928 So.2d at 270).
In Ex parte Walker, supra, the Alabama Supreme Court explained the difference between "presumptive prejudice" under the first Barker factor and "presumed prejudice" under the fourth Barker factor.
"We carefully distinguish throughout this opinion the concepts of 'presumptive prejudice' and 'presumed prejudice' or 'prima facie prejudice.' In analyzing the length of delay under the first Barker factor, we use the term 'presumptive prejudice' to refer to a delay that is lengthy enough to trigger inquiry into the remaining Barker factors. See Barker, 407 U.S. at 530, 92 S.Ct. 2182 ('Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.') ....
"By contrast, in analyzing under the fourth Barker factor the prejudice caused to an accused by the delay, we use 'presumed prejudice' or 'prima facie prejudice' to mean that the accused is relieved of the burden of establishing that the delay actually prejudiced her. ... In almost every case, the amount of time sufficient to support a finding of presumed or prima facie prejudice will be substantially longer than the time required to support a finding of presumptive prejudice."Ex parte Walker, 928 So.2d at 264 n.6.
On appeal, Horton argues that prejudice should be presumed in this case, and he cites four cases in support of that argument: Ex parte Clopton, 656 So.2d 1243 (Ala. 1995); Ex parte Carrell, 565 So.2d 104 (Ala. 1990); Taylor v. State, 429 So.2d 1172 (Ala.Crim.App.1983); and Prince, supra. However, in each of those cases, the first three Barker factors weighed in favor of the appellants, which, as noted, can support a finding of presumed prejudice. That is not the case here, where we have already concluded that the third Barker factor weighs against Horton. See Wilson, 329 So.3d at 81 (holding that a delay of approximately eight years did not support a finding of presumed prejudice in a case where the defendant had not timely asserted his right to a speedy trial). In addition, the negligent delay of 43 months -- and even the entire delay of 54 months -- is less than the 5-year threshold that will usually support a finding of presumed prejudice. See Ex parte Walker, 928 So.2d at 270 (holding that a delay of four years and two months did not entitle the defendant to a finding of presumed prejudice); and Cartwright v. State, [Ms. CR-16-1166, February 7, 2020] ___So. 3d ___, ___ (Ala.Crim.App.2020) (holding that a delay of 49 months "did not cross the threshold whereby a defendant is relieved of the burden of demonstrating actual prejudice"). For those reasons, we hold that prejudice is not presumed in this case and, consequently, that Horton had the burden of demonstrating actual prejudice to prevail on his speedy-trial claim.
Horton also cites Coventry v. State, 903 So.2d 169 (Ala.Crim.App.2004), in support of his presumed-prejudice argument. However, in Coventry this Court remanded the case for the trial court to determine whether prejudice should be presumed because the record on appeal did not contain sufficient facts for this Court to make that determination. Thus, Coventry is not applicable here.
We turn, then, to a determination of whether Horton demonstrated that he suffered actual prejudice from the State's negligent delay in prosecuting his case.
"' "The United States Supreme Court has recognized three types of harm that may result from depriving a defendant of the right to a speedy trial:' "oppressive pretrial incarceration," "anxiety and concern of the accused," and "the possibility that the [accused's] defense will be impaired" by dimming memories and loss of exculpatory evidence.' Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 532, and citing Smith v. Hooey, 393 U.S. 374, 377-79 (1969); United States v. Ewell, 383 U.S. 116, 120 [86 S.Ct. 773, 15 L.Ed.2d 627] (1966)). 'Of these forms of prejudice, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system."' 505 U.S. at 654 (quoting Barker, 407 U.S. at 532)."Wilson, 329 So.3d at 80 (quoting Pylant, 214 So.3d at 397, quoting in turn Ex parte Walker, 928 So.2d at 267).
Horton did not suffer oppressive pretrial incarceration -- indeed, he was released the day after he was arrested -- but he argues that the State's delay in prosecuting his case caused him "anxiety, concern, and stress" and "affected his ability to raise a defense" because, he says, "due to the passage of time, memories had faded and witnesses had ... become unavailable." (Horton's brief, pp. 29, 31.)
Regarding Horton's anxiety and concern, the circuit court accepted a letter from Horton's wife, who married Horton approximately two weeks before he was arrested. In that letter, Horton's wife stated that her marriage to Horton had been "plagued with [Horton's] inability to get a job" because of the pending case and that "his unemployment took a giant toll ... on his physical and mental well-being." (R. 11.) Specifically, Horton's wife stated, in pertinent part:
"Nothing happened with the case as [Horton] continued to look for work. I remember two particularly different rejections for him, and the reason they gave for not giving him the job was this pending case. One job was with Firehouse Ministries and the other was with UAB.
"UAB called him on the Saturday before he was to start work on Monday and told him not to come because of this pending case.
"....
"[Horton] was forced to take temp jobs which paid little and are not jobs that allow one to build a future. So temp jobs, he might or might not even get to work on a given day.
"[Horton's] unemployment was very difficult on him. He is an extrovert. He enjoys spending time with family and friends. He knows everyone. Whenever we went somewhere, people knew him and would say hello.
"He likes to tell jokes. He was discouraged and became withdrawn. He would not initiate conversations, and he would only exchange niceties like 'good morning.'
"Sometimes the bouts would last a few days and he would try to come back. He talked less and engaged less with us.
"But after losing the UAB and Firehouse jobs, he took to the bed. He locked himself in his room and he did not come out. I had to make him shower. He loves food, but did not eat much. He is typically very clean and neat. I am not. And his side of the room started to look like my side of the room.
"....
"He finally found real work, but it was out of state, and not Florida or Tennessee where he could come home. He is far and he cannot visit. He sends money home, but he has a second set of living expenses. We live paycheck to paycheck and have not been able to save for our future.
"He is very close to his family and now he cannot even see them. He has two new granddaughters and he cannot even
be a real grandfather to them. Because of money issues, his not working for so long, he cannot spoil them because he had to leave work and cannot be near them.
"....
"I think the hardest part is not knowing and wondering what will happen. I heard [Horton] tell his father that he just wanted this to end, that the not knowing was killing him.
"Instead of building our family and our future, we are still worried about if we will have a future, if we will be able to afford to retire, and our health is worse."(R. 11-14.)
Consistent with his wife's letter, Horton testified that it had been "difficult to deal with" his inability to obtain stable employment while his case was pending. (R. 22.) Specifically, Horton testified:
"[A]t one point, you know, when we first got married, we were doing things together, and it was fun. And then after everything started happening, I couldn't find a job and, you know, I had to continually ask her for a dollar or two dollars. You know, it got to be emasculating, you know. And so it shook me into a downward spiral in our marriage. It went from being fun to be married to almost like marriage was a job, you know. And so it just got to be ..., just for lack of a better ... word, I looked at myself and I saw myself as less of a man, which affected my relationship with my wife. And so, you know, it just caused a lot of silence, which in the home it caused a lot of distance within the home. And so, you know, that's where we're at now."(R. 23.) In addition, Horton testified:
"So it's the not knowing, the uncertainty. With my PTSD, you know, I see -- I have dreams that are real disturbing. And with this case going on, those dreams -- that dream kind of crossed over into the military dream. So, you know, it would be horrific about the outcome of certain things in the dreams. So, ... you know, like I said, it would get to a point where I would be scared to go to sleep at night. You know, wouldn't want to go to sleep. And so, then once ... I stayed on the medication that they had me on at that particular time, it helped out some, but not a lot. But yeah, it still is. Still is the uncertainty of it now. This right here, now. I'm in hives right now."(R. 20-21.) On cross-examination, the State asked Horton if he had questioned defense counsel about his case while the case was pending, and Horton testified that he "was down at their office every week." (R. 27.) However, defense counsel's records indicated that, during the almost-three-year period from Horton's arrest to the filing of his motion to dismiss, Horton had contacted his counsel only three times and that those contacts had all occurred during a three-week period in November 2018. (R. 30.)
Horton testified that he had been diagnosed with post-traumatic stress disorder stemming from his military service.
The evidence set forth above indicates that Horton experienced anxiety and concern throughout the delay as a result of his inability to obtain stable employment and that his anxiety and concern inhibited his sleep. However, that evidence is undermined by the fact that Horton waited almost three years to assert his right to a speedy trial, and defense counsel's records likewise tend to refute Horton's testimony that he "was down at their office every week" inquiring about his case. See Wilson, 329 So.3d at 82 (holding that the defendant's failure to timely assert his right to a speedy trial "undermine[d] his allegation that he suffered anxiety as a result of those pending charges"); and Jones, 35 So.3d at 658 (holding that the defendant's "lack of inquiry and attempt to resolve the charges undermine[d] [her] claim that the delay caused great anxiety and concern"). Furthermore," '[a]nxiety and concern of the accused are undoubtedly present to some degree in every case, '" United States v. Shepard, 462 F.3d 847, 865 (8th Cir. 2006) (quoting Morris v. Wyrick, 516 F.2d 1387, 1391 (8th Cir. 1975)), and, although we do not downplay or minimize Horton's anxiety and concern, the evidence does not convince us that his anxiety and concern were so severe as to differ significantly from the anxiety and concern that any defendant experiences as a result of pending criminal charges. See United States ex rel. Mangiaracina v. Case, 439 F.Supp. 913, 916-17 (E.D. Pa. 1977) (finding that the defendant's "anxiety, loss of income, and difficulty in finding a job" was not "significantly different in kind or degree from that suffered by all defendants"); State v. Bullock, 388 Mont. 194, 201, 398 P.3d 881, 886-87 (2017) ("While we do consider loss of employment ... as a factor when determining the accused's anxiety and concern, we cannot find that Bullock's disruption to his career ... caused his anxiety or concern to rise above what is to be expected of a normal detainment for a felony sexual offense."); State v. Stuart, 306 Mont. 189, 195, 31 P.3d 353, 357 (2001) (holding, in a case where the defendant alleged that he had "lost many nights sleep, worrying about the possible outcome of [his] case," that the defendant's anxiety did not "transcend the generic anxiety inherent in being an accused"); and Ward v. State, 311 Ga.App. 425, 430, 715 S.E.2d 818, 823 (2011) (holding that the defendant, who alleged that he "did not sleep some nights" due to the pending case, had "made no unusual showing of anxiety and concern"). Thus, for those reasons, we conclude that "any prejudice [Horton] suffered as a result of anxiety or concern was slight and should not weigh heavily, if at all, against the State." Jones, 35 So.3d at 658. See Barker, 407 U.S. at 534 (holding that the defendant was only minimally prejudiced by "living for over four years under a cloud of suspicion and anxiety").
We turn next to Horton's argument that, "due to the passage of time, memories had faded and witnesses had ... become unavailable." At the hearing on Horton's motion to dismiss, the parties stipulated that Horton's alleged act of domestic violence had "occurred as the complaining witness and [Horton] were driving home from [a] party." (R. 7.) Horton's defense was that the complainant fabricated the allegation, and defense counsel argued that the complainant's credibility would be undermined by evidence indicating that she was angry with Horton during the party and was intoxicated at that time. However, according to defense counsel, "attempt[s] to contact [four] witnesses who were at the party" had been unfruitful. (R. 8.) Specifically, defense counsel claimed that Carlos Horton "repeatedly stated that the party was long ago and he did not remember the details" (R. 8); that Lamaria Alexander "witnessed the complaining witness's level of intoxication and instability ... and ... hostility towards Horton" but that Alexander "now lives in Louisiana" and has a medical condition that "hampers her ability to travel" (R. 8); that Joe Harris "has a memory of the complaining witness being very intoxicated and ... a memory that she was cussing at Horton" but that Harris "suffers from several health conditions which can cause confusion from time to time and makes it impossible to know if he's able to function on any given day" (R. 8-9); and that Wytosky Horton "also witnessed the state of intoxication and the complaining witness's anger toward Horton on the night of the alleged incident" but that Wytosky had died in March 2018. (R. 9.)
By Horton's own admission, both Harris and Alexander recalled the details of the party that, Horton said, would undermine the complainant's credibility, and Horton did not allege that Harris was unavailable to testify. As for Alexander's availability to testify, Horton alleged that Alexander had moved to Louisiana and could not travel to Alabama because of a medical condition. However, there are two problems with this allegation. First, Horton did not indicate when Alexander moved to Louisiana, and, in the absence of that information, her unavailability cannot be unequivocally attributed to the State's negligent delay. See State v. Prieto-Lozoya, 488 P.3d 715, 732 (N.M. Ct. App. 2021) (noting that, if the defendant alleges that a potential witness is no longer available, he or she has the burden of demonstrating that the witness's unavailability is a result of the delay). Second, Horton did not explain why, or even allege that, he could not depose Alexander and use her deposition at trial. See Rule 16.6(e), Ala. R. Crim. P. (providing that a witness's deposition may be admitted as substantive evidence if the witness is unable to testify because of infirmity). Thus, for all that appears in the record, two of the four witnesses that Horton contacted were still available to provide the testimony that, he said, was crucial to his defense.
As for the other two witnesses, Wytosky Horton was unavailable to testify, and Carlos Horton did not "remember the details" of the party because of the passage of time. However, Wytosky's testimony would have been cumulative to Harris's and Alexander's testimony because, according to Horton, each of those three witnesses would have testified only that the complainant was angry with Horton during the party and was intoxicated at that time. Likewise, because Horton wanted Carlos to testify to "the details" of the party, it appears that Carlos could have provided only testimony that would have been cumulative to Harris's and Alexander's testimony; if there was other relevant testimony that Carlos could have provided regarding the party, Horton did not identify what that testimony would have been. See Ex parte Anderson, 979 So.2d 777, 782 (Ala. 2007) (holding that the defendant failed to demonstrate that he was prejudiced by the loss of potential witnesses because the record did not indicate whether the missing witnesses' testimony would have been "truly material or would have been merely cumulative"). Thus, Horton suffered no actual prejudice from the loss of Wytosky's and Carlos's testimony. See Howard v. State, 678 So.2d 302, 304 (Ala.Crim.App.1996) (holding that the defendant was not prejudiced by the death of an alibi witness because the witness could have provided only cumulative testimony); and Prieto-Lozoya, 488 P.3d at 732 (holding that the defendant failed to demonstrate that he was prejudiced by the loss of two potential witnesses because the defendant "admitted that the testimony of these witnesses was cumulative of the testimony offered by other, available defense witnesses").
Conclusion
In this case, the first and second Barker factors weigh in Horton's favor because the State negligently delayed prosecuting Horton's case for 43 months. However, the third Barker factor weighs against Horton because he waited almost three years to assert his right to a speedy trial, and the record indicates that Horton suffered little, if any, actual prejudice from the delay." 'Obviously, in this balancing [of the Barker factors], the less prejudice [an accused] experiences, the less likely it is that a denial of a speedy trial right will be found.'" Jones, 35 So.3d at 659 (quoting United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir. 2003)). See Jones, 35 So.3d at 659 (holding that, "with no presumed prejudice and minimal -- if any -- actual prejudice in Jones's case, the delay did not violate her right to a speedy trial"); and Snyder v. State, 893 So.2d 488, 507 (Ala.Crim.App.2003) (holding that a 48-month delay did not constitute a speedy-trial violation in a case where "any prejudice [that] existed ... was minimal"). Thus, after careful consideration of the Barker factors, we conclude that Horton's right to a speedy trial was not violated. Accordingly, the judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.