Rel: May 3, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals OCTOBER TERM, 2023-2024 _________________________
CR-2023-0867 _________________________
State of Alabama
v.
Joshua Lamont MacGrady
Appeal from Jefferson District Court (DC-2022-1555)
On Return to Remand
WINDOM, Presiding Judge. CR-2023-0867
The State of Alabama appeals the Jefferson Circuit Court's order
granting Joshua Lamont MacGrady's motion to dismiss the case against
him. 1
Facts and Procedural History
On December 15, 2021, MacGrady's wife rented a moving truck
from a rental company in Palm Beach County, Florida. The truck was
not returned as scheduled, and the rental company reported the truck as
stolen on January 28, 2022. Law enforcement initiated a traffic stop of
the truck in Jefferson County on February 21, 2022. MacGrady was
Judge Shanta Craig Owens, a Jefferson Circuit Court Judge, 1
signed the orders in this case as a "District Judge." Further, MacGrady's motion and amended motion purported to have been filed in the circuit court, yet the trial court's digital stamp indicated that the motions had been filed in the district court.
Because the case had been bound over to the grand jury before the motion to dismiss had been granted, the district court no longer had jurisdiction of the case. 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."). Accordingly, this Court remanded the case on April 15, 2024, for Judge Owens to clarify whether she was sitting as a circuit judge or acting as a district judge at the time she granted MacGrady's motion to dismiss.
On April 16, 2024, Judge Owens issued an order stating that she was sitting as a circuit judge when she granted MacGrady's motion to dismiss. Presumably, the case still carries a district court case number because the case was dismissed before MacGrady was indicted. 2 CR-2023-0867
driving the truck at the time and was arrested for first-degree receiving
stolen property, see §13A-8-17, Ala. Code 1975.
MacGrady was released on bond on February 24, 2022. On March
28, 2022, MacGrady entered a written demand for a speedy trial.
MacGrady waived his preliminary hearing on May 10, 2022, and the case
was bound over to the grand jury.
On May 16, 2023, MacGrady filed a motion to dismiss the pending
charge because, he argued, his right to a speedy trial had been violated,
and he filed an amended motion on October 17, 2023, that included
several images of what appeared to be emails from a potential employer.
(C. 36-42, 20-29.) The circuit court held a hearing on MacGrady's
amended motion to dismiss on October 19, 2023. In a written order
issued on November 9, 2023, the circuit court granted MacGrady's motion
to dismiss. (C. 12.) The State timely appealed the circuit court's
judgment on November 15, 2023. See Rule 15.7, Ala. R. Crim. P.
Analysis
The State asserts on appeal that the circuit court erred in granting
MacGrady's motion to dismiss because, it argues, MacGrady failed to
prove that he was prejudiced by the delay in bringing him to trial. "The
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facts before us are undisputed. The only question to be decided is a
question of law, and our review is therefore de novo." Ex parte Heard,
999 So. 2d 978, 980 (Ala. 2003) (citing Ex parte Key, 890 So. 2d 1056,
1059 (Ala. 2003)).
In Ex parte Walker, 928 So. 2d 259 (Ala. 2005), the Alabama
Supreme Court explained:
"An accused's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Art. I, § 6, of the Alabama Constitution, 1901. As noted, an evaluation of an accused's speedy-trial claim requires us to balance the four factors the United States Supreme Court set forth in Barker [v. Wingo, 407 U.S. 514 (1972)]: '[l]ength of delay, the reason for the delay, the defendant's assertion of [his or her] right, and prejudice to the defendant.' 407 U.S. at 530, 92 S. Ct. 2182 (footnote omitted). See also Ex parte Carrell, 565 So. 2d [104,] 105 [(Ala. 1990)]. '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. 1995)] (quoting Barker, 407 U.S. at 530, 92 S. Ct. 2182).”
928 So. 2d at 263.
Length of Delay
The first factor to evaluate is the length of the delay. "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.' " Ex
4 CR-2023-0867
parte Walker, 928 So. 2d at 264 (quoting Roberson v. State, 864 So. 2d
379, 394 (Ala. Crim. App. 2002)). MacGrady was arrested for first-degree
receiving stolen property on February 21, 2022, and the circuit court held
a hearing on his motion to dismiss on October 19, 2023.2 The delay in
this case was approximately 20 months.
In prior cases, this Court has held similar delays to be
presumptively prejudicial. See State v. Pylant, 214 So. 3d 392, 395 (Ala.
Crim. App. 2016), and the cases cited therein.
"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)."
Ex parte Walker, 928 So. 2d at 263-64. Because the length of delay in
MacGrady's case was presumptively prejudicial, this Court will examine
the remaining Barker v. Wingo, 407 U.S. 514 (1972), factors.
2 It does not appear from the record that MacGrady has been indicted. 5 CR-2023-0867
Reasons for the Delay
Returning to Ex parte Walker:
"The State has the burden of justifying the delay. See Barker, 407 U.S. at 531; 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. Courts assign different weight to different reasons for delay. Deliberate delay is 'weighted heavily' against the State. 407 U.S. at 531. 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 (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; 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; 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))."
928 So. 2d at 265.
There is no allegation in the record that the delay in bringing
MacGrady to trial was deliberate. MacGrady conceded as much at the
hearing but did ask that the circuit court find the delay to be negligent.
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(R. 5.) The State pushed back on this point, arguing below that the delay
was justified because of the COVID-19 pandemic.
Indeed, after recognizing that jury trials in Alabama were
suspended by order of the Alabama Supreme Court from March 13, 2020,
to September 14, 2020, because of the COVID-19 pandemic, this Court
held in Quinnie v. State, [Ms. CR-21-0374, Dec. 16, 2022] ___ So. 3d ___,
___ (Ala. Crim. App. 2022), that the six months that had passed during
the suspension of jury trials could not be held against the State.
According to the State, grand juries in the Tenth Judicial Circuit were
suspended even longer, until November 2020.
Yet, MacGrady's case was initiated with his arrest on February 21,
2022, some 15 months after grand juries had resumed in the Tenth
Judicial Circuit. In truth, the State's explanation for the delay was a pre-
existing backlog of cases that had been exacerbated by the COVID-19
pandemic.3 The State asserted to the circuit court that, in attempting to
whittle down the backlog of pending cases, it had prioritized holding
trials for defendants who were incarcerated while awaiting trial and
3The circuit court agreed with the State that the "COVID-19 pandemic created a backlog of cases for grand jury presentment." (C. 12.)
7 CR-2023-0867
defendants who were charged with violent crimes4 – neither of which
applied to MacGrady.
In Quinnie, this Court held that only the six months that had
passed during the suspension constituted justifiable delay. Quinnie, ___
So. 3d at ___. The remainder of the delay, both before and after the
suspension of jury trials, was held to be negligent delay on the part of the
State. Id. Further, this Court commonly views delays resulting from a
congested court system as negligent "since the ultimate responsibility for
such circumstances must rest with the government rather than with the
defendant." Barker, 407 U.S. at 531. This is especially true in the instant
case because it involves a delay in presenting the case to the grand jury,
an act over which the State has greater control relative to the setting of
a case for trial. Nevertheless, this Court is sympathetic to the burdens
placed on an already strained criminal-justice system by the COVID-19
pandemic. Although the 20-month delay must weigh against the State,
given the nature of the delay, this Court holds that it should not weigh
heavily. See Draper v. State, 886 So. 2d 105, 115 (Ala. Crim. App. 2002)
("It appears that none of the 77-month delay was attributable to the
4 See Rule 8.1, Ala. R. Crim. P.
8 CR-2023-0867
prosecutor; rather, the delay was the result of a large backlog of cases in
Jefferson County and, therefore, should not weigh heavily against the
State.").
Defendant's Assertion of his Right
"[C]ourts 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, and not every assertion of the right to a
speedy trial is weighted equally." Ex parte Walker, 928 So. 2d at 265.
For instance, "[r]epeated requests for a speedy trial weigh heavily in
favor of an accused." Kelley v. State, 568 So. 2d 405, 410 (Ala. Crim. App.
1990) (citing Wilson v. State, 407 So. 2d 584, 588 (Ala. Crim. App. 1981)).
MacGrady first asserted his right to a speedy trial the month
following his arrest. MacGrady moved to dismiss the indictment for an
alleged violation of his right to a speedy trial 13 months after his arrest
and moved again to dismiss on the same ground 20 months after his
arrest. The State concedes on appeal that MacGrady's assertions of his
right to a speedy trial were timely and that this factor weighs in
MacGrady's favor. This Court agrees.
9 CR-2023-0867
Prejudice to the Defendant
The dispute between the parties on appeal lies with the final factor
– prejudice to MacGrady. The State asserts in its brief that MacGrady
failed to demonstrate sufficient prejudice to warrant the dismissal of his
charge. MacGrady, on the other hand, asserts that, because the other
three factors weigh in his favor, he is entitled to presumed prejudice. In
the alternative, MacGrady asserts that he has suffered and that he did
demonstrate prejudice. He points specifically to the attachments to his
amended motion to dismiss, which were purportedly emails from Texas
Pride Fuels, a diesel and lubricant supplier: "Mr. MacGrady had
apparently secured a lucrative position working for Texas Pride Fuels,
and even gone so far as to complete the orientation program. However,
Mr. MacGrady was apparently either terminated or denied employment
due to the then-pending felony allegation." (MacGrady's brief, at 8.)
This Court first will address MacGrady's assertion that he is
entitled to a presumption of prejudice. MacGrady relies on Hayes v.
State, 487 So. 2d 987 (Ala. Crim. App. 1986), in support of his argument
that he did not bear the burden of making "a showing of actual prejudice
to prevail on a speedy trial claim." (MacGrady's brief, at 7.) Quoting
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Hayes, MacGrady asserts in his brief that " '[the] prosecution should not
be permitted to engage in inexcusable misconduct on the hope that the
defendant will not be able to make out a case of prejudice.' [Hayes] at
995-996." (MacGrady's brief, at 7.)
This Court's holding in Hayes, however, simply does not apply to
the facts of this case. Hayes, as the quotation suggests, dealt with a delay
that was found to be "deliberate and inexcusable, thus warranting heavy
weight against the State." Hayes, 487 So. 2d at 992-93. As this Court
has already held, and as MacGrady conceded at the hearing below, the
delay here was, at most, negligent on the part of the State. The holding
of the Alabama Supreme Court in Ex parte Walker addresses whether
prejudice may be presumed due to negligent delay on the part of the
State:
" '[T]o warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice.' Doggett v. United States, 505 U.S. [647,] 657 [(1992)], 112 S. Ct. 2686. The Court concluded that 'the Government's egregious persistence in failing [for 8 1/2 years] to prosecute Doggett [was] clearly sufficient' to entitle the accused to relief. 505 U.S. at 657, 112 S. Ct. 2686. The Doggett Court did not, however, establish a bright-line rule for the length of delay caused by governmental negligence that will warrant a finding of presumed prejudice under the fourth Barker factor. Even so, when an accused alleges solely that [his] trial was
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delayed because of governmental negligence – as is the case here – lower federal courts applying Doggett generally do not presume prejudice under the fourth Barker factor unless the postindictment delay is five years or more. [United States v.] Serna-Villarreal, 352 F.3d [225,] 232 [(5th Cir. 2003)] (refusing to presume prejudice under the fourth Barker factor in a case in which prosecutorial negligence delayed the accused's trial for three years and nine months and citing Doggett, 505 U.S. at 658, 112 S. Ct. 2686 (presuming prejudice after six-year delay caused by the government's negligence); United States v. Bergfeld, 280 F.3d 486, 489-91 (5th Cir. 2002) (presuming prejudice after a five-year-and-three-month delay caused by the government's negligence, but noting that '[h]ad the delay been considerably shorter, [the accused] might well have been properly required to demonstrate prejudice'); United States v. Cardona, 302 F.3d 494, 498-99 (5th Cir. 2002) (presuming prejudice where governmental negligence resulted in a delay of more than five years); United States v. Brown, 169 F.3d 344, 349-51 (6th Cir. 1999) (presuming prejudice where governmental negligence resulted in five and one-half-year delay); United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (presuming prejudice where governmental negligence resulted in a six-year delay)). Like the Doggett Court, we do not adopt a bright-line rule for the length of delay that will result in a finding of presumed prejudice. But we note that the four-year-and-two-month delay in Walker's case is well within the five-year time period generally established by federal cases for presuming prejudice. Further, '[t]here is no indication from this record that either the [State]'s negligence or the resulting length of the delay here adversely affected the evidence so as to undermine the fairness of a trial.' Serna-Villarreal, 352 F.3d at 233."
Ex parte Walker, 928 So. 2d at 269-70.
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"[O]ur toleration of such negligence varies inversely with its
protractedness, cf. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333,
102 L. Ed. 2d 281 (1988), and its consequent threat to the fairness of the
accused's trial." Doggett v. United States, 505 U.S. 647, 657 (1992). The
delay here of 20 months is well short of any standard that would trigger
presumed prejudice. Additionally, '[t]here is no indication from this
record that either the [State]'s negligence or the resulting length of the
delay here adversely affected the evidence so as to undermine the
fairness of a trial.' [United States v. ]Serna-Villarreal, 352 F.3d [225,]
233 [(5th Cir. 2003)]." Ex parte Walker, 928 So. 2d at 269-70. In short,
MacGrady is not entitled to a presumption of prejudice.
Next, this Court will turn to whether MacGrady demonstrated
actual prejudice. The Alabama Supreme Court has stated:
"Because 'pretrial delay is often both inevitable and wholly justifiable,' Doggett [v. United States], 505 U.S. [647,] 656, 112 S. Ct. 2686, 120 L. Ed. 2d 520 [(1992)], the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant. Barker, 407 U.S. at 532, 92 S. Ct. 2182. 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, 112 S. Ct. 2686 (quoting Barker, 407
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U.S. at 532, 92 S. Ct. 2182, and citing Smith v. Hooey, 393 U.S. 374, 377-79, 89 S. Ct. 575, 21 L. Ed. 2d 607 (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, 112 S. Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S. Ct. 2182)."
Ex parte Walker, 928 So. 2d at 266-67.
MacGrady was not incarcerated, and he did not suggest that his
defense was impaired in any way by virtue of the delay. Instead,
MacGrady asserted the second type of harm – anxiety and concern of the
accused.
This Court notes that there was no sworn testimony offered at the
hearing in the circuit court. MacGrady did offer, as mentioned above,
images of emails from Texas Pride Fuels. The first email is a response to
an apparent application submitted by MacGrady for a position with
Texas Pride Fuels. The email details the work schedule, salary, and
benefits associated with the position. The email also states that the
applicant must have a "clean criminal history." (C. 27.) The second email
purports to be an email directing MacGrady to attend a new-hire
orientation.
14 CR-2023-0867
At the hearing, defense counsel alleged that MacGrady was
terminated from this position and another unnamed position because of
the pending criminal charge. Defense counsel also alleged that
MacGrady had been denied employment with "Coca-Cola, A&G Grocery,
Mercedes, and other employers. He can't find a job because this case is
still pending." (R. 6-7.) The State countered defense counsel's claims by
pointing out that the position with Texas Pride Fuels – the only one for
which MacGrady offered something that could be construed as evidence
– required a "clean criminal history." The State represented to the circuit
court that MacGrady has "a significant criminal history," including
"several felony convictions." (R. 11.) The State also pointed out that
MacGrady had offered nothing to demonstrate the specific reason he had
been denied employment with Texas Pride Fuels.
The circuit court, both at the hearing and in her order dismissing
the case, agreed with the State that MacGrady had a significant criminal
history. (R. 16; C. 12.) This completely undercuts MacGrady's only
specific claim of prejudice – that he was denied employment based on the
pending criminal charge. Certainly, MacGrady's prior felony convictions
would have been more harmful to his search for employment. The circuit
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court appeared to recognize this at the hearing, stating, "I don't think the
defendant was prejudiced, based upon the State's argument, that he had
a significant criminal history." (R. 16.)
Nevertheless, the circuit court found the existence of prejudice:
"While [MacGrady] does have some prior criminal history, the
disadvantage of having a criminal case pending for such a length of time
demonstrates prejudice to the defendant." (C. 12.) This was error. As
explained herein, the length of time involved did not warrant a
presumption of prejudice, and MacGrady offered no other evidence of
prejudice.
" 'With no presumed prejudice and minimal – if any – actual
prejudice in [MacGrady's] case, the delay did not violate [his] right to a
speedy trial.' See State v. Jones, 35 So. 3d 644, 659 (Ala. Crim. App.
2009) (citing Doggett, 505 U.S. at 656, 112 S. Ct. 2686 ('Our speedy trial
standards recognize that pretrial delay is often both inevitable and
wholly justifiable.')." State v. Crandle, 368 So. 3d 934, 946 (Ala. Crim.
App. 2021). "Consequently, 'balancing the four Barker factors, we cannot
say that the delay in this case experienced by [MacGrady] prejudiced
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[him] to the degree that would warrant the dismissal' of the … charge
against him at this time." Id.
Conclusion
The record before this Court does not contain sufficient evidence to
warrant the dismissal of the pending charge against MacGrady. Thus,
the circuit court improperly granted MacGrady's motion to dismiss based
on the denial of his right to a speedy trial. Accordingly, the judgment of
the circuit court is reversed, and this cause is remanded to that court for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Kellum, McCool, Cole, and Minor, JJ., concur.