FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-376]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
Law Firm, by: Lee D. Short, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
F. VIRDEN, Judge
Garland County jury convicted appellant Benjamin Pitts of
second-degree murder, two counts of first-degree battery,
possession of a firearm by certain persons, and aggravated
residential burglary. Pitts was sentenced to an aggregate
term of eighty years in the Arkansas Department of Correction
(ADC). Pitts raises two points on appeal. He does not
challenge the sufficiency of the evidence supporting his
convictions. Rather, he argues that the trial court erred in
denying his motion to dismiss for violation of his right to a
speedy trial and in denying his motion to suppress custodial
statements made to his parole officer. We affirm.
Motion to Dismiss on Speedy-Trial Grounds
relevant here, Arkansas Rules of Criminal Procedure 28.1(b)
and 28.2(a) require the State to bring a criminal defendant
to trial within twelve months from the date of his or her
arrest,  excluding only such periods of necessary
delay as are authorized by Rule 28.3. If a defendant is not
brought to trial within the requisite time, he or she is
entitled to have the charges dismissed with an absolute bar
to prosecution. Ark. R. Crim. P. 30.1(a). Once it has been
shown that a trial will be held after the speedy-trial period
set out in Rule 28.1 has expired, the State bears the burden
of proving that the delay was the result of the
defendant's conduct or was otherwise justified. Miles
v. State, 348 Ark. 544, 75 S.W.3d 677 (2002). This court
conducts a de novo review to determine whether specific
periods of time are excludable under the speedy-trial rules.
Federick v. State, 2012 Ark.App. 552, 423 S.W.3d
parties agree that Pitts was arrested on May 8, 2014, and
that the time for trial commenced to run from that date. He
was ultimately tried on October 23, 2017, or 1, 264 days
after his arrest. Because the trial was held well outside the
twelve-month period allowed, the burden shifted to the State
to show that Pitts was tried within twelve months once
certain periods are properly excluded.
admits that any time after May 19, 2015, was properly charged
to him. There are 376 days between Pitts's arrest on May
8, 2014, and May 19, 2015. In other words, the State must
account for an additional eleven days that went beyond the
twelve-month period allowed. Pitts maintains that there are
only three periods at issue here: October 7 to November 18,
2014; November 18 to December 17, 2014; and January 20 to May
19, 2015. Exclusion of any one of these periods would make
Pitts's trial timely, rendering a discussion of the other
time periods unnecessary. We address the first period
comprising forty-two days.
his arrest, Pitts was held in the ADC for a parole violation.
An omnibus hearing had been scheduled for October 7, 2014. On
that date, the trial court was told that Pitts had not been
transported to court for the hearing. During a discussion
regarding the rescheduling of the hearing, the trial court
expressed concern about a delay creating an issue with
respect to speedy trial. Defense counsel said, "I'm
going to take the time with the understanding if you will
make a note that we did do a transport order, it was signed
and delivered and it was not acted on." The trial court
responded, "So noted. The time between this date and
November 18, 2014, is excluded for speedy trial." The
trial court documented on the docket that the time was
excluded for speedy-trial purposes.
hearing on Pitts's motion to dismiss for violation of the
speedy-trial rules, which was filed on October 6, 2017, the
prosecutor argued that the reason Pitts could not be
transported on October 7, 2014, was because of his misconduct
at the ADC. Pitts then testified and claimed that the reason
he had not been transported was because the detention center
had been short staffed. In its subsequent order denying
Pitts's motion to dismiss, the trial court ruled that,
whether Pitts was not transported due to an altercation or a
staff shortage, defense counsel had said that he would
"take the time."
appeal, Pitts makes several arguments that the trial court
erred in excluding the period from October 7 to November 18,
2014. Our supreme court has said that the time to raise the
issue of whether a certain period is excludable is at the
hearing where excludability is discussed. Mack v.
State, 321 Ark. 547, 905 S.W.2d 842 (1995); Bowen v.
State, 73 Ark.App. 240, 42 S.W.3d 579 (2001). At the
time this period was excluded not only did Pitts's
counsel not object to the time being charged to Pitts, he
expressly agreed to "take the time" for
speedy-trial purposes. Accordingly, Pitts waived any
complaint about the propriety of excluding those forty-two
days by not objecting below. See DeAsis v. State,
360 Ark. 286, 200 S.W.3d 911 (2005); Autrey v.
State, 90 Ark.App. 131, 204 S.W.3d 84 (2005). Excluding
this period, Pitts was tried 334 days after his arrest, which
is less than the twelvemonth period prescribed by the
Motion to Suppress Custodial Statements
April 30, 2014, Steve Swanigan entered an apartment and began
shooting the occupants. The home invasion left one young
woman dead, and a man and child were injured. Swanigan and a
cohort, who had entered the apartment after him, fled the
complex together in a vehicle. Circumstantial evidence at
trial established that Pitts was that cohort. Pitts was
arrested eight days later and held in jail. Five days after
his arrest, Courtney Henry, Pitts's parole officer,
visited him at the jail ...