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Pitts v. State

Court of Appeals of Arkansas, Division II

February 20, 2019

BENJAMIN PITTS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-376] HONORABLE MARCIA R. HEARNSBERGER, JUDGE

          Short Law Firm, by: Lee D. Short, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, Judge

         A 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.

         I. Motion to Dismiss on Speedy-Trial Grounds

          As 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, [1] 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 649.

         The 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.

         Pitts 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.

         After 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.

         At the 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."

         On 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 speedy-trial rules.

         II. Motion to Suppress Custodial Statements

         On 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 ...


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