Coney v. State

578 S.E.2d 193, 259 Ga. App. 525, 2003 Ga. App. LEXIS 180

• Court: Court of Appeals of Georgia
• Decided: February 11, 2003
• Docket: A02A0440
• Status: Published

Opinions

Miller, Judge.

In March 1997, Antonio Coney was arrested and charged with rape, armed robbery, aggravated assault, terroristic threats, and false imprisonment, all arising out of an alleged violent sexual assault of a 78-year-old woman. Just prior to the scheduled trial date in August 2000, Coney moved to dismiss the indictment, arguing that the 41-month delay denied him his federal and state constitutional rights to a speedy trial. Following an evidentiary hearing, the court denied his motion on the grounds that he had not asserted his rights sooner and that his defense was not prejudiced by the delay. He filed a direct appeal. See Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002). We hold that the trial court did not abuse its discretion in holding that Coney’s constitutional rights to a speedy trial were not violated, and we therefore affirm.

On March 12, 1997, a 78-year-old woman identified Coney . (whom she had known for years) to police as the man who had just raped and robbed her at knifepoint in her home. Police immediately arrested Coney and placed him in jail. He was indicted in June 1997 for rape, armed robbery, aggravated assault, terroristic threats, and false imprisonment. Bond was set at $125,000, which Coney did not post. He repeatedly applied to have the bond reduced, which was eventually granted in April 1998, leading to his release in May 1998.

While Coney was incarcerated, his counsel in July 1997 filed a sealed ex parte petition for a confidential psychiatric evaluation. His counsel asked that the evaluation determine Coney’s mental capacity at the time of the incident and determine his competency to stand trial, and that this information be revealed only to defense counsel. The court immediately granted the petition in a sealed order.

Beginning in July 1997, the case appeared on several trial calendars and was reset for unspecified reasons, until it was assigned to another judge in January 2000. From February to July 2000, the case again appeared on several trial calendars and was reset at the request of both the State and Coney. In March 2000, the State received the DNA results, matching Coney to the semen retrieved from the victim. In July 2000, the court published a calendar scheduling an August 22 trial date. On August 1, Coney moved to dismiss the indictment, arguing that the 41-month delay violated his federal and state constitutional rights to a speedy trial. That same day, Coney also gave notice to the State that he intended to enter an insanity plea.

At the August 22 trial date, the State announced “Ready,” but Coney announced “Not Ready.” The trial was reset. At Coney’s request, the court months later reissued an order authorizing the confidential psychiatric evaluation. The court held a hearing on the motion to dismiss, during which Coney presented evidence, including that of the psychiatrist (on staff at the jail) who had treated him once in May 1997 during his incarceration.¹ Based on the evidence presented, the court denied the motion to dismiss.

Coney appealed directly to this Court, which appeal this Court in an unpublished order dismissed for failure to file an application for appeal. The Supreme Court of Georgia reversed and remanded the case to this Court, holding that the matter was directly appealable. Callaway, supra, 275 Ga. at 333. We therefore now consider whether the trial court erred in denying Coney’s motion to dismiss based on a violation of his federal and state constitutional rights to a speedy trial. “The trial court’s decision with regard to such motion will not be reversed unless an abuse of discretion is shown.” (Footnote omitted.) Callaway v. State, 258 Ga. App. 118, 121 (572 SE2d 751) (2002); see Brown v. State, 264 Ga. 803, 805 (2) (450 SE2d 821) (1994); Thomas v. State, 233 Ga. App. 224, 225-226 (2) (504 SE2d 59) (1998).

Barker v. Wingo, 407 U. S. 514, 530 (IV) (92 SC 2182, 33 LE2d 101) (1972), identified the four factors a court should consider in deciding a motion to dismiss on grounds of a federal speedy trial violation: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Footnote omitted.) See Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994). This balancing test also applies when considering alleged state constitutional speedy trial violations. Id.; accord Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997). “The fourth factor requires the court to consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired. [Cit.]” Johnson, supra, 268 Ga. at 417 (2).

(a) Length of Delay. The delay in this case was 41 months from arrest to the date Coney filed his motion to dismiss. “The State concedes that the [41]-month delay is presumptively prejudicial, thus requiring this Court to inquire into the other factors that go into the balance.” (Citations and punctuation omitted.) Brannen v. State, 274 Ga. 454, 455 (553 SE2d 813) (2001); see Johnson, supra, 268 Ga. at 417 (2) (21-month delay is presumptively prejudicial); Boseman, supra, 263 Ga. at 732 (1) (a) (27-month delay is presumptively prejudicial).

(b) Reason for Delay. The State fails to account for all of the delay and can only say that a portion was due to Coney when his counsel agreed to and sought continuances and asked for a brief delay for maternity leave. The record shows that for some of the time, the State was waiting for the DNA results, which it did not receive until March 2000. Unless clear reasons are shown, for a delay, we treat the delay as caused by the State’s negligence. See Brannen, supra, 274 Ga. at 455. Nowhere in the record, however, is there any evidence that the State intentionally dragged its feet to impair Coney’s defense. “Therefore, although the delay attributable to the State is a negative factor, it is relatively benign. [Cit.]” Johnson, supra, 268 Ga. at 418 (2); accord Brannen, supra, 274 Ga. at 456.

(c) Defendant’s Assertion of His Right to Speedy Trial. “It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citations and punctuation omitted.) Brannen, supra, 274 Ga. at 456; accord Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001). As in Brannen and Nelloms, this third factor must weigh against Coney because he did not file a statutory demand for speedy trial under OCGA § 17-7-171 and did not raise his constitutional right to a speedy trial for the 41 months between his arrest and the filing of his motion to dismiss. See Brannen, supra, 274 Ga. at 456; Nelloms, supra, 274 Ga. at 181; see also Boseman, supra, 263 Ga. at 733 (1) (c). Indeed, as in Brannen, supra, 274 Ga. at 456, he waited until shortly before the August 22 trial date to file the motion to dismiss the indictment on speedy trial grounds.

(d) Prejudice to Defendant. “As to the matter of prejudice, we weigh this factor most heavily in determining whether a defendant’s constitutional rights have been violated. [Cit.]” Jernigan v. State, 239 Ga. App. 65, 67 (517 SE2d 370) (1999). A court determines prejudicial delay by considering three interests that the right to a speedy trial was designed to protect: preventing oppressive pretrial incarceration, minimizing undue anxiety and concern to the defendant, and reducing the possibility of impairing the defense. Thomas v. State, 274 Ga. 492, 495 (555 SE2d 693) (2001). “[T]o weigh the prejudice factor in the defendant’s favor, the defendant must offer specific evidence that one or more of these interests apply.” Id., citing Jackson v. State, 272 Ga. 782, 783 (534 SE2d 796) (2000).

(i) Oppressive Pretrial Incarceration. Coney spent 14 months in jail before being released on bond. Even though this period of incarceration was substantial, Coney offers no proof of substandard conditions or other oppressive factors beyond those that necessarily attend imprisonment. Accordingly, he has shown no specific evidence on this factor as prejudicial. See Thomas, supra, 274 Ga. at 495; Jackson, supra, 272 Ga. at 785.

(ii) Anxiety and Concern Caused to Defendant. Coney also fails to show specific evidence of the “anxiety and concern” factor. At most the psychiatrist testified that there was a possibility that the 14-month incarceration (but not any of the other 27 months of delay) may have exacerbated Coney’s mental condition. This evidence did not convince the trial court, and we discern no abuse of discretion in this regard.

(iii) Impairment of Defense. The most important prejudice component of the speedy trial equation is whether Coney showed that the delay impaired his defense. Mullinax v. State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001); see Boseman, supra, 263 Ga. at 734 (2). Coney claims that the delay impaired his defense because the psychiatrist testified that it would be impossible to determine, three and one-half years after the fact, the level or acuteness of Coney’s longstanding schizophrenia on the day of the incident. Thus, Coney argued that the 41-month delay impaired his ability to assert his insanity defense.

This argument ignores two facts. First, early on in the case during the summer of 1997, the trial court granted Coney’s motion for a confidential psychiatric evaluation regarding his possible insanity on the day of the incident, but Coney did not proceed to obtain that evaluation until after the 41-month delay. He cannot now complain that the 41-month delay prevented him in the summer of 1997 from obtaining a more timely psychiatric evaluation. Moreover, the State was unaware of the sealed order allowing the evaluation and therefore had no reason to believe extreme diligence was needed in bringing the case to trial to preserve Coney’s defense.

Second, the psychiatrist testified that, unless obtained within 48 hours of the incident, a psychiatric evaluation could not determine Coney’s mental condition as of the date of incident. Thus, under the evidence presented by Coney and relied upon by the trial court, the 41-month delay would have had no impact on Coney’s ability to present an insanity defense, as the two-day period had long expired before any delay occurred. Since the evidence showed that the delay did not prejudice Coney or otherwise impair his defense, this fourth factor weighs against Coney.

“We bear in mind that none of the above factors is either a necessary or sufficient condition to a finding of a deprivation of the right to a speedy trial, and that all of the factors should be considered together in a balancing test of the conduct of the prosecution and [Coney].” (Citation omitted.) Nelloms, supra, 274 Ga. at 181. Balancing the foregoing factors, particularly that Coney suffered no impairment to his defense and that he waited 41 months before asserting his right to a speedy trial, we hold that the trial court did not abuse its discretion in denying the motion to dismiss the indictment on grounds of a speedy trial constitutional violation. See id.; Boseman, supra, 263 Ga. at 734 (2).

Judgment affirmed.

Johnson, P. J., concurs. Blackburn, P. J., concurs fully and specially.

1 The jail psychiatrist, who treated Coney before the July 1997 order for psychiatric evaluation, did not evaluate his competency to stand trial or his responsibility for any acts.