SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 14, 2014
In the Court of Appeals of Georgia A14A1224. MILNER v. THE STATE.
ANDREWS, Presiding Judge.
Following his December 6, 2002 indictment for one count of aggravated
assault, Czerny Milner filed a motion to dismiss the indictment on May 7, 2012,
arguing that his constitutional right to a speedy trial had been violated. The trial court
denied Milner’s motion in a December 6, 2012 order. Milner appeals, challenging the
manner in which the trial court weighed certain analytical factors required by Barker
v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). Finding no abuse of the
trial court’s discretion, we affirm.
The record reveals that Milner was arrested on May 26, 2002 for striking his
girlfriend in the head with an axe. He was bound over to Fulton County Superior
Court on June 6, 2002 and released on a $10,000 bond on June 12, 2002. A Fulton County grand jury returned a true bill of indictment against Milner on December 6,
2002 for one count of aggravated assault. Milner’s case appeared on a January 16,
2003 plea and arraignment calendar; however, Milner failed to appear, and a bench
warrant was issued for his arrest. Thereafter, the trial court placed Milner’s case on
the administrative dead docket on September 19, 2003.
More than two years later, with his case still on the administrative dead docket,
Milner filed a change of address form with the clerk of Fulton County Superior Court
on December 13, 2005.1 Milner later retained counsel, who entered an appearance on
June 22, 2006 and filed a motion to set aside the bench warrant against Milner.
Therein, Milner alleged that he did not receive notice of the January 14, 2003 plea
and arraignment calendar and that he suffered strokes in November of 2003 and on
June 20, 2004, leaving him partially paralyzed.2 Milner also noted that his resulting
1 The timing of this filing appears driven by a notice to Milner from the Social Security Administration informing Milner of the termination of his disability benefits on or about November 1, 2005. 2 Although Milner further alleged that he had “lived at 433 Camrose Way NW Atlanta, GA 30331 since the incident,” documents provided in discovery show Milner’s address as 999 Cascade Avenue SW, Apt. A, Atlanta, GA 30310 - the location of the initial incident - or “no address.” In addition, Milner confirmed during a May 10, 2012 hearing that he was living at 999 Cascade Avenue at the time of the incident. In any event, the trial court was unable to determine whether notice of the January 16, 2003 plea and arraignment calendar had been properly sent.
2 disability benefits were subsequently suspended due to his pending bench warrant.
Following a hearing on September 11, 2006, the trial court entered an order setting
aside Milner’s bench warrant and bond forfeiture. During the hearing, the trial court
observed that Milner’s was “a really old case” and that the file was “imperfect.”
In addition, the trial court rejected Milner’s counsel’s request to withdraw.
Milner, through counsel, then filed assorted motions and requested discovery on
September 18, 2006, but did not file a demand for Milner’s constitutional right to a
speedy trial. The State responded to Milner’s discovery request on September 27,
2006 and, on the same date, demanded discovery from Milner. The record does not
contain discovery responses by Milner. Although placement of Milner’s case on the
administrative dead docket should have been “deemed vacated and the case . . .
reinstated” by virtue of the trial court’s September 11, 2006 order, no activity
followed the trial court’s order until a December 5, 2011 status conference.
Indeed, the next filing after the State’s demand for discovery on September 27,
2006 was the State’s January 13, 2012 recommendation for a guilty plea. On January
17, 2012, the parties appeared for a plea and arraignment calendar. During that
conference, Milner’s counsel again moved to withdraw from the case; Milner
consented to the request, and the trial court agreed. The trial court appointed counsel
3 for Milner, and Milner entered a plea of not guilty. Appointed counsel filed several
motions and requests for discovery on January 23, 2012, but no demand for Milner’s
constitutional right to a speedy trial.
At a March 19, 2012 final plea calendar, the trial court placed Milner’s case on
the trial calendar.3 The trial court provided notice of its April 26, 2012 trial calendar
on April 9, 2012, and Milner’s case was then scheduled to be called for trial on May
8, 2012. On May 7, 2012, Milner filed a motion to dismiss the indictment in which
he alleged his constitutional right to a speedy trial had been violated.
During a May 10, 2012 hearing on Milner’s motion, Milner stated that his prior
counsel never explained a demand for speedy trial to him and never discussed the
delay in his case with him. He also stated that his health had declined since 2002
because he is “getting weaker,” that he was worried about the case, and that his
memory had been “affected” by his strokes. Finally, Milner claimed not to recognize
the victim when she was in court for a prior appearance. The trial court then spoke
with Milner. The trial court acknowledged that its file was “woefully inadequate” and
that “this looks like somehow or other the clerk’s office fell down because it
3 The trial court took judicial notice “of the Clerk’s file . . . and of the Court’s own published calendars . . . as well as the admissions in Czerny Milner’s filings and the stipulations of the parties as to the relevant timeline.”
4 remained in a dead docket status,” while engaging in a lengthy examination of
Milner’s case history. After hearing argument from both parties, the trial court
reviewed Milner’s motion, applied the Barker analysis, and ultimately denied the
motion.
1. Under Georgia law, when examining a defendant’s claim that he was denied
his constitutional right to a speedy trial,
the trial court is required to decide as a threshold matter whether the delay at issue was long enough to create “presumptive prejudice.” If the delay was not long enough to create presumptive prejudice, the speedy trial claim fails at the threshold. A delay long enough to be presumptively prejudicial triggers a requirement that the trial court analyze the speedy trial claim by balancing the conduct of the state and the defendant under four factors set forth in Barker v. Wingo: (1) whether the delay before trial was uncommonly long; (2) whether the state or the defendant is more to blame for the delay; (3) whether, in due course, the defendant asserted the right to a speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay.
(Citations and punctuation omitted). Goffaux v. State, 313 Ga. App. 428, 428-429
(721 SE2d 635) (2011). See also Singleton v. State, 317 Ga. App. 637, 638 (732 SE2d
312) (2012). “[N]o single factor is necessary or sufficient to sustain a speedy trial
claim,” as the factors are considered together in the balancing test of the conduct of
5 the prosecution and the defendant. See Singleton, 317 Ga. App. at 638; Goffaux, 313
Ga. App. at 429. We review the denial of a defendant’s constitutional speedy trial
claim for an abuse of discretion. Higgins v. State, 308 Ga. App. 257, 258 (707 SE2d
523) (2011).
As a threshold matter, it is clear the trial court correctly determined that the ten-
year delay in this case was long enough to create “presumptive prejudice.”4 See
Goffaux, 313 Ga. App. at 429 (“A delay approaching one year is generally deemed
to be presumptively prejudicial.”); Hayes v. State, 298 Ga. App. 338, 340 (1) (680
SE2d 182) (2009) (“this case long ago crossed the presumptive prejudice threshold”).
The parties do not contend otherwise. As a result, we next proceed to the four Barker
factors.
4 Milner’s claim that the trial court failed to properly calculate the length of the delay (“approximately ten years” as opposed to an actual delay of ten years, six months), while correct, presents a distinction without a meaningful difference. “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). The trial court correctly identified and applied this principle and found the delay to be “approximately ten years.” In fact, the delay is 127 months, calculated from Milner’s arrest (May 26, 2002) to the trial court’s order denying Milner’s motion to dismiss (December 5, 2012). While it is often preferable to express the length of delay in terms of months, the trial court did not abuse its discretion and we will not further review Milner’s argument on this point.
6 2. (a) Whether the Delay was Uncommonly Long. Milner contends that the trial
court abused its discretion on this factor, apparently arguing that the ten-year delay
was uncommonly long and that, ipso facto, this factor should have been weighed
heavily against the State. We are not persuaded.
“A delay is considered uncommonly long under the test to the extent to which
the delay stretches beyond the bare minimum needed to trigger judicial examination
of the claim.” (Citations omitted). Higgins, 308 Ga. App. at 260 (2) (a). In this case,
although the trial court found that the ten-year delay was uncommonly long, it also
found that “even this lengthy delay is not weighed heavily against the State.”5
(Emphasis in original.) The trial court then weighed this factor against the State, “but
ultimately not heavily.” The parties do not appear to contest the trial court’s finding
that the delay in this case is uncommonly long; rather, Milner argues that the delay
should be weighed heavily against the State simply because of the length of the delay.
This argument fails because the idea of a bright-line rule is anathema to the
analysis of speedy trial claims. See Vermont v. Brillon, 556 U. S. 81, 90-91 (II) (129
5 Of note, there was no extended initial delay between Milner’s arrest and his indictment. Milner’s case was indicted approximately six months after his arrest and the arraignment was scheduled promptly thereafter. Compare Singleton, 317 Ga. App. at 638 (two-year delay in indictment); Goffaux, 313 Ga. App. at 428 (three-year delay in indictment).
7 SCt 1283, 173 LE2d 231) (2009); Porter, 288 Ga. at 533, n. 4 (citing the “flexible
balancing test required by Barker”); State v. Pickett, 288 Ga. 674, 679, n.1 (706 SE2d
561) (2011) (bright-line rule “would be contrary to the case-by-case balancing
required by Barker”); State v. Brown, 315 Ga. App. 544, 548-549 (726 SE2d 500)
(2012) (“different weights should be assigned to different reasons” for a delay).
Similarly, because the Barker factors are not talismanic and must be considered
together, trial courts are required to “engage in a difficult and sensitive balancing
process [that] necessarily compels them to approach speedy trial cases on an ad hoc
basis.” Porter, 288 Ga. at 526 (2) (a); Pickett, 288 Ga. at 675 (2) (a). Moreover, no
one factor is sufficient to establish a speedy trial claim. See Singleton, 317 Ga. App.
at 638. Finally, we have previously found that delays of similar length may be
weighed against the State, but not heavily. See generally Moore v. State, 314 Ga.
App. 219, 221 (2) (a) (723 SE2d 508) (2012) (84-month delay not considered by trial
court, but trial court should have “weighed it against the [S]tate”). This ad hoc
approach confirms that a trial court’s discretion is substantial and that a bright-line
rule tied solely to the length of the delay, similar to what Milner appears to propose,
runs contrary to the Barker analysis. It follows that Milner has failed to demonstrate
an abuse of the trial court’s substantial discretion on this factor.
8 (b) Responsibility for the Delay. Milner next argues that, in view of the
extensive delay, the trial court should have weighed this factor “more than benignly
against the State.” At the outset, the State offers that “the entire delay was properly
laid at the feet of the State,” while Milner likewise concedes that “there is no
evidence of a deliberate intent” to delay Milner’s case. Furthermore, the trial court
found no such evidence. Accordingly, this factor turns upon the weight assigned by
the trial court for responsibility of the delay.
“Where no reason appears for a delay, we must treat the delay as caused by the
negligence of the State.” (citation omitted). Brannen v. State, 274 Ga. 454, 455 (553
SE2d 813) (2001). “Generally, delay attributed to the State’s negligence, rather than
a deliberate act, is weighed as a relatively benign factor against the State.” (Citation
and punctuation omitted). Goddard v. State, 315 Ga. App. 868, 872 (2) (b) (729 SE2d
397) (2012). See also Goffaux, 313 Ga. App. at 429. However, “[e]ven benign
negligence will begin to weigh more heavily against the State, the longer the delay
caused by the same.” Singleton, 317 Ga. App. at 641.
Here, the trial court initially noted that no allegation had been made, and the
evidence does not support, that the State “deliberately delayed [Milner’s] trial in order
to hamper his defense.” Of particular import, the trial court found that Milner’s case
9 was placed on an administrative dead docket on September 19, 2003 due to his failure
to appear at his January 14, 2003 arraignment. Although the case was ostensibly
removed from the administrative dead docket by the trial court’s September 11, 2006
order, it was not until a December 5, 2011 status calendar that the trial court
discovered the case inadvertently had remained on the dead docket. Indeed, the trial
court noted that “this looks like somehow or other the clerk’s office fell down
because it remained in a dead docket status.” The trial court, unable to determine the
reason for the administrative error, attributed “the delay to government negligence
and weigh[ed] [the delay] against the State but only lightly or benignly.” Under these
circumstances, the trial court did not abuse its discretion in weighing this factor
against the State. See Layman v. State, 284 Ga. 83, 85 (663 SE2d 169) (2008);
Higgins, 308 Ga. App. at 261 (2) (b); Green v. State, 295 Ga. App. 468, 469 (3) (672
SE2d 414) (2009).
(c) Assertion of the Right to Speedy Trial. Although Milner concedes that
“there was a significant delay in his assertion of his right [to a speedy trial],” he
claims that the trial court abused its discretion in failing to consider as mitigation the
10 time during which Milner was not represented by counsel and the State’s delay in
responding to his discovery requests.6
“[A] defendant may assert his constitutional right to a speedy trial at any time
after he is arrested.” Pickett, 288 Ga. at 676 (2) (c) (3). “However, once his
constitutional right accrues, the defendant has the responsibility to assert it, and delay
in doing so normally will be weighed against him.” Id. See also Singleton, 317 Ga.
App. at 642 (2) (c) (“when a defendant waits until years after his arrest to assert his
right to a speedy trial, the failure of the accused to assert his right sooner ordinarily
will weigh against him heavily.”) (punctuation omitted). Indeed, “delay often does
work to a defendant’s advantage.” Layman, 284 Ga. at 85. Accordingly, the relevant
inquiry on this factor is whether the accused asserted the right “in due course.” State
v. Reimers, 310 Ga. App. 887, 889 (2) (c) (714 SE2d 417) (2011). The “timing, form,
and vigor of the accused’s demands to be tried immediately” must be considered in
6 Placement of this case on the administrative dead docket was the result of Milner’s failure to appear for his original arraignment rather than by an affirmative request by the State to refrain from prosecution. Compare State v. Redding, 274 Ga. 831 (561 SE2d 79) (2002); Hayes, 298 Ga. App. at 346 (2) (c). Furthermore, because Milner’s case was ostensibly removed from the dead docket by the trial court’s September 11, 2006 order, and because the parties believed the case had been removed from the dead docket as evidenced by the parties’ subsequent filings, this time may still be counted against Milner. Compare Harris v. State, 284 Ga. 455, 456, n. 9 (667 SE2d 361) (2008).
11 determining the weight given to the assertion-of-the-right factor. Porter, 288 Ga. at
528 (2) (c) (3). In that regard, delays of 19 months and longer have been weighed
heavily against criminal defendants. See Brown v. State, 287 Ga. 892, 895-896 (700
SE2d 407) (2010) (two- and three-year delays in asserting right weighed heavily
against defendants); Layman, 284 Ga. at 86 (four-year delay in asserting right
weighed heavily against defendant); Jackson v. State, 279 Ga. 449, 453 (3) (614 SE2d
781) (2005) (19-month delay in asserting right weighed against defendant). See also
Pickett, 288 Ga. at 677 (2) (c) (3) (“A delay of over five years typically would warrant
this factor being weighed heavily against the defendant.”) (emphasis in original).
The trial court found that Milner did not assert his constitutional right to a
speedy trial until May 7, 2012 - “ten years after [Milner’s] arrest, and on the eve of
trial in 2012.” Further concluding that Milner did not assert his right “in due course,”
the trial court weighed this factor heavily against Milner.
It is true that a trial court may sometimes consider certain factors in mitigation
of the failure to demand a speedy trial, including “the fact that the accused was
insisting . . . that the State comply with its obligations to furnish discovery.” Brown,
315 Ga. App. at 552 (2) (c). See also Richardson v. State, 318 Ga. App. 155, 161 (2)
(c) (733 SE2d 444) (2012); State v. Shirley, 311 Ga. App. 141, 146 (3) (c) (714 SE2d
12 636) (2011). Here, it does not appear that the trial court addressed the mitigation of
Milner’s delay in its written order. Nevertheless, the record does not support Milner’s
argument. Milner, through retained counsel, requested discovery from the State on
September 18, 2006. The State responded to Milner’s discovery request on September
27, 2006 and, on the same date, demanded discovery from Milner; the record does not
contain discovery responses by Milner. Following Milner’s counsel’s withdrawal 52
months later on January 17, 2012,7 the trial court appointed counsel for Milner and
Milner entered a plea of not guilty. Appointed counsel requested discovery from the
State on January 23, 2012, to which the State filed a supplemental response on April
25, 2012. Milner filed a motion to compel discovery on April 26, 2012. The State
notified Milner’s appointed counsel of additional evidence on May 1, 2012, although
the record does not contain Milner’s response, if any.8 In addition, Milner’s appointed
counsel’s discovery requests mirrored the initial discovery requests to which the State
7 During this extended period, the record does not reveal any effort by counsel to insist “that the State comply with its obligations to furnish discovery.” Brown, 315 Ga. App. at 552 (2) (c). This case is therefore dissimilar to Brown, Richardson, Shirley, supra, and related cases in which there had been a refusal by the State to provide discovery in spite of the ongoing efforts of defendants to enforce compliance with discovery requirements. 8 At the May 10, 2012, hearing, Milner’s counsel acknowledged that she had seen the additional discovery from the State.
13 previously responded. See Howard v. State, 307 Ga. App. 822, 826 (2) (b) (706 SE2d
163) (2011). Finally, Milner filed his motion to dismiss the indictment on May 7,
2012 - one day prior to a May 8, 2012 trial date.
To the extent the trial court did not consider the possibility of mitigation, it
erred; however, based on this evidence from the record, we conclude that the trial
court “would have had no discretion to reach a different judgment” had it considered
mitigation. Pickett, 288 Ga. at 679 (2) (c) (4). See also Moore, 314 Ga. App. at 221
(2) (a); Williams v. State, 300 Ga. App. 797, 798 (c) (686 SE2d 407) (2009) (“we find
no connection between the State’s failure to respond to her discovery and her failure
to assert her rights”), aff’d, 290 Ga. 24, 27 (3) (717 SE2d 640) (2011). This is
particularly true in view of Milner’s lengthy delay in asserting his right to a speedy
trial, addressed supra. Similarly, Milner’s contention that he failed to assert his
constitutional right to a speedy trial due to the inaction of retained counsel is
unsupported by any citation of authority and is likewise unavailing.9 See Vermont,
9 While Milner asserts that his initial failure to demand a speedy trial should be viewed less harshly, “the discretion to mitigate the weight given this factor” applies only when the defendant is out on bond and unrepresented by counsel “during the period between arrest and indictment.” Pickett, 288 Ga. at 676 (2) (c) (3). That is not the case here. Moreover, Milner’s subsequent failure to demand a speedy trial for the ensuing 78 months - the final 71 of which he was represented by counsel - cannot be ignored. See Pickett, 288 Ga. at 677 (2) (c) (3).
14 556 U. S. at 90-91 (II) (“Because the attorney is the defendant’s agent when acting,
or failing to act, in furtherance of the litigation, delay caused by the defendant’s
counsel is also charged against the defendant.”) (citation and punctuation omitted);
Payne v. State, 289 Ga. 691, 694 (2) (b) (715 SE2d 104) (2011); Howard, 307 Ga.
App. at 826 (2) (b) (“the reality [is] that defendants may have incentives to employ
delay as a defense tactic”). Accordingly, the trial court did not abuse its discretion in
weighing this factor heavily against Milner. See Pickett, 288 Ga. at 677 (2) (c) (3);
Higgins, 308 Ga. App. at 261 (2) (c); Howard, 307 Ga. App. at 827-828.
(d) Prejudice Resulting from the Delay. Milner contends the trial court abused
its discretion in holding that Milner had not demonstrated actual prejudice in view of
his anxiety over the pending case and his decreased memory.
Under the Barker analysis, the kinds of prejudice that a defendant may suffer
from an unreasonable delay are “[i] oppressive pretrial incarceration, [ii] anxiety and
concern of the accused, and [iii] the possibility that the accused’s defense will be
impaired by dimming memories and loss of exculpatory evidence.” Singleton, 317
Ga. App. at 643 (2) (d) (citing Pickett, 288 Ga. at 677 (2) (c) (4)). The third form of
prejudice is the most serious, “because the inability of a defendant adequately to
15 prepare his case skews the fairness of the entire system.” Id. Because of the difficulty
of proving specific prejudice due to the passage of time alone,
excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.
Id.
As a threshold matter, the trial court noted that Milner failed to prove that he
was “subjected to any oppressive pretrial incarceration or that he suffered an unusual
anxiety or concern beyond that which necessarily attends being under indictment.”
After citing its own interaction with Milner during which it engaged in a colloquy
with Milner, the trial court observed that Milner “was able to respond cogently and
in detail.” As a result, the trial court concluded that Milner had not suffered “any
actual prejudice from the passage of time.” Furthermore, the trial court acknowledged
that the ten-year delay raised a presumption of prejudice, but concluded that the
presumption was outweighed by the absence of demonstrable prejudice and by
Milner’s failure to assert his constitutional right.
16 Milner does not appear to contest that the trial court correctly concluded that
he showed no oppressive pretrial incarceration; indeed, Milner was released on bail
17 days following his arrest. As a result, the trial court did not abuse its discretion on
this point.
However, Milner cites his anxiety due to the delay as a mitigating factor.
Milner’s argument appears to be based chiefly on his loss of disability benefits due
to the pending indictment. But aside from his December 13, 2005 change of address
with the clerk’s office, the record is devoid of any effort by Milner to contact the
State, the trial court, or his attorney concerning the status of his case. See Goddard,
315 Ga. App. at 873 (2) (b). Furthermore, once Milner received notice of the
cessation of his benefits on or about November 1, 2005, it was not until May 7, 2012
that he raised the speedy trial claim in his motion to dismiss the indictment - a period
of 78 months. Importantly, Milner was represented by counsel for 71 of those months.
Because Milner “chose not to alleviate his anxiety and concern by filing a speedy trial
demand,” the trial court did not abuse its discretion by weighing this factor against
Milner. See Green, 295 Ga. App. at 471 (6). See also Lambert v. State, 302 Ga. App.
573, 577 (4) (692 SE2d 15) (2010); Higgins, 308 Ga. App. at 262 (2) (d); Howard,
307 Ga. App. at 828 (2) (d).
17 Nor is Milner’s reference to his memory availing. During the hearing on his
motion to dismiss the indictment, Milner agreed only that his memory was
“diminished” and that his medication “affected” his memory. However, the only
example Milner presented of his memory being impaired was that he did not
recognize the victim in a prior court appearance. In contrast, the trial court engaged
in a colloquy with Milner, during which Milner was able to recall his prior addresses
(including the address where the incident occurred), the circumstances of his arrest,
and his subsequent release.10 The trial court observed that Milner “was able to
respond cogently and in detail” and therefore concluded that there was no prejudice
to Milner based upon his allegedly diminished memory. Because Milner was required
to show “specific evidence of how the delay impaired his ability to defend himself,”
Higgins, 308 Ga. App. at 262 (2) (d), there is no abuse of discretion. See also
Lambert, 302 Ga. App. at 576 (4); Goffaux, 313 Ga. App. at 431; Billingslea v. State,
311 Ga. App. 490, 493 (2) (716 SE2d 555) (2011).
10 Although no hearing had been held by the trial court to evaluate its admissibility, it is likewise telling that in the incident report following Milner’s arrest, in which he gave a Mirandized statement, Milner claimed not to remember what he said to the victim that accelerated the incident to its conclusion.
18 Finally, the trial court noted that no prejudice to Milner’s defense had been
shown because no alibi defense had been articulated and no allegation had been made
that necessary witnesses were no longer available. Once again, this conclusion was
not an abuse of discretion. See Billingslea, 311 Ga. App. at 493 (2); Higgins, 308 Ga.
App. at 262-263 (2) (d).
(e) Balancing the Barker Factors. Milner contends, without citation to
authority, that the trial court failed to properly balance the Barker factors. The record
reveals that the trial court struggled at length with Milner’s motion and with the
proper balancing of the Barker factors, noting that it was “very concerned obviously
about the time that has passed.” Ultimately, the trial court weighed the first Barker
factor - the length of the delay - benignly against the State. The second factor, the
reason for the delay, was again weighed against the State “slightly.” Third, the trial
court weighed assertion of the right to a speedy trial heavily against Milner. Fourth,
the trial court found an absence of prejudice. “After balancing all of these factors,”
the trial court concluded that Milner had not been denied his constitutional right to
a speedy trial.
In sum, “[t]he balancing undertaken by the trial court was reasoned and
reasonable . . . and for that reason, we cannot say that it amounts to an abuse of
19 discretion.” State v. Buckner, 292 Ga. 390, 399 (738 SE2d 65) (2013). See also
Higgins, 308 Ga. App. at 263 (2) (e); Lambert, 302 Ga. App. at 578; Green, 295 Ga.
App. at 471 (6). We are mindful of, and do not condone, the length of the delay in this
case. See Layman, 284 Ga. at 87; Howard, 307 Ga. App. at 829 (e). However, “no
one [Barker] factor is either necessary or sufficient to sustain a speedy trial claim.”
Jenkins v. State, 294 Ga. 506, 510 (2) (755 SE2d 138) (2014). And as our Supreme
Court has noted,
[t]here are some things about which reasonable people can reasonably disagree, and under settled Georgia law, when reasonable people could reasonably disagree about the weighing and balancing of the [Barker] factors, we must defer to the judgment of the trial court. This is such a case.
Buckner, 292 Ga. at 399. Under the unique circumstances of this case, we cannot
conclude that the trial court abused its substantial discretion.
Judgment affirmed. Ray, J., concurs. McFadden, J., concurs specially.
20 A14A1224. MILNER v. THE STATE.
MCFADDEN, Judge, concurring specially.
I concur in the judgment affirming the trial court’s denial of Milner’s speedy
trial motion, but I write separately because I do not agree with all that is said in the
opinion.
This case involves an extraordinarily long delay of over ten years. In Doggett
v. United States, 505 U. S. 647 (112 SCt 2686, 120 LEd2d 520) (1992), the Supreme
Court of the United States described the significance of a similarly extraordinary
delay (eight and one half years) to the Barker speedy trial analysis. As explained in
Doggett,
excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of the delay.
Doggett, 505 U. S. at 655-656 (III) (A) (citation omitted).”[O]ur tolerance of [the
state’s] negligence [in bringing an accused to trial] varies inversely with its
protractedness[.]” Id. at 657 (III) (B) (citation omitted). And “the presumption that
pretrial delay has prejudiced the accused intensifies over time.” Id. at 652 (II).
Nevertheless, that presumption of prejudice can be “extenuated, as by the defendant’s acquiescence, [or] persuasively rebutted[.]” Id. at 658 (III) (B) (citation and footnotes
omitted).
Accordingly, the extraordinary length of delay in this case plays a role in the
analysis of all of the Barker factors. See Hayes v. State, 293 Ga. App. 338, 341 (2)
(a) (680 SE2d 182) (2009) (“the weight accorded the other factors in the balancing
test depends, to a large degree, on the length of the delay”) (citing Doggett, supra;
other citations omitted). Most obviously, it figures into the degree to which the length
of delay is weighed against the state. But the ten-year delay also figures into the
tolerance given to the state’s negligence in bringing Milner to trial; the degree to
which Milner’s delay in asserting his right to trial (which was also extraordinarily
long) mitigates the prejudice presumed from the ten-year delay; and the amount of
prejudice that can be presumed despite Milner’s inability to show actual prejudice.
Keeping in mind these implications of the ten-year delay in this case, I find no
error in the trial court’s denial of the motion for speedy trial. The trial court’s order
reflects a correct analysis of the Barker factors and an appropriate exercise of
discretion in balancing those factors. See generally State v. Porter, 288 Ga. 524, 526
(2) (a) 705 SE2d 636) (2011) (describing nature of trial court’s role in balancing
Barker factors). The order makes clear that the trial court properly considered the
2 implications of the ten-year delay when he engaged in the balancing process,
consistent with the principles explained in Doggett, supra.
Because this case can be resolved in the manner described above, I see no need
for the majority opinion’s extensive analysis about the propriety of a bright-line rule.
In addition, I disagree with the majority’s application of the standard of appellate
review set forth in State v. Pickett, 288 Ga. 674 (706 SE2d 561) (2011), within its
review of the trial court’s treatment of one of the Barker factors; that standard of
appellate review is more properly applied to the balancing of all of the Barker factors.
See id. at 679-680 (2) (d).