308 Ga. 218 FINAL COPY
S19A1496. HYDEN v. THE STATE.
MELTON, Chief Justice.
Following a March 29 to 31, 2004 jury trial, Clark Milton
Hyden was found guilty of malice murder, felony murder,
kidnapping with bodily injury, and various other offenses in
connection with the beating death of Tommy Crabb, Sr.1 On appeal,
Hyden contends that the evidence presented at trial was insufficient
to support his kidnapping conviction under the standard set forth in
1 On February 10, 2003, Hyden was indicted for malice murder, felony
murder predicated on kidnapping with bodily injury, felony murder predicated on aggravated battery, kidnapping with bodily injury, aggravated battery, and aggravated assault. Following his March 2004 trial, Hyden was found guilty on all counts. He was sentenced to life in prison for malice murder and a consecutive life term for kidnapping with bodily injury. The aggravated battery and aggravated assault charges were merged into the malice murder count for sentencing purposes. The trial court also purported to merge the two felony murder counts into the malice murder count, but those counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). Hyden filed a motion for new trial on May 13, 2004, which he amended through new counsel on March 7, 2019. Following a March 8, 2019 hearing, the trial court denied the motion on April 26, 2019. Hyden filed a timely notice of appeal on May 6, 2019, and his appeal was docketed to the August 2019 term of this Court and submitted for a decision on the briefs. Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008); that the trial court
erred by allowing the State to waive its initial closing argument;
that Hyden was denied his right to a speedy appeal; and that
Hyden’s trial counsel was ineffective. For the reasons that follow, we
affirm.
1. Although Hyden challenges the sufficiency of the evidence
only with regard to his kidnapping with bodily injury conviction, we
review the sufficiency of the evidence to support all of his
convictions, consistent with our customary practice in murder cases.
See, e.g., Walker v. State, 306 Ga. 579 (1) (832 SE2d 420) (2019).
When evaluating the sufficiency of evidence, “the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime[s] beyond a reasonable
doubt.” (Citation and emphasis omitted.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). On appeal,
“this Court does not re-weigh the evidence or resolve conflicts in
testimony, but instead defers to the jury’s assessment of the weight
2 and credibility of the evidence.” (Citation omitted.) Curinton v.
State, 283 Ga. 226, 228 (657 SE2d 824) (2008).
Viewed in the light most favorable to the verdict, the evidence
presented at trial reveals that, on November 6, 2002, Crabb, an
electrician, went to Hyden’s home to teach Hyden how to fix a
kitchen light. Crabb knew Hyden because Hyden had helped Crabb
with odd jobs in the past. Crabb’s wife became worried when Crabb
did not come home for lunch that day as he normally would, and she
and her children began to drive around looking for him.
A family friend named Danny Fulcher and Fulcher’s
stepdaughter began looking for Crabb as well, and they went to
Hyden’s mobile home to see if Crabb might be there. Although
Fulcher and his stepdaughter had driven by the mobile home several
times on November 6 and seen lights on in the mobile home, Hyden’s
truck parked outside, and movement inside the mobile home, no one
answered when Fulcher and his stepdaughter stopped and knocked
on the door during the day. They returned to Hyden’s mobile home
around 1:00 a.m. and saw Hyden sitting on his front porch. They
3 spoke with Hyden, and he informed them that somebody had hit him
over the head when he and Crabb had been working on an electrical
outlet, and that he did not know where Crabb was because Hyden
had been unconscious since lunch time the previous day. Fulcher’s
stepdaughter called 911, but paramedics who responded did not find
evidence of any wound that they believed could have rendered
Hyden unconscious for 12 hours.
Later that morning, Crabb’s daughter and Fulcher’s
stepdaughter continued to search for Crabb, and they knocked on
the door of a mobile home behind Hyden’s. As they were leaving,
they saw Crabb’s truck, which was parked between Hyden’s mobile
home and the mobile home of one of his neighbors. Crabb’s daughter
went to the truck, where she discovered her father’s dead body,
covered by a spare tire, lying in the bed of the truck. Crabb’s
daughter called 911, and police arrived at the scene soon thereafter.
Hyden came out of his mobile home after police arrived at the scene
and said, “Oh damn there is [Crabb].”
Police went into Hyden’s mobile home and noticed the
4 unusually clean nature of Hyden’s kitchen in relation to the
remainder of his residence. Luminol spray revealed the presence of
blood on the kitchen floor. A forensic biologist later matched
swabbings taken from the floor with Crabb’s DNA. Police also found
a wadded-up paper towel with suspected blood on it and more
suspected blood between Hyden’s clothes dryer and the pantry wall,
as well as in an adjacent closet. In addition, police discovered a
bloody rubber mallet that had been discarded in a county dumpster,
and the blood from the mallet was later identified as matching
Crabb’s. In the area between Hyden’s house and Crabb’s truck
where Crabb’s body was found, police also found a cinder block with
Crabb’s blood on it. Crabb’s wallet and keychain were located behind
his pick-up truck, and luminol spray revealed a “drag trail” of blood
between Hyden’s home and the truck. Crabb had numerous blunt
force injuries to the top of his head, and the State’s medical examiner
testified that Crabb died from blunt force trauma consistent with
having been hit with a rubber mallet.
Hyden was arrested at the scene, and, after signing a waiver of
5 rights form, he was interviewed by police that same day. In his
interview, Hyden claimed that Crabb had come to his house to help
him with a broken light on the morning of November 6, and that a
man with a long black stick and a gun came in through Hyden’s back
door and knocked Hyden unconscious. Hyden claimed that, when he
woke up, Crabb and Crabb’s truck were gone. When questioned
about the presence of blood in his home, Hyden changed his story,
claiming that he saw the man with the stick beat Crabb, that blood
was everywhere, and that the man asked Hyden to help him clean
up. So Hyden retrieved a blanket and rags and cleaned up the scene,
and he placed Crabb on the blanket and dragged him across the
house. Hyden asserted that the man made him drag Crabb out of
the mobile home while Crabb was still alive and gasping for air.
Also, contrary to his original story in which he said he had been
knocked unconscious, Hyden said the man then handcuffed him to
the front door while he moved Crabb’s truck to the neighbor’s house.
Hyden claimed that he let the man leave the scene after the man
removed Hyden’s handcuffs, and that Hyden then drove around,
6 threw some trash in a dumpster, and returned home and drank beer
until he passed out.
Later that month, while in custody in the Franklin County Jail,
Hyden admitted to another inmate that he had killed Crabb by
beating him to death with a rubber mallet during a dispute over
money. He also admitted to dragging Crabb out of his mobile home,
putting Crabb in a truck, and parking the truck next door to his
mobile home. Hyden also admitted to another inmate that he beat
Crabb to death with a hammer and that he put Crabb in a truck and
threw a spare tire on top of him, but Hyden also said that he
intended to push the truck into a lake but “never got around to it.”
The evidence was sufficient for a rational trier of fact to find
Hyden guilty of malice murder beyond a reasonable doubt. Hyden
admitted to beating Crabb to death with a rubber mallet and placing
his body in the truck where it was found, and there was an
abundance of physical evidence at Hyden’s home that connected him
to the crime. See, e.g., Velasco v. State, 306 Ga. 888, 891 (1) (b) (834
SE2d 21) (2019) (evidence was “easily sufficient” to sustain murder
7 conviction where defendant admitted to beating the victim with
hammer and where crime scene blood evidence and victim’s injuries
were consistent with brutal beating and dragging). The jury was free
to reject Hyden’s shifting stories about someone else killing Crabb
while Hyden either watched or was incapacitated. See Bailey v.
State, 291 Ga. 144, 147 (1) (728 SE2d 214) (2012) (jury is “free to
reject a version of events favorable to” the defendant, as articulated
by the defendant, and find him guilty of murder based on the other
evidence presented at trial).
Hyden contends with regard to his conviction for kidnapping
with bodily injury that the evidence was insufficient because the
State failed to prove the asportation element of kidnapping required
under Garza. Specifically, he argues that, because Crabb was either
already dead at the time that he was moved, or because the
movement that occurred was merely incidental to the other crimes
that he committed, Hyden could not be found guilty of kidnapping
with bodily injury under the legal standard that was applicable at
the time of his trial.
8 The asportation standard applicable to Hyden’s 2004
kidnapping with bodily injury conviction was articulated in Garza,
supra, 284 Ga. at 702 (1). Although the standard set forth in Garza
has since been superseded by statute (see Gonzalez v. Hart, 297 Ga.
670 (777 SE2d 456) (2015)), it was the standard applicable at the
time of Hyden’s 2004 conviction.
With respect to the asportation element of kidnapping,
Garza ultimately held that . . . the movement necessary to establish asportation must be more than “merely incidental” to other criminal activity, and four judicially created factors must be considered before a court can conclude that more than “merely incidental” movement had occurred.
(Citation omitted.) Sellars v. Evans, 293 Ga. 346, n. 1 (745 SE2d 643)
(2013). The four factors are:
(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.
(Citation omitted.) Garza, supra, 284 Ga. at 702 (1). Generally, the
satisfaction of all four factors is not required in order for the
9 evidence to support a proper finding of asportation under Garza. See
Hammond v. State, 289 Ga. 142 (2) (710 SE2d 124) (2011) (finding
that the movement of the victim constituted asportation when the
first two factors were not satisfied but the third and fourth were);
Brown v. State, 288 Ga. 902 (3) (708 SE2d 294) (2011) (asportation
found where three of four Garza factors met).
While it is unclear from the record exactly how far Hyden
moved Crabb, it is clear that Hyden dragged Crabb out of the mobile
home and to a truck that was ultimately moved and parked between
his mobile home and his neighbor’s home; the movement occurred
after the beating that led to Crabb’s death had already taken place
(but while evidence indicates he was still alive); and the movement
itself further endangered Crabb by isolating him from a place where
he could have been more easily found. See, e.g., Inman v. State, 294
Ga. 650 (1) (b) (755 SE2d 752) (2014); Williams v. State, 291 Ga. 501
(1) (b) (732 SE2d 47) (2012); Chatman v. Brown, 291 Ga. 785 (1) (733
SE2d 712) (2012). There was evidence from which the jury could
conclude that Crabb was still alive at the time that he was moved,
10 because, in one of the stories that Hyden told the police, he admitted
that Crabb was still alive and gasping for air when Hyden moved
him from the mobile home.
The evidence was sufficient to sustain Hyden’s conviction for
kidnapping with bodily injury under Garza. See Williams, supra,
291 Ga. at 504 (1) (b).
2. Hyden argues that the trial court erred by allowing the State
to waive its initial closing argument and present its entire argument
after Hyden’s closing in violation of former OCGA § 17-8-71 (“After
the evidence is closed on both sides, the prosecuting attorney shall
open and conclude the argument to the jury.”) (emphasis supplied).2
However, as Hyden concedes, this Court has already rejected this
exact argument in prior cases. See Bradham v. State, 243 Ga. 638,
639 (2) (256 SE2d 331) (1979) (“After the close of evidence, the trial
court, in its discretion, may permit the party having the opening and
concluding argument to waive the opening statement and make a
2 The portion of OCGA § 17-8-71 quoted above remains unchanged in the
current version of the statute. 11 full presentation regarding the legal and factual facets of his case to
the jury following the final argument of the adverse party.”). See
also Petty v. State, 283 Ga. 268 (3) (658 SE2d 599) (2008); Lewis v.
State, 283 Ga. 191 (3) (657 SE2d 854) (2008). Hyden asks us to
reconsider these precedents, but we see no compelling reason to do
so. And under the precedents, there was no error.
3. Hyden contends that his constitutional right to a speedy
appeal was violated due to the 15-year delay between the filing of
his motion for new trial and its resolution.3
“[S]ubstantial delays experienced during the criminal
3 With regard to the nearly 15-year delay between Hyden’s trial and the
hearing on his motion for new trial, trial counsel testified at the motion for new trial hearing that, after filing Hyden’s new trial motion and submitting his bill for services to the trial court, he discussed with the trial judge the possibility of ineffective assistance of counsel becoming an issue on appeal. The trial judge then suggested that it might be appropriate for new counsel to be appointed. At that point, trial counsel stopped working on Hyden’s case. The trial judge later died, and trial counsel did not follow up to see if the court had ever appointed a new attorney for Hyden. Nor did trial counsel inform Hyden that a new lawyer would be handling his case. Trial counsel only realized in 2018 that the case had never been reassigned, when, as part of the preparing of the now-required lists of all outstanding motions for new trial for each circuit, the trial court discovered that the motion for new trial had not been ruled upon. See Uniform Superior Court Rule 39.3.1. See also Owens v. State, 286 Ga. 821, 826 (2) (693 SE2d 490) (2010). 12 appellate process implicate due process rights.” Chatman v. Mancill,
280 Ga. 253, 256 (2) (a) (626 SE2d 102) (2006). And, speedy appeal
claims are assessed by balancing the same four factors applicable to
speedy trial claims as articulated in Barker v. Wingo, 407 U. S. 514
(92 SCt 2182, 33 LE2d 101) (1972). See Chatman, supra, 280 Ga. at
257 (2) (a). These factors include “[1] [the] length of [the] delay, [2]
the reason for the delay, [3] the defendant’s assertion of his right,
and [4] [the resulting] prejudice to the defendant.” (Punctuation
omitted.) Id. at 256 (2) (a) (quoting Barker, supra, 407 U. S. at 530).
In evaluating a trial court’s decision to deny a speedy appeal claim,
“we must accept the factual findings of the trial court unless they
are clearly erroneous, and we must accept the ultimate conclusion
of the trial court unless it amounts to an abuse of discretion.”
(Citation and punctuation omitted.) De La Cruz v. State, 303 Ga. 24,
30 (6) (810 SE2d 84) (2018).
(a) Length of the Delay. “The length of delay that will provoke
a constitutional inquiry is necessarily dependent upon the peculiar
circumstances of the case.” (Citation and punctuation omitted.)
13 Chatman, supra, 280 Ga. at 257 (2) (b). However, here, as the State
correctly concedes, the 15-year delay between Hyden’s conviction
and the trial court’s ruling on his motion for new trial was
significant and weighs in Hyden’s favor. See Loadholt v. State, 286
Ga. 402, 406 (4) (687 SE2d 824) (2010) (nine-year delay was
excessive); Chatman, supra, 280 Ga. at 257 (2) (b) (eight-year delay
was excessive). See also, e.g., Veal v. State, 301 Ga. 161 (3) (800 SE2d
325) (2017) (assuming that 18-year delay between filing of motion
for new trial and ruling on the motion was excessive).
(b) Reason for the Delay. Although strategic delays by the State
are weighted heavily against the State, “[a] . . . neutral reason such
as negligence or overcrowded courts should be weighted less heavily
but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant.” Barker, supra, 407 U.
S. at 531 (IV). See also De La Cruz, supra, 303 Ga. at 30-31 (6) (ii).
The delay in this case stems from reasons including negligence
rather than from an intentional or strategic delay caused by the
14 State. Indeed, after trial counsel filed a timely motion for new trial
and stopped working on the case under the belief that the trial court
would be appointing new appellate counsel, the trial judge died
before new counsel was appointed. Nevertheless, the failure of the
trial court to timely appoint appellate counsel and to effectively
manage its docket weighs in favor of Hyden. See Owens v. State,
supra, 286 Ga. 821, 826 (2) (b) n.4 (693 SE2d 490) (2010) (“[T]he
State bears the ultimate responsibility for the efficient management
of court dockets.”) (disapproved in part on other grounds by Shelton
v. Lee, 299 Ga. 350 (2) (b) n.7 (788 SE2d 369) (2016)). See also Ruffin
v. State, 284 Ga. 52, 61 (2) (b) (ii) (663 SE2d 189) (2008) (for speedy
trial purposes, the “State” includes all state actors, even trial and
appellate court judges). However, because the reasons for the delay
are neutral, they are “weighted less heavily.” Barker, supra, 470 U.
S. at 531 (IV).
(c) Defendant’s Assertion of His Right to Appeal. Even though
Hyden testified at the motion for new trial hearing that he wrote to
his trial counsel three times in the years after his conviction, his
15 counsel testified that he never received any letters or phone calls
from Hyden. The trial court was entitled to credit counsel’s
testimony over Hyden’s. See Watkins v. State, 285 Ga. 355, 357 (1)
(676 SE2d 196) (2009) (“[I]t is the function of the trial court at the
hearing on the motion for new trial to determine witness credibility
and to resolve any conflicts in the testimony.”) (citation and
punctuation omitted). Moreover, Hyden conceded that he had never
contacted the trial court to inquire about his pending motion during
the entire 15-year timeframe between his conviction and the filing
of his amended motion for new trial. In light of the limited efforts
by Hyden to raise any issue about an appeal for nearly 15 years, it
cannot be said that he clearly asserted his right to appeal. See
Owens, supra, 286 Ga. at 826 (2) (c) (factor weighed against
appellant where, despite reporting multiple attempts to contact
counsel, appellant did not specify when efforts were made or why he
did not contact the trial court for 20 years to seek resolution of his
claims). Accordingly, this factor weighs heavily against Hyden. See
Barker, supra, 407 U.S. at 531-532 (IV) (“The strength of
16 [appellant’s] efforts will be affected by the length of the delay [among
other things] . . . . The more serious the deprivation, the more likely
a defendant is to complain. The defendant’s assertion of his speedy
[appeal] right, then, is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.”).
(d) Prejudice to Defendant.
[T]he prejudice necessary to establish a due process violation based on post-conviction direct appeal delay is prejudice to the ability of the defendant to assert his arguments on appeal and, should it be established that the appeal was prejudiced, whether the delay prejudiced the defendant’s defenses in the event of retrial or resentencing.
(Footnote omitted.) Chatman, supra, 280 Ga. at 260 (2) (e).
“[A]ppellate delay is prejudicial when there is a reasonable
probability that, but for the delay, the result of the appeal would
have been different.” (Citation and punctuation omitted.) Id. at 260-
261 (2) (e). “In determining whether an appellate delay violates due
process, prejudice, unlike in the speedy trial context, is not
presumed but must be shown.” (Citation and punctuation omitted.)
Veal, supra, 301 Ga. at 168 (3). See also, e.g., Norman v. State, 303
17 Ga. 635, 642 (5) (814 SE2d 401) (2018) (“[W]here prejudice is clearly
lacking, we will not reverse a conviction, even if the other factors
favor the defendant.”); Veal, supra, 301 Ga. at 168 (3) (“[W]e have
repeatedly found that the failure to make this showing [of prejudice]
in an appellate delay claim [is] fatal to the claim, even when the
other three factors weigh in the appellant’s favor.”).
The record reveals that Hyden has not made the requisite
showing of prejudice. Specifically, Hyden claims he suffered
prejudice because, during the pendency of his motion for new trial,
the original trial judge died, and his motion with respect to the
general grounds had to be considered by a newly assigned judge.
However, “after a thorough review of the case, even a successor
judge may exercise a significant discretion to grant a new trial on
the general grounds.” White v. State, 293 Ga. 523, 525 (2) n.4 (753
SE2d 115) (2013). The newly assigned judge considered Hyden’s
claims on the general grounds and rejected them after “having
considered all relevant matter presented to or made known to [the]
Court.” Furthermore, Hyden’s “implicit argument that the first
18 judge may have disagreed with the successor judge’s denial of [his]
motion for new trial on the general grounds is wholly speculative.”
Veal, supra, 301 Ga. at 168 (3). Under these circumstances,
prejudice has not been shown.
Hyden also claims that, during the delay, the court reporter
lost the original recording of his custodial interview, which deprived
him of the opportunity of having the new judge hear the interview
before deciding the issues raised in his motion for new trial.4
However, despite the loss of the recording, the court reporter did
produce a transcript of the interview. Hyden does not explain how
hearing the interview (as opposed to reading it) would have changed
the trial court’s ruling, and generalized speculation that
consideration of the recording would have somehow resulted in a
different outcome is insufficient to show prejudice. See Lord v. State,
304 Ga. 532 (8) (820 SE2d 16) (2018); Payne v. State, 289 Ga. 691 (2)
4 Hyden raised the issue of the voluntariness of his custodial statement
in his original motion for new trial.
19 (b) (715 SE2d 104) (2011).5
Finally, Hyden contends that the delay was prejudicial because
he was “completely without counsel” for 15 years. However, an
absence of counsel alone does not equate to prejudice. Indeed, where,
as here, “we have found no merit to the other enumerations raised
herein,” Hyden cannot show prejudice. Owens, supra, 286 Ga. at
826-827 (2) (d). See also Loadholt, supra, 286 Ga. at 406 (4). This is
so because “[t]here can be no prejudice in delaying a meritless
appeal.” (Citation and punctuation omitted.) Id. Because we have
concluded that Hyden’s other enumerations of error are meritless,
he has failed to establish a “reasonable probability that, but for the
delay, the result of [his] appeal would have been different.” (Citation
and punctuation omitted.) Chatman, supra, 280 Ga. at 260-261 (2)
(e). Accordingly, we affirm the trial court’s denial of Hyden’s speedy
appeal claim.
4. Finally, Hyden asserts a cursory argument that he received
ineffective assistance of trial counsel (see Strickland v. Washington,
5 Hyden does not dispute the transcript’s accuracy.
20 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)), claiming only
that his trial counsel may have been ineffective “if the foregoing
errors [asserted in this appeal] were not preserved” below. However,
as Hyden himself concedes, trial counsel did properly preserve his
argument relating to the State’s waiver of its initial closing
argument by making a timely objection below. Furthermore, even if
trial counsel had not objected, a claim of ineffective assistance would
have still been meritless, as trial counsel’s objection would have
been futile in light of controlling precedent allowing the State to
waive its initial closing argument. See, e.g., Bradham, supra, 243
Ga. at 639 (2). See also Anglin v. State, 302 Ga. 333, 343 (8) (806
SE2d 573) (2017) (“The failure to pursue a futile objection does not
amount to ineffective assistance.”) (citation and punctuation
omitted). Moreover, this Court traditionally has not required
enumerations relating to the sufficiency of the evidence to be
preserved through trial court objections, and, in any event, the
evidence presented at trial was sufficient to support Hyden’s
convictions. See Division 1, supra. Finally, the issue regarding the
21 right to a speedy appeal has nothing to do with any objection that
needed to be made at trial in order to be preserved. And, that claim,
too, is without merit. See Division 3, supra. Hyden has shown no
basis for a viable claim of ineffective assistance of trial counsel in
this case.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 28, 2020 --- RECONSIDERATION DENIED MARCH 13, 2020. Murder. Franklin Superior Court. Before Judge Malcom.
22 Howard W. Anderson III, for appellant. D. Parks White, District Attorney, Meredith M. Head, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney General, for appellee.