NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: July 1, 2025
S25A0788. KITCHENS v. THE STATE.
WARREN, Presiding Justice.
Appellant Deonte Kitchens was convicted of malice murder and
other crimes in connection with the shooting death of Alveno
Culver. 1 Kitchens filed a motion for new trial claiming, among other
1 Culver was killed on October 29, 2011. In November 2015, a Bibb County grand jury indicted Kitchens and Kelvin Carswell for various crimes in connection with Culver’s death. Specifically, Kitchens was indicted for malice murder, two counts of felony murder, three counts of violating the Street Gang Terrorism and Prevention Act, possession of a firearm during the commission of a felony, and possession of a firearm by a first-offender probationer. Kitchens was tried alone from September 26 to 30, 2016. Carswell testified for the State at Kitchens’s trial; his case is not part of this appeal. The jury found Kitchens guilty of all counts, and the trial court sentenced him to serve life in prison without the possibility of parole for malice murder, 15 consecutive years in prison for each gang count, 5 consecutive years in prison for possession of a firearm during the commission of a felony, and 5 concurrent years in prison for possession of a firearm by a first-offender probationer. The trial court purported to merge the felony-murder counts, but those counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 374 (434 SE2d 479) (1993). Kitchens filed a timely motion for new trial, which he amended through new counsel in February 2022. After an evidentiary hearing in March 2022, the trial court denied the motion in things, that the State violated his constitutional right to a speedy
trial. The trial court rejected that claim and ultimately denied the
motion. Kitchens now appeals, raising several enumerations of
error, including the speedy-trial claim. As discussed below, the trial
court’s ruling on this claim was based on a clearly erroneous finding
about a material fact, as well as several significant misapplications
of law. We therefore vacate in part the trial court’s order denying
Kitchens’s motion for new trial and remand the case for the court to
properly address the speedy-trial claim. 2
1. We begin with the legal principles underpinning the
analysis of a speedy-trial claim. The Sixth Amendment to the
United States Constitution guarantees criminal defendants “the
right to a speedy . . . trial,” among other things. A defendant’s claim
that the State violated this constitutional right is analyzed under
January 2025. Kitchens filed a timely notice of appeal, and the case was docketed to this Court’s April 2025 term and submitted for a decision on the briefs.
2 We do not address Kitchens’s remaining enumerations of error. See Redding v. State, 313 Ga. 730, 730 (873 SE2d 158) (2022); Goins v. State, 306 Ga. 55, 55 n.1 (829 SE2d 89) (2019). Kitchens may raise them again in a renewed appeal if the trial court rejects the speedy-trial claim on remand. 2 the two-part framework set forth in Barker v. Wingo, 407 U.S. 514
(92 SCt 2182, 33 LE2d 101) (1972), and refined in Doggett v. United
States, 505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992). See, e.g.,
Nelson v. State, 321 Ga. 460, 462 (___ SE2d ___) (2025). First, “‘the
trial court must determine whether the delay at issue was
sufficiently long to be considered presumptively prejudicial.’” Id. at
462-463 (citation omitted). If it was, the trial court is required under
the second part of the framework to apply a four-factor balancing
test that examines: (1) the length of the delay; (2) the reasons for the
delay; (3) the defendant’s assertion of his right to a speedy trial; and
(4) whether he suffered prejudice as a result of the delay. See id. at
463.
This analysis requires trial courts to “engage in a difficult and
sensitive balancing process, while bearing in mind that these four
factors have no talismanic qualities and must be considered together
with such other circumstances as may be relevant.” Leonard v.
State, 316 Ga. 827, 839 (889 SE2d 837) (2023) (cleaned up). It is a
“‘task committed principally to the discretion of the trial courts, and
3 it is settled law that our role as a court of review is a limited one.’”
Id. (citation omitted). Thus, this Court accepts the trial court’s
factual findings unless they are clearly erroneous, and we review the
trial court’s weighing of each factor, and its ultimate judgment in
balancing all four factors, for an abuse of discretion. See Nelson, 321
Ga. at 463. If the trial court “significantly misapplies the law or
clearly errs in a material factual finding,” we will affirm the trial
court’s exercise of discretion only if we “can conclude that, had the
trial court used the correct facts and legal analysis, it would have
had no discretion to reach a different judgment.” State v. Pickett,
288 Ga. 674, 679 (706 SE2d 561) (2011). See also, e.g., Nelson, 321
Ga. at 463. But “‘[i]f the trial court would still have discretion to
reach a different judgment, we remand for the trial court to reweigh
the factors and exercise its discretion using the correct factual and
legal analysis.’” Id. (citation omitted).
2. We now turn to the trial court’s application of the speedy-
trial framework in this case. As to whether the delay was
presumptively prejudicial under the first part of the framework, it
4 is undisputed on appeal, and we agree, that the delay in this case
was longer than a year, such that a presumption of prejudice arose
and triggered the application of the second part of the speedy-trial
framework. See Nelson, 321 Ga. at 464 (explaining that a one-year
delay is typically presumed to be prejudicial). We therefore proceed
to evaluate the trial court’s analysis of the four-factor balancing test.
(a) Length of the Delay
“‘The length of the pretrial delay in absolute terms plays a role
in the threshold determination of presumptive prejudice.’” Redding
v. State, 318 Ga. 225, 227 (897 SE2d 801) (2024) (citation omitted;
emphasis in original). But “‘it also wears another hat as one of the
four interrelated criteria that must be weighed in the balance at the
second stage of the Barker-Doggett analysis.’” Id. (citation omitted).
In this respect, we have said that the presumptive-prejudice
threshold and the length-of-the-delay factor are similar but separate
inquiries. See id.; Nelson, 321 Ga. at 464. See also Ruffin v. State,
284 Ga. 52, 56-57 (663 SE2d 189) (2008) (explaining that “[i]t is
important that trial courts not limit their consideration of the
5 lengthiness of the pretrial delay to the threshold question of
presumptive prejudice and remember to count it again as one of four
criteria to be weighed in the balancing process at the second stage
of the Barker-Doggett analysis”).
Generally, in calculating the length of the delay, a trial court
measures the delay from the time the constitutional right to a
speedy trial attaches, which is the time of arrest or formal
accusation or indictment, whichever occurs first, until the date on
which the defendant’s trial begins. See, e.g., Nelson, 321 Ga. at 464.
And in analyzing this factor, “a court must consider ‘whether delay
before trial was uncommonly long,’” Redding, 318 Ga. at 227-228
(quoting Doggett, 505 U.S. at 651), meaning “the extent to which the
delay stretches beyond the bare minimum needed to trigger judicial
examination of the [constitutional speedy-trial] claim,” Doggett, 505
U.S. at 652. “‘[T]he delay that can be tolerated in a particular case
depends to some extent on the complexity and seriousness of the
charges in that case,’ and a delay may be uncommonly long when
the case is ‘not prosecuted with the promptness customary in such
6 cases.’” Redding, 318 Ga. at 228 (citation omitted).
Here, the trial court, “[i]n reviewing the length of the delay,”
noted that Kitchens was arrested on November 3, 2011; he was
indicted in October 2014 and reindicted in November 2015; and he
was tried from September 26 to 30, 2016. The court then said that
“the time span of this delay was presumptively prejudicial to
Kitchens, as any time delay of a year or more is typically considered
prejudicial under the law” and concluded that “[t]his delay is
properly considered against the State.”
But the trial court did not expressly calculate the length of the
delay. And despite setting out several dates related to Kitchens’s
case, it did so without indicating on which of those dates Kitchens’s
right to a speedy trial attached and detached. Although the parties
correctly assert that Kitchens’s speedy-trial right attached on the
date of his arrest on November 3, 2011, and ran until his trial began
on September 26, 2016, see, e.g., Nelson, 321 Ga. at 464, it is not
clear whether the trial court calculated the length of the delay from
the date of Kitchens’s arrest or from one of the later dates on which
7 Kitchens was indicted and which the trial court noted in its order.3
Thus, we cannot determine from the trial court’s order the length of
time that the court used in balancing the factors.
And even if the trial court used the correct length of time
between the date of Kitchens’s arrest and the date on which his trial
began, the court conflated its analysis of whether the delay was
sufficiently long to be considered presumptively prejudicial (the
threshold issue under the first part of the speedy-trial framework)
with its analysis of the length of the delay (one of the factors under
the second part of the framework). In this respect, the court, “[i]n
reviewing the length of the delay,” determined only that the delay
3 It appears that the trial court did not erroneously calculate the length
of the delay from the date of Kitchens’s reindictment in November 2015 because if the court had done so, it likely would not have concluded that the delay from that time until his trial in September 2016 was more than a year and thus presumptively prejudicial. But there is no such indication in the trial court’s order about whether the court incorrectly calculated the length of the delay from the date of Kitchens’s initial indictment in October 2014 or whether the court correctly calculated the delay from the date of Kitchens’s arrest on November 3, 2011. We also note that the record does not include an October 2014 indictment. But in any event, whether Kitchens was first indicted in 2014 or 2015 is not material to the analysis of his speedy trial claim because, as discussed above, his right to a speedy trial attached when he was arrested on November 3, 2011. See, e.g., Nelson, 321 Ga. at 464. 8 was “presumptively prejudicial” and then weighed the length-of-the-
delay factor against the State. And the trial court made no express
findings as to whether the delay was uncommonly long—that is, the
extent to which the delay stretched beyond the point of presumptive
prejudice. See Redding, 318 Ga. at 227-228. See also Doggett, 505
U.S. at 652.
In sum, the trial court failed to expressly calculate the length
of the delay, conflated the distinct analyses of presumptive prejudice
and the length of the delay, and failed to consider whether the length
of the delay was uncommonly long. These errors amounted to
significant misapplications of the law. See Nelson, 321 Ga. at 464-
465 (vacating the trial court’s order denying the appellant’s
constitutional speedy-trial motion and remanding the case because
the trial court “considered the length of the delay only with regard
to the presumption of prejudice and gave no consideration to the
length-of-the-delay factor: the court did not calculate the length of
the delay, address whether the delay was uncommonly long, or
assign weight to the length-of-the-delay factor,” among other things,
9 such that the trial court “‘significantly misapplie[d] the law’”)
(citation omitted); Redding v. State, 313 Ga. 730, 735 (873 SE2d
158) (2022) (vacating and remanding where the trial court failed to
expressly calculate the length of the delay and did not consider the
length of the delay factor separately, among other errors).
(b) The Reasons for the Delay
In assessing the reasons for the delay, a trial court “‘must
consider which party was responsible for the delay, whether the
delay was intentional, and, if it was intentional, what the motive
was for seeking or causing the delay.’” Leonard, 316 Ga. at 840
(citation omitted). Different weights should be assigned to different
reasons. See id. For example, “‘[a] deliberate attempt to delay the
trial in order to hamper the defense should be weighted heavily
against the government,’” but “‘an unintentional delay, such as that
caused by the prosecuting attorney’s mere negligence or the trial
court’s overcrowded docket, should be weighted less heavily.’” Id.
(citation omitted). “[P]retrial delay is often both inevitable and
wholly justifiable,” as the State may need time to collect witnesses
10 and evidence against the accused. Doggett, 505 U.S. at 656. See also
Ruffin, 284 Ga. at 59. And “there is more tolerance with regard to
delay in a case involving serious complex charges.” Williams v.
State, 290 Ga. 24, 26 (717 SE2d 640) (2011).
Here, in considering the reasons for the delay, the trial court
found that “this was a particularly complex case, which required
additional investigation by the [State] to bring essential evidence to
light prior to trial.” Noting that many of the State’s witnesses were
“reticen[t]” to testify at trial “for fear of retribution,” the trial court
explained that “a number of witnesses gave multiple conflicting
statements throughout the course of the investigation”; “it was no
easy feat to locate many of the witnesses and to follow all the various
leads in this case”; and there were “multiple interviews of multiple
persons.” The court also found that the State “discovered
contraband cell phones in the jail” that Kitchens and his co-indictee
used to communicate, which resulted in the State’s obtaining a
“wiretap order” that “brought forth additional evidence and revealed
threats being discussed in relation to potential witnesses.” In sum,
11 the trial court found that “[t]he entire investigation was basically
ongoing . . . until the trial in 2016” and that the delay was “not
deliberately designed to sabotage or to hamper Kitchen[s]’s defense
nor to gain any unfair tactical advantage.” The court “d[id] not
weigh this factor heavily against the State.”
Kitchens does not challenge the trial court’s findings about the
complexity of the case and the State’s lengthy and extensive
investigation, nor does he argue that the State deliberately
attempted to delay the trial “‘in order to hamper the defense.’”
Leonard, 316 Ga. at 840 (citation omitted). The record supports the
trial court’s factual findings regarding the reasons for the delay, and
under the circumstances of this case, we see no abuse of discretion
in the court’s decision to weigh this factor against the State, but not
heavily so. See, e.g., McCullum v. State, 318 Ga. 485, 496 (899 SE2d
171) (2024) (concluding that the trial court did not abuse its
discretion by weighing the reasons-for-the-delay factor against the
State, but not heavily, where the record supported the trial court’s
findings that the case was complex and the State had difficulty
12 locating a witness, among other reasons); Rucker v. State, 315 Ga.
568, 579 (883 SE2d 790) (2023) (holding that the trial court did not
abuse its discretion by concluding that the reasons for the delay
weighed neutrally or benignly against the State, where the trial
court found that the case was complex, such that “investigative
delay by the State [was] acceptable,” and there was no evidence that
the State deliberately delayed the case to hamper the defendant’s
defense); Wilkie v. State, 290 Ga. 450, 452 (721 SE2d 830) (2012)
(upholding the trial court’s decision to weigh the reasons-for-the-
delay factor lightly against the State where the record supported the
court’s finding that the case was difficult and complex, as the State
obtained information that the victim was killed for insurance
proceeds and was seeking and receiving records from insurance and
financial institutions during the period at issue, the years prior to
indictment were thus “‘used for investigation,’” and there was “‘no
evidence that the State intentionally delayed the indictment or
trial’”) (citation omitted).
(c) Assertion of the Right
13 In considering the assertion-of-the-right factor, a trial court
must evaluate whether the defendant “‘has asserted the right to a
speedy trial in due course,’” which requires “‘a close examination of
the procedural history of the case with particular attention to the
timing, form, and vigor of the accused’s demands to be tried
immediately.’” Rucker, 315 Ga. at 580 (citation omitted). To invoke
the right, “‘the accused need not file a formal motion, though that is
certainly sufficient,’” and he “‘can begin demanding that the right to
a speedy trial be honored as soon as he . . . is arrested.’” Id. (citation
omitted). But a defendant must assert the speedy-trial right to the
court; “[p]rivileged, off-the-record conversations cannot serve as a
sufficient assertion of this right, as neither the trial court nor the
State are put on notice of such privately made assertions until they
are relayed through counsel.” Henderson v. State, 310 Ga. 231, 237
(850 SE2d 152) (2020). And “‘a defendant who fails to assert the
right at any point in the trial court will have an extremely difficult
time establishing a violation of his . . . constitutional right to a
speedy trial.’” Rucker, 315 Ga. at 580 (citation omitted). See also
14 Barker, 407 U.S. at 532 (emphasizing that the “failure to assert the
right will make it difficult for a defendant to prove that he was
denied a speedy trial”).
In this case, the trial court found that although Kitchens
presented evidence at the hearing on his motion for new trial that
he sent several letters to his pretrial counsel about his right to a
speedy trial, those private communications were insufficient to
invoke the right. The court also said that it “d[id] not find in the
record that Kitchens ever made known to the [c]ourt any desire to
avail himself of th[e speedy-trial] right,” citing Barker for the
proposition that a defendant who fails to assert the right “will have
an extremely difficult time establishing a violation of that right.”
The trial court concluded: “As Kitchens never invoked his right to
demand a speedy trial, the [c]ourt weighs this factor heavily against
him.”
The court correctly determined that Kitchens’s private letters
to his lawyer failed to put the trial court or the State on notice of an
assertion of his right to a speedy trial and that, consequently, those
15 “[p]rivileged, off-the-record conversations” did not serve as a
sufficient invocation of the right. Henderson, 310 Ga. at 237. But
the trial court’s finding that Kitchens never invoked his right to a
speedy trial is clearly erroneous. The record shows (and Kitchens
points out in his appellate brief) that Kitchens’s pretrial counsel
filed a constitutional speedy trial demand on August 8, 2014. The
trial court was not required to allot significant weight to this sole,
pro forma demand, which was filed nearly three years after
Kitchens’s arrest. See, e.g., Barker, 407 U.S. at 529 (explaining that
courts are allowed to “weigh the frequency and force of the objections
as opposed to attaching significant weight to a purely pro forma
objection”); Redding, 318 Ga. at 229 (“‘Although an accused need not
demand a trial at the first available opportunity, his failure to assert
his right with reasonable promptness will ordinarily weigh heavily
against him.’”) (citation omitted).4
Nevertheless, the trial court’s clearly erroneous finding that
4 Notably, the record does not indicate that Kitchens or his counsel pursued the constitutional speedy trial demand further. 16 Kitchens never invoked his right to a speedy trial was material to
the court’s decision to weigh this factor heavily against Kitchens,
and if this factor is to be weighed differently in light of Kitchens’s
2014 constitutional speedy-trial demand, that exercise of discretion
is committed to the trial court. See Nelson, 321 Ga. at 466-467
(vacating the trial court’s ruling on a speedy-trial motion and
remanding the case where the trial court, among other things,
erroneously found that the appellant first asserted his constitutional
right to a speedy trial three years after his arrest and two years after
indictment, when the record showed that he asserted the right two
months after he was arrested, before he was indicted); Pickett, 288
Ga. at 677 (vacating and remanding where the trial court
significantly erred in its analysis of the assertion-of-the-right factor,
among other errors, and explaining that “[i]f the factor is to be
weighed differently based on the particular circumstances of this
case, that exercise of discretion is committed to the trial court, not
the appellate courts”).
(d) Prejudice
17 “When prejudice is presumed based on the length of a delay in
trying the case, that presumption not only remains in place but
‘increases in weight over time.’” Davis v. State, 315 Ga. 252, 258
(882 SE2d 210) (2022) (citation omitted). See also Williams v. State,
277 Ga. 598, 601 (592 SE2d 848) (2004) (explaining that “greater
pretrial delays simultaneously increase the degree of prejudice
presumed and decrease the expectation that the defendant can
demonstrate tangible prejudice to his or her ability to present a
defense”). However, presumptive prejudice can be counterbalanced,
or even outweighed, by a defendant’s failure to show evidence of
actual prejudice. See Davis, 315 Ga. at 258. See also Williams v.
State, 314 Ga. 671, 680 (878 SE2d 553) (2022) (explaining that “‘the
prejudice prong may be weighed against the defendant even in cases
of excessive delay’”) (citation omitted).
Actual prejudice is assessed by considering evidence of
“‘oppressive pretrial incarceration,’ ‘anxiety and concern of the
accused,’ and ‘the possibility that the [accused’s] defense will be
impaired’ by dimming memories and loss of exculpatory evidence.”
18 Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 532). “Of these
forms of prejudice, ‘the most serious is the last, because the inability
of a defendant adequately to prepare his case skews the fairness of
the entire system.’” Id. (quoting Barker, 407 U.S. at 532).
We have said that “[f]or the first two types of prejudice to weigh
in favor of a defendant, the defendant must introduce evidence of
‘oppressive pretrial incarceration or anxiety and concern’ that goes
‘beyond that which necessarily attends confinement in a penal
institution.’” Nelson, 321 Ga. at 467 (citation omitted). And we have
also concluded that, to show the possibility of impairment to the
defense from the loss of evidence, a defendant must demonstrate
what the allegedly lost evidence would have shown. See, e.g.,
Redding, 318 Ga. at 231 (holding that the trial court did not abuse
its discretion by weighing the prejudice factor heavily against the
defendant in the speedy-trial analysis where he failed to show how
a potential witness who died prior to trial would have assisted his
defense); Henderson, 310 Ga. at 239 (explaining that the trial court
correctly determined, in considering the prejudice factor, that the
19 appellant had not shown that his defense was impaired by a
potential witness’s failure to testify at trial because the appellant
presented no evidence about what that witness would have said or
that he sought to secure her attendance at trial).
Here, the trial court “acknowledge[d]” that “there is a
presumption of prejudice due to the passage of time” in this case, but
found that Kitchens had not demonstrated actual prejudice because
he had “not put forth any evidence of how his defense was harmed
or impaired by the passage of time, nor ha[d] he shown that any
anxiety he may have experienced was greater tha[n] that always
present in such situations.” Noting that Kitchens could not rely
solely on presumptive prejudice, the court weighed this factor
heavily against him.
The trial court properly noted that a presumption of prejudice
exists in this case. But we cannot discern whether the court
appropriately assessed the degree of presumed prejudice. That is
because, as discussed above, the court did not expressly calculate
the length of the delay, and as the delay increases, so does the degree
20 of prejudice that is presumed. See Davis, 315 Ga. at 258; Williams,
277 Ga. at 601. Because the trial court did not expressly calculate
the length of the delay, it is unclear the degree of presumed
prejudice that the court weighed in balancing the factors.
Regarding actual prejudice, Kitchens does not argue in his
appellate brief that he suffered oppressive pretrial incarceration or
anxiety and concern “‘beyond that which necessarily attends
confinement in a penal institution.’” Nelson, 321 Ga. at 467 (citation
omitted).5 He does contend, however, that his defense was impaired
by the delay because the State was able to continue to build its case
against him and because an “eyewitness useful to [the] defense”
became unavailable during the delay. Kitchens cites no authority
(and we have identified none) showing that the State’s continued
5 Nor does Kitchens ask us to reconsider our precedent requiring a defendant seeking to show oppressive pretrial incarceration or anxiety and concern to introduce evidence that goes “‘beyond that which necessarily attends confinement in a penal institution.’” Nelson, 321 Ga. at 467 (citation omitted). See also id. at 473-475 (Peterson, CJ, concurring) (asserting that our precedent has incorrectly required defendants to “show something more than typical conditions of incarceration in order for their pre-trial incarceration to be considered ‘oppressive’ for purposes of showing prejudice from pre-trial delay” and arguing that we should reconsider this line of precedent in a case where the issue is properly presented). 21 investigation and development of its case constitutes the sort of
impairment to the defense contemplated by the speedy-trial
framework. Cf. Doggett, 505 U.S. at 654 (explaining that
impairment to “the [accused’s] defense” is serious, “‘because the
inability of a defendant adequately to prepare his case skews the
fairness of the entire system’”) (quoting Barker, 407 U.S. at 532).
And as to the alleged eyewitness, the trial court correctly
determined that at the motion for new trial hearing, Kitchens
offered no evidence showing what she would have said, had she been
called to testify at trial. See, e.g., Redding, 318 Ga. at 231;
Henderson, 310 Ga. at 239. Thus, the record supports the trial
court’s finding that Kitchens failed to demonstrate actual prejudice.
As the trial court noted in its order, we have said that an
appellant “‘cannot rely solely on . . . presumptive prejudice.’” Rucker,
315 Ga. at 582 (citation omitted). But given the long delay in this
case and the increased presumed prejudice flowing from that delay,
the trial court might have weighed the prejudice factor less heavily
against Kitchens if it had properly calculated and considered the
22 length of the delay before assessing the degree of prejudice
presumed from the delay. See Williams, 277 Ga. at 601 (concluding
that “in light of the extraordinarily long delay in bringing [the
defendant’s] indictment to trial, [his] failure to make a
particularized showing of the oppressiveness of his lengthy pretrial
incarceration and of his decreased ability to present a defense at
trial must not be weighed heavily against him”).
(e) In sum, the trial court made a clearly erroneous finding
that was pivotal to the weight it assigned to the assertion-of-the-
right factor. The court also misapplied the law in several significant
ways: by failing to expressly calculate the length of the delay,
conflating the distinct analyses of presumptive prejudice and the
length of the delay, and failing to consider whether the length of the
delay was uncommonly long.
We cannot conclude that, if the trial court had not made the
clearly erroneous finding about Kitchens’s assertion of his right to a
speedy trial and had not substantially misapplied the law in the
ways discussed above, the court necessarily would have ruled that
23 there was no violation of the constitutional right to a speedy trial.
Because “it is ‘imperative’ that ‘the trial court enter findings of fact
and conclusions of law consistent with Barker,’” Goins v. State, 306
Ga. 55, 57-58 (829 SE2d 89) (2019) (citation omitted), and because
“‘[i]t is not the role of an appellate court to weigh the Barker factors
in the first instance,’” Nelson, 321 Ga. at 466 (citation omitted), we
vacate in part the trial court’s order denying Kitchens’s motion for
new trial and remand the case for the court to address the speedy-
trial claim in a manner consistent with this opinion. See id. at 469
(vacating the trial court’s order denying the appellant’s motion to
dismiss the indictment on constitutional speedy-trial grounds and
remanding the case “[b]ecause the trial court would not have been
compelled to deny [the a]ppellant’s motion to dismiss if it had used
the correct factual and legal analysis”); Redding, 318 Ga. at 227
(vacating and remanding because, “[w]hile the trial court may be
authorized to deny [the defendant’s] speedy-trial motion after
assigning weight and balancing anew the four factors in accordance
with the applicable law and directions outlined in this opinion, we
24 [could not] say the trial court [was] necessarily compelled to do so”)
(footnote omitted); Pickett, 288 Ga. at 680 (holding that the Court of
Appeals should have vacated the trial court’s judgment and
remanded where this Court could not conclude that, if the trial court
had not made factual and legal errors, it necessarily would have
ruled that the appellant’s right to a speedy trial was violated).6
Judgment vacated in part and case remanded with direction. Peterson, CJ, and Bethel, Ellington, McMillian, LaGrua, Colvin, and Pinson, JJ, concur.
6 We note that there was also a significant post-conviction delay in this
case, as more than eight years elapsed before the trial court ruled on Kitchens’s motion for new trial. See Owens v. State, 303 Ga. 254, 259 (811 SE2d 420) (2018) (explaining that “even if long-delayed appeals rarely result in outright reversals of convictions or only retrials or resentencings, these extended and unjustified delays in resolving criminal cases make our State’s criminal justice system appear unfair and grossly inefficient”). Although Kitchens mentions this post-conviction delay in his appellate brief, he does not contend that his right to due process was violated. See Harper v. State, 318 Ga. 185, 188 (897 SE2d 818) (2024) (assessing an appellant’s claim that the delay between his conviction and his direct appeal violated his right to due process); Chatman v. Mancill, 280 Ga. 253, 257 (626 SE2d 102) (2006) (distinguishing speedy-trial claims and speedy-appeal claims and explaining “that speedy appeal claims arise under the Fifth Amendment and that many of the interests protected by the Sixth Amendment are not implicated in the context of an appellate proceeding where the defendant has already been convicted of an offense”) (footnote omitted). But the trial court should promptly rule on Kitchens’s speedy-trial claim on remand to avoid further delay in this case. 25