318 Ga. 225 FINAL COPY
S23A1018. REDDING v. THE STATE.
LAGRUA, Justice.
Following a 2018 jury trial, Appellant Merrick Redding was
found guilty of felony murder and aggravated assault in connection
with the death of Joseph Davis.1 In his first appeal to this Court, we
1 The crimes occurred on September 5, 2016. Redding was arrested for
Davis’s killing on September 12, 2016. On September 28, 2017, Redding filed a “Motion to Dismiss Charge Based on Violation of Constitutional Right to Speedy Trial.” On April 24, 2018, a Muscogee County grand jury indicted Redding for malice murder, felony murder, and aggravated assault with a “closed fist.” He was reindicted on the same charges on May 22, 2018. At a trial from October 24 to November 5, 2018, the jury found Redding not guilty of malice murder but guilty of the remaining counts. The trial court orally denied the speedy-trial motion at the pretrial conference and ultimately sentenced Redding to life in prison without the possibility of parole for felony murder and a concurrent term of 20 years to serve in prison for aggravated assault. Redding filed a timely motion for new trial, which the trial court denied on June 4, 2019. Redding filed a timely notice of appeal, and in Redding v. State, 309 Ga. 124 (844 SE2d 725) (2020), this Court vacated the trial court judgment and remanded with direction. On remand, the trial court merged the aggravated assault count into felony murder, resentenced Redding to serve life in prison without the possibility of parole for felony murder, and entered its first written order denying Redding’s speedy-trial motion. Redding filed a timely notice of appeal, and in Redding v. State, 313 Ga. 730 (873 SE2d 158) (2022), this Court again vacated the judgment and remanded with direction. On remand, the trial court entered a second written order denying the speedy- trial motion on March 6, 2023. Redding filed a timely notice of appeal, and the case was docketed to this Court’s August 2023 term and submitted for a decision on the briefs. held that the evidence presented at Redding’s trial was legally
sufficient to support his murder conviction, but we otherwise
vacated the judgment and remanded the case for the trial court to
make factual findings and legal conclusions regarding Redding’s
allegation of a violation of his Sixth Amendment right to a speedy
trial.2 See Redding v. State, 309 Ga. 124, 129-130 (3) (844 SE2d 725)
(2020) (“Redding I”).
On remand, the trial court issued a written order denying the
speedy-trial motion. Redding filed a second appeal, again contending
his speedy-trial rights were violated along with other claims of error.
This Court vacated the judgment and remanded the case a second
time “because the trial court misstated and misapplied the law
regarding the prejudice factor, failed to weigh each Barker factor,
and conflated its consideration of some of the factors. . . .” Redding
v. State, 313 Ga. 730, 736 (2) (873 SE2d 158) (2022) (“Redding II”).
On remand, the trial court entered a second written order
2 “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial.” U. S. Const. Amend. VI. 2 denying the speedy-trial motion. Redding filed his third appeal,
presently before the Court, again raising his speedy-trial claim
along with other previously unaddressed claims. For a third time,
we vacate the trial court’s order and remand this case for the trial
court to resolve the speedy-trial claim. We will not address the
remaining claims of error.
1. A constitutional speedy-trial claim is evaluated under the
two-part framework set out in Barker v. Wingo, 407 U. S. 514, 530
(IV) (92 SCt 2182, 33 LE2d 101) (1972) and Doggett v. United States,
505 U. S. 647, 652 (II) (112 SCt 2686, 120 LE2d 520) (1992). As we
explained in Redding II,
[f]irst, the trial court must consider whether the length of time between the defendant’s arrest and trial is sufficiently long to be considered presumptively prejudicial. If not, the speedy-trial claim fails at the threshold. A delay of one year or more is typically presumed to be prejudicial. In Redding I, we concluded that the presumptive-prejudice threshold was crossed in this case. When that threshold is crossed, the trial court proceeds to the second part of the framework, applying a context-focused, four-factor balancing test to determine whether the defendant was denied the right to a speedy trial. These four factors are (1) the length of the delay; (2)
3 the reasons for it; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant.
Redding II, 313 Ga. at 731-732 (2) (citations and punctuation
omitted). Consideration of the Barker-Doggett factors “requires
courts to engage in a difficult and sensitive balancing process,” and
the four factors have no “talismanic qualities and must be
considered together.” Leonard v. State, 316 Ga. 827, 839 (6) (889
SE2d 837) (2023) (citation and punctuation omitted).
When reviewing the trial court’s weighing and balancing of the
factors, this Court
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, even though we might have reached a different conclusion were the issue committed to our discretion.
Henderson v. State, 310 Ga. 231, 235 (2) (850 SE2d 152) (2020)
(citation and punctuation omitted). But in the context of a
constitutional speedy-trial analysis, if the trial court’s factual
findings are clearly erroneous or the trial court “significantly
misapplies the law,” then “the trial court’s exercise of discretion can
4 be affirmed only if the appellate court can conclude that, had the
trial court used the correct fact[ual] and legal analysis, it would have
had no discretion to reach a different judgment.” State v. Pickett, 288
Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). If 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. See State v. Johnson, 291 Ga.
863, 868 (3) (734 SE2d 12) (2012).
2. Redding was arrested on September 12, 2016, indicted 19
months later on April 24, 2018, reindicted on the same charges on
May 22, 2018, and tried five months later on October 24, 2018. The
trial court properly found this cumulative 25-month period was
presumptively prejudicial — as we also concluded in Redding I —
and proceeded to consider the Barker-Doggett factors. See Redding
I, 309 Ga. at 129 (3) (holding the presumptive-prejudice threshold
was crossed in this case).
(a) The length of the delay.
The trial court erred by weighing the length-of-delay factor
5 neutrally.
The length of the pretrial delay in absolute terms plays a role in the threshold determination of presumptive prejudice. However, 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.
Ruffin v. State, 284 Ga. 52, 56 (2) (b) (i) (663 SE2d 189) (2008)
(emphasis supplied). While similar, the presumptive prejudice
threshold and the length-of-delay factor are separate inquiries.
Ruffin, 284 Ga. at 57 (2) (b) (i). In considering the length of the delay,
a court must consider “whether delay before trial was uncommonly
long.” Doggett, 505 U. S. at 651 (II). “[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 cases . . . .” State v. Buckner, 292 Ga.
390, 393 (3) (a) (738 SE2d 65) (2013). Uncommonly long delays
should generally weigh against the State, at least lightly.3
3 Indeed, should the length of the delay cross the presumptive prejudice
threshold, a review of our prior decisions shows the length-of-delay factor is
6 Here, the trial court found the delay was uncommonly long.
However, instead of weighing the length-of-delay factor against the
State, the trial court examined the reasons for the delay and
weighed it neutrally. Specifically, the trial court referenced a
backlog at the State Crime Lab and found that the State did not
intentionally delay trial, noting that “[b]oth sides requested delays.”
But the reasons for the delay is its own factor. The length-of-delay
factor should consider only the length of the delay itself, not the
reasons for it. See Ruffin, 284 Ga. at 56 (2) (b) (i) (explaining the
length of pretrial delay “in absolute terms” plays a role as one of the
four Barker-Doggett factors). Because the trial court based the
weight of the length-of-delay factor on the reasons for the delay
(which is a separate factor), it misapplied the law. The trial court
should have weighed the length-of-delay factor against the State.
generally weighed against the State — even if the delay is not uncommonly long. See Williams v. State, 314 Ga. 671, 678 (4) (a) (878 SE2d 553) (2022) (identifying no error when trial court held 25-month delay was not uncommonly long but nonetheless weighed against State); Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012) (“There is no dispute that the . . . delay . . . has crossed the threshold of presumptive prejudice . . . . Further, as the trial court found and the State does not dispute, the length of the delay should be weighed against the State.”). 7 (b) The reasons for the delay.
The trial court also erred by weighing the reasons-for-delay
factor neutrally. In considering the reasons-for-delay factor, we have
explained that
the 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. As to the amount of weight assigned to this factor, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government, and 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.
Leonard, 316 Ga. at 840 (6) (b) (citations and punctuation omitted).
“Of course, delay caused by the defense weighs against the
defendant.” Burney v. State, 309 Ga. 273, 287 (4) (b) (845 SE2d 625)
(2020) (citation and punctuation omitted).
The trial court found the 25-month delay “between [Redding’s]
arrest and the date of his trial can . . . be attributed to the need for
the State to collect evidence” and “for the court to provide timely
trials to other cases. . . .” The trial court also found the State did not
8 deliberately delay indictment or trial. However, the trial court also
found “[b]oth sides requested delays,” citing March and November
2017 hearings where the trial court claimed defense counsel
requested more time to obtain a witness and was not ready for trial.
Because the trial court believed the delay was attributed to “[b]oth
sides,” the trial court weighed the reasons-for-delay factor neutrally.
The trial court’s factual finding was clearly erroneous. While
Redding did request more time to prepare for his probation
revocation at those hearings, he never requested a delay of trial at
either hearing or anywhere else in the record. Thus, the trial court’s
reason for weighing this factor neutrally is unsupported by the
record. The record shows the reasons for the delay of the trial were
solely attributable to the State, so this factor should be weighed
against the State. See Leonard, 316 Ga. at 840 (6) (b).
(c) The assertion of the right to a speedy trial.
The trial court weighed the assertion-of-right factor neutrally
and did not abuse its discretion in doing so. We have explained that
this factor
9 asks whether the defendant asserted the right to a speedy trial in due course. This factor focuses on the timing, form, and vigor of the accused’s demands to be tried immediately. 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.
Davis v. State, 315 Ga. 252, 257 (2) (d) (iii) (882 SE2d 210) (2022)
(citations and punctuation omitted).
The trial court correctly found that Redding first asserted his
right to a speedy trial almost exactly one year after arrest. Prior to
that, Redding did not raise any speedy-trial concerns. The trial court
also cited a June 2017 letter where defense counsel asked to
reschedule a calendar call for unindicted cases because he was on
vacation and was not expecting a hearing on an unindicted case,4
and the trial court again cited the November 2017 hearing in
support of its finding that Redding requested trial delays.
Ultimately, the trial court weighed the assertion-of-right factor
neutrally because the assertion-of-right delay “w[as] not intentional
4 The trial court did not mention the June 2017 letter when examining
the reasons-for-delay factor. 10 from either side other than a vacation of [Redding’s] attorney.”
Although the trial court again made an erroneous factual
finding that Redding requested trial delays, the trial court correctly
laid out the other facts and reasons behind the one-year delay in
filing the speedy-trial motion and based its analysis in large part on
those findings. It is undisputed that Redding first raised the speedy-
trial issue one year after his arrest. Redding argues that was the
earliest he could have raised a constitutional speedy-trial claim
because a delay is generally not presumptively prejudicial until at
least a year after arrest, and he speculates that a motion to dismiss
filed before September 2017 would likely have been denied outright.
We disagree. First, while a motion to dismiss may not have been
successful prior to the one-year mark, “[i]n order to invoke the right,
the accused need not file a formal motion[.]” Ruffin, 284 Ga. at 62
(2) (b) (iii). Second, we have rejected the argument that a defendant
should wait until the presumptively prejudicial threshold has
passed to first assert the speedy-trial right.
Although we have said that a defendant has the
11 responsibility to assert his speedy trial right once it accrues, we have not equated accrual of the right with the one-year, presumptively prejudicial period of delay that satisfies the threshold inquiry; rather, a defendant may assert his constitutional right to a speedy trial at any time after he is arrested and need not wait until indictment. Indeed, the United States Supreme Court has rejected the notion that the right must be asserted or waived by a precise point in the process.
Cash v. State, 307 Ga. 510, 517 (2) (b) (iii) (837 SE2d 280) (2019)
(citations and punctuation omitted).5 Ultimately, the trial court
considered Redding’s arguments and circumstances and opted to
weigh the factor neutrally, and we conclude the trial court did not
abuse its discretion by doing so. See Henderson, 310 Ga. at 237-238
(2) (c) (concluding that the trial court did not abuse its discretion
when it considered the timing, form, and vigor of the assertion and
weighed the assertion-of-right factor neutrally when defendant
demanded a speedy trial for the first time ten months after
5 We note that both Redding and the defendant in Cash had counsel at
the earlier points during which they may have asserted their speedy-trial rights. Compare Cash, 307 Ga. at 518 (2) (b) (iii) (weighing assertion-of-right factor against defendant who failed to assert speedy-trial right sooner “even though he had the benefit of counsel”) with State v. Alexander, 295 Ga. 154, 159 (2) (c) (758 SE2d 289) (2014) (agreeing defendant’s failure to promptly assert speedy-trial right was partially mitigated by lack of counsel). 12 indictment). Cf. Cash, 307 Ga. at 518 (2) (b) (iii) (concluding that the
trial court did not abuse its discretion by weighing against
defendant his one-year wait to file a speedy trial demand).
(d) Prejudice.
The trial court also did not abuse its discretion by weighing the
prejudice factor heavily against Redding. As we have explained,
[t]he prejudice associated with unreasonable delay before trial includes 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. 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.
Henderson, 310 Ga. at 239 (2) (d) (citations and punctuation
omitted).
Redding claims potential witness Jerry Ferrell died prior to
trial, making the pretrial delay prejudicial to Redding’s defense.
However, the trial court found defense counsel did not know and
could not show how Ferrell’s testimony would have assisted
13 Redding’s defense.6 Further, the trial court found, and Redding does
not dispute, that defense counsel met with Ferrell and declined the
opportunity to read Ferrell’s statement to police into evidence at
trial when the trial court so offered. We see no abuse of discretion;
Redding failed to show prejudice from Ferrell’s death. See Dillard v.
State, 297 Ga. 756, 761-762 (4) (778 SE2d 184) (2015) (weighing
prejudice factor against defendant who “did not demonstrate what
that [dead] witness’s testimony would have been”); Fallen v. State,
289 Ga. 247, 249 (4) (710 SE2d 559) (2011) (concluding witness’s
death did not prejudice defendant when witness was interviewed on
video prior to death, the State stipulated to the video’s admissibility,
and the interview was largely cumulative of other testimony).7
6 Redding was convicted of felony murder predicated on aggravated assault for punching Davis at a Labor Day cookout, which resulted in Davis’s death by blunt force head trauma. Ferrell was at the cookout but did not witness the incident; at that moment, he was in a washroom next to the patio where it happened. Redding argued he acted in self-defense, but witnesses testified that Davis did not provoke Redding. 7 Further, the record is unclear when Ferrell died. The trial court found
Ferrell was “still alive one year after the murder” because defense counsel said during an October 2020 hearing that Ferrell died in January 2018. But defense counsel also said at a November 2017 hearing that Ferrell had been dead for over a year, putting Ferrell’s death close in time to Redding’s September 2016
14 The trial court concluded its prejudice analysis by noting that
Redding did not even raise prejudice based on allegations of
oppressive pretrial incarceration or anxiety and concern of the
accused. Redding nonetheless argues he was prejudiced by both but
presents no specific showing of either. See Ruffin, 284 Ga. at 65 (2)
(b) (iv) (weighing prejudice factor against defendant who “failed to
establish oppressive pretrial incarceration or anxiety and concern
beyond that which necessarily attends confinement in a penal
institution”). Accordingly, the trial court weighed the prejudice
factor heavily against Redding, and we conclude the trial court did
not abuse its discretion in doing so.
(e) Weighing the factors.
In summary, the trial court weighed factors one, two, and three
neutrally, but factor four heavily against Redding. The trial court
erred factually and legally and should have weighed factors one and
two against the State. We may only affirm the trial court’s
arrest, which would mean the inability to obtain Ferrell’s testimony was not attributable to pretrial delay.
15 conclusion if the trial court would have had no discretion to reach a
different judgment other than denying the speedy-trial motion.
Pickett, 288 Ga. at 679 (2) (d).
While the trial court may be authorized to deny Redding’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,8 we cannot say the trial court is necessarily
compelled to do so. This is especially so as the trial court only
weighed the prejudice factor against Redding and committed two
errors in the State’s favor. While “under the circumstances of a
particular case, any one factor may be weighty enough to tip the
balance” during weighing, State v. Porter, 288 Ga. 524, 532 (2) (d)
(705 SE2d 636) (2011), “[n]o one element is either necessary or
sufficient to conclude that the right to a speedy trial has been
violated.” Sweatman v. State, 287 Ga. 872, 873 (2) (700 SE2d 579)
8 See, e.g., Henderson, 310 Ga. at 240 (2) (d) (holding that the trial court
acted within its discretion in applying the Barker-Doggett factors and committed no clear factual or legal errors when it found no violation of the speedy-trial right after weighing factor one against the State, factors two and three neutrally, and factor four against the defendant). 16 (2010); Buckner, 292 Ga. at 393 (3) (“Of these factors, no one is
dispositive.”).9
Accordingly, we vacate the trial court’s order denying
Redding’s speedy-trial motion, and we remand this case again for
the entry of an order containing appropriate findings of fact and
conclusions of law on the speedy-trial claim. See Redding II, 313 Ga.
at 736 (2); Johnson, 291 Ga. at 868 (3).10
Judgment vacated and case remanded with direction. All the Justices concur.
9 This is in contrast to the right to a speedy appeal, where, “unlike a
speedy trial claim, the failure to show actual prejudice from the delay is fatal to the claim, even when the other three factors weigh in the appellant’s favor.” Harper v. State, 318 Ga. 185, 188 (1) (___ SE2d ___) (2024) (citation and punctuation omitted). 10 As we explained in his last appeal, “[i]f the trial court denies
Appellant’s speedy-trial motion, Appellant may file a notice of appeal, and in his new appeal, he may raise again the issues raised in his current appeal that we do not address today, as well as any issue arising from the proceedings on remand.” Redding II, 313 Ga. at 736 (2) n.11. 17 Decided February 6, 2024.
Murder. Muscogee Superior Court. Before Judge Peters.
Kennon Peebles, Jr., for appellant.
Stacey S. Jackson, District Attorney, Frederick Lewis, Sadhana
P. Dailey, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Meghan
H. Hill, Senior Assistant Attorney General, Michael A. Oldham,
Assistant Attorney General, for appellee.