Terrance Curry v. State

• Court: Court of Appeals of Georgia
• Decided: September 13, 2012
• Docket: A12A1101
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

September 13, 2012

In the Court of Appeals of Georgia A12A0944, A12A1101. THE STATE v. CURRY; and vice versa.

BOGGS, Judge.

These cases were consolidated for purposes of appeal. In Case No. A12A1101,

Terrance Curry appeals from the trial court’s denial of his “Motion to Dismiss

Indictment for Pre-indictment Delay,” and in Case No. A12A0944, the State appeals

from the grant of Curry’s “Motion to Dismiss Indictment for Delay in Prosecution.”

For the following reasons, we vacate and remand in both cases.

The record reveals that Curry was convicted of statutory rape in 2002 and was

sentenced to nine years’ probation. On November 30, 2006, Curry was arrested for

aggravated assault stemming from a July 2006 incident, was granted bond, and then

was released on February 5, 2007. In March 2007, Curry was incarcerated after his

probation was revoked for the failure to register as a sex offender as required by his 2002 sentence for statutory rape. On November 21, 2008, nine days before he was to

be released from custody on the statutory rape charge, the State indicted Curry for

aggravated assault and other crimes stemming from the 2006 incident. He was taken

into custody on November 29, 2008, the same day he was released on the statutory

rape sentence.

On December 3, 2008, Curry moved to dismiss the indictment against him for

pre-indictment delay. He was arraigned on December 15, 2008, and pled not guilty.

Curry was granted bond and released on February 3, 2009. On August 11, 2011,

Curry moved to dismiss the indictment against him for “delay in prosecution.”

Following a hearing on both of Curry’s motions to dismiss, the trial court, on

September 21, 2011, denied Curry’s motion to dismiss for pre-indictment delay, but

granted his motion to dismiss for delay in prosecution. In Case No. A12A0944, the

State appeals from the grant of Curry’s motion to dismiss for delay in prosecution,

and in Case No. A12A1101, Curry appeals from the denial of his motion to dismiss

for pre-indictment delay.

Case No. A12A0944

The State argues that the trial court erred in concluding that Curry was denied

his Sixth Amendment right to a speedy trial. “The principles that guide a court in its

2 consideration of whether a delay in bringing an accused to trial works a deprivation

of the right to a speedy trial are set out in Barker v. Wingo, 407 U. S. 514 (92 SC

2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647 (112 SC

2686, 120 LE2d 520) (1992).” (Punctuation omitted.) State v. Brown, 315 Ga. App.

544, 544-545 (726 SE2d 500) (2012). “In determining whether the Sixth Amendment

right to speedy trial has been violated, courts consider 1) the length of the delay, 2)

the reason for the delay, 3) the defendant’s assertion of the right to a speedy trial, and

4) whether the defendant was prejudiced by the delay.” (Citations omitted.) Wooten

v. State, 262 Ga. 876, 878 (2) (426 SE2d 852) (1993). With these four factors in

mind, “the question is whether the trial court abused its discretion in ruling that the

defendant’s speedy trial rights were [ ] violated.” (Citation and punctuation omitted.)

Lambert v. State, 302 Ga. App. 573, 575 (692 SE2d 15) (2010).

1. Presumptive prejudice.

First, a court must determine whether the delay “has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, (the accused) cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett, [supra]. If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into

3 the prejudice prong of the Barker analysis, with “the presumption that pretrial delay has prejudiced the accused intensif(ying) over time.”

(Citations and punctuation omitted.) Wilkie v. State, 290 Ga. 450, 451 (721 SE2d 830)

(2012). As the trial court ruled, the delay here of far more than one year raises a

threshold presumption of prejudice requiring the application of the Barker-Doggett

balancing test. See Stewart v. State, 310 Ga. App. 551, 553 (1) (713 SE2d 708)

(2011).

2. The Barker-Doggett factors.

(a) Length of the delay. “The pretrial delay is measured from the accused’s

arrest, indictment, or other formal accusation, whichever comes first, to the trial or,

if the accused files a motion to dismiss the indictment, until the trial court denies the

motion.” (Citation and punctuation omitted.) Moore v. State, 314 Ga. App. 219, 220

(723 SE2d 508) (2012). Curry was first arrested for the July 2006 incident on

November 30, 2006, and the ruling on the motion to dismiss was filed on September

2, 2011. Therefore, counting from Curry’s November 2006 arrest, the total delay here

is approximately 57 months, which is uncommonly long, and as such, is a factor to

be weighed against the State. See Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d

876) (2012) (more than four-year delay weighs against the State); see State v. Pickett,

4 288 Ga. 674 (2) (c) (1) (706 SE2d 561) (2011) (uncommonly long five-and-a-half-

year delay weighs against the State); Stewart v. State, supra, 310 Ga. App. at 554 (2)

(a) (pretrial delay of over five years uncommonly long and weighs against the State).

Under its analysis of the length of the delay, the trial court held that the 57-

month delay should be weighed heavily against the State because the State waited two

years to indict Curry and only did so after discovering that he would be released from

custody the following week. The court therefore “conflated its consideration of the

length of the delay factor with its consideration of the reason for the delay factor

under Barker.” Goddard v. State, ___ Ga. App. ___ (2) (a) (Case No. A12A0504;

decided May 15, 2012). And in doing so, the court only considered 2 years of the 57-

month delay. See id. (court neglected to consider entire time of pretrial delay).

(b) Reason for the delay. The parties agree that about four months of the delay

was due to Curry’s counsel’s leaves of absence. But with regard to the remaining 53

months, the trial court found that the State “strategically delayed the prosecution of

the case in order to obtain a tactical advantage over the defense . . . The State indicted

the case that date and sought a Grand Jury warrant for [Curry] in order to prevent him

from being released from custody.” But even assuming the State deliberately indicted

Curry days before his release from custody on other charges in order to keep him in

5 custody, such action does not explain the State’s delay in bringing the case to trial

once Curry was indicted. The State offered no explanation concerning the delay in

prosecuting the case, and there was no evidence of a deliberate attempt to delay

prosecution in order to hamper Curry’s defense or to gain a tactical advantage.

Because the trial court only considered the pre-indictment portion of the delay in its

analysis rather than the entire delay, it erred in its consideration of this factor. See id.

(c) Assertion of the right to a speedy trial. The record reveals that on December

3, 2008, 12 days after Curry was indicted and 4 days following his detention on the

indictment, Curry filed a motion for pre-indictment delay in which he asserted his

right to a speedy trial. See State v. Porter, 288 Ga. 524, 528 (2) (c) (3) (706 SE2d

636) (2011) (defendant may assert constitutional speedy trial right through a motion

to dismiss asserting a violation of that right). The trial court found that Curry

“asserted his constitutional right to a speedy trial by filling his motion to dismiss for

pre-indictment delay before arraignment and within a week of his arrest on the grand

jury warrant.” The court concluded that Curry “asserted his right to a speedy trial in

due course.”

The State argues that the trial court erred in concluding that Curry timely

asserted his demand for a speedy trial because Curry did not assert the right after he

6 was arrested in 2006 and failed to file a statutory demand for speedy trial after he was

indicted. Although a statutory demand for speedy trial pursuant to OCGA § 17-7-170

is not required in order to prevail on a speedy trial claim on constitutional grounds,

see State v. White, 282 Ga. 859, 862 (2) (c) (655 SE2d 575) (2008), our courts have

held that “[a] defendant’s pre-indictment silence can weigh heavily against him.”

(Citations and punctuation omitted.) State v. Auerswald, 198 Ga. App. 183, 185 (3)

(401 SE2d 27) (1990). While Curry asserted his right to a speedy trial within days of

his indictment and second arrest, the trial court made no ruling with regard to Curry’s

24-month pre-indictment silence. The trial court therefore erred in its consideration

of this factor.1 See, e.g., Porter, supra, 288 Ga. at 528-529 (2) (c) (3) (trial court

omitted from its analysis defendant’s assertion of right more than eight years after his

arrest and almost eight years after re-indictment).

1 The State also argues that the trial court erred in considering an “in-house” memorandum which outlines the underlying facts of the 2006 incident and states further: “[Curry] will get out on the 29th of November 2008, he has never been prosecuted on these charges, [the victim] wants to prosecute and will be here . . . to testify.” The State contends that the memorandum was hearsay and therefore should not have been considered by the trial court. We agree. Neither the author nor the parties named in the document testified at the hearing. It was therefore inadmissible non-probative hearsay. Jones v. State, 284 Ga. 320, 321 (1) and 323 (2) (667 SE2d 49) (2008). We note that while the court stated that this document was “in the clerk’s file,” it is not part of the record here on appeal.

7 (d) Prejudice. The trial court ruled that because the first three factors weigh

against the State, “there is no need to inquire as to the fourth factor of prejudice.”2

The court nevertheless concluded that Curry suffered prejudice because he

was incarcerated twice on the charges contained in the indictment – the first time for 27 days and the second time for two months and six days after having been told he would be released from prison and being literally stopped at the gate. [Curry] was terminated from two jobs after finding employment because of the pending indictment. He suffered financial hardship beyond the level ordinarily suffered by persons accused of crimes, simply because the State failed to bring the case forward in a timely manner.

2 The trial court cited Doggett, supra, and Ruffin v. State, 284 Ga. 52 (663 SE2d 189) (2008), for this proposition, but neither case supports the court’s conclusion. Ruffin cites Doggett, which holds only that “consideration of prejudice is not limited to the specifically demonstrable, and . . . affirmative proof of particularized prejudice is not essential to every speedy trial claim.” 505 U. S. at 655 (III) (A). See Ruffin, supra, 284 Ga. at 64-65 (2) (b) (iv). It is well-settled that the trial court must balance all four factors. Porter, supra, 288 Ga. at 526 (2) (a). As explained in Barker, supra, “[w]e regard none of the four factors . . . as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together . . . courts must still engage in a difficult and sensitive balancing process.” (Footnote omitted.) 407 U. S. at 533 (IV). We note that in Porter, supra, the Supreme Court of Georgia declined to adopt a test urged by the State that unless all other factors weight heavily against the State, the defendant must show actual prejudice. Porter, supra, 288 Ga. at 533 (2) (d) n.4. The court held that such a formulation is “inconsistent with the flexible balancing test required by Barker and this Court’s precedents.” Id.

8 “The types of prejudice associated with an unreasonable delay before trial include

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.” (Citation and punctuation omitted.) Pickett, supra, 288

Ga. at 677 (2) (c) (4). The most serious form of prejudice is the last, because the

inability of the defendant to prepare his case adequately “skews the fairness of the

entire system.” (Citation and punctuation omitted.) Id.

With regard to the first type of prejudice – oppressive pretrial incarceration, the

court found that Curry suffered prejudice because “he was incarcerated twice on the

charges contained in the indictment - the first time for 27 days and the second time

for two months and six days.” But the Georgia Supreme Court has held that

incarceration for only four or five months within a period of nearly six years was not

oppressive. See Smith v. State, 284 Ga. 17, 20 (2) (663 SE2d 142) (2008). The trial

court also found that Curry had been terminated from two jobs because of the pending

indictment. But the court made no mention of Curry’s testimony that within one

month of the second termination, he obtained employment as a machine operator and

was still employed at the time of the hearing. Moreover, the court made no finding

9 with regard to the third and most serious type of prejudice - whether Curry’s defense

would be impaired as a result of the State’s delay.

3. As explained in Porter, supra,

A trial court exercises substantial discretion in applying the Barker[- Doggett] balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion. However, where . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.

(Citation and punctuation omitted.) Porter, supra, 288 Ga. at 533 (2) (e). As the

Georgia Supreme Court has most recently explained, where, as here, the trial court

could not properly balance the Barker factors, this court cannot affirm the trial court’s

judgment. Id. at 534 (2) (e). In this case, the trial court could not properly weigh the

factors because it did not consider the entire length of the delay and the reasons for

all portions of the delay, improperly considered hearsay, conflated the reason for the

delay with the length of the delay, failed to consider Curry’s pre-indictment silence,

improperly ruled that it was not required to consider the prejudice prong of the

Barker-Doggett test, and nevertheless improperly analyzed the prejudice prong. We

therefore vacate the trial court’s order and remand this case for the court to again

10 exercise its discretion in using “properly supported factual findings and the correct

legal analysis, reflected in an adequate written order.” (Citations omitted.) id.; see

also State v. Pickett, 288 Ga. 674, 680 (4) (d) (706 SE2d 561) (2011).

Case No. A12A1101

4. Curry argues that the trial court erred in finding that his rights to “Due

Process and Speedy Trial” were not violated. He contends that the test for such a

violation requires the trial court to determine if (1) the delay caused actual prejudice

to his defense, and (2) whether the delay was due to the deliberate action by the State

to gain a tactical advantage. The trial court employed this test in analyzing Curry’s

motion to dismiss for pre-indictment delay. But the test employed by the trial court

and argued by Curry in his appeal is the two-part test used to determine if a

defendant’s due process rights under the Fifth and Fourteenth Amendments were

violated by the delay between the time of the crime and the time of the arrest or

indictment. See Manley v. State, 281 Ga. 466, 467 (640 SE2d 9) (2007).

Both the United States and Georgia Constitutions grant defendants in criminal cases a right to a speedy trial, U. S. Const. Amend. VI; 1983 Ga. Const. Art. I, Sec. I, Para. XI (a), and a delay following arrest or indictment may violate that right. But different considerations apply when the delay occurs before an arrest or indictment. The Sixth Amendment does not guarantee a right to a speedy arrest. However, an

11 inordinate delay between the time a crime is committed and the time a defendant is arrested or indicted may violate due process guarantees under the Fifth and Fourteenth Amendments. To find a due process violation where a delay precedes arrest and indictment, courts must find 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage.

(Citations and punctuation omitted; emphasis in original.) Billingslea v. State, 311

Ga. App. 490, 491 (1) (716 SE2d 555) (2011).

Curry complains of the delay from his first arrest to indictment and from

indictment to the ruling on his motion to dismiss. He does not complain of an

“inordinate delay between the time a crime [was] committed and the time [he was]

arrested or indicted.” Id. Curry’s claim of pre-indictment delay therefore alleges a

violation of his Sixth Amendment right to a speedy trial which is properly analyzed

under the Barker-Doggett test. See Wilkie, supra, 290 Ga. at 450-451 (examining

alleged denial of constitutional right to speedy trial under Barker-Doggett test

beginning from arrest where defendant arrested soon after crime, released on bond,

and indicted four years later); compare Bunn v. State, 284 Ga. 410, 410-411 (1) (667

SE2d 605) (2008) (analysis of Fifth Amendment right to due process where three-year

delay between crime and indictment). “The constitutional right to a speedy trial

12 attaches on the date of the arrest or when formal charges are initiated, whichever first

occurs.” (Citation omitted.) State v. Thaxton, 311 Ga. App. 260, 263 (1) (715 SE2d

480) (2011). And “[a]t the time of arrest, a suspect becomes an ‘accused’ and the right

to a speedy trial under the Sixth Amendment begins running.” (Citations and

punctuation omitted.) State v. Hight, 156 Ga. App. 246 (274 SE2d 638) (1980).

Because the trial court improperly analyzed Curry’s claim for pre-indictment

delay as a due process violation and employed the wrong test in doing so, we vacate

its ruling on Curry’s motion to dismiss for pre-indictment delay. While it appears that

the trial court addressed Curry’s complaints concerning pre-indictment delay in its

ruling granting Curry’s motion to dismiss for the State’s delay in prosecution, it did

so improperly as we have held in Case No. A12A0944.3 We therefore remand this

case and direct the trial court to consider both Curry’s claim for pre-indictment delay

and his claim for delay in prosecution under the appropriate standard set forth in

3 The trial court found prejudice to Curry in granting his motion to dismiss for a delay in prosecution in Case No. A12A0944, but found Curry suffered no prejudice in the denial of his motion for pre-indictment delay in Case No. A12A1101. While the standard for prejudice in analyzing an alleged violation of the Sixth Amendment right to a speedy trial differs somewhat from the standard of prejudice for an alleged due process violation, we are troubled by what appear to be inconsistent rulings by the trial court on this issue.

13 Barker, supra, and Doggett, supra, for an alleged violation of the federal and state

constitutional right to a speedy trial.

Judgments vacated and cases remanded . Doyle, P. J. and Andrews, J., concur.