FOURTH DIVISION DOYLE, P. J., MCFADDEN 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. http://www.gaappeals.us/rules/
March 4, 2014
In the Court of Appeals of Georgia A13A1735. WARD v. THE STATE.
BOGGS, Judge.
Following a stipulated bench trial, Theodis Ward was found guilty of DUI,
driving with a suspended license, driving without a license, and improper stopping.
He now appeals, arguing that the trial court erred in denying his motion to dismiss
based up on the denial of his constitutional right to a speedy trial. For the following
reasons, we affirm.
The record reveals that Ward was arrested on February 8, 2006, and indicted
on July 25, 2006. He entered a plea of not guilty on August 14, 2006, and the case
was set for a calendar call in September 2006. When Ward’s counsel requested time
to file motions, the trial court reset the case for October 12. On October 23, the case
was reset to December 13 by the consent of both parties. But on December 6, Ward’s counsel filed a conflict notice informing the trial court that Ward’s case conflicted
with two other court matters on December 13. The trial court found that Ward did not
appear on December 13.
On January 29, 2007, Ward’s jury trial was continued to March 6, with a
notation that he was in custody in DeKalb County. On February 9, Ward’s counsel
filed an application for a leave of absence for March 12 - 16 and March 30 - April 4.
And less than three weeks later, on February 26, counsel filed another conflict notice
for the week of March 5, showing that Ward’s jury trial conflicted with an
arraignment in another case. Nothing appears in the record to explain the status of the
case from March 2007 until a December 16, 2011 notice of a February 16, 2012
calendar call. On February 16, 2012, however, the case was continued to March 8,
2012 by the consent of both parties. Ward filed his motion to dismiss on February 22,
2012, which the trial court denied on May 8, 2012.
At the hearing on the motion to dismiss, Ward’s counsel explained that Ward
had been incarcerated on unrelated charges in two other counties between April 2006
and April 2010. The trial court found that Ward failed to appear for trial on March 6,
2007, that it was during that hearing that the State learned that Ward was incarcerated
in another county, and that it informed the State that if it “wanted to pursue the case,
2 a production order would have to issue . . . . there is no activity on the file until a note
in the [State]’s file on September 6, 2010, indicating that [Ward] was still in
custody.”1 The court found further that the case next appeared on a December 2011
calendar call.
In a single enumeration, Ward contends that the trial court erred in denying his
motion to dismiss the charges against him based upon a violation of his constitutional
right to a speedy trial. “The principles that guide a court in its 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 SCt 2182, 33 LE2d 101)
(1972), and Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520)
(1992).” (Punctuation omitted.) State v. Brown, 315 Ga. App. 544, 544-545 (726
SE2d 500) (2012). To determine whether the Sixth Amendment right to a speedy trial
has been violated, our 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. Barker, supra, 407 U. S. at 530-532 (IV).
With these four factors in mind, “the question is whether the trial court abused its
1 Neither the transcript of the March 6, 2007 hearing, nor the note from the State’s file appear in the record.
3 discretion in ruling that the defendant’s speedy trial rights were not 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 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.) Fallen v. State, 289 Ga. 247, 248 (1) (710 SE2d
559) (2011). As the trial court found and the State concedes, the pretrial delay of six
years in this case is presumptively prejudicial, triggering the Barker inquiry.
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
4 motion.” (Citation and punctuation omitted.) State v. Curry, 317 Ga. App. 611, 613
(2) (a) (732 SE2d 459) (2012). Ward was arrested on February 8, 2006, and the ruling
on the motion to dismiss was filed on May 8, 2012. This over six-year delay is
uncommonly long and weighs against the State. See State v. Johnson, 291 Ga. 863,
865 (2) (a) (734 SE2d 12) (2012) (more than five-year delay uncommonly long and
weighs against State); Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012)
(over four-year delay weighs against State).
(b) Reason for the delay. The trial court, in concluding that “this portion of the
balancing test is neutral as to both parties,” found that “some of the delay was the
fault of the State, some of the delay was the fault of Defendant and some of the delay
is unexplained.” The record reveals that the case was delayed for a few months
between September 2006 and March 2007 due to Ward’s counsel’s request for more
time to file motions, her application for a leave of absence, and her notices of conflict.
But the bulk of the delay is unexplained. The State offered no explanation for the
reason for delay from March 2007 to February 2012. The prosecutor argued that
Ward did not appear for the March 6, 2007 trial date, that he sent an email to the trial
judge in March 2007 “seeking information from the Judge, what to do with this case,”
5 and that he sent another email in October 2011 “seeking information about [Ward].”2
The prosecutor explained that in March 2007, he learned from Ward’s mother that he
was incarcerated in yet another county, and that when Ward was released, defense
counsel informed the State that she could not locate him.
Based upon the record before us, the State’s failure is unexplained, or at most,
a result of the State’s uncertainty in how to proceed. The State was aware as early as
March 2007 that Ward was incarcerated in another county. “[W]here no reason
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION DOYLE, P. J., MCFADDEN 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. http://www.gaappeals.us/rules/
March 4, 2014
In the Court of Appeals of Georgia A13A1735. WARD v. THE STATE.
BOGGS, Judge.
Following a stipulated bench trial, Theodis Ward was found guilty of DUI,
driving with a suspended license, driving without a license, and improper stopping.
He now appeals, arguing that the trial court erred in denying his motion to dismiss
based up on the denial of his constitutional right to a speedy trial. For the following
reasons, we affirm.
The record reveals that Ward was arrested on February 8, 2006, and indicted
on July 25, 2006. He entered a plea of not guilty on August 14, 2006, and the case
was set for a calendar call in September 2006. When Ward’s counsel requested time
to file motions, the trial court reset the case for October 12. On October 23, the case
was reset to December 13 by the consent of both parties. But on December 6, Ward’s counsel filed a conflict notice informing the trial court that Ward’s case conflicted
with two other court matters on December 13. The trial court found that Ward did not
appear on December 13.
On January 29, 2007, Ward’s jury trial was continued to March 6, with a
notation that he was in custody in DeKalb County. On February 9, Ward’s counsel
filed an application for a leave of absence for March 12 - 16 and March 30 - April 4.
And less than three weeks later, on February 26, counsel filed another conflict notice
for the week of March 5, showing that Ward’s jury trial conflicted with an
arraignment in another case. Nothing appears in the record to explain the status of the
case from March 2007 until a December 16, 2011 notice of a February 16, 2012
calendar call. On February 16, 2012, however, the case was continued to March 8,
2012 by the consent of both parties. Ward filed his motion to dismiss on February 22,
2012, which the trial court denied on May 8, 2012.
At the hearing on the motion to dismiss, Ward’s counsel explained that Ward
had been incarcerated on unrelated charges in two other counties between April 2006
and April 2010. The trial court found that Ward failed to appear for trial on March 6,
2007, that it was during that hearing that the State learned that Ward was incarcerated
in another county, and that it informed the State that if it “wanted to pursue the case,
2 a production order would have to issue . . . . there is no activity on the file until a note
in the [State]’s file on September 6, 2010, indicating that [Ward] was still in
custody.”1 The court found further that the case next appeared on a December 2011
calendar call.
In a single enumeration, Ward contends that the trial court erred in denying his
motion to dismiss the charges against him based upon a violation of his constitutional
right to a speedy trial. “The principles that guide a court in its 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 SCt 2182, 33 LE2d 101)
(1972), and Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520)
(1992).” (Punctuation omitted.) State v. Brown, 315 Ga. App. 544, 544-545 (726
SE2d 500) (2012). To determine whether the Sixth Amendment right to a speedy trial
has been violated, our 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. Barker, supra, 407 U. S. at 530-532 (IV).
With these four factors in mind, “the question is whether the trial court abused its
1 Neither the transcript of the March 6, 2007 hearing, nor the note from the State’s file appear in the record.
3 discretion in ruling that the defendant’s speedy trial rights were not 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 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.) Fallen v. State, 289 Ga. 247, 248 (1) (710 SE2d
559) (2011). As the trial court found and the State concedes, the pretrial delay of six
years in this case is presumptively prejudicial, triggering the Barker inquiry.
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
4 motion.” (Citation and punctuation omitted.) State v. Curry, 317 Ga. App. 611, 613
(2) (a) (732 SE2d 459) (2012). Ward was arrested on February 8, 2006, and the ruling
on the motion to dismiss was filed on May 8, 2012. This over six-year delay is
uncommonly long and weighs against the State. See State v. Johnson, 291 Ga. 863,
865 (2) (a) (734 SE2d 12) (2012) (more than five-year delay uncommonly long and
weighs against State); Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012)
(over four-year delay weighs against State).
(b) Reason for the delay. The trial court, in concluding that “this portion of the
balancing test is neutral as to both parties,” found that “some of the delay was the
fault of the State, some of the delay was the fault of Defendant and some of the delay
is unexplained.” The record reveals that the case was delayed for a few months
between September 2006 and March 2007 due to Ward’s counsel’s request for more
time to file motions, her application for a leave of absence, and her notices of conflict.
But the bulk of the delay is unexplained. The State offered no explanation for the
reason for delay from March 2007 to February 2012. The prosecutor argued that
Ward did not appear for the March 6, 2007 trial date, that he sent an email to the trial
judge in March 2007 “seeking information from the Judge, what to do with this case,”
5 and that he sent another email in October 2011 “seeking information about [Ward].”2
The prosecutor explained that in March 2007, he learned from Ward’s mother that he
was incarcerated in yet another county, and that when Ward was released, defense
counsel informed the State that she could not locate him.
Based upon the record before us, the State’s failure is unexplained, or at most,
a result of the State’s uncertainty in how to proceed. The State was aware as early as
March 2007 that Ward was incarcerated in another county. “[W]here no reason
appears for a delay, we must treat the delay as caused by the negligence of the State
in bringing the case to trial.” (Citations, punctuation and footnote omitted.) Ruffin v.
State, 284 Ga. 52, 61 (2) (b) (ii) (663 SE2d 189) (2008). And “this factor is weighed
to a lesser degree or benignly against the State.” Goffaux v. State, 313 Ga. App. 428,
429 (721 SE2d 635) (2011). Because the majority of the delay, approximately five
years, was due to the negligence of the State, this factor should have been weighed
against the State, even if to a lesser degree, and is not neutral as to both parties as
found by the trial court. See, e.g., Franklin v. State, 305 Ga. App. 354, 359 (1) (b)
(699 SE2d 575) (2010) (reason for delay should have been weighed against State
2 These emails were not included in the record on appeal.
6 where only a portion was attributable to the defendant; majority of the delay was due
to the State’s decision to dead docket).
(c) Assertion of the right.
The relevant question for purposes of the third speedy trial factor is whether the accused has asserted the right to a speedy trial in due course. This factor 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. Because delay often works to the defendant’s advantage, this factor is afforded strong evidentiary weight.
(Citations and punctuation omitted.) Phan, supra, 290 Ga. at 595 (1) (c). Ward first
asserted his right to a speedy trial when he filed his motion to dismiss in February
2012, more than six years after his arrest. The trial court found that there was no
evidence that Ward, who was at all times represented by counsel, “asserted any
objection to the slow pace of the case.” Therefore, as found by the trial court, this
factor weighs heavily against Ward. See id.
(d) Prejudice. “Whether the defendant has established prejudice as a result of
the delay requires consideration of the oppressiveness of pre-trial incarceration,
undue anxiety suffered by the defendant, and impairment of his ability to mount a
defense.” (Citation omitted.) Phan, supra, 290 Ga. at 596 (1) (d); see Ogletree v.
7 State, 303 Ga. App. 581, 584 (d) (693 SE2d 909) (2010). Ward claims his key
witness, who would have testified that he was not driving the vehicle at the time of
the incident, is now unavailable.3 The trial court found that while trial counsel
explained at the hearing that he attempted to locate this witness by “talk[ing] to a
couple of people,” “Googling” him, contacting county jails, and going “back to the
place where [the witness] lived,” counsel admitted that Ward lost track of the witness
while he was incarcerated for four years on other charges. The court concluded that
therefore Ward was “partially responsible for the loss of the witness,” and that this
factor must weigh “against the State, although it is modified by Defendant’s actions.”
While counsel argued that Ward attempted to locate the witness at some point,
there is no evidence that Ward had ever located or could locate this witness at any
time during the six years his case was pending. Ward has simply not shown that this
witness’s unavailability was due to the State’s delay in bringing his case to trial. See,
e.g., Watkins v. State, 267 Ga. App. 684, 687 (d) (600 SE2d 747) (2004) (no evidence
that defendant lost contact with out-of-state individuals because of delay in bringing
case to trial); cf. Salahuddin v. State, 277 Ga. 561, 563 (2) (592 SE2d 410) (2004)
3 Ward makes no argument on appeal with regard to pretrial incarceration or undue anxiety. The State asserted at the hearing on the motion to dismiss that Ward was held “less than 72 hours” on the charges in this case.
8 (defendant shared partial responsibility for loss of alibi witness; defendant not
precluded from asserting alibi defense). Under these circumstances, the failure to
show prejudice should have been weighed against Ward.
(e) Balancing the factors. The trial court concluded that its balancing of the
four Barker factors required it to deny Ward’s motion to dismiss.
A trial court exercises substantial judgment in applying the Barker balancing test; however, if the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court 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.
(Punctuation omitted.) State v. Gay, 321 Ga. App. 92, 99 (3) (e) (741 SE2d 217)
(2013), citing State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). Here,
the trial court erred in concluding that the reason for the delay is neutral rather than
weighing this factor against the State, and erred in concluding that the prejudice
factor weighs against the State but “modified by Ward” rather than weighing it fully
against Ward. But had the court properly weighed these factors before balancing
them, it would have had no discretion to reach a different judgment. See, e.g., Brown
v. State, 287 Ga. 892, 896 (1) (700 SE2d 407) (2010) (court did not abuse its
9 discretion in denying motion to dismiss on speedy trial grounds after balancing state’s
negligent delay in bringing case to trial against defendant’s failure to timely assert
right to speedy trial and his failure to show that delay impaired his defense); Watkins,
supra, 267 Ga. App. at 687 (same). Ward did not assert his right to a speedy trial for
six years following his arrest, and failed to show that the delay in the State bringing
the case to trial impaired his defense. See Williams v. State, 279 Ga. 106, 110 (1) (c)
(610 SE2d 32) (2005). As Justice Nahmias explained in a concurrence in Phan v.
State, 287 Ga. 697 (699 SE2d 9) (2010): “[I]t should be recognized that delayed
assertion of the right to a speedy trial and lack of prejudice are the two factors that
most often weigh heavily against defendants and which then support the overall
conclusion that speedy trial rights have not been violated.” Id. at 700.
Under these circumstances, we cannot say that the trial court abused its
discretion in denying Ward’s motion to dismiss.
Judgment affirmed. Doyle, P. J., and McFadden, J., concur.