Baker v. State

• Decision Date: 18 November 2004
• Docket Number: No. A04A2264.,A04A2264.
• Parties: BAKER v. The STATE.
• Court: Georgia Court of Appeals

608 S.E.2d 38

270 Ga. App. 762

BAKER v. The STATE.

No. A04A2264.

Court of Appeals of Georgia.

November 18, 2004.

Reconsideration Denied December 6, 2004.

Elizabeth Grant, Legal Aid & Defender Clinic, Vicki Carter, Athens, for Appellant.

Kenneth Mauldin, District Attorney, Brian Patterson, Assistant District Attorney, for Appellee.

ELDRIDGE, Judge.

Darryl Baker stands charged in the Superior Court of Athens-Clarke County with one count of rape, OCGA § 16-6-1. He appeals the superior court's denial of his motion autrefois¹ convict and plea of former jeopardy, through new counsel on appeal contending: (1) that his speedy trial demand in the State Court of Clarke County upon two misdemeanor sexual battery counts was sufficient to trigger the sanction of discharge and acquittal in the superior court case for trial counsel's failure to serve his demand upon the trial judge as required under OCGA § 17-7-170(a); or, in the alternative, (2) that he is entitled to dismissal for trial counsel's ineffectiveness in failing to comply with such requirement for service, this denying him his constitutional right to a speedy trial and subjecting him to double jeopardy upon the prosecution of the rape charge against him in superior court. Finding no error, we affirm.

"Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we review de novo the trial court's application of the law to undisputed facts. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994)." Summers v. State, 263 Ga.App. 338, 587 S.E.2d 768 (2003).

The following facts are undisputed in the record. Baker was arrested on two warrants for sexual battery on April 28, 2003, alleging that he "did knowingly and intentionally make physical contact with the intimate parts of the [victim's] body." A DNA sample from the victim was sent to the State Crime Laboratory for analysis. On June 11, 2003, Baker's attorney filed a demand for speedy trial, duly serving the solicitor-general but not the trial judge. One week later, Baker was brought before the state court to be arraigned on the two-count accusation filed on the sexual battery charges, one alleging improper contact with his victim's breasts and the other with her genital area. At the arraignment, however, the State requested a continuance, and over Baker's objection, the matter was continued to August 22, 2003. Although Baker sought to enter blind guilty pleas to the sexual battery charges under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the state court refused to take his pleas absent the results of DNA analysis and again continued the arraignment.

On October 25, 2003, the solicitor-general e-mailed the State Crime Laboratory requesting that DNA analysis in the case be completed, noting that a demand for a speedy trial had been filed. On or about November 6, 2003, the solicitor-general learned that DNA analysis was complete; a warrant for Baker's arrest on the charge of rape was issued on November 6, 2003; and on November 7, 2003, the state court consented to the solicitor-general's entry of a nolle prosequi in the state court case in light of the arrest warrant for rape which had issued. On November 24, 2003, Baker requested a preliminary hearing thereon in the Athens-Clarke County Magistrate Court. A week later, the magistrate court bound the case over to the superior court, and on January 21, 2004, the grand jury returned an indictment charging Baker with a single count of rape.

The record shows that the defendant has been continuously in custody since his initial arrest in April 2003. There also is evidence that jurors were impaneled and qualified to try cases in the state court during its May 2003 and August 2003 terms of court. The state court's November term of court began on the second Monday of November, November 10, 2003. Held:

1. Baker contends that the superior court erred in denying his OCGA § 17-7-170 motion, arguing that service upon the State, but not the trial judge, constituted a sufficient compliance with the statute where, as here, the trial judge to whom the case assigned was nonetheless aware that his speedy trial motion had been served upon the State.

OCGA § 17-7-170 pertinently provides:

(a) Any person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting that person's life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter; or, by special permission of the court, he or she may at any subsequent court term thereafter demand a trial. In either case, the demand for trial shall be ... served upon the prosecutor and upon the judge to whom the case is assigned....

(b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try the person, the person shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

(Emphasis supplied.)

Baker correctly points to OCGA § 1-3-1(c) for the proposition that [a] substantial compliance with any statutory requirement... "shall be deemed and held sufficient...." Clearly, however, one does not substantially comply with the provisions of OCGA § 17-7-170(a) by failing to serve his or her speedy trial demand upon the assigned trial judge, this as adhering to only half of the statutory requirement for service of such a demand and negatively impacting the case management function of trial courts. "Discharge and acquittal [under OCGA § 17-7-170(b)] based on a demand is an extreme sanction that requires strict statutory compliance. Spencer v. State, 259 Ga.App. 664, 665, 577 S.E.2d 817 (2003); Maddox v. State, 218 Ga.App. 320, 321(1), 461 S.E.2d 286 (1995)." Weldon v. State, 262 Ga.App. 782, 783(1), 586 S.E.2d 452 (2003). Because Baker did not strictly comply with the demand statute in the state court, he made no demand for speedy trial therein. No such demand having been made, the superior court did not err in denying Baker's motion autrefois convict and plea of former jeopardy on this account.

2. Neither do we find ineffectiveness of trial counsel impinging upon Baker's constitutional rights to a speedy trial and against double jeopardy in these circumstances.

To establish a claim of ineffectiveness, it is the defendant's burden to show that trial counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 695-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985). When, as here, the appeal constitutes the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is raised for the first time on appeal, we typically remand the case to the trial court for an evidentiary hearing on the issue. See Elliott v. State, 230 Ga.App. 855, 858(4)(c), 497 S.E.2d 817 (1998); Parrish v. State, 194 Ga.App. 760, 762(4), 391 S.E.2d 797 (1990). "[R]emand[, however,] is not necessary when it appears as a matter of law that the appellant cannot satisfy the two-prong test to establish ineffectiveness of counsel." Johnson v. State, 214 Ga.App. 404(1), 447 S.E.2d 711 (1994). This is such a case.

Because deficient performance in trial counsel obtains in this case, Division 1, supra, we analyze under Strickland's second prong to determine whether Baker's ineffectiveness claim has merit for the presence of prejudice. In this regard, generally where postaccusation delay approaches one year, pretrial delay is deemed presumptively prejudicial.² Id. Absent such a showing, there is no more than ordinary pretrial delay as to which a claim for the denial of the constitutional right to a speedy trial does not lie. "[B]y definition, [one] cannot complain that the government has denied him a `speedy' trial if it has, in fact, prosecuted his case with customary promptness." Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Where the accused shows that the presumptive prejudice threshold is met, further testing for prejudice under the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),³ is triggered. Doggett v. United States, supra.

The record reflects that postaccusation delay in the state court case approximated six and a half months; that such delay was attributable principally to the wait for DNA analysis; that the results of such analysis might have been beneficial to Baker's defense; and that the delay was not the result of bad faith in the State. Under these circumstances, presumptive prejudice does not lie, foreclosing the need for further analysis for prejudice under Barker. Doggett v. United States, supra

; compare Weldon v. State, supra (Barker analysis upon 23 month postaccusation delay). While the superior court concluded that there had been no violation of Baker's constitutional right to a speedy trial upon Barker analysis, a judgment right for any reason will be affirmed on appeal. Fincher v. State, 276 Ga. 480, 481(2), 578 S.E.2d 102 (2003). In any event, the superior court's analysis under Barker as supported by evidence of record, the state court did not abuse its discretion in finding that Baker's constitutional right to a speedy trial had not been violated. See Weldon v. State, supra (trial court's decision as to the denial of the constitutional right to a speedy trial will not be reversed on appeal absent an abuse of discretion).

Further, that the superior court correctly ruled that Baker was not acquitted of the sexual battery offenses by operation of law, Division 1, supra, the superior court did not err in declining to reach Baker's claim that the instant rape prosecution was barred under double jeopardy principles,⁴ the same...