Boseman v. State

• Court: Georgia Supreme Court
• Decision Date: 24 January 1994
• Docket Number: No. S93A1336,S93A1336
• Citation: Boseman v. State, 263 Ga. 730, 438 S.E.2d 626 (Ga. 1994)
• Parties: BOSEMAN v. The STATE.
• Writing for the Court: SEARS-COLLINS

Page 626

438 S.E.2d 626

263 Ga. 730

BOSEMAN v. The STATE.

No. S93A1336.

Supreme Court of Georgia.

Jan. 24, 1994.

David V. Weber, Clayton L. Jolly, III, Martinez, for Boseman.

Daniel J. Craig, Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Atlanta, Charles R. Sheppard, Asst. Dist. Atty., Augusta, for the State.

SEARS-COLLINS, Justice.

The appellant, Charles Boseman, has been indicted for murder and the state is seeking the death penalty. This appeal stems from the trial court's denial of Boseman's motion to dismiss for failure to provide him a speedy trial as guaranteed by Art. 1, Sec. 1, Par. 11(a) of the 1983 Georgia Constitution and by the Sixth Amendment of the Constitution of the United States. ¹ We affirm.

Boseman was arrested on December 22, 1990. A preliminary hearing was held on January 7, 1991, and he was bound over to the superior court. He was indicted on March 12, 1991, and on March 13, 1991, the state notified Boseman of its intent to seek the death penalty. The first Unified Appeal hearing was held on May 9, 1991. On June 20, 1991, Boseman was arraigned and pled not guilty. On that same date, Boseman also filed various motions. On November, 18, 1991, the court held a motions hearing. The court heard Boseman's motion challenging the grand and petit juries but, at Boseman's request, delayed hearing his motion to suppress. On December 18, 1991, the court denied Boseman's motion challenging the grand and petit juries. The court heard Boseman's motion to suppress on January 2 and February 19, 1992; Boseman and the State filed supplemental briefs regarding that motion on May 29, 1992, and June 1, 1992, respectively. The court denied Boseman's motion to suppress on August 10, 1992.

The second and final Unified Appeal hearing was scheduled for December 16, 1992, but it had to be rescheduled due to a medical emergency in the family of the assistant district attorney assigned to the case. The trial court held the rescheduled hearing February 2, 1993.

On March 4, 1993, Boseman moved to dismiss his indictment on the ground he had been denied his constitutional right to a speedy trial. At the time he filed his motion to dismiss, Boseman had been in custody, awaiting trial, for twenty-seven months. The trial court denied the motion and this appeal followed.

1. "A speedy trial is guaranteed an accused by the Sixth Amendment ... to the Constitution of the United States, and also Article I of the Constitution of this State [now Art. I, Sec. I, Par. XI(a) of the 1983 Ga. Constitution]." Powell v. State, 143 Ga.App. 684, 685(1), 239 S.E.2d 560 (1977). These rights attach at the time of arrest or when formal charges are brought, whichever is earlier. Haisman v. State, 242 Ga. 896, 897 252 S.E.2d 397 (1979). In this case, Boseman's right to a speedy trial attached on the date of his arrest, December 22, 1990, and Boseman's sole contention on appeal is that the State's failure to try him in the 27 months between his arrest and the date he filed his motion to dismiss denied him his constitutional right to a speedy trial.

In Barker v. Wingo, 407 U.S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused's constitutional right to a speedy trial had been violated.... (a) [t]he length of the delay, (b) the reason for the delay, (c) the defendant's assertion of his right, and (d) the prejudice to the defendant. 407 U.S. at 530 [92 S.Ct. at 2192]. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.

Washington v. State, 243 Ga. 329, 330(1), 253 S.E.2d 719 (1979). As to the prejudice factor, there are "three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired." Id. at 331, 253 S.E.2d 719. We apply these criteria to the facts of this case.

(a). Length of delay. This factor actually figures into the speedy trial analysis in two respects. 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 v. United States, 505 U.S. 647, ----, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992). 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." Doggett, 505 U.S. at ----, 112 S.Ct. at 2691. Accord Hakeem v. Beyer, 990 F.2d 750, 759-760 (3rd Cir.1993). However, the presumptive prejudice arising from delay "cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria." Doggett, 505 U.S. at ----, 112 S.Ct. at 2693. Instead, "it is part of the mix of relevant facts, and its importance increases with the length of delay." Id.

In this case, 27 months unquestionably is a long period to delay the prosecution of a case and raises a threshold presumption of prejudice. See Doggett, 505 U.S. at ----, n. 1, 112 S.Ct. at 2691, n. 1 (as the delay approaches one year it generally is "presumptively prejudicial"). We therefore must analyze the other Barker factors to determine if Boseman was denied his constitutional right to a speedy trial.

(b). Reason for delay. At the outset, we note that nowhere in the record does it show that the State has deliberately attempted to delay the trial in order to hamper the defense, a serious abuse that would be weighted against the State. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192.

Moreover, the record shows that one minor delay was attributable to a medical emergency in the family of the assistant district attorney assigned to the case, and that another minor delay was attributable to Boseman's request to delay the hearing on his motion to suppress.

The State asserts that part of the first 18 months of the delay was attributable to its desire to wait for several significant appellate court decisions on victim impact evidence before trying this case. See Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and Sermons v. State, 262 Ga. 286, 417 S.E.2d 144 (1992) (decided June 25, 1992).

Finally, there is no explanation in the record for some of the delay, as, for instance, with regard to the several months of delay between the summer of 1992 and the hearing scheduled for December 1992. Where 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. See LaFave and Israel, Criminal Procedure, Vol. 2, § 18.2, p. 407 (1984).

In summary, the delay in some part must be attributed to the negligence of the State in bringing the case to trial, and this reason for delay weighs against the State. Barker, 407 U.S. at 531, 92 S.Ct. at 2192.

(c). Defendant's Assertion of His Right to Speedy Trial. Boseman admits that he did not assert either his statutory, see OCGA § 17-7-171, or constitutional right to a speedy trial for the 27 months between his arrest and the filing of his motion to dismiss, in which he finally asserted his constitutional right to a speedy trial. This delay in asserting his right to a speedy trial must be weighted against Boseman. See Perry v. Mitchell, 253 Ga. 593, 595, 322 S.E.2d 273 (1...