Brannen v. State

• Decision Date: 05 October 2001
• Docket Number: No. S01A1116.,S01A1116.
• Parties: BRANNEN v. The STATE.
• Court: Georgia Supreme Court

553 S.E.2d 813

274 Ga. 454

BRANNEN v. The STATE.

No. S01A1116.

Supreme Court of Georgia.

October 5, 2001.

Reconsideration Denied November 5, 2001.

J. Alvin Leaphart, Jesup, for appellant.

Stephen D. Kelley, Dist. Atty., John B. Johnson, III, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., for appellee.

THOMPSON, Justice.

Tammy Suzette Brannen was arrested on August 4, 1995, and indicted on December 20, 1995, for malice murder in the shooting death of Darrell Johnson. The case is before the Court from the denial of Brannen's motion to dismiss the indictment based on an alleged violation of her Sixth Amendment right to a speedy trial. We affirm.

Brannen was released on bail on August 25, 1995. The case was initially called for trial on February 18, 1997, but was continued at the request of the State. In September 1999, the court notified Brannen that the case would be tried on October 18, 1999; and a subsequent trial date was set for December 13, 1999. Prior to the scheduled trial date, Brannen filed her motion to dismiss the indictment on Sixth Amendment grounds. In substance, Brannen argued that the 52-month delay from arrest to the filing of the motion to dismiss, coupled with the death of a defense witness who allegedly would have given exculpatory testimony, prejudiced her defense to the extent that the indictment should be dismissed. The trial court denied the motion to dismiss finding that Brannen's Sixth Amendment right to a speedy trial had not been violated.¹

Brannen's Sixth Amendment claim is analyzed under the four-part balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which requires that we consider: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant.

The State concedes that the 52-month delay is presumptively prejudicial, thus requiring this Court to inquire into "the other factors that go into the balance." Barker, supra, 407 U.S. at 530, 92 S.Ct. 2182. See e.g., Nelloms v. State, 274 Ga. 179, 549 S.E.2d 381 (2001) (51-month delay is "egregious"); Perry v. Mitchell, 253 Ga. 593, 322 S.E.2d 273 (1984) (delay of more than two years is "deplorable").

Closely related to length of delay is the reason the government assigns to justify the delay.... A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.... [A] valid reason, such as a missing witness, should serve to justify appropriate delay.

Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182. In this case it appears that the State sought and was granted a continuance of the original trial date of February 18, 1997, due to the unavailability of two of its witnesses, members of the state medical examiner's office, who were attending an out-of-state seminar. Although the defense strenuously objected to the continuance, Brannen did not specifically invoke her right to speedy trial.

No further effort was made to schedule a trial until September 1999, when the court notified Brannen that the case would be tried on October 18, 1999, and subsequently notified her that trial had been set for December 13, 1999. Even if the initial delay could be justified, the State has provided no explanation for the failure to schedule trial in the ensuing 34 months. "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." Boseman, supra, at 733, 438 S.E.2d 626. Nor is there evidence of any affirmative action on Brannen's part which would have contributed to the delay. Compare Nelloms, supra. Accordingly, this factor, too, is weighed in favor of the defendant. But in assigning weight, we also note the absence of any deliberate attempt on the part of the State "to delay the trial in order to hamper the defense." Barker, supra, 407 U.S. at 531,92 S.Ct. 2182. Under such circumstances, this factor "is ... relatively benign but definitely negative." Perry, supra at 595, 322 S.E.2d 273. See also Jackson v. State, 272 Ga. 782, 784, 534 S.E.2d 796 (2000).

It is the defendant's responsibility to assert the right to trial, Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182, and the failure to exercise that right is entitled "`to strong evidentiary weight' against the defendant." Perry, supra at 595, 322 S.E.2d 273. Although it appears that defense counsel objected to the February 1997 continuance, and followed with a letter to the court in which he reiterated his objection to the continuance, stated that he was ready for trial, and suggested that the witnesses should be held in contempt for failing to appear, such actions cannot be construed as an assertion of the right to a speedy trial under our analysis. See Jackson, supra at 785, 534 S.E.2d 796 (defendant's failure to specifically assert Sixth Amendment claim for two years weighed in favor of State). Brannen filed no statutory demand for trial under OCGA § 17-7-171, but instead waited until five days prior to the scheduled trial date of December 13, 1999 to file her motion to dismiss the indictment on Sixth Amendment grounds.

As we recently said in Nelloms, supra at 181, 549 S.E.2d 381: the failure to assert the right

is entitled to strong evidentiary weight against the defendant, where, as here, [the defendant] filed no statutory demand for speedy trial pursuant to OCGA § 17-7-171 and did not raise his constitutional right to a speedy trial for the 51 months between his arrest and the filing of his motion to dismiss, in which he finally asserted the right. This delay in asserting [the] right to a speedy trial must be weighted against [the defendant].

(Citations and punctuation omitted.) See also Boseman, supra at (1)(c); Perry, supra. And, as was recognized in Barker, supra at 532, 92 S.Ct. 2182, "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial."

In analyzing the fourth factor (prejudice), we must consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired. Mullinax v. State, 273 Ga. 756(2), 545 S.E.2d 891 (2001); Johnson v. State, 268 Ga. 416, 417(2), 490 S.E.2d 91 (1997).

Brannen was not subjected to oppressive pretrial incarceration because she spent less than one month in jail between her arrest in August 1995, and her release on bail.² See Nelloms, supra. Nor has she demonstrated "any specific anxiety or concern which would balance this factor in [her] favor." Id. at 181, 549 S.E.2d 381. See also Mullinax, supra at 759(2), 545 S.E.2d 891 ("absent some unusual showing" of anxiety or concern, this factor is "not likely to be determinative in defendant's favor"). (Emphasis supplied.)

The most troublesome factor in this case is the possibility that the delay may have impaired Brannen's justification defense. In this regard, Brannen shows that in the week following her August 1995 arrest, her attorney obtained a sworn, notarized statement from Reginald Trent Benfield, an acquaintance of both Brannen and the victim, Darrell Johnson. Benfield attested as follows: that Brannen and Johnson had on occasion visited Benfield at his home; that at times Johnson "acted extremely violent towards [Brannen] and slapped her around"; that Brannen "appeared to be very afraid of him"; that on one occasion he overheard Johnson tell Brannen if "she ever ran around on him that he would kill her and then kill himself"; that at some unspecified time Benfield bought a 12 gauge shotgun from Johnson for $25 and told Johnson he would sell it back to him at the same price; that on the day of the shooting, Johnson stole the shotgun, a box of shells, a cowboy hat, and boots from him; and that two or three days before the shooting, Johnson told Benfield "that when [Brannen] got back that blood and brains would be all over that mobile home."³ Benfield died of carcinoma of the liver on December 11, 1997, 28 months after the defense obtained his statement.

The prejudice component was identified in Barker as "the most serious ... because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182. "If witnesses die or disappear during a delay, the prejudice is obvious." Id. However, no single one of the four factors is "a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. at 533, 92 S.Ct. 2182. See also Boseman, supra at (1) (prejudice factor may not alone carry a Sixth Amendment claim without regard to the other Barker factors). Thus, we are required to assess the extent of the prejudice resulting from the missing witness and balance it against the other related factors.

Brannen obtained Benfield's affidavit on August 16, 1995; however, she did not inform the State of its existence until December 8, 1999, when she filed it as an attachment to her motion to dismiss. Although the State opposed the motion, the prosecutor has agreed that it would concede the admissibility of the affidavit under the necessity exception to the hearsay rule at a trial of the case. Although we agree that Brannen is disadvantaged by her inability to examine Benfield at trial, the State is also prejudiced by its inability to cross-examine the witness and put before the jury the alternate theory that Johnson was threatening suicide rather than threatening Brannen's life. Now the contents of Benfield's affidavit will go unchallenged.

Under the circumstances, it is not unreasonable to conclude that Brannen elected to sit on the information and take her chances that the protracted delay would inure to her benefit.

Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may

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