Chambers v. State

• Citation: 213 Ga.App. 414,444 S.E.2d 820
• Decision Date: 17 May 1994
• Docket Number: No. A94A0808,A94A0808
• Parties: CHAMBERS v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 820

444 S.E.2d 820

213 Ga.App. 414

CHAMBERS v. The STATE.

No. A94A0808.

Court of Appeals of Georgia.

May 17, 1994.

Reconsideration Denied June 1, 1994.

Certiorari Denied Sept. 16, 1994.

Adams & Brooks, John B. Adams, J. Kelly Brooks, Folkston, for appellant.

H. Donnie Dixon, Jr., Dist. Atty., Alexander J. Markowich, George E. Barnhill, Lucy J. Bell, Asst. Dist. Attys., for appellee.

BEASLEY, Presiding Judge.

Chambers appeals his convictions for armed robbery, OCGA § 16-8-41(a); possession of a firearm during the commission of a felony, OCGA § 16-11-106(b); driving without a license, OCGA § 40-5-20; and possession of a firearm by a convicted felon, OCGA § 16-11-131. All stem from a 1989 robbery of a store's employees at gunpoint. The case has an extensive procedural history which is necessary to understand the errors claimed.

Chambers was originally indicted for kidnapping, possession of a firearm during commission of a felony, providing a firearm to a person under twenty-one, driving without a license, possession of a firearm by a convicted felon, and two counts of armed robbery. On August 22, 1989, the trial court granted Chambers' pre-trial motion to suppress the firearms and the stolen cash. The State appealed, and the suppression was reversed. State v. Chambers, 194 Ga.App. 609, 391 S.E.2d 657 (1990). Chambers moved for reconsideration, which was denied on February 22, 1990.

He filed a notice of intention to apply to the Supreme Court for a writ of certiorari on March 2. Prior to this court issuing the remittitur, the trial court commenced the trial of Chambers and two co-defendants on March 5. It resulted, on March 7, in Chambers' acquittal on the kidnapping charge, one of the armed robbery charges, and the charge of providing a firearm to a person under twenty-one, but verdicts of guilty on the remaining charges. Sentences were imposed on March 20.

This court issued its remittitur on that day and it was received and filed in the trial court on March 22. Chambers moved for a new trial, contending that the trial court lacked jurisdiction to try him before the remittitur issued. The motion was denied and Chambers appealed, unsuccessfully, to this court. Chambers v. State, 201 Ga.App. 245, 410 S.E.2d 771 (1991). The Supreme Court granted a writ of certiorari and determined that the trial court did not have jurisdiction to take any action in the case prior to receiving the remittitur. The Court expressly stated that double jeopardy would not prevent a retrial because Chambers' March 5 trial was a nullity. Chambers v. State, 262 Ga. 200, 415 S.E.2d 643 (1992).

This court's judgment was vacated, the judgment of the Supreme Court was made the judgment of this court, and the judgment of the trial court was reversed. Chambers v. State, 204 Ga.App. 396, 420 S.E.2d 393 (1992). The remittitur was filed in the trial court on or about June 18, 1992. On March 1, 1993, Chambers filed in the trial court a "Motion for Trial or, in the Alternative, for Dismissal" to assert his federal constitutional right to a speedy trial. Retrial commenced on June 21, presided over by a different judge, and Chambers was convicted on June 24.

1. The first enumeration is that the trial court erred in failing to grant the "Motion for Trial or, in the Alternative, for Dismissal." Relying on State v. King, 137 Ga.App. 26, 222 S.E.2d 859 (1975), which cites Treadwell v. State, 233 Ga. 468, 469, 211 S.E.2d 760 (1975), Chambers argues the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). He does not invoke OCGA § 17-7-170 or a state constitutional ground.

The four factors the court must weigh "in balancing the conduct of the prosecution and the defendant on the issue of the denial of the [federal] constitutional right to a speedy trial ... are: (1) length of delay, (2) ... reason for ... delay, (3) ... defendant's assertion of his right, and (4) prejudice to ... defendant." Treadwell, supra, 233 Ga. at 469, 211 S.E.2d 760.

(a) Length of delay. Unless the delay is "presumptively prejudicial" the speedy trial claim need not be analyzed under the remaining Barker factors. Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192. See Redd v. State, 261 Ga. 300, 302, 404 S.E.2d 264 (1991). "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.' [Cits.] However, the presumptive prejudice arising from delay 'cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.' [Cit.] Instead, 'it is part of the mix of relevant facts, and its importance increases with the length of delay.' [Cit.]" Boseman v. State, 263 Ga. 730, 732(1)(a), 438 S.E.2d 626 (1994).

Here, the delay is not measured from the time of indictment or from the initial prosecution because the defendant's own actions in seeking multiple reviews prolonged resolution while at the same time affording him another opportunity for trial. The span must be computed from the most recent remittitur to the trial court. The retrial occurred three days short of one year from the date the trial court regained jurisdiction in the matter. As a delay approaches one year, in general it is presumptively prejudicial. See Boseman, supra at 732(1)(a), 438 S.E.2d 626. The remaining Barker factors must be considered.

(b) Reason for delay. The record discloses no reason, but there is no evidence that the State deliberately attempted to delay the retrial in order to hamper the defense. See Boseman, supra at 732(1)(b), 438 S.E.2d 626.

(c) Defendant's assertion of his right. Chambers never asserted his statutory right, see OCGA § 17-7-170, or his state constitutional right. 1983 Ga. Const., Art. I, Sec. I, Par. XI. He first asserted his federal constitutional right to a speedy trial on retrial by motion on March 1 and was tried less than three months later. The delay in demanding a speedy trial weighs against Chambers. See Boseman, supra at 733(1)(c), 438 S.E.2d 626.

(d) Prejudice to defendant. "Prejudice should be assessed in the light of the interests of the defendant which the right to speedy trial was designed to protect. Three such interests identified by the court in Barker are: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Treadwell, supra, 233 Ga. at 470, 211 S.E.2d 760.

Apparently Chambers has been incarcerated since his arrest in April 1989. Although this is an oppressive period, all but the time from the last remittitur is explained by the first trial and appellate activity. Assuming natural anxiety and concern, there is no other evidence of anxiety or concern due to his lengthy incarceration or of any specific prejudice from the delay. See Boseman, supra, 263 Ga. at 733(1)(d), 438 S.E.2d 626.

Chambers has not been deprived of his federal constitutional right to a speedy trial.

2. Error is enumerated in allowing certain transcript testimony to be read into evidence from Chambers' prior trial. The ground is that the issues in the retrial were not identical.

The testimony was that of co-defendant Carroll, who testified as a State's witness at the original trial and who was deceased by the time of the retrial. Chambers contends that application of OCGA § 24-3-10 impermissibly placed his character in issue, because Carroll's entire transcript testimony would be introduced even though he (Chambers) had been acquitted of some of the charges in the first trial.

In applying OCGA § 24-3-10, the first question is whether the party against whom the former testimony is offered had adequate opportunity for cross-examination. See Barnes v. State, 256 Ga. 370, 371(2)(b), 349 S.E.2d 387 (1986); see also Transamerica Ins. Co. v. Thrift-Mart, 159 Ga.App. 874, 877(2), 285 S.E.2d 566 (1981). Chambers does not contest the adequacy of the cross-examination opportunity.

Second, there is little question that the issues on retrial were substantially the same, which is what the statute requires.

Third, " ' "[t]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. (Cit.) This is true even if the defendant's character is incidentally placed in issue." (Cits.)' [Cit.]" Carroll v. State, 202 Ga.App. 544, 547(2), 415 S.E.2d 37 (1992).

3. Chambers enumerates as error the admission of testimony, both by transcript and live witnesses, concerning crimes for which he had been acquitted, thereby impermissibly placing his character in issue. The contention is without merit. See Division 2.

4. Error is also claimed in the trial court's requiring Chambers to proceed to trial with a court-appointed attorney, "after [he] made timely statement tantamount to request to proceed pro se."

"Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. See Faretta v. California, 422 U.S. 806 (95 SCt 2525, 45 LEd2d 562) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XII. An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation. [Cits.]" Thaxton v. State, 260 Ga. 141, 142(2), 390 S.E.2d 841 (1990).

The record does not reveal any request that Chambers proceed to trial pro se, but rather only that he had complaints...