Durham v. State

• Decision Date: 08 June 2020
• Docket Number: A20A0356
• Parties: DURHAM v. The STATE.
• Court: Georgia Court of Appeals

355 Ga.App. 426

844 S.E.2d 499

DURHAM

v.The STATE.

A20A0356

Court of Appeals of Georgia.

June 8, 2020

Debra Kay Jefferson, for Appellant.

Layla Hinton Zon, District Attorney, Randal Matthew McGinley, Assistant District Attorney, for Appellee.

Gobeil, Judge.Enj

In February 2016, a Walton County jury found Gary Durham guilty of rape and child molestation. Before Durham's trial, the trial court orally denied Durham's plea in bar asserting a violation of his right to a speedy trial. We have twice remanded this case to the trial court, first in Durham v. State , 345 Ga. App. 687, 814 S.E.2d 813 (2018) (" Durham I ") and second in Durham v. State , 350 Ga. App. 859, 830 S.E.2d 359 (2019) (" Durham II "), based on insufficient findings of fact by the trial court in denying Durham's plea in bar. Durham now appeals from the trial court's newest written order denying his plea in bar, and his judgment of conviction, asserting that the trial court: (1) erroneously denied the plea in bar; and (2) improperly commented on the evidence at trial and failed to grant his motion for mistrial. For reasons explained more fully below, we affirm.

1. Turning to Durham's claim that his speedy trial rights were violated, both the Sixth Amendment to the United States Constitution and the Georgia Constitution provide criminal defendants with the right to a speedy trial. Smith v. State , 338 Ga. App. 62, 68 (1), 789 S.E.2d 291 (2016). The relevant portions of the record show that on December 9, 2009, Durham was arrested on warrants charging him with rape and child molestation alleged to have occurred between September 2004 and June 2007. He was granted bond shortly thereafter, with conditions that he have no contact with the victims or their families, he have no unsupervised contact with children, and he be subject to electronic GPS monitoring with an 8:00 p.m. curfew. Durham was not indicted until April 2012.

At a status hearing in December 2012, Durham announced that he was ready for trial, and the case was placed on the trial calendar. The case was on the jury trial calendar at least five times over the next three years before it was set for another motions/status hearing on January 28, 2016. At this hearing, the trial court inquired why it had taken the State more than six years to bring Durham to trial. The prosecutor stated that he was unsure of the reason for the delay, but he expected the case to be ready for the next trial calendar. The trial court directed Durham to file a speedy trial motion, and that same day Durham filed his plea in bar asserting a violation of his constitutional right to a speedy trial.

On the morning that the trial was set to begin, the trial court orally denied Durham's plea in bar. The jury found Durham guilty of rape and child molestation. In his first appeal, we vacated the trial court's judgment and remanded the case with instructions for the trial court to "enter a proper order, including findings of fact and conclusions of law, as to the merits of Durham's constitutional speedy trial plea in bar." Durham I , 345 Ga. App. at 689 (1), 814 S.E.2d 813.¹

On remand, the trial court issued a written order reiterating its ruling denying Durham's plea in bar (the "first order"). Durham again appealed, and we again vacated the trial court's judgment and remanded the case with instructions for the trial court to make additional findings of fact and "to correctly apply the pertinent legal principles and to consider again whether Durham was denied his right to a speedy trial." Durham II , 350 Ga. App. at 862 (1) (e), 830 S.E.2d 359 (citation and punctuation omitted).²

On second remand, the trial court issued a second written order addressing deficiencies pointed out in Durham II (the "second order"). This appeal followed. On appeal, Durham asserts that the trial court misapplied the four-factor test laid out in Barker v. Wingo , 407 U. S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and his conviction must be reversed based on the violation of his constitutional right to a speedy trial.

When analyzing speedy trial claims, we "first determine whether the interval from the accused's arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered presumptively prejudicial." Smith , 338 Ga. App. at 68 (1), 789 S.E.2d 291 (citation and punctuation omitted). In this case, the delay from the date of arrest until Durham's trial was over six years, and this Court already determined that "the trial court properly concluded that it was presumptively prejudicial." Durham II , 350 Ga. App. at 859 (1), 830 S.E.2d 359.

In cases where the delay is presumptively prejudicial, the trial court is required to conduct a balancing test of the following four factors:

(1) the length of the delay; (2) reasons for the delay; (3) defendant's assertion of the right to speedy trial; and (4) the prejudice to the defendant. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.

Smith , 338 Ga. App. at 68 (1), 789 S.E.2d 291 (citation and punctuation omitted). "[T]hese four factors have no talismanic qualities and must be considered together with such other circumstances as may be relevant in light of the animating principles of the speedy trial guarantee." Ellis v. State , 343 Ga. App. 391, 394 (2), 806 S.E.2d 839 (2017) (citation and punctuation omitted).

In Georgia, the application of these principles to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one. Therefore, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.

Smith , 338 Ga. App. at 68-69 (1), 789 S.E.2d 291 (citation and punctuation omitted). We now address the four factors.

(a) Length of Delay. Durham was arrested in December 2009 for crimes committed between September 2004 and June 2007. He was not indicted until April 2012 and was not tried until February 2016. In its first order, the trial court weighed the delay against the State, but failed to "assign a weight for the delay or decide whether the particular delay in this case was uncommonly long," despite the fact that the State had conceded as much. Durham II , 350 Ga. App. at 860 (1) (a), 830 S.E.2d 359 (punctuation omitted). In its second order, the trial court concluded that the delay in Durham's case was uncommonly long, but not exceedingly so, noting that numerous cases with older case numbers were tried in the trial court after Durham announced that he was ready for trial. Additionally, the trial court found that Durham's case had some complexity, but was not "overly complex." Accordingly, the trial court weighed the first factor "moderately against the State."

As the trial court recognized, "the length of delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges in that case." Taylor v. State , 338 Ga. App. 804, 807 (1) (a), 792 S.E.2d 101 (2016) (citation and punctuation omitted). "And there is no bright-line rule that all uncommonly long delays must be weighed heavily against the State." Id. As the evidence in this case involved two victims, with multiple incidents of sexual assault that occurred over a period of months, the trial court's finding that the case had some complexity warranting a delay, but not enough to absolve the State of responsibility for the six-year delay, was supported by the record. Additionally, the trial court's finding that the State was trying cases older than Durham's in the intervening years also supports its finding that the delay, while uncommonly long, was not exceedingly so. Accordingly, we conclude that there was no abuse of discretion in the trial court's weighing the length of the delay moderately against the State.

(b) Reasons and Responsibility for the Delay. In its first written order, the trial court found, as the State had conceded, that "much of the reason for the delay is due to negligence on its part in bringing the case to trial. Further, staffing turnover within the District Attorney's Office and overcrowded dockets ... also contributed to the delay. However, there is no evidence of any deliberate attempt to delay the trial of [Durham]." Therefore, the trial court weighed this factor "benignly against the State." In Durham II , 350 Ga. App. at 860 (1) (b), 830 S.E.2d 359, we found no abuse of discretion with the trial court's findings with regard to this factor. In the second order, the trial court incorporated its prior findings on this factor from the first order, and we again find no abuse of discretion.

(c) Defendant's Assertion of his Speedy Trial Right. In its first order, the trial court weighed this factor "heavily against [Durham]" based upon his failure to assert the right for more than six years and the fact that he did not do so until the court itself raised the speedy trial issue. In Durham II , 350 Ga. App. at 860-861 (1) (c), 830 S.E.2d 359, we held that the trial court failed "to consider whether Durham's delayed assertion of his right should be mitigated by announcements he was ready for trial," and such consideration was within the discretion of the trial court, so we would not consider it in the first instance.

"[A]nnouncements that a defendant is ready for trial" can mitigate the weight of a late assertion of the speedy trial right. Smith , 338 Ga. App. at 71 (1) (c), 789 S.E.2d 291. In its second written order, the trial court first considered Durham's announcement of ready for trial at his initial status conference in December 2012. The court...