Falagian v. State

Decision Date23 September 2009
Docket NumberNo. A09A0846.,A09A0846.
Citation684 S.E.2d 340,300 Ga. App. 187
PartiesFALAGIAN v. The STATE.
CourtGeorgia Court of Appeals

James S. Lewis, for appellant.

Paul L. Howard, Jr., Dist. Atty., John O. Williams, Bradley R. Malkin, Asst. Dist. Attys., for appellee.

MILLER, Chief Judge.

Following his arrest in 2003, Jorge Falagian was indicted in Fulton County Superior Court on three counts of theft by taking (OCGA § 16-8-2). More than four and a half years after his arrest, Falagian filed a motion seeking dismissal of the charges on the basis that the State violated his Sixth Amendment right to a speedy trial, and also filed demurrers and a plea in abatement to the indictment. Falagian appeals from the trial court's order denying his motion to dismiss, demurrers, and plea in abatement, arguing that the trial court erred in (i) failing to consider the State's bad faith and prejudice to him in finding that his speedy trial right had not been violated; (ii) denying his plea in abatement based on the rule of lenity; and (iii) denying his general and special demurrers because the indictment did not sufficiently apprise him of the unlawful conduct and was misleading. Concluding that no prejudice resulted from the State's delay in bringing Falagian to trial and otherwise discerning no error, we affirm.

In the underlying case, the record shows that Doe Kim owned Neighbors Grocery Store, which was also a duly licensed and authorized check cashing business. After Falagian wrote and cashed several bad checks in excess of $197,000 at Kim's store, Kim hired an attorney to send a ten day letter to Falagian, pursuant to OCGA § 16-9-20, seeking the return of said sums. Approximately one month later, when Falagian failed to comply with the ten day letter to pay the monies owed to Kim, Kim contacted the police to initiate criminal charges against Falagian. On September 19, 2003, Falagian was arrested for the offense of theft by conversion.

Kim met with an investigator with the Fulton County District Attorney's Office ("Fulton DA's office") three to four times in 2004 and 2005; however, when the State took no action to prosecute Falagian, Kim filed a civil action against Falagian for fraud. In or around March 2007, the civil suit settled, but Kim contacted the Fulton DA's Office because he was unhappy with the terms of the settlement relating to repayment of the check proceeds. Thereafter, on May 11, 2007, the State indicted Falagian for three counts of theft by taking.

1. Falagian argues that the trial court erred in denying his motion to dismiss on constitutional speedy trial grounds. We disagree.

We review a trial court's grant or denial of a motion to dismiss on speedy trial grounds for an abuse of discretion. Ruffin v. State, 284 Ga. 52, 65(3), 663 S.E.2d 189 (2008).

"An accused is guaranteed the right to a speedy trial by the Sixth Amendment to the Constitution of the United States and Art. I, Sec. I, Par. XI (a) of the 1983 Georgia Constitution." Thomas v. State, 296 Ga.App. 231, 234(2), 674 S.E.2d 96 (2009). This right attaches "at the time of arrest or indictment, whichever is earlier. [Cit.]" Id.

The test for determining whether a defendant's Sixth Amendment right to a speedy trial has been violated considers the conduct of the State and the defendant under four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) whether the defendant was prejudiced by the delay.

Kramer v. State, 287 Ga.App. 796, 797(1), 652 S.E.2d 843 (2007), citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and Boseman v. State, 263 Ga. 730, 731, 438 S.E.2d 626 (1994). The trial court considers these factors together in a balancing test of the conduct of the State and the defendant. Kramer, supra, 287 Ga.App. at 797(1), 652 S.E.2d 843.

(a) Length of delay. This factor plays 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." (Citation and punctuation omitted.) Boseman, supra, 263 Ga. at 732(1)(a), 438 S.E.2d 626. "If the delay passes this threshold test of presumptive prejudice, then the Barker inquiry is triggered." Id.; Thomas, supra, 296 Ga.App. at 234(2)(a), 674 S.E.2d 96 (any delay approaching a year is presumptively prejudicial).

Here, Falagian was arrested in September 2003, and he had not yet been tried by March 27, 2008, when he filed his motion to dismiss based on a violation of his constitutional right to a speedy trial. This 54-month delay was presumptively prejudicial, which we weigh in favor of Falagian, and we therefore proceed "to inquire into the other Barker factors that go into the balance." (Citations and punctuation omitted.) Frazier v. State, 277 Ga.App. 881, 627 S.E.2d 894 (2006) (34-month delay was presumptively prejudicial).

(b) Reason for delay. Although the State took no action after Kim met with the Fulton DA's office investigator in 2004-2005 and only later took action after Kim complained that he was unhappy with the terms of his settlement, no explanation for the delay was offered by the State or any other witness. "When a delay is unexplained, it is treated as having been caused by the negligence of the State in bringing the case to trial." (Citations omitted.) State v. Bazemore, 249 Ga.App. 584, 586(1)(b), 549 S.E.2d 426 (2001); see also Brannen v. State, 274 Ga. 454, 455, 553 S.E.2d 813 (2001). The trial court should have independently weighed the unexplained delay in Falagian's favor and erred to the extent that it "overlooked this factor in the four-factor balancing process." Ruffin, supra, 284 Ga. at 59(2)(b)(i), 663 S.E.2d 189. As such, we weigh this factor in favor of Falagian.

(c) Assertion of the right. "It is the defendant's responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant." (Citation and punctuation omitted.) Simmons v. State, 290 Ga. App. 315, 316(3), 659 S.E.2d 721 (2008); accord Nelloms v. State, 274 Ga. 179, 181, 549 S.E.2d 381 (2001). Here, Falagian did not file a statutory request for speedy trial pursuant to OCGA § 17-7-171, and did not assert his constitutional right to a speedy trial for the 54 months between his arrest and the filing of his motion to dismiss. Since Falagian failed to timely assert his right to a speedy trial, such failure "is entitled to strong evidentiary weight against [him]." (Citation and punctuation omitted.) Simmons, supra, 290 Ga.App. at 316(3), 659 S.E.2d 721; see also Watkins v. State, 267 Ga.App. 684, 685-686(c), 600 S.E.2d 747 (2004) (delay of 42 months from date of arrest to assertion of constitutional right to speedy trial weighed against defendant).

(d) Prejudice to defendant. "Within the Barker balancing test, the issue of prejudice weighs most heavily in determining whether a defendant's constitutional rights have been violated." (Citation and punctuation omitted.) Simmons, supra, 290 Ga.App. at 316(4), 659 S.E.2d 721. In evaluating this final factor, we "consider three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired." (Citations and punctuation omitted.) Weldon v. State, 262 Ga. App. 782, 785(2)(d), 586 S.E.2d 452 (2003). Impairment of one's defense is the most important component of the prejudice factor. Simmons, supra, 290 Ga.App. at 316(4), 659 S.E.2d 721.

On appeal, Falagian does not argue that oppressive pretrial incarceration or impairment of his defense requires dismissal. Instead, Falagian focuses only on anxiety and concern; yet at the hearing on the motion to dismiss, he presented no evidence showing that he suffered from any unusual anxiety or concern as a result of the delay in his trial. His counsel merely stated in his place that Falagian had been his client since before the case was indicted; that Falagian paid him for representation on the civil matter and criminal case; and that Falagian has had the criminal matter "hanging over his head" for the past five years. The record on appeal does not indicate whether Falagian was in custody or had been released on bond. We have held that "anxiety and concern of the accused ... is always present to some extent, and thus absent some unusual showing it is not likely to be determinative in defendant's favor." (Citation and punctuation omitted.) Vyas v. State, 285 Ga.App. 467, 470, 646 S.E.2d 692 (2007). The trial court specifically found that Falagian failed to establish prejudice given these conclusory statements, and we conclude that the trial court properly weighed this factor heavily against Falagian. Jackson v. State, 272 Ga. 782, 785, 534 S.E.2d 796 (2000) (generalized claims fall short of offering the "specific evidence" necessary to weigh the prejudice factor in the defendant's favor).

(e) Outcome. In balancing the Barker factors, two of the factors balance against the State: the length of the delay and the reason for the delay. Weighed against Falagian are the 54-month delay in asserting his constitutional right to a speedy trial, and the lack of prejudice resulting from the State's failure to bring him to trial. Although we do not condone the State's delay in bringing Falagian's case to trial, Falagian's late assertion of his constitutional right to a speedy trial weighs heavily against him as does his failure to show prejudice in light of such delay. Under these circumstances, we conclude that the trial court did not abuse its discretion in denying Falagian's motion to dismiss. Nelloms, supra, 274 Ga....

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