Glidewell v. State

• Decision Date: 15 February 1984
• Docket Number: 67824,Nos. 67823,s. 67823
• Citation: 314 S.E.2d 924,169 Ga.App. 858
• Court: Georgia Court of Appeals
• Parties: GLIDEWELL v. The STATE. WHITEHEAD v. The STATE.

Page 924

314 S.E.2d 924

169 Ga.App. 858

GLIDEWELL v. The STATE.

WHITEHEAD v. The STATE.

Nos. 67823, 67824.

Court of Appeals of Georgia.

Feb. 15, 1984.

Daniel MacDougald III, Albany, for appellant (case no. 67823).

Frank Wilson Whitehead, pro se (case no. 67824).

Hobart M. Hind, Dist. Atty., for appellee.

DEEN, Presiding Judge.

In January 1983 appellants Glidewell (case no. 67823) and Whitehead (case no. 67824) were apprehended in the act of robbing at gunpoint an Albany, Georgia, grocery store and were charged with armed robbery. They were incarcerated in the Dougherty County Jail, where they remained until they were jointly tried in September 1983, after having been indicted in June.

At trial, counsel for Glidewell moved for dismissal on grounds of violation of the speedy trial provisions of the Sixth Amendment to the Constitution of the United States. Appellant Whitehead, rejecting the proffered services of an appointed attorney at trial, contended that he had filed demands for a speedy trial the previous March and July and argued that the charges against him should likewise be dismissed. The court overruled these contentions.

A Dougherty County jury found both defendants guilty as charged, and they were sentenced to twenty years' imprisonment. On appeal both Glidewell and Whitehead enumerate as error the alleged violation of the speedy trial provisions of relevant law. Whitehead, representing himself on appeal, enumerates the following additional errors: (2, 5) he was allegedly arraigned only five minutes before his trial, and in the presence of the jurors who were to hear his case; (3) he was attended at trial by armed guards; (4) he was prejudiced by a deputy sheriff's reading at trial a statement made by appellant prior to trial, and by the court's alleged comments on his not taking the witness stand in his own defense; (6) he was denied effective assistance of counsel; and (7) the circumstances of the offense did not warrant a charge of armed robbery because he was arrested before he had a chance to leave the store. Held:

1. We shall first address those enumerations peculiar to Whitehead's appeal (case no. 67824), and then the common enumeration. The record lends no support whatsoever to enumerations 2, 4, 5, and 6. Whitehead was accorded the usual protections against a biased jury; the prior statement was introduced in accordance with the rules of evidence; and the court made no unnecessary or otherwise prejudicial allusion to appellant's failure to testify. The record confirms that, as noted supra, appellant Whitehead refused to permit his appointed attorney to assist in the defense.

As to the third enumeration, it is well settled that the decision as to what security measures should be instituted in the courtroom during the trial of a person accused of a violent crime is within the discretion of the trial court. Allen v. State, 235 Ga. 709, 221 S.E.2d 405 (1975); accord, Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979). We find in the instant case no abuse of that discretion. Allen v. State, supra; see also Kennedy v. Cardwell, 487 F.2d 101 (6th Cir.1973).

The seventh enumeration is without merit as a matter of law. Under OCGA § 16-8-41 (Code Ann. § 26-1902), "[t]he slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation" to meet the statutory criterion. Johnson v. State, 9 Ga.App. 409, 71 S.E. 507 (1911). James v. State, 232 Ga. 834, 209 S.E.2d 176 (1974).

2. The leading case in the speedy trial area is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Barker sets forth four factors which should be considered in determining whether Sixth Amendment rights to a speedy trial have been abrogated. These factors are (1) length of delay, (2) reason for delay, (3) defendants's assertion of his right to a speedy trial, and (4) prejudice to the defendant. This four-factor test was enunciated in a fact situation in which the defendant was indicted within two months of the offense but was not tried for more than five years.

Under Georgia law the speedy trial protections have been traditionally held to be triggered by the formal indictment or accusation; i.e., the commencement of the prosecution. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975). Georgia's speedy trial statute provides that "[a]ny person against whom a true bill of indictment...is found...may enter a demand for trial at the court term at which the indictment...is found or at the next succeeding regular court term thereafter ..." OCGA § 17-7-170 (a) (Code Ann. § 27-1901). The statute further provides that "[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, ...he shall be absolutely discharged and acquitted of the offense charged..." OCGA § 17-7-170 (b) (Code Ann. § 27-1901). Scrutiny of the record in the case sub judice discloses that the statutory requirements were met. The Dougherty County Superior Court has six two-month terms: January-February, March-April, May-June, July-August, September-October, and November-December. Appellant Whitehead was indicted in June (May Term); he filed his postindictment demand for trial in July (July Term); he was tried in September (September Term). Thus any claim or enumeration of error under the statute must be invalid.

Appellants contend, however, that the five-month delay between arrest and indictment invokes the protection of constitutional guaranties of a speedy trial. This contention finds support in both federal and state law. "While the statute may prescribe a means of asserting one's right to a speedy trial after indictment, appellant has a sixth amendment right to a speedy trial which attached at arrest..." Haisman v. State, 242 Ga. 896, 898, 252 S.E.2d 397 (1979). Moreover, the pre-indictment right to a speedy trial has been held to attach on the basis of the due process clause of the Fifth Amendment. See, e.g., Natson v. State, 242 Ga. 618, 621, 250 S.E.2d 420 (1978); State v. Hight, 156 Ga.App. 246, 248, 274 S.E.2d 638 (1980). Consequently, the Barker v. Wingo four-factor test has been held on Fifth Amendment grounds to be applicable to the situation, like that in the instant case, where the complained-of delay occurs not between indictment and trial but between arrest and indictment.

Applying this test, we consider first the length of the delay: five months from arrest to indictment, and three more months until trial, or eight months altogether. Case law on this subject suggests that such a delay is not of sufficient duration to constitute, in and of itself, grounds for dismissal of the charges against appellant. See, e.g., Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976); Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760 (1975). See also United States v. Edwards, 577 F.2d 883, cert. denied 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978) (13 months between arrest and indictment; 21 months from arrest to trial). As the Barker court held, "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors...Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Barker v. Wingo, supra 407 U.S. at 514, 530, 92 S.Ct. at 2182, 2192. While we have indicated, supra, that the length of delay in this case is not so great as that in other cases in which it was held not to invoke the provisions of OCGA § 17-7-170 (b) (Code Ann. § 27-1901), we shall nevertheless, arguendo, proceed to a consideration of the remaining three factors.

The second factor is the reason for the delay. Had appellant caused the delay by legal maneuvers, for instance, the fact of the delay would weigh against his speedy trial demands. Myron v. State, 248 Ga. 120, 281 S.E.2d 600 (1981), cert. denied 454 U.S. 1154, 102 S.Ct. 1025, 71 L.Ed.2d 310 (1982). Such was not the situation in the instant case, but, on the other hand, neither was there evidence that the state had intentionally undertaken "a purposeful or oppressive delay." Natson v. State, supra 242 Ga. at 621, 250 S.E.2d 420. Initially, the indictment and trial were delayed for one month (January to February) while law enforcement officials were...