Harris v. Hopper, 30502

• Decision Date: 02 February 1976
• Docket Number: No. 30502,30502
• Citation: 224 S.E.2d 1,236 Ga. 389
• Parties: Walter Lee HARRIS v. Joe S. HOPPER, Warden.
• Court: Georgia Supreme Court

Page 1

224 S.E.2d 1

236 Ga. 389

Walter Lee HARRIS v. Joe S. HOPPER, Warden.

No. 30502.

Supreme Court of Georgia.

Feb. 2, 1976.

Rehearing Denied March 2, 1976.

Walter Lee Harris, pro se.

Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Staff Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Pursuant to the provisions of the 1975 Amendment to the Habeas Corpus Act (Ga.L.1975, p. 1143 et seq.), this court on September 30, 1975, voted to grant Harris' application for an appeal from the Tattnall Superior Court's denial of his petition for habeas corpus. The court was primarily concerned with Harris' allegation that 'since the petitioner was held in jail for lack of bail for one hundred and fifty-two (152) days before being brought to trial (sic), he contends that this was a violation of his constitutionally guaranteed right to a speedy trial.' Actually, Harris was never 'brought to trial'-instead, on May 18, 1974 he pleaded guilty to three counts of armed robbery, two counts of aggravated assault, and one count of murder. However, he alleged that he was imprisoned continually from his arrest on these and other charges on December 19, 1973, and that he was not indicted on the instant chagre until May 8, 1974. Thus, he claims that he was denied a speedy indictment.

We note initially that nothing in the record nor the briefs amplifies the portion of Harris' claim concerning the denial of bail sufficiently for us to decide whether he was denied bail entirely, or whether he was allowed bail but could not afford to post it. In the latter event, he has no recourse here on habeas corpus; in the former event, because he was charged with armed robbery and murder, the superior court was authorized to exercise its discretion to deny him bail. Code Ann. § 27-901.

We move to the question of speedy indictment, which is an aspect of the Sixth Amendment right to speedy trial-a fundamental right which applies to the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). A criminal defendant's Sixth Amendment right to be free from inordinate delays in indictment has been recognized at least since United State v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). In that case, however, the Court decided that '(w)e cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment's guarantee of a speedy trial.' 383 U.S. p. 120, 86 S.Ct. p. 776.

In speedy trial decisions, the Court has emphasized that the denial of speedy trial may work to a defendant's advantage, and therefore there is no per se prejudice to a defendant from delay, nor is there any specific number of days or months within which he must be tried. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Factors to be considered are the length of the delay, the reason for the delay, the defendant's assertion of the right, and actual prejudice to the defendant. Id.

However, the Supreme Court, reversing the Fifth Circuit, has recently emphasized that for purposes of speedy trial we begin to 'count' from the date of arrest if that precedes indictment, as here, and time from arrest to indictment is added to time from indictment to trial: 'it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage particular protections of the speedy trial provisions of the Sixth Amendment.' Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 304, 46 L.Ed.2d 205, 207 (1975). Accord, United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed. 468 (1971).

Thus, applying this Dillingham procedure, we have here an indictment delay from (assertedly) December 19, 1973 until May 8 1974-less than five months. We note that two attorneys were appointed to represent Harris on January 11, 1974; and that the record amply shows that these attorneys proceeded thereafter to represent him vigorously. Examining the Barker v. Wingo factors other than length of delay we find the record shows no reason whatever for the delay; it shows no assertion whatever by Harris or his two attorneys of a right to...