Harrison v. State
| Decision Date | 27 September 2011 |
| Docket Number | No. A11A1279.,A11A1279. |
| Citation | 11 FCDR 3083,717 S.E.2d 303,311 Ga.App. 787 |
| Parties | HARRISON v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Jeffrey Lloyd Cox, Dawsonville, for appellant.
Penny Alane Penn, Dist. Atty., for appellee.
Paul Wayne Harrison appeals the denial of his plea in bar, alleging that a delay between his arrest and indictment violated his speedy trial rights under the Georgia Constitution and the Sixth Amendment of the United States Constitution. He seeks acquittal and dismissal of an eight-count indictment charging him with, inter alia, rape and aggravated child molestation, arguing that the trial court erred in its application of the factors outlined by the United States Supreme Court in Barker v. Wingo 1 when it found that he had not been subjected to oppressive pretrial incarceration and had failed to show prejudice to his legal defense. Because the trial court did not abuse its discretion in denying the plea in bar, we affirm.
“[W]e review the trial court's denial of a motion to dismiss an indictment on speedy trial grounds for abuse of discretion and defer to the trial court's findings of fact and its weighing of disputed facts.” 2
So viewed, the evidence shows that Harrison was arrested in Florida, then extradited to and arrested in Mississippi on November 29, 2006, after his ex-girlfriend alleged, in a meeting with an investigator for the Forsyth County Sheriff's Office, that he had sexually abused her young daughter both at her home in Hinds County, Mississippi, and at his home in Forsyth County, Georgia. On December 6, 2006, while Harrison still was incarcerated in Mississippi, the Forsyth County Sheriff's Office completed its investigation of him and the following day posted warrants for his arrest on charges related to the same victim, but separate from the Mississippi charges and asked Hinds County officials to place a “hold” on him.
Harrison remained incarcerated in Mississippi for approximately two years. Near the end of that time, on August 11, 2008, a Hinds County assistant district attorney wrote a letter to the Forsyth County District Attorney's Office indicating that Harrison and his lawyer seemed likely to accept a plea offer in which Harrison would agree to a twenty–year confinement with release on time served and to five years of supervised probation, have no contact with the victim and register as a sex offender, as long as the Forsyth County District Attorney's Office “agrees to dismiss, with prejudice, your pending charges ... involving the same victim.”
the letter continues. But because the case involved allegations that the victim's mother had an extramarital affair with Harrison and was abused by him, and because the alleged sexual abuse of the child was not disclosed until about a year after it occurred, the Hinds County assistant district attorney wrote:
I do not have a reasonable expectation of obtaining a conviction at trial.... I don't believe I can afford to try this case. Should you believe your jurisdiction is better suited for convicting Paul, I am prepared to dismiss my case and allow him to be extradited to Forsyth County to stand trial.
On September 25, 2008, a Mississippi circuit court granted the Hinds County District Attorney's Office's motion for nolle prosequi, and on November 4, 2008, the Georgia arrest warrants posted in 2006 were executed against Harrison and he was extradited to Georgia.
The Forsyth County Superior Court granted Harrison's motion for bond on January 9, 2009. Unable to post bond, he twice motioned to reduce bond; those motions were denied.
On July 9, 2010, Harrison filed his plea in bar alleging an unconstitutional delay in indictment. A grand jury indicted him three days later, on July 12, 2010. The Forsyth County Superior Court heard the plea in bar on August 13, 2010; Harrison amended his plea in bar the same day. The trial court then held another hearing on September 17, 2010, to address the delay in the indictment and possible prejudice to the defendant.
On September 24, 2010, the trial court issued a written order finding presumptive delay in Georgia's indictment of Harrison, but also finding that Harrison had not shown prejudice resulting from the delay. The trial court found no violation of Harrison's constitutional right to a speedy trial. Harrison appeals.
1. Constitutional Framework. Two types of pretrial delay have been recognized as potential violations of an accused's speedy trial rights. The first precedes arrest or indictment and may be triggered during the investigative stage of a case if a defendant is held in custody by the state during that period.3 This pre-arrest, pre-indictment delay possibly implicates due process guarantees under the Fifth and Fourteenth Amendments. 4] The second type of delay may occur after arrest or indictment, potentially triggering Sixth Amendment protections.5
Although Harrison raises, briefly, the possibility of due process violations triggered by pre-arrest, pre-indictment delay, we do not find merit in that contention. Harrison was arrested in Florida and subsequently extradited, arrested and incarcerated in Mississippi in 2006. During a portion of that time, Georgia authorities were investigating him. But because he had not been arrested by Georgia authorities during this period, we need not reach the issue of whether his due process rights were violated.
2. Threshold Inquiry. Therefore, this court's analysis begins with the second type of potential delay, a review of which is triggered by the November 4, 2008, execution of the Georgia arrest warrants.
When considering a motion to dismiss on speedy trial grounds, the court conducts the two-tiered threshold inquiry set forth in the United States Supreme Court decisions Barker v. Wingo 6 and Doggett v. United States.7 The first tier of the analysis considers whether the delay is long enough to be presumptively prejudicial.8 Only if the delay is found to be presumptively prejudicial must the court engage in the second tier of the analysis by applying the four-factor Barker–Doggett balancing test to assess whether the accused was deprived of a speedy trial: (1) whether the delay is uncommonly long; (2) the reason for the delay, and whether the defendant or the government is more responsible; (3) the defendant's assertion of his speedy trial rights in due course; and (4) whether the defendant was prejudiced by the delay.9 None of the four factors, standing alone, is necessary or sufficient to find a deprivation of the right to a speedy trial. 10
Harrison's stated enumerations of error focus on the prejudice factor of the Barker–Doggett test, and on one of the interests stemming from that factor, oppressive pretrial incarceration. However, because a Barker–Doggett analysis requires a balancing of all factors, our analysis, like the trial court's, will discuss them all.
The trial court in the instant case found that the length of the delay in Georgia was “approximately 22 months,” 11 and was presumptively prejudicial. “The pretrial delay is measured from the accused's arrest, indictment, or other formal accusation, whichever comes first ... to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion.” 12 “For serious crimes lacking unusual complexities, one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” 13
We agree that the delay was presumptively prejudicial, and move to a Barker–Doggett analysis to determine if Harrison's constitutional speedy trial rights were violated.
3. The Barker–Doggett Factors.
(a) Length of Delay. The first factor in a Barker–Doggett analysis presents the question of whether the delay was uncommonly
long.14 The trial court in the instant case made no such finding. 15 Harrison raises this point in the body of his appeal, but does not specifically cite it as an enumeration of error. Our state Supreme Court, in a similar instance, found that “inasmuch as the trial court has effectively weighed this factor in appellant's favor, it did not abuse its discretion.” 16 We also find no abuse of discretion.
(b) Reasons for the Delay. Analysis of this factor requires a determination of whether the government or the defendant is more responsible for the delay.17
At a hearing, the Forsyth County district attorney told the trial court that the delay occurred in part because she thought the case could be resolved with a plea, and because high turnover in the district attorney's office meant she had to carry a large caseload. “The district attorney told the court that [t]he delay was in no way specific to this Defendant or any attempt to try and ... force him into a pleading, or punishing him because of the fact that we could not resolve this case with a plea.” Harrison did not contest this rationale, nor did he allege any strategic or deliberate delay on the part of the state. Analysis of this factor turns on an assessment of a range of reasons for delay on the part of the state, including:
delay resulting from, or in spite of, the State's diligent prosecution of the case, which will rarely support a speedy trial claim, to deliberate delay to gain an improper advantage over the accused.... The latter will virtually always result in a dismissal of the case against the defendant, because it strikes at the very heart of the speedy trial guarantee. The delay in many cases lies with some type of official neglect, which falls within the middle of the spectrum.18
“Our cases reflect that negligence is entitled to minimal weight against the State only where it results either from the prosecution's inadvertent neglect of the case or from...
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