Hughes v. State, 26865

• Decision Date: 19 January 1972
• Docket Number: No. 26865,26865
• Citation: 187 S.E.2d 135,228 Ga. 593
• Parties: Pressie HUGHES v. The STATE.
• Court: Georgia Supreme Court

Page 135

187 S.E.2d 135

228 Ga. 593

Pressie HUGHES v. The STATE.

No. 26865.

Supreme Court of Georgia.

Jan. 19, 1972.

Rehearing Denied Feb. 11, 1972.

Syllabus by the Court

1. To sustain appellant's contention that there was a violation of his constitutional right to a speedy trial, not only must delay be shown, but it must be shown that such delay was purposeful, oppressive or prejudicial, none of which was shown in this case.

2. There is no showing that any of appellant's various defense counsel were incompetent to advise him or to represent him, and the fact that he consistently refused to accept their advice does not render their assistance ineffective.

3. The trial court properly denied appellant's request for travel expenses for out-of-state alibi witnesses.

4. Positive, in-court identification of appellant was competent evidence, regardless of certain other disputed testimony, and the motion to strike such disputed testimony was properly denied.

Hester & Hester, Frank B. Hester, Richard M. Hester, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, David L. G. King, Jr., Asst. Attys. Gen., Atlanta, for appellee.

ALMAND, Chief Justice.

The appellant, Pressie Hughes, was tried by a jury on an indictment which charged him with three counts of armed robbery. He was convicted and sentenced to imprisonment for life on each count, the sentences to run concurrently, and he appeals from that judgment.

1. Enumeration of error 1 alleges the denial of appellant's right to a speedy trial in violation of the Constitutions of the United States of Georgia.

This court has stated that generally there are four factors to be considered in determining whether a failure to proceed swiftly to trial assumes due process proportions: (a) the length of delay, (b) the reason for the delay, (c) the prejudice to the defendant, and (d) waiver by the defendant. Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101; Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133.

(a) The length of delay.-Here, a period of approximately 20 months, elapsed between the date of appellant's indictment on November 21, 1969, and the date of his trial on July 27, 1971. During most of this time appellant was confined in the United States Penitentiary in Atlanta as the result of a previous conviction. Whether the delay between indictment and trial violated appellant's constitutional right to a speedy trial depends on the circumstances. The mere passage of time is not enough, without more, to constitute a denial of due process.

(b) The reason for delay.-Appellant's case appeared on the trial calendar of the Fulton County Superior Court approximately 12 times, and was continued each time until eventually he was tried. At each appearance the State was ready to try the case and so announced, and there is no indication whatsoever that any continuances were granted at the request of the prosecution. To the contrary, it is obvious that most of the delay was occasioned by the fact that appellant initially was without counsel, by the appointment of various defense attorneys, of which there were at least five in succession, and by their requests for additional time for preparation. It is also clear that the numerous appointments of defense counsel were necessitated by appellant's disagreements with them as to how to handle his case. Continuances were granted and new counsel appointed until appellant was satisfied to go to trial with his present counsel.

(c) The prejudice to appellant.-Appellant maintains that he was harmed by the delay in that three alibi witnesses died during the 20-month lapse. The contention is that these witnesses saw appellant in Jacksonville, Florida, on the day the robbery was committed in Atlanta and would have so testified. This contention, if true, shows no substantial prejudice to appellant, for the testimony of the deceased witnesses would have been merely cumulative. Appellant testified as follows at the trial: 'Q. Did you happen to see any of your relatives that day? A. Yes. Q. How many of them? A. My mother, my father, my sister, my neighbors. The ones I introduced to the court. All of those. Q. All right. Are all of those people dead? A. No.' Assuming this testimony to be accurate, these relatives and neighbors could have given the same testimony as the deceased witnesses.

(d) Waiver by appellant.-During the lengthy period from indictment to trial, the first indication by appellant that he wished to proceed to trial came on June 29, 1971, when he filed pro se a 'Motion to quash indictment and dismiss all charges' in which he gave as one of the reasons for the motion that he had been denied a speedy trial. During the same period several continuances were granted at the request of appellant's attorneys while he was present in court. We regard appellant's failure to demand trial during the first 19 months after his indictment, and his failure to object when continuances were granted, as a clear waiver of the right to a speedy trial during those 19 months.

'To sustain the prisoner's contention that there was a violation of his constitutional right to a speedy trial, not only must delay be shown, but that such delay was purposeful, oppressive, or prejudicial, none of which was shown in this case. See Sanders v. United States, 5 Cir., 416 F.2d 194, 196, cert. denied 397 U.S. 952, 90 S.Ct. 978, 25 L.Ed.2d 135.' Johnson v. Smith, 227 Ga. 611, 612, 182 S.E.2d 101, 103, supra.

2. Enumeration of error number 2 alleges the denial of appellant's right to the effective assistance of counsel in violation of the Constitutions of the United States and of Georgia.

As previously noted, at least five attorneys were appointed during the pendency of this case to represent appellant. The first was the public defender, but he was...