Jackson v. State

• Citation: 614 S.E.2d 781,279 Ga. 449
• Decision Date: 16 June 2005
• Docket Number: No. S05A0216.,S05A0216.
• Parties: JACKSON v. The STATE.
• Court: Supreme Court of Georgia

279 Ga. 449

614 S.E.2d 781

JACKSON v. The STATE.

No. S05A0216.

Supreme Court of Georgia.

June 16, 2005.

Rodney Samuel Zell, Zell & Zell, P.C., Atlanta, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty.; Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., Dept. of Law, Atlanta, for appellee.

BENHAM, Justice.

This appeal is from Terry Robert Jackson's conviction for malice murder.¹ Jackson was indicted in 1999 for the 1975 shooting death of Atlanta police detective Samuel Guy who was working off-duty as a security guard at a hotel when it was robbed. Jackson and an accomplice, Wilkinson, were identified by an informant named Larry Smith in 1982, but were not indicted until after Wilkinson's former wife, Myrtle Rutledge, came forward in 1998 and identified Jackson and Wilkinson as the perpetrators of the robbery and murder. While Jackson and Wilkinson were jointly indicted, the State consented to severance and elected to try Wilkinson first. Wilkinson pled guilty to aggravated assault pursuant to an agreement to testify. At Jackson's trial in July 2002, Wilkinson testified he and Jackson robbed a motel and Jackson exchanged shots with Guy, shooting Guy in the leg. Rutledge testified Wilkinson told her the morning after the robbery that Jackson had shot a security guard during the robbery. She also identified Wilkinson and Jackson from photographs dating from the 1970s and testified Jackson drove a small red car. Larry Smith testified he saw Jackson and Wilkinson on the street shortly after the robbery and Jackson, who was driving a red Dodge Dart, told him he had shot a security guard during a robbery. Testimony from a medical examiner established that Guy was shot in the leg and the shoulder and died from those wounds, chiefly from loss of blood due to the leg wound. Testimony from a firearms examiner concerning the location of shell casings and bullets at the crime scene corroborated Wilkinson's testimony regarding the robbery and Jackson's role as the one who shot Guy. Jackson was convicted of malice murder and two counts of felony murder and was sentenced for malice murder.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Jackson guilty beyond a reasonable doubt of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Jackson contends that the elapse of 24 years between the murder and his indictment denied him due process of law under the Fifth and 14th Amendments.

[A]n inordinate delay between the time a crime is committed and the time a defendant is arrested or indicted may violate due process guarantees under the Fifth and Fourteenth Amendments. [Cit.] To find a due process violation where a delay precedes arrest and indictment, courts must find 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage. [Cits.]

Wooten v. State, 262 Ga. 876(2), 426 S.E.2d 852 (1993). Jackson claims to have shown actual prejudice to his defense from the passage of time, but does not contend that he can satisfy both parts of the test stated in Wooten. Instead, he argues Wooten was wrong in requiring a dual showing and in requiring a showing of deliberate action designed to gain a tactical advantage because this Court misinterpreted the decisions of the U.S. Supreme Court in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) and United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, the Marion court plainly stated as the basis of its ruling both parts of the test adopted in Wooten: "No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them." United States v. Marion, 404 U.S. at 325, 92 S.Ct. 455. In Lovasco, the U.S. Supreme Court made clear that establishment of both parts of the test is required: "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and ... the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." United States v. Lovasco, supra, 431 U.S. at 790, 97 S.Ct. 2044. In the discussion of reasons for delay, the Court carefully distinguished "investigative delay," which is acceptable, from "delay undertaken by the Government solely `to gain tactical advantage over the accused' [Cit.]" (id. at 795, 97 S.Ct. 2044), which is not acceptable. We conclude, therefore, that Wooten's adoption of a two-part showing of prejudice and intentional delay for tactical advantage was based on a correct reading of the authority on which it was founded and applies to the present case.

The prejudice asserted by Jackson is that his defense was weakened by the absence of witnesses who had died or could no longer be found and by the time-attenuated memories of witnesses who testified. "However, `any prejudice which results merely from the passage of time cannot create the requisite prejudice.' [Cit.]" Roebuck v. State, 277 Ga. 200(4), 586 S.E.2d 651 (2003). Jackson "has not demonstrated any prejudice which would not be expected due to the passage of time. After all, the possibility that memories will fade, witnesses will disappear and evidence will be lost are inherent in any extended delay. [Cit.]" Henderson v. State, 272 Ga. 621 (fn.3), 532 S.E.2d 398 (2000). We conclude, therefore, that Jackson has not borne his burden of showing the actual prejudice to his defense arising from delay which would satisfy the first prong of the test set out in Wooten. Since, as we held above, the test requires that both prongs be satisfied, Jackson's failure to satisfy the first obviates any need to consider the reasons for the delay.² Accordingly, we hold the trial court did not err in denying Jackson's motion to dismiss the indictment for a violation of his right to due process based on pre-indictment delay.

3. Jackson also contends he was denied his Sixth Amendment right to a speedy trial by the passage of 20 months between his arrest and his assertion of his right to a speedy trial. Jackson bases his argument on the traditional balancing process of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the four factors to be considered are the length of the delay, the reason for the delay and whether this is attributable to the defendant or the state, the timeliness of the defendant's assertion of the right to a speedy trial, and prejudice to the defendant. We begin with consideration of the length of delay because "engagement in the balancing process is contingent upon the defendant having shown the delay since his arrest or indictment is `presumptively prejudicial.'" Wimberly v. State, 279 Ga. 65, 66, 608 S.E.2d 625 (2005). The trial court's order is silent on the issue, but Jackson asserts a delay of 20 months is presumptively prejudicial, citing Boseman v. State, 263 Ga. 730(1b), 438 S.E.2d 626 (1994) (27-month delay met the threshold presumption of prejudice). However, as we noted recently, "[t]he assumption that a delay is presumptively prejudicial is improper .... [T]he length of delay that will provoke the inquiry into the other factors is necessarily dependent upon the peculiar circumstances of the case. The delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Wimberly v. State, supra, 279 Ga. at 66, 608 S.E.2d 625. The peculiar circumstances of the present case include that it was a multi-defendant prosecution for the murder of a police officer 24 years earlier involving vigorous litigation of a broad range of defense motions. Though less than a "complex conspiracy charge," the challenges presented by the passage of time made it more than an "ordinary street crime." Considering that several of the murder prosecutions brought to this Court over the past three years have featured pre-trial delays ranging from 20 to 49 months,<sup>3</sup> "[t]he `peculiar circumstances' of this case authorize a finding that [Jackson]'s case is being prosecuted with the promptness customary" in such cases. Wimberly v. State, supra, at 67, 608 S.E.2d 625. However, notwithstanding that the circumstances of the case warrant a finding that the 20-month delay was not presumptively prejudicial, an abundance of caution prompts us to consider the other factors in the balancing process of Barker v. Wingo, supra.

The next factor to be addressed after the length of the delay is the reason for the delay. Jackson cites as the reasons for delay several transfers of the case to different judges and prosecutors, co-defendant Wilkinson's change of attorney and motion for severance, and discovery disputes. Of the transfers of the case to different judges, one occurred as a result of a motion to recuse by Wilkinson, not attributable to the State or to Jackson, but another transfer resulted from Jackson's motion to recuse. Any delay from that transfer weighs more heavily against Jackson. While Jackson points to changes in prosecutors assigned to the case as causes of delay, since he does not suggest how those changes resulted in delay or that any delay for that reason was deliberate, we regard those changes as neutral. Delay attributable to Wilkinson's change of counsel and motion for severance cannot fairly be weighed against either side. The State's choice after severance to try Wilkinson, who remained incarcerated, before Jackson who was on bond weighs against the State, but since Wilkinson pled guilty, the delay for that purpose was minor. Reviewing the record of discovery disputes, we note that while both sides of the litigation appear to have expanded the scope of the discovery issues unnecessarily, the State...