Nairon v. State
| Decision Date | 12 October 1994 |
| Docket Number | No. A94A0964,A94A0964 |
| Citation | 215 Ga.App. 76,449 S.E.2d 634 |
| Parties | NAIRON v. The STATE. |
| Court | Georgia Court of Appeals |
Joseph B. Nairon, pro se.
Robert E. Turner, Sol., Cynthia T. Adams, Asst. Sol., for appellee.
Nairon was convicted by a jury of exceeding the maximum motor vehicle speed limit in violation of OCGA § 40-6-181.
1. Nairon claims the trial court erred in denying his motion to dismiss the speeding charge because he was denied the right to a speedy trial under Art. I, Sec. I, Par. XI of the Georgia Constitution and under the Sixth Amendment to the United States Constitution. Nairon was stopped and issued a citation for speeding on July 2, 1991. He was released by the arresting officer immediately after the citation was issued. Nairon was arraigned and pled not guilty on August 18, 1991. On December 2, 1991, he filed a demand for a speedy trial pursuant to the Georgia and United States Constitutions. He was tried by a jury and convicted on March 23, 1992.
The same speedy trial standards apply to claims under the Georgia and United States Constitutions. Fleming v. State, 240 Ga. 142, 144, 240 S.E.2d 37 (1977). 1 (Citations and punctuation omitted.) State v. Auerswald, 198 Ga.App. 183, 184, 401 S.E.2d 27 (1990).
(a) Length of delay. Almost nine months passed between the date the speeding charge was made and the date of the trial. The passage of this length of time is not alone sufficient to establish a constitutional violation of the right to a speedy trial. Id. Nevertheless, we will assume for purposes of this case that the length of the delay was sufficient to trigger inquiry into the other Barker factors. Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192.
(b) Reason for delay. It appears a large part of the delay was attributable to the number of older cases ahead of Nairon on the trial court's docket. There is no evidence that the State deliberately delayed the trial in an effort to gain a tactical advantage. McClanahan v. State, 196 Ga.App. 737, 738, 397 S.E.2d 24 (1990).
(c) Assertion of right. The greater part of the nine-month delay occurred during the five months that expired between the speeding charge and Nairon's assertion of his right to a speedy trial. The defendant's delay in asserting the right to a speedy trial is a factor which weighs against the claim. Haisman v. State, 242 Ga. 896, 898-899, 252 S.E.2d 397 (1979).
(d) Prejudice to the defendant. Nairon was not incarcerated prior to his trial on the speeding charge. Any anxiety he expressed was associated with the difficulty of scheduling his business appointments around his pro se pre-trial and trial appearances in court. Sometime prior to trial, Nairon lost his briefcase containing trial preparation materials and apparently claims that the delay caused or contributed to the loss of these materials and prejudiced his defense. We find no evidence that the delay caused Nairon to lose his briefcase or caused other actual, substantial prejudice to the defendant. State v. Story, 209 Ga.App. 404, 406, 433 S.E.2d 599 (1993).
Considering all of the above factors, the trial court did not abuse its discretion in refusing to dismiss the case. Vick v. State, 211 Ga.App. 735, 737-738, 440 S.E.2d 508 (1994).
2. Nairon contends the trial court erroneously admitted evidence of radar test results showing he was traveling 77 mph in a 65-mph zone without first requiring the State to lay a proper foundation.
While the State was attempting to lay a foundation for the admission of radar test results, Nairon prematurely objected to the admission of the test results. As the trial court noted, the State had not introduced radar evidence at that point and was in the process of attempting to lay a foundation to support admission of the evidence. Subsequently, the State did introduce evidence of the radar test results without any concurrent objection from Nairon. Under Carver v. State, 208 Ga.App. 405, 406, 430 S.E.2d 790 (1993), "a defendant must invoke an evidentiary ruling on the admissibility of radar evidence in order to preserve the adverse ruling on their objection for appeal." Carver was decided after the March 1992 trial in the present case and overruled Johnson v. State, 189 Ga.App. 192, 375 S.E.2d 290 (1988), which held that no objection to radar evidence at trial was necessary in order to preserve the admissibility issue for appeal. Accordingly, we will apply the rule existing when the case was tried and address Nairon's arguments regarding the admissibility of the radar evidence, despite his failure to object when the evidence was introduced. See Grant v. State, 251 Ga. 434, 306 S.E.2d 265 (1983).
Nairon argues the State failed to show that the county law enforcement agency possessed a license to operate the device in compliance with Federal Communications Commission (FCC) rules as required by OCGA § 40-14-4. See Wiggins v. State, 249 Ga. 302, 304, 290 S.E.2d 427 (1982). The State introduced a copy of the Department of Public Safety (DPS) permit issued to the Houston County Sheriff's Department for the use of the radar speed detection device at issue. The DPS permit "constitute[s] presumptive evidence of compliance with...
To continue reading
Request your trial
-
State v. Johnson, S01A0991.
...that the State possessed the original 911 tape and that defense counsel only lost a copy of the tape. Compare Nairon v. State, 215 Ga.App. 76, 77(1)(d), 449 S.E.2d 634 (1994); Ould v. State, 186 Ga.App. 55, 57(2)(d), 366 S.E.2d 392 (1988). In its ruling, the trial court never found that the......
-
Levin v. State
...supra at 812–813 (1) (e), 792 S.E.2d 101 ; Smith v. State , 336 Ga. App. 229, 236 (2) (c), 784 S.E.2d 76 (2016) ; Nairon v. State , 215 Ga. App. 76 (1), 449 S.E.2d 634 (1994). 3. Levin contends that the trial court erred by denying his motion to disqualify or recuse the judge in his case. H......
-
Stewart v. the State.
...of the delay was attributable to the number of older cases ahead of [Stewart] on the trial court's docket.” Nairon v. State, 215 Ga.App. 76, 76–77(1)(b), 449 S.E.2d 634 (1994). However, the delay during this time was also partly attributable to Stewart's counsel's leave of absence that span......
-
Nusser v. State
...in a balancing test of the conduct of the prosecution and the defendant." (Citations and punctuation omitted.) Nairon v. State, 215 Ga.App. 76(1), 449 S.E.2d 634 (1994). Absent an abuse of discretion, we must affirm the trial court's balancing and weighing of the four Barker factors. State ......