Nusser v. State

• Citation: 275 Ga. App. 896,622 S.E.2d 105
• Decision Date: 18 October 2005
• Docket Number: No. A05A1010.,A05A1010.
• Parties: NUSSER v. The STATE.
• Court: Georgia Court of Appeals

275 Ga. App. 896

622 S.E.2d 105

NUSSER v. The STATE.

No. A05A1010.

Court of Appeals of Georgia.

October 18, 2005.

Marny Heit, The Chestney-Hawkins Law Firm, Atlanta, for Appellant.

Carmen Smith, Solicitor General, Charles Hess, Jody Peskin, Asst. Solicitors General, for Appellee.

BERNES, Judge.

This is an appeal from the denial of Robert Aaron Nusser's motion for discharge and acquittal on constitutional speedy trial grounds. For the reasons set forth below, we conclude that the trial court did not abuse its discretion in denying Nusser's motion.

The record reflects that in the early morning of October 27, 2001, an officer with the Georgia Tech Police Department arrested Nusser for the offenses of driving under the influence of alcohol (OCGA § 40-6-391), failure to maintain lane (OCGA § 40-6-48), and no county decal (OCGA § 40-2-8(c)). Nusser was released on bond later that same day.

On April 29, 2003, the Fulton County Solicitor-General filed an accusation against Nusser in the State Court of Fulton County. Nusser's arraignment was set for September 5, 2003. Shortly before the arraignment, Nusser filed several motions in limine and requested a jury trial on the charged offenses.

Trial subsequently was scheduled for March 15, 2004. After receiving notice of the trial date, Nusser filed his motion for discharge and acquittal on constitutional speedy trial grounds on February 26, 2004.¹

The trial court proceeded with Nusser's motion on the date of trial. The trial court entertained oral argument from the parties, heard testimony from Nusser, and reviewed medical records submitted by Nusser. The trial court found that Nusser had failed to make a demand for a speedy trial in a sufficiently timely manner and failed to show any prejudice resulting from the delay between his arrest and trial. Based on these findings, the trial court held that the facts weighed in favor of concluding that Nusser's constitutional right to a speedy trial had not been violated. The trial court thus denied Nusser's motion, and Nusser thereafter filed this direct appeal.²

Nusser argues that he has been denied his constitutional 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. "We examine this claim under the four-part test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), considering (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant. See Brown v. State, 264 Ga. 803, 804(2), 450 S.E.2d 821 (1994)." Johnson v. State, 268 Ga. 416, 417(2), 490 S.E.2d 91 (1997).³ "[T]he factors should be considered together 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 v. Sutton, 273 Ga.App. 84, 85, 614 S.E.2d 206 (2005). Guided by these principles, we turn to an analysis of the four factors in this case.

The length of the delay. As a general rule, any delay approaching a year raises a threshold presumption of prejudice. Doggett v. United States, 505 U.S. 647, 652(II), n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); State v. Bazemore, 249 Ga.App. 584, 585(1)(a), 549 S.E.2d 426 (2001). Because the delay in this case was approximately 29 months from Nusser's arrest to the date of his scheduled trial, the trial court correctly concluded that the delay was presumptively prejudicial and weighed this factor in favor of Nusser.

The reason for the delay. The trial court concluded that this factor weighed in favor of Nusser, given that the only explanation provided for the delay was the high volume of cases routinely handled by the State Court of Fulton County. There is no evidence in the record that Nusser or the State sought any continuances, or that the State deliberately attempted to delay the case. Rather, at the pre-trial hearing on Nusser's motion, the State indicated that the delay involved in this case "unfortunately" was not "unusual" given the caseload levels maintained by the Fulton County courts.⁴ When the delay is caused by the State's negligence or by an overcrowded court system, a trial court is entitled to weigh that fact against the government, as the trial court did here. Barker, 407 U.S. at 531(IV), 92 S.Ct. 2182; Lett v. State, 164 Ga.App. 584, 585(2), 298 S.E.2d 541 (1982).

The defendant's assertion of the right. The trial court weighed the third Barker factor in favor of the State based on its finding that Nusser had failed to make a demand for a speedy trial in a timely manner. "[W]hile the state has a duty to bring [the defendant] to speedy trial, the defendant has a responsibility to assert that right." State v. Lively, 155 Ga.App. 402, 405, 270 S.E.2d 812 (1980). Even though a defendant is not procedurally barred from raising a constitutional speedy trial claim at any time up to the point of trial,⁵ a defendant's failure to assert his claim in a timely manner can be weighed heavily against him as part of the Barker analysis. Bass v. State, 275 Ga.App. 259, 261(4), 620 S.E.2d 184 (2005). Here, Nusser did not assert his right to a speedy trial until he filed his motion for discharge and acquittal on February 26, 2004, approximately 20 days before trial. "Because [Nusser] did not assert his constitutional rights until trial was imminent," we conclude that the trial court was authorized to weigh this factor in favor of the State. Thomas v. State, 233 Ga.App. 224, 226(2), 504 S.E.2d 59 (1998). See also Bass, 275 Ga.App. at 260-261(3), 620 S.E.2d 184 (failure to assert constitutional speedy trial right "until it appeared certain the case would be tried" weighed against defendant).

Nusser argues that the trial court failed to take account of the procedural history of the case as a whole in weighing this factor against him. Specifically, Nusser notes that the State failed to file an accusation against him for 18 months after his arrest. He contends that, as a result, he was unable to assert his right to a speedy trial during that period, apparently based on the assumption that the constitutional right to a speedy trial cannot be asserted until a defendant has been indicted or accused. Nusser also contends that he did not receive any notice that an accusation had been filed until he later received notice of the arraignment date, and that, consequently, he was procedurally barred from making a speedy trial demand under OCGA § 17-7-170(a).⁶

We find Nusser's contentions unpersuasive. Nusser has conflated his ability to assert his statutory speedy trial right under OCGA § 17-7-170 with his ability to assert his constitutional speedy trial right. "Unlike the statutory protections conferred by OCGA [§] 17-7-170. . . that attach with formal indictment or accusation," a defendant's constitutional speedy trial right "attaches upon arrest and can be asserted thereafter." Smith v. State, 266 Ga.App. 529, 532(3), 597 S.E.2d 414 (2004). See also Collingsworth v. State, 224 Ga.App. 363, 365-366(1), 480 S.E.2d 370 (1997); State v. Hight, 156 Ga.App. 246, 247, 274 S.E.2d 638 (1980). Likewise, the procedural bar created by the specific time deadlines found in the speedy trial statute do not apply to constitutional claims. See Callaway, 251 Ga.App. at 16, 553 S.E.2d 314. Hence, Nusser's contention that he could not have asserted his constitutional speedy trial right until after he was accused, and his assertion that he was procedurally barred from asserting his constitutional right by the time he received notice of the accusation, are simply incorrect. Nusser had ample time to assert his constitutional right to a speedy trial before his trial became imminent.

Additionally, Nusser argues that the trial court erred in weighing the third Barker factor against him because his demand for a jury trial, which was made approximately six months before the trial date, should have been treated by the trial court as the date upon which he asserted his constitutional right to a speedy trial. We disagree. "[A] demand for a jury trial. . . does not invoke either a constitutional or statutory right to a speedy trial." (Citations omitted.) State v. Johnson, 274 Ga. 511, 513(3), 555 S.E.2d 710 (2001). See also State v. Story, 209 Ga.App. 404, 406, 433 S.E.2d 599 (1993).

The prejudice to the defendant. Finding that Nusser failed to show any prejudice resulting from the delay between his arrest and trial date, the trial court weighed the fourth Barker factor in favor of the State. We find no error by the trial court. "The test for whether a defendant has been prejudiced requires the court to consider three interests: preventing oppressive pretrial incarceration, minimizing a defendant's anxiety and concern, and limiting the possibility that the defense will be impaired." (Footnote omitted.) Beasley v. State, 260 Ga.App. 74, 76(d), 579 S.E.2d 19 (2003). The most important component of the prejudice analysis is whether the defendant's ability to raise a defense was impaired by the delay. Bass, 275 Ga.App. at 261(4), 620 S.E.2d 184.

As an initial matter, there was no concern of oppressive pre-trial incarceration caused by the delay in this case because Nusser was released on bond on the same date he was arrested. See Nelloms v. State, 274 Ga. 179, 181, 549 S.E.2d 381 (2001). Nor did Nusser make a showing of any unusual anxiety and concern caused by the delay. "Anxiety and concern of the accused are always present to some extent, and thus absent some unusual showing are not likely to be determinative in defendant's favor." (Citation and punctuation omitted.) Mullinax v. State, 273 Ga. 756, 759(2), 545 S.E.2d 891 (2001).

Nusser's testimony that the delay had negative effects on his employment and ability to drive to...