Perry v. Mitchell, 41200

• Decision Date: 07 November 1984
• Docket Number: No. 41200,41200
• Court: Georgia Supreme Court
• Parties: PERRY v. MITCHELL.

Page 273

322 S.E.2d 273

253 Ga. 593

PERRY v. MITCHELL.

No. 41200.

Supreme Court of Georgia.

Nov. 7, 1984.

Rehearing Denied Dec. 4, 1984.

Walter W. Ballew III, Calhoun, Hubbard, Riddle & Cox, P.C., Savannah, for Charles Perry.

Spencer Lawton, Jr., Dist. Atty., Savannah, Fred S. Clark, Oliver R. Hunter, for Walter Mitchell, Sheriff.

HILL, Chief Justice.

On April 6, 1984, Charles Perry filed a petition for habeas corpus in the Superior Court of Chatham County in which he complained that he had been incarcerated for over 2 years without having been brought to trial. Although Perry is the petitioner in habeas corpus, he will be referred to herein as the defendant. The record of this case discloses the following facts.

The defendant was arrested for the murder of his grandmother on January 22, 1982, and attorney Roy Allen was appointed to represent him on January 27. A bond hearing was set for February 19 but Allen did not appear. Bond was denied on March 25, and the defendant was indicted on April 12. He was arraigned and pled not guilty on May 3, 1982.

The defendant filed a pro se petition for habeas corpus in federal district court on February 2, 1984, and on March 14, Walter Ballew was appointed by the district court to represent him in his federal habeas corpus action. An evidentiary hearing was held in district court on March 26, 1984. Kaye Jackson, the assistant district attorney (ADA) for Chatham County who was currently in charge of the criminal case, testified at the March 26 hearing. According to Jackson, the case was originally assigned to ADA Neal Manson, and then to Vie Bennett, before it was assigned to her. Allen filed certain motions on behalf of the defendant on May 3, 1982, when he was arraigned and pled not guilty. They were apparently set for hearing on June 21, 1982, but for an unexplained reason were not heard on that date. Sometime during July of 1982, ADA Manson turned the case over to Bennett. ADA Bennett fell seriously ill that fall and the motions were finally heard on November 1, 1982.

Because Allen was a member of the legislature, no action was taken from January through March of 1983. Sometime between March and July of 1983, Allen withdrew as counsel. A motion hearing scheduled for July 18, was therefore continued. Guerry Thornton was appointed to represent the defendant on July 21, 1983. Following Thornton's appointment, ADA Bennett promptly wrote him a letter on July 25 saying, "I understand that you've been appointed; please contact me to go over the file." Thornton did not meet with the defendant until the first week in September and was unable to meet with Allen until sometime in October. A motions hearing set for November 21 was continued at Thornton's request. Meanwhile, ADA Bennett had the trial scheduled for December 6, 1983, and so notified Thornton; the trial was continued, however, on Thornton's motion. He did not seek to have the case set for a date certain.

ADA Jackson received the file on January 11, 1984. Thornton filed certain discovery motions on January 31, and then, on February 15, filed a motion to withdraw. The motion was granted and on March 2, 1984, Gordon Smith was appointed to represent the defendant. ADA Jackson had scheduled a motions hearing for March 9, which was continued on Smith's motion. By March 26, 1984, Smith had filed a motion to withdraw, apparently based on the erroneous belief that Ballew had been appointed to represent the defendant on the state criminal charges. On April 4, 1984, the district court denied relief because the defendant had failed to exhaust his available state remedies, citing, inter alia, Rose v. Lundy, 455 U.S. 509, 102 S.C. 1198, 71 L.Ed.2d 379 (1982).

On April 6, 1984, Ballew filed the state habeas petition on behalf of the defendant which underlies this appeal. A transcript of the hearing in district court and a copy of its order dismissing the petition were introduced as evidence in the state habeas. On April 27, 1984, the defendant's state petition for habeas corpus relief was denied. On May 2, 1984, the defendant was tried for and found guilty of murder. This is his appeal from the denial of the state habeas petition.

The defendant and the state agree that the trial court was correct in utilizing the analytical framework set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to decide this case. Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760 (1975); Hall v. Hopper, 234 Ga. 625(1), 216 S.E.2d 839 (1975). They disagree, however, as to the result reached.

In Barker v. Wingo, supra, the Court began its analysis from these propositions: "A defendant has no duty to bring himself to trial; the State has that duty...." Barker v. Wingo, supra, 407 U.S. at 527, 92 S.Ct. at 2190. "This does not mean, however, that the defendant has no responsibility to assert his right." Id. at 528, 92 S.Ct. at 2191. "But ... the primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial." Id. at 529, 92 S.Ct. at 2191.

The Barker Court then identified four factors by which to evaluate claims that the right to a speedy trial guaranteed by the Sixth Amendment has been violated. The factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. The Court in Barker noted that this fourth factor protects three of the defendant's interests: (a) to prevent oppressive pretrial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.

Applying these factors to this case, we find as follows: While the length of the delay (2 years, 3 months and 10 days) from arrest to trial is deplorable, especially because the defendant remained in jail, the reason for the delay does not, in this case, evidence that most serious abuse--"A deliberate attempt to delay the trial in order to hamper the defense...." Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192. Thus the delay need not "be weighted heavily against the government." Id. Nor, on the other hand, has the government shown "a valid reason, such as a missing witness," which would justify the delay. Id. Thus, to the extent the reason for delay is attributable to the state, it is a relatively benign but definitely negative factor.

In this case, however, to a considerable extent the reason for the delay is attributable to the defense. Three motions hearings and one trial setting were continued at the request of or due to the withdrawal of defense counsel. We are troubled by the fact that in part the delay appears to have been occasioned by a lack of attention to defendant's interests by his first two appointed attorneys rather than to a defensive strategy. As the district court stated in its order: "The fact that [the defendant's] attorneys may not have been diligent in protecting [his] constitutional right to a speedy trial is no excuse for the failure of the State to intervene and prevent an egregiously-long period of pretrial...