Rackoff v. State, A05A1454.

• Decision Date: 05 October 2005
• Docket Number: No. A05A1454.,A05A1454.
• Citation: 621 S.E.2d 841,275 Ga. App. 737
• Parties: RACKOFF v. The STATE.
• Court: Georgia Court of Appeals

275 Ga. App. 737

621 S.E.2d 841

RACKOFF v. The STATE.

No. A05A1454.

Court of Appeals of Georgia.

October 5, 2005.

Robert W. Chestney, The Chestney Hawkins Law Firm, Atlanta, for Appellant.

Gerald N. Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Assistant Solicitor-General, for Appellee.

ELLINGTON, Judge.

Stewart Daniel Rackoff was accused of driving under the influence in a June 2001 incident. Rackoff appeals the trial court's January 20, 2005 order denying his motion for discharge and acquittal on the grounds that the state violated his constitutional right to a speedy trial. He also claims the trial court erred by denying (i) his motion to strike the inspection certificate of the instrument used to perform his breath test and (ii) his motion to exclude the results of his breath test on the grounds that he was refused access to counsel. We discern no error and affirm.

1. Rackoff claims the trial court erred in denying his motion for discharge and acquittal on the grounds that he was denied his Sixth Amendment right to a speedy trial. We disagree.

In reviewing the trial court's finding that Rackoff was not denied his constitutional right to a speedy trial, the issue is whether the trial court abused its discretion in balancing the four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. Johnson, 274 Ga. 511, 512, 555 S.E.2d 710 (2001). "Those four factors are (1) the length of the delay; (2) the reason for the delay and whether this is attributable to the defendant or the state; (3) the timeliness of the defendant's assertion of the right to a speedy trial; and (4) prejudice to the defendant. These factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (Citations and punctuation omitted.) Id.

(a) The first Barker factor is the length of the delay. Rackoff was arrested on June 9, 2001 and filed his motion for acquittal on January 11, 2005, a week before his scheduled bench trial. The trial court acknowledged that the case was "pending longer than is normal in this division." Given that 43 months passed from Rackoff's arrest and his motion for discharge and that Rackoff's case was not brought to trial within the normal time frame, the trial court properly proceeded to examine the three remaining Barker factors, as required when the delay is found to be presumptively prejudicial. See State v. Redding, 274 Ga. 831, 832, 561 S.E.2d 79 (2002) (27-month delay raises presumption of prejudice). Compare Wimberly v. State, 279 Ga. 65, 66, 608 S.E.2d 625 (2005) (a threshold showing that a defendant's case was not prosecuted with customary promptness triggers an inquiry using the Barker factors).

(b) The trial court considered the reasons for the delay, the second factor, by examining the procedural history of the case. Rackoff's case was originally scheduled to be heard in the Duluth City Court in August 2001, but was subsequently bound over to the State Court of Gwinnett County after Rackoff demanded a jury trial. In March 2002, Rackoff filed a motion in limine to exclude the results of the breath test, and the trial court granted the motion in May 2003. After granting the state's application for an interlocutory appeal, we reversed the trial court's order granting Rackoff's motion in limine on November 14, 2003.¹ The trial court received the remittitur on January 8, 2004. After his case was placed on the two week jury calendar, Rackoff waived his right to a jury trial, and the trial court granted his request for a bench trial. At an April 7, 2004 hearing, the trial court heard additional pre-trial motions from Rackoff. The trial court denied the motions on September 10, 2004. Rackoff's trial was subsequently set for January 18, 2005.

Rackoff contends that most of the delay in reaching trial was caused by the state, and that the reason for the delay is a factor that should be weighed in his favor. In particular, Rackoff points to the delay caused by the state's decision to file an interlocutory appeal. Compare Mullinax v. State, 273 Ga. 756, 759(2), 545 S.E.2d 891 (2001) (defendant compounded the delay in indictment by filing an interlocutory appeal of the trial court's decision on a bond petition). However, the delay caused by the state's successful appeal must be considered benign because there is no evidence that the delay was attributable to the state's negligence or the state's deliberate attempt to delay the trial to hamper the defense. See id. (no evidence state's negligence or deliberate act caused delay in indicting defendant). The remainder of the delay was largely attributable to the trial court's consideration of Rackoff's pre-trial motions, and the state cannot be faulted on this account. See, e.g., Abiff v. State, 260 Ga. 434, 435(2), 396 S.E.2d 483 (1990) (delay mostly caused by defendant's efforts in pursuing motion to acquit and not any acts of the state). We conclude that the circumstances for the delay in bringing Rackoff's case to trial are "essentially neutral in determining whether appellant has been deprived of his right to a speedy trial." Crapse v. State, 180 Ga.App. 321, 324(1)(b), 349 S.E.2d 190 (1986).

(c) The third factor is the timeliness of the defendant's assertion of the right to a speedy trial. The trial court considered that Rackoff waited until January 2005 to assert his right to a speedy trial, a delay of 43 months from his arrest. See Watkins v. State, 267 Ga.App. 684, 685-686(c), 600 S.E.2d 747 (2004) (delay of 42 months from date of arrest to raising of constitutional right to speedy trial weighed against defendant). "While the defendant has a right to speedy trial, society has a corresponding equivalent right to bring him to trial; and while the state has a duty to bring him to speedy trial, the defendant has a responsibility to assert that right." (Citation and punctuation omitted.) Collingsworth v. State, 224 Ga.App. 363, 366(1), 480 S.E.2d 370 (1997). Rackoff failed to make a timely assertion of his right to a speedy trial, and the failure "is entitled to strong evidentiary weight against [him]." (Punctuation and footnote omitted.) Watkins, 267 Ga.App. at 686(c), 600 S.E.2d 747.

(d) The final Barker factor is prejudice. For purposes of analyzing prejudice, the courts have identified three interests: "(i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired." (Citation and punctuation omitted.) Chappell v. State, 272 Ga.App. 1, 3, 611 S.E.2d 157 (2005). As the delay also raised the presumption of prejudice, the length of the delay is "considered a second time by factoring it into the prejudice prong of the Barker analysis." (Citation omitted.) State v. Johnson, 274 Ga. at 512(1), 555 S.E.2d 710. The trial court concluded that Rackoff failed to show prejudice attributable to the delay apart from the normal stress and worry associated with a pending criminal case.

Rackoff admits he was not incarcerated while awaiting trial, but contends that he did present evidence of his anxiety and concern through his affidavit showing his "enormous amount of stress and concern" as he awaited the outcome of the case. However, "[a]nxiety 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, 273 Ga. at 759(2), 545 S.E.2d 891. Having reviewed the record in this case, we conclude the trial court was authorized to find Rackoff failed to show such an unusual level of anxiety and concern.

Rackoff also claims his defense was impaired by the disappearance of the witness who was present in the car with him when he was arrested. According to Rackoff's affidavit, the witness told Rackoff that he was moving "back up north, and that he would call [Rackoff] with his new contact information," but Rackoff never heard from him. "If witnesses die or disappear during a delay, the prejudice is obvious." Barker, 407 U.S. at 532, 92 S.Ct. 2182. The affidavit does not show, however, that Rackoff attempted to locate the witness. Rackoff's lack of knowledge as to the location of the witness is not equivalent to a showing that the witness had "disappeared." See Buxton v. State, 253 Ga. 137, 140(4), 317 S.E.2d 538 (1984) (no effort was made to secure the presence of two witnesses claimed to be unavailable); Shuler v. State, 263 Ga.App. 124, 127(4), 587 S.E.2d 269 (2003) (defendant showed he was unable to reach two witnesses but not that they would be unavailable for trial). Accordingly, the trial court's conclusions as to the lack of prejudice are warranted by the evidence.

Because the reasons for the delay in bringing Rackoff's case to trial were neutral, Rackoff failed to timely assert his right to a speedy trial, and Rackoff failed to show prejudice attributable to the delay other than his stress and concern in awaiting trial, we conclude the trial court did not abuse its discretion in balancing the Barker factors and denying Rackoff's motion for discharge and acquittal.

2. Rackoff claims the trial court erred in denying his motion to strike the inspection certificate of the instrument used to conduct his breath test because he was denied his constitutional right to confront the witnesses against him. We disagree.

"Unless a recognized exception applies, hearsay testimony is inadmissible. When an affidavit contains material not admissible in evidence, it is subject to a motion to strike. Absent a finding of an abuse of discretion, a trial court's decision to admit testimony as an exception to the rule against hearsay will not be disturbed." (Citations omitted.) Intl. Biochemical Indus. v. Jamestown Mgmt. Corp., 262 Ga.App. 770, 776(3), 586 S.E.2d 442 (2003).

The inspection certificate at issue here was prepared under...