Simpson v. State

• Decision Date: 04 September 1979
• Docket Number: No. 57307,57307
• Citation: 258 S.E.2d 634,150 Ga.App. 814
• Parties: SIMPSON v. The STATE.
• Court: Georgia Court of Appeals

Page 634

258 S.E.2d 634

150 Ga.App. 814

SIMPSON v. The STATE.

No. 57307.

Court of Appeals of Georgia.

Argued Feb. 13, 1979.

Decided July 6, 1979.

Rehearing Denied July 19, 1979.

Certiorari Denied Sept. 4, 1979.

Galin & Friedman, Stanley H. Friedman, Savannah, for appellant.

Andrew J. Ryan, III, Dist. Atty., Robert M. Hitch, III, Stephen R. Yekel, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

After a shooting incident on November 4, 1974, which resulted in the death of one Barry Williams, defendant was arrested. A preliminary hearing was held during November of 1974 and he was bound over to the superior court on the charge of murder. He was indicted on January 14, 1975. He was tried by a jury on December 21, 1977, and found guilty of involuntary manslaughter in the commission of an unlawful act and sentenced to serve four years in a state penitentiary. A motion for new trial was filed and denied. Defendant appeals. Held :

1. Defendant first contends that the trial court erred in failing to dismiss the indictment against him for lack of a speedy trial. There is nothing in the record to indicate that defendant made a demand for trial prior to his motion to dismiss the indictment filed the day before trial.

Defendant argues that the 34 month delay between his arrest on November 4, 1974, and his arraignment in September of 1977 is a violation of his speedy trial rights. While Code Ann. § 27-1401 (Ga.L.1966, pp. 430, 431; 1977, pp. 1098, 1104) requires the court to fix a date on which the defendant shall be arraigned, no period of time is specified. Brand v. Wofford, 230 Ga. 750, 199 S.E.2d 231. In the present case, the record is silent as to arraignment with is alleged to have occurred in September of 1977, but an examination of the indictment reveals that defendant's attorney waived arraignment and entered a plea of not guilty on the day of trial.

The constitutional right to a speedy trial becomes operative when one becomes an accused and prosecution commences either by formal accusation or arrest. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1. While there is a burden on a defendant to protect his right to a speedy trial, failure to make such a demand under Code § 27-1901 does not amount to a waiver of Sixth Amendment rights. Sanders v. State, 132 Ga.App. 580, 208 S.E.2d 597. However, a defendant's assertion or failure to assert his statutory right is only one of the factors to be considered in determining whether or not his Sixth Amendment rights have been violated. Under the guidelines set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, four factors must be considered; (a) length of the delay, (b) the reason for the delay, (c) the defendant's assertion of the right, (d) actual prejudice to the defendant.

A three-year delay between arrest, indictment and trial is not a speedy trial. However, "(t)he mere passage of time is not enough, without more, to constitute a denial of due process." Hughes v. State, 228 Ga. 593, 595(la), 187 S.E.2d 135, 137. See also Sanders v. State, 132 Ga.App. 580, 208 S.E.2d 597, supra; Dansby v. State, 140 Ga.App. 104, 230 S.E.2d 64; Fleming v. State, 240 Ga. 142, 240 S.E.2d 37.

The record in the case is silent as to the reason for the delay. The Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, supra, points out that a deliberate attempt by the government to delay the trial in order to hamper the defense should be weighed heavily against the government while a more neutral reason such as negligence or overcrowded courts should be weighed less heavily although they are factors to be considered. As there is no allegation that the delay was a deliberate attempt to hamper the defense, we must next consider whether the delay was either oppressive or prejudicial in view of the state's apparent negligence in bringing defendant to trial. See McClendon v. State, 237 Ga. 655, 229 S.E.2d 427.

The only evidence contained in the record of defendant's objection to the delay or his assertion of his right to a speedy trial was his motion to dismiss the indictment which was filed on December 20, 1977. He was tried the following day. "Appellant's delay in asserting her right is a factor which we must weigh heavily against her. United States v. Greene, 578 F.2d 648 (5th Cir. 1978)." Haisman v. State, 242 Ga. 896, 897(2), 898, 252 S.E.2d 397, 399.

In Barker v. Wingo, supra, the court set forth the interests of an accused which were to be protected by the right to a speedy trial: (i) to prevent oppressive pre-trial incarceration, (ii) to minimize anxiety and concern of the accused, (iii) to limit the possibility that the defense will be impaired. In the present case, there was no oppressive pre-trial incarceration because the defendant was released on bond from November 1974 until he was tried. While the defendant may have been anxious and concerned, it appears that defendant was not anxious and concerned to go to trial and took his chances with the possibility that the murder charge would either be dropped or not be pursued by the state. See State v. Weeks, 136 Ga.App. 637, 222 S.E.2d 117. This belief is reinforced by defendant's admission that he did not retain counsel after his attorney died, but waited until he was notified that he was going to be arraigned in September 1977. Defendant's general allegation that his defense was impaired because of loss of witnesses and a failure of memories is insufficient to establish prejudice from delay in bringing him to trial. United States v. Zane, 489 F.2d 269 (5th Cir.) (cert. den. 416 U.S. 959, 94 S.Ct. 1975, 40 L.Ed.2d 310). As to his inability to locate his first attorney's file containing investigative notes, we find that defendant failed to act promptly to obtain his file when he learned that Mr. Johnson had died. When he was informed of his attorney's death, he should have taken action to prepare for his defense rather than wait to be arraigned before employing new counsel and then attempt to locate his file. See Haisman v. State, 242 Ga. 896, 252 S.E.2d 397, supra.

Thus, we have balanced each of the four factors as required by Barker v. Wingo, Supra, and find that the trial judge correctly held that defendant had not been denied his right to a speedy trial.

2. The defendant next contends that the trial court erred in refusing to give a written request to charge. Defendant had made a timely written request to charge on both Code Ann. § 26-1103(a) (Ga.L.1968, pp. 1249, 1276) (Involuntary Manslaughter in the Commission of an Unlawful Act) and Code Ann. § 26-1103(b), supra (Involuntary Manslaughter in the Commission of a Lawful Act in an Unlawful Manner). The trial court charged the provisions of Code Ann. § 26-1103(a), supra, but declined to charge the provisions of Code Ann. § 26-1103(b), supra. When the jury was recharged the judge gave Code Ann. § 26-1103(a) and (b). Apparently realizing that he had charged (b) the judge said: "Now, now. A person belay that, the last. Let me charge you this" and repeated Code Ann. § 26-1103(a). He then proceeded to instruct them that they could find the defendant guilty of murder, voluntary manslaughter or involuntary manslaughter in the commission of an unlawful act.

The transcript of the evidence at the trial does not support defendant's assertion that the provisions of Code Ann. § 26-1103(b), supra, should have been charged by the trial court upon defendant's written request. In the inception, the defendant was indicted and tried for the offense of murder. The trial court charged on the offense of murder and the lesser offenses of voluntary manslaughter and involuntary manslaughter in the commission of an unlawful act. A charge on justifiable homicide was also given. However, after deliberation the jury returned a verdict finding the defendant guilty of involuntary manslaughter in the commission of an unlawful act.

A witness for the state testified that he (a passenger) and the decedent were riding in decedent's automobile and went by a playground where decedent got out and talked to the defendant. After they talked the decedent came back, got into his automobile and he and the witness drove to defendant's home where they parked in front of defendant's home until the defendant could get there. This witness was seated on the passenger's side and the decedent on the driver's side. The witness further testified that the defendant "came by and said he would be right back in a minute, so he passed on by the car and went into the house. Me and Barry (decedent) were sitting in the car talking. . . . and then Dike (defendant) came out of the house, he walked up to the car, reached in and pulled out a gun . . . (a)nd he just started pulling the trigger. He shot one time and I jumped out of one side of the door and Barry (decedent) was jumping out behind me. I stood up and started to run and Barry (decedent) was standing in the parking (sic) holding himself, his shoulder, neck something like that, you know. He was holler'n (sic), so Dike (defendant) came around and got in front of his head and started shooting."

The evidence at trial revealed that the decedent suffered four gunshot wounds. "One bullet entered the right side of the nose, passed to the left, exited just to the front of the left ear. The second bullet entered the right cheek and exited through the mouth knocking out several teeth . . . There were two wounds on the left side of the chest and a through and through wound on the left forearm. The bullet which pierced the forearm entered the left chest and passed transversely across the chest, came to rest . . . under the skin of the upper chest of the right chest. The other bullet entered the left chest and penetrated the liver, coming to rest under the skin of the right chest."

The testimony of the defendant was that the decedent had hit him on...