Smith v. State
| Decision Date | 13 July 2016 |
| Docket Number | A16A0519 |
| Citation | 338 Ga.App. 62,789 S.E.2d 291 |
| Parties | Smith v. The State. |
| Court | Georgia Court of Appeals |
Gregory Allen Willis, Atlanta, for Appellant.
R. Leon Benham, Carmen D. Smith, Atlanta, for Appellee.
, Judge.
In the second appearance of this case before this court, Jason Smith appeals from his conviction of driving with a blood alcohol level of 0.08 grams or more in violation of OCGA § 40–6–391 (a) (5)
(DUI per se). Smith contends that we must once again remand this case to the trial court for entry of an order with adequately supported factual findings and the correct balancing of the four speedy trial factors outlined in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). He asserts in the alternative that we should conclude that the trial erred by failing to grant his motion for an acquittal based upon a violation of his federal and state constitutional rights to a speedy trial. For the reasons explained below, Supreme Court of Georgia precedent requires us to vacate the trial court's order denying Smith's motion for discharge and acquittal and remand this case again to the trial court.
The record shows that on May 5, 2007, Smith was arrested for DUI less safe and DUI per se following an accident on an interstate highway. He was convicted of DUI per se in a bench trial on June 1, 2012, five years and 28 days later. Smith was not incarcerated during this time period as he was released on bond the day after this arrest.
Following his arrest, Smith was instructed to appear in the City of Atlanta Municipal Court on May 7, 2007. According to representations of the State during the hearing on the motion for discharge and acquittal, the case remained in municipal court through February of 2008, at which time it was transferred to Fulton County State Court. The State asserted that some of the transfer delay was “for the defense to review the video; for the defense to consider the offer; not within the defense's control, but I believe there was a family member that was ill.” We cannot determine from the record before us whether Smith was represented by counsel while the case was pending in municipal court.
On August 13, 2008, 15 months after Smith's arrest, the State filed an accusation against him charging him with DUI less safe and DUI per se. On October 2, 2008, Smith's counsel filed various motions seeking discovery from the State, including source code information for the Intoxilyzer 5000 machine that was used to test his breath on the day of his arrest.
The case appeared on a bench trial calendar published on November 13, 2008, but there was no date for the trial specified.1 According to the parties, the case was “reset” because Smith did not waive his right to a jury trial. The State had not yet responded to Smith's discovery requests at the time this bench trial notice was issued. On the same day the notice was published, Smith filed a motion asking that the clerk be ordered to release his surety under OCGA § 17–6–31 (e)
because the State had failed to try him within one year after he posted bond on his misdemeanor arrest (May of 2007). The trial court granted this motion on December 2, 2008.
On January 5, 2009, Smith's counsel filed a request for leave of absence for a series of 12 dates from February through June of 2009. The reason for one request was a seminar, and the remaining 11 were for unspecified personal leave.2
On March 4, 2009, the case was placed on jury trial calendar beginning Monday, May 4, 2009. We cannot determine from the record before us whether the leave of absence requests delayed the scheduling of trial between the previous November 2008 bench trial notice and the first jury trial date of May 4, 2009. At the time the court scheduled the jury trial, however, it still had not ruled upon the motion filed by Smith five months earlier requesting an order determining the relevance and materiality of the source code.
On April 23, 2009, 11 days before the first scheduled jury trial date and over 6 months after Smith's request, the State filed a response to Smith's discovery requests and produced a witness list, a copy of the accusation and uniform traffic citations, a copy of the incident report concerning his arrest, and a copy of the intoxilyzer slip. According to the State, the case was not reached on the May jury trial calendar. There is no evidence that Smith sought a continuance of the case on that date for any reason.
Between May 2009 and August 31, 2011, the case was not scheduled for trial, and the trial court still had not ruled upon Smith's motion for an order determining the source code to be material and relevant.3 We cannot determine from the record before us whether the leaves of absence requests during this time frame resulted in the case not being placed on a trial calendar for approximately 15 months.4
On August 31, 2011, the case was set on a trial calendar beginning Thursday, September 22, 2011. On September 9, 2011, defense counsel attempted to serve a subpoena upon CMI, Inc. in Kentucky seeking production of source code information at the trial scheduled for September 22, 2011. On the same day as the scheduled September trial, Smith filed a request for issuance of an out-of-state subpoena to CMI, Inc. along with a proffer of the need for source code evidence, which included a copy of an expert witness affidavit submitted in an unrelated criminal case. We cannot determine from the record why the case was not tried on this date, but the trial court had still not ruled upon Smith's motion seeking a determination that the source code was material and relevant.
On October 6, 2011, the trial court issued an order finding the source code evidence material and granted Smith's request for a certificate of materiality under OCGA § 24–10–94
. This order was issued over three years after Smith had first sought such a determination from the trial court.
The record does not show when Smith first petitioned a Kentucky court to obtain a subpoena directing CMI to appear in Georgia. It does show, however, that on February 17, 2012, a Kentucky Circuit Court judge signed a consolidated protective order allowing source code access to criminal defendants and their attorneys and expert witnesses, as well as court personnel. Numerous petitioners were listed on the protective order, including Jason Smith. A few days later, the Kentucky trial court issued an order denying Smith's request for a subpoena of source code information, concluding that the various orders issued by Georgia courts were defective on their face and authorized the disclosure of information that was not “material” or “necessary.” On March 16, 2012, Smith, as well as other petitioners, filed a notice of appeal with the Kentucky Court of Appeals.5
During the time that Smith attempted to obtain the source code in Kentucky after receiving a ruling from the trial court in October 2011, his case appeared on two trial calendars.6 According to the State, the case “was tabled several times while we waited to hear the outcome.” While Smith's counsel also filed leaves of absence during this time period,7 we cannot determine whether they may have had any impact on the scheduling of the case for trial, particularly in light of the State's representation that this case was tabled.
Smith was tried on June 1, 2012, while his Kentucky appeal was pending.8 On the day of trial, he asserted his constitutional right to a speedy trial for the first time.9 Defense counsel also asked the trial court to exclude the breath test because he had not yet been able to obtain the source code. In the alternative, he asked the trial court to “reset this case to allow us to go do the source,” presumably after an anticipated favorable ruling by the Kentucky Court of Appeals. The trial court denied Smith's motion to exclude the breath test and the request for a reset. It later ruled from the bench during the middle of trial that Smith's motion for discharge and acquittal was denied. In Smith v. State , 325 Ga.App. 405, 750 S.E.2d 758 (2013)
(Smith I ), this court concluded sufficient evidence supported Smith's conviction. We also determined that the trial court did not err by denying Smith's request for a continuance until after a Kentucky appellate court resolved his appeal of the Kentucky trial court's order denying his request to compel out-of-state witnesses to testify about the source code for the Intoxilyzer 5000. Id. at 410 (4), 750 S.E.2d 758. Finally, we remanded the case to the trial court “for entry of a proper order addressing the speedy trial motion pursuant to Barker v. Wingo .” Id. at 411 (5), 750 S.E.2d 758.
The trial court then issued the following order on January 13, 2015:
, the Court hereby sets forth its findings of fact and conclusions of law as follows:
1. Length of delay . The Defendant was arrested on May 5, 2007 and his instant Motion was heard by the Court on June 1, 2012. The Court finds that a delay of five years in this case is presumptively prejudicial. Accordingly, the Court must analyze the other three Barker factors to determine if Defendant's constitutional right to a speedy trial was denied.
2. Reason for delay . The court finds that the reason for the delay rests primarily with the Defendant. At the pre-trial stage, Defendant had sought discovery of proprietary source code information from the maker of the Intoxilyzer 5000 machine used in this case, CMI, Inc., a Kentucky corporation. The delay resulted from Defendant...
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