Smith v. State

• Decision Date: 30 June 2008
• Docket Number: No. S08A0018.,S08A0018.
• Citation: 663 S.E.2d 142,284 Ga. 17
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

663 S.E.2d 142

284 Ga. 17

SMITH v. The STATE.

No. S08A0018.

Supreme Court of Georgia.

June 30, 2008.

Stephen T. Smith, Jonesboro, for appellant.

Paul L. Howard, Jr., Dist. Atty., Elizabeth A. Baker, Asst. Dist. Atty., Bettieanne C. Hart, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Reggie Allen Lampkin, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

On June 6, 1997, Frederick Keith Hope was fatally shot while driving a car near the Atlanta hotel where he was a registered guest. Appellant Courtney Smith was convicted of malice murder in connection with the death of Hope and appeals the judgment of conviction entered against him.¹

The chief medical examiner for the Georgia Bureau of Investigation (GBI) testified the victim died from massive internal bleeding caused by a gunshot that entered and exited his right arm and then entered his chest and damaged his aorta. The vehicle the victim was driving when he suffered the fatal wound side-swiped a parked vehicle occupied by a police officer for the Metropolitan Atlanta Rapid Transit Authority (MARTA), who identified appellant as one of two men who exited the victim's vehicle and ran toward a nearby hotel. The MARTA officer described appellant as wearing a blue hooded sweatshirt and blue jeans. While police were gathered in the parking lot of the hotel at which the victim was a registered guest and to which the two occupants of the victim's vehicle had run, they noticed a room whose occupants repeatedly opened the curtain to peer out at the activity and closed the curtain when they noticed a police officer looking at them. When the occupants opened the room door in response to a police officer's knock, the police officer observed in plain view a blue hooded sweatshirt and a washcloth with blood on it. The two male occupants of the room, neither of whom was the registered hotel guest assigned to that room, consented to the officer's request for permission to take the sweatshirt and washcloth and agreed to accompany police to a police station for further questioning. After the occupants left with police, hotel personnel de-activated the room's key-card entry system to prevent anyone other than management from entering the room.

When the hotel's general manager inspected the room the following day to ensure its safety before admitting housekeeping personnel and renting it to a new guest, he found a bloodstained sock behind the headboard of one of the beds; a gun clip behind a mirror; and a handgun in the air-conditioning vent. GBI forensic biologists testified that the DNA profiles of both the victim and appellant were found on the sock, and a GBI fingerprint examiner testified that a fingerprint removed from the room's air-conditioning vent cover was that of appellant. The GBI's firearms examiner testified that the bullet removed from the victim during the autopsy was fired from the Lorcin .380-caliber pistol found in the air-conditioning vent of the hotel room in which appellant was found. The man in the hotel room with appellant testified that appellant removed the vent cover and placed the pistol in the ductwork.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant asserts his conviction should be reversed because his constitutional right to a speedy trial was denied. A speedy trial is guaranteed a criminal defendant by the Sixth Amendment to the United States Constitution and by Article I, Section I, Paragraph XI (a) of the Georgia Constitution. The constitutional right to speedy trial attaches at the time of arrest or when formal charges are brought, whichever is earlier. Boseman v. State, 263 Ga. 730(1), 438 S.E.2d 626 (1994). To determine whether an accused's constitutional right to a speedy trial has been violated, a court engages in a balancing process in which it assesses the length of the delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant, if the defendant has shown that the delay between arrest or formal accusation and trial is "presumptively prejudicial." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Wimberly v. State, 279 Ga. 65, 608 S.E.2d 625 (2005). The appellate court determines whether the trial court abused its discretion in balancing the Barker factors. Torres v. State, 270 Ga. 79(2), 508 S.E.2d 171 (1998).

Appellant was arrested on an outstanding warrant charging him with murder in January 1998, and charged in a true bill of indictment returned on June 8, 1999, with malice murder, felony murder, and aggravated assault with a deadly weapon in connection with the homicide of the victim. Appellant's trial took place in November 2004. The delay that constitutes presumptive prejudice depends upon the peculiar circumstances of each case (Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182) and there has been no enunciation of peculiar circumstances in this case. Because we are unable to say that the government "prosecuted [appellant's] case with customary promptness," (Wimberly v. State, supra, 279 Ga. at 66, 608 S.E.2d 625), we deem the delay in this case as presumptively prejudicial and examine the Barker factors.

Part of the delay in trying appellant was attributable to the fact that he was mistakenly released from jail shortly after his arrest in 1998 and was not re-arrested until January 2002. It appears that defense counsel shares responsibility for the delay in trying this case, as trial counsel was given a continuance when she became counsel of record at some point between February and August 2003, the case appeared on trial calendars in May and August 2003 but was not tried, and trial counsel engaged in extensive discovery which resulted in informal continuances and filed several pre-trial motions that required hearings prior to the case being tried in March 2004 (trial ended in a mistrial due to a deadlocked jury). See Nelloms v. State, 274 Ga. 179, 180, 549 S.E.2d 381 (2001).

Appellant did not make a statutory demand for trial under OCGA § 17-7-171, and did not assert his constitutional right to a speedy trial until he filed his motion to dismiss the indictment the day before the commencement of his March 2004 trial. His failure to assert his right to a speedy trial is entitled to strong evidentiary weight against him. Nelloms v. State, supra, 274 Ga. at 181, 549 S.E.2d 381.

The final factor is the prejudice suffered by the defendant resulting from the delay in bringing him to trial. We focus on the three interests the right to speedy trial was designed to protect: the prevention of oppressive pre-trial incarceration; the minimization of the defendant's anxiety and concern; and, most importantly, the limitation of the possibility the defense will be impaired. Nelloms v. State, supra, 274 Ga. at 181, 549 S.E.2d 381. There was no oppressive pre-trial incarceration since appellant was incarcerated on these charges for only four or five months over the entire period (from the time of his second arrest in January 2002 until he was released on bond in May 2002). Appellant made no showing of specific anxiety or concern he suffered while awaiting trial. Id. In his pre-trial motion to dismiss, appellant claimed his defense was impaired by the trial delay, citing "fading memories." However, a generalized statement that the memories of witnesses have faded over the passage of time is not sufficient. For memory lapse to be prejudicial, appellant must establish that the lapses substantially relate to a material issue. See Barker v. Wingo, supra, 407 U.S. at 534, 92 S.Ct. 2182 (memory lapses cited "were in no way significant to the outcome"); Threatt v. State, 282 Ga.App. 884, 890, 640 S.E.2d 316 (2006). At the hearing on his motion for new trial, appellant presented testimony on another impairment of his defense purportedly caused by the trial delay the 1999 death of a hotel security guard who had identified someone else as one of the two men running toward the hotel. The death of the security guard was not sufficiently prejudicial to appellant since his identification of another man as one of the two men who ran from the scene of the murder did not preclude the possibility that appellant was one of the two men running from the scene. Furthermore, defense counsel apparently saw the security guard's report as harmful to the defense inasmuch as she successfully barred any hearsay testimony regarding the observations of the deceased security guard.

After examining the Barker v. Wingo factors in conjunction with the facts of this case, we conclude the trial court did not abuse its discretion when it denied appellant's motion to dismiss the indictment because appellant had not been afforded a constitutionally-guaranteed speedy trial.

3. Appellant contends the trial court erred when it denied his motion to suppress the evidence found in the hotel room. The trial court denied the motion as to the gun, the blood-stained sock, and the gun clip after finding appellant did not have standing to invoke the protection against unreasonable search and seizure afforded by the Fourth Amendment since he was not the room's registered guest and had shown no connection to the room other than his presence. The trial court denied the motion to suppress the blue hooded sweatshirt and the bloody washcloth because those items were in plain view and, even if improperly taken, were admissible under the "inevitable discovery" rule.²

"In order to claim the protection of the Fourth Amendment [against unreasonable search and seizure], a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable...." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); Floyd v. State, 237 Ga.App. 586, 587, 516...