State v. Fields

• Decision Date: 18 February 1976
• Docket Number: No. 2,No. 51741,51741,2
• Parties: The STATE v. Phillip FIELDS
• Court: Georgia Court of Appeals

Page 829

224 S.E.2d 829

137 Ga.App. 726

The STATE v. Phillip FIELDS.

No. 51741.

Court of Appeals of Georgia, Division No. 2.

Feb. 18, 1976.

Richard E. Allen, Dist. Atty., Augusta, for appellant.

Grace W. Thomas, Atlanta, for appellee.

MARSHALL, Judge.

The issue in this appeal is whether the appellee was denied his constitutional right to a speedy trial.

On January 22, 1973, appellee allegedly escaped from the Richmond County Correctional Institute, where he was serving a 10-year sentence for robbery. In March, 1973, he was indicted for the offense of escape. In May, 1973, he was apprehended in Indiana and extradited to this state where he was incarcerated in the State Prison at, reidsville to continue serving his robbery sentence. In May, 1975, he was brought from Reidsville to Richmond County to be tried. At that time he waived arraignment, a copy of the indictment and list of witnesses and entered a plea of not guilty.

In June, 1975, on motion from appellee's counsel, the trial judge dismissed the indictment, stating in his order, 'I find as a fact that the defendant's Constitutional rights were infringed by his denial of a trial as guaranteed to him under Article VI of the U.S. Constitution, the State having had continuous jurisdiction of and actual custody of the defendant for more than two years, without bringing the case to trial or even notifying him of the existence of the indictment, and the rights of the accused were therefore necessarily prejudiced thereby.' The state appeals. Held:

There is in the record a letter from the appellee's attorney to the district attorney dated June 6, 1973, which states, inter alia, 'We hope that you are not going to prosecute him, but if you're going to do so, please let me know so I can file a demand for trial at the earliest possible time.' The trial court did not refer to this letter in his order, but it is clear that he did not consider it a demand for trial under Code § 27-1901. We do not disturb this implied finding.

Since the trial court based its finding of denial of speedy trial on constitutional grounds, we examine the criteria established by the cases in reviewing that finding. The four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 in determining whether there has been a violation of Sixth Amendment requirements for a speedy trial are: (a) length of delay, (b) the reason for the delay, (c) the defendant's assertion of his right, and (d) prejudice to the defendant. It is necessary for the trial court to consider and weigh each of the factors in determining the speedy trial issue. See Hall v. Hopper, 234 Ga. 625(1), 216 S.E.2d 839; Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760; Sanders v. State, 132 Ga.App. 580(2), 208 S.E.2d 597.

(a) Length of delay. There is no question that trying a case two years after the defendant's arrest and indictment is not 'speedy.' 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, 187 S.E.2d 135, 137; Sanders v. State, 132 Ga.App. 580, 582, 208 S.E.2d 597, supra.

( b) Reasons for delay. The only reason offered by the district attorney for the delay was a large caseload and priority given to other cases. As stated in Barker v. Wingo, supra, 407 U.S. at p. 531, 92 S.Ct. 2182, such reasons ('negligence or overcrowded courts') should be 'weighed less heavily' against the government than deliberate delay for the purpose of hampering the defense. See also Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed. 56. There does not appear to be any purposeful or oppressive delay by the state in this case. See Treadwell v. State, supra; Johnson v. Smith, 227 Ga. 611(1), 182 S.E.2d 101; Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133.

( c) Defendant's assertion of his right. As indicated above, the trial court did not consider the June 6, 1973, letter to be a demand for trial. The district attorney stated that his office never received it. Furthermore, for the next 23 months, neither appellee nor his counsel demanded trial. Nevertheless, it is the responsibility of the state, not the defendant to assure a case is promptly brought to trial. Barker v. Wingo, supra, 407 U.S. p. 525, 92 S.Ct. 2182; Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. Because the appellee apparently did not know of the pending indictment for escape, we must consider his lack of demand a neutral factor.

( d) Prejudice to the defendant. 'Regarding prejudice to the defendant, the court (in Barker v. Wingo) identified three interests to be served by the speedy trial requirement: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) most importantly, to limit the possibility that the defense will be impaired.' Hall v. Hopper, 234 Ga. 625, 626, 216 S.E.2d 839, 841, supra. None of these factors weighed in the favor of the appellee here. During the two-year period awaiting trial, the appellee was incarcerated in Reidsville, not because of the pending trial for escape, but to serve the remainder of his robbery sentence. See Treadwell v. State, 233 Ga. 468, 470, 211 S.E.2d 760, supra; Sanders v. State, 132 Ga.App. 580, 583, 208 S.E.2d 597, supra. His incarceration for another offense cannot be considered 'oppressive.' We agree that incarceration for a separate offense during the pending of trial does not, ipso facto, show that the delay was unoppressive. See Hall v. State, 131 Ga.App. 786, 206 S.E.2d 644 and Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, supra, but it may where no anxiety or prejudice is shown. It is apparent that appellee suffered no anxiety because of the 2-year delay as he had no knowledge of the pending indictment. See Treadwell v. State, 233 Ga. 468, 470, 211 S.E.2d 760, supra; State v. Weeks, 136 Ga.App. 637(2(4)), 222 S.E.2d 117, where the defendant in both cases believed the charges had been dropped. Hall v. State, 131 Ga.App. 786, 206 S.E.2d 644, supra, is distinguishable for this reason, and because there a specific demand was found. Most importantly, appellee has not shown that the delay may have impaired his ability to defend against the charge. There is no showing of an absence of witnesses or loss of memory or any impairment. See Hall v. Hopper, 234 Ga. 625, 627, 216 S.E.2d 839, supra; Sanders v. State, 132 Ga.App. 580(2d), 208 S.E.2d 597, supra.

Appellee contends that if he had been tried immediately for escape he could have been serving that sentence concurrently with his robbery sentence and that he would not have lost ...