State v. Hight, 60563

• Decision Date: 22 October 1980
• Docket Number: No. 60563,60563
• Citation: 274 S.E.2d 638,156 Ga.App. 246
• Parties: The STATE v. HIGHT.
• Court: Georgia Court of Appeals

Page 638

274 S.E.2d 638

156 Ga.App. 246

The STATE v. HIGHT.

No. 60563.

Court of Appeals of Georgia.

Submitted Sept. 16, 1980.

Decided Oct. 22, 1980.

F. Larry Salmon, Dist. Atty., William H. Boggs, Asst. Dist. Atty., for appellant.

Wade Hoyt, III, Rome, for appellee.

QUILLIAN, Presiding Judge.

The State appeals from the grant of a motion of the defendant for dismissal based upon an alleged violation of his right to a speedy trial. Held :

The defendant was arrested for the offense of statutory rape on February 18, 1978. He was indicted on January 15, 1980 and trial was scheduled for February 26, 1980 when defendant filed a motion to dismiss for want of a speedy trial. The length of delay between arrest and indictment was approximately 23 months. The State asks whether this period of delay justifies dismissal of the indictment? We find that it does not and reverse.

At the time of arrest, a suspect becomes an "accused" (Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 303-04, 46 L.Ed.2d 205) and the right to a speedy trial under the Sixth Amendment begins running. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 463, 30 L.Ed.2d 468. Where delay occurs in the investigative stage, before either arrest or indictment, due process standards, not Sixth Amendment standards apply. United States v. Lovasco, 431 U.S. 783, 788(a), 97 S.Ct. 2044, 2047, 52 L.Ed.2d 752; Haisman v. State, 242 Ga. 896, 898, 252 S.E.2d 397. However, during the accusatory stage Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 establishes the criteria to be used in assessing a claim of lack of speedy trial under the Sixth Amendment: (1) length of delay, (2) reason for delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant.

The length of delay between arrest and date of the scheduled trial was slightly more than 24 months. This is a rather lengthy period, but the defendant was not in confinement. The reason for the delay was not certain. The state argued that it could have been delayed for purpose of investigation. However, the investigating officer testified that he completed the investigation and turned over his file to the prosecutor on the day following the defendant's arrest.

The defendant did not assert his right to a speedy trial before the trial was scheduled. It can be argued that a defendant who has been arrested and released but not indicted has no reason to request trial. See Code Ann. § 27-1901 (Code § 27-1901). Our Supreme Court has held that "(w)hile the statute may prescribe a means of asserting one's right to a speedy trial after indictment, appellant has a sixth amendment right to a speedy trial which attached at arrest and could have been asserted thereafter ... We therefore weigh the defendant's pre-indictment failure to assert (his) right against (him)." Haisman v. State, 242 Ga. 896, 898, 252 S.E.2d 397, supra.

This leaves for assessment, the element of prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, supra, identified three areas the accused's right to a speedy trial was designed to protect: (1) extensive pretrial confinement which did not exist here, (2) to minimize anxiety and concern of the accused which the defendant testifies were present here, and (3) most importantly to limit the possibility that the defense will be impaired. The record does not support a showing of impairment of the defense.

In determining whether preindictment delay may bar prosecution it has been held that "... 'the applicable statute of limitations ... is ... the primary guarantee against bringing overly stale criminal charges.' ... There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function." United States v. Marion, 404 U.S. 307, 322-323, 92 S.Ct. 455, 463-64, 30 L.Ed.2d 468.

Our Federal courts, citing Marion and Lovasco, supra, have held that "(t)o support a due process claim of unlawful preindictment delay ... the Supreme Court has made it clear that the defendant must show actual prejudice resulting from the preindictment delay and that the delay was purposefully designed to gain a tactical advantage or to harass the defendant." United States v. McManaman, 606 F.2d 919, 922(1) (10th Cir. 1979); Accord, United States v. Beitscher, 467 F.2d 269, 272 (10th Cir. 1972); United States v. MacClain, 501 F.2d 1006, 1010(1) (10th Cir. 1974); United States v. Redmond, 546 F.2d 1386, 1388(1) (10th Cir. 1977) cert. den. 435 U.S. 995, 98 S.Ct. 1645, 56 L.Ed.2d 83; United States v. Allen, 554 F.2d 398, 406 (10th Cir. 1977); United States v. Revada, 574 F.2d 1047, 1048 (10th Cir. 1978); United States v. Radmall, 591 F.2d 548(1) (10th Cir. 1978); United States v. Comosona, 614 F.2d 695 (10th Cir. 1977); See also Armour v. State, 140 Ga.App. 196(b), 230 S.E.2d 346.

The U. S. Supreme Court stated it slightly differently. Since "... the Statute of Limitations does not fully define the appellees' rights with...