State v. Takyi, A13A0236.

• Decision Date: 12 July 2013
• Docket Number: No. A13A0236.,A13A0236.
• Citation: 322 Ga.App. 832,747 S.E.2d 24
• Parties: The STATE v. TAKYI.
• Court: Georgia Court of Appeals

322 Ga.App. 832

747 S.E.2d 24

The STATE

v.TAKYI.

No. A13A0236.

Court of Appeals of Georgia.

July 12, 2013.

Carmen D. Smith, R. Leon Benham, for Appellant.

Rebecca Torres Kozycki, for Appellee.

McFADDEN, Judge.

The State appeals the trial court's grant of Elizabeth Takyi's motion to dismiss the indictment against her for violation of her constitutional right to a speedy trial. This is the second appearance of this case before this Court. See State v. Takyi, 314 Ga.App. 444, 724 S.E.2d 459 (2012). In the prior appeal, we vacated the trial court's order and remanded the case for reconsideration based on our finding that the trial court had made factual and legal errors. Id. On remand, the trial court again granted Takyi's motion to dismiss. Because we conclude that the trial court correctly followed the roadmap we set out in our earlier opinion and did not abuse its discretion in weighing the relevant factors for determining whether there has been a constitutional speedy trial violation, we affirm.

On October 3, 2008, Takyi was arrested for driving under the influence of alcohol and ordered to appear in municipal court on November 19, 2008. The matter was continued until January 5, 2009, when Takyi appeared at an arraignment in municipal court and demanded a jury trial. As a result, the case was bound over to the State Court of Fulton County. The relevant facts, as set out in our earlier opinion, are:

On January 22, 2010, just over a year later, Robert Chestney of the Chestney Law Firm sent a letter to the Fulton County Solicitor–General inquiring about the status of the case and stating that his client requested “that the charges against her be brought to trial at the earliest possible opportunity, asserting her right to a speedy trial under the constitution.” Chestney raised a concern about how the case was affecting his client's immigration status, and he concluded with the following request: “please try to locate this case and accuse it as quickly as possible, so we can get it to trial before it results in her losing everything she has worked so hard for.” The solicitor-general responded three days later and explained that there was nothing in the county computer system to indicate that the county had received the paperwork; she asked for the traffic ticket to facilitate locating the file.

On February 4, 2010, 13 days later, the solicitor-general filed formal charges against Takyi in the state court. On February 22, Takyi, through attorney Rebecca Kozycki of the Chestney Law Firm, filed a demand for speedy trial pursuant to the United States and Georgia Constitutions and pursuant to OCGA § 17–7–170.

Takyi, 314 Ga.App. at 444, 724 S.E.2d 459.

On March 15, 2010, Takyi filed a motion to dismiss on the ground that her constitutional right to a speedy trial had been violated. On April 27, 2010, the court held a hearing to address the motion, where Takyi and three of her attorneys testified. Two days later, and approximately 18 months from the date of Takyi's arrest, the trial court entered an order granting her motion to dismiss on speedy trial grounds. The State appealed and we reversed.

In evaluating constitutional speedy trial claims, the trial court must first determine whether the pretrial delay is long enough to be considered presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 651–52(2), 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). If so, the court must conduct a four-factor balancing test evaluating the length of the pretrial delay, the reason for the delay, the defendant's assertion of her right to a speedy trial, and the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In our earlier opinion we found that: (1) the trial court conflated the threshold inquiry of presumptive prejudice with the first factor regarding the length of the pretrial delay; (2) the trial court failed to consider evidence that Takyi knew her decision to seek a jury trial would cause some delay; (3) the trial court's finding as to Takyi's assertion of her right appeared to be based in part on an error of law as to when she could assert that right and on improper hearsay evidence; and (4) the trial court considered inadmissible hearsay in making its finding of prejudice to the defendant. Takyi, 314 Ga.App. at 446–48(1), 724 S.E.2d 459.

On remand, the trial court held a second hearing on June 28, 2012, where it solicited argument but heard no additional testimony or evidence from the parties. Following the hearing, the trial court entered an order again granting Takyi's motion to dismiss. The state filed the current appeal challenging this ruling.

Constitutional speedy trial claims are analyzed according to the framework laid out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The analysis has two stages.

In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from the accused's arrest, indictment, or other formal accusation[,] whichever comes first[,] to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker–Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial. The four factors to be considered in the case of presumptively prejudicial delay are (a) the length of the delay, (b) the reason for the delay, (c) the defendant's assertion of his right, and (d) the prejudice to the defendant.

Moore v. State, 314 Ga.App. 219, 220–21, 723 S.E.2d 508 (2012) (citations and punctuation omitted.) See also State v. Porter, 288 Ga. 524, 525–26(2), 705 S.E.2d 636 (2011); Ruffin v. State, 284 Ga. 52, 55(2), 663 S.E.2d 189 (2008). We review the trial court's ruling on a motion to dismiss on speedy trial grounds for abuse of discretion. Ruffin, 284 Ga. at 65, 663 S.E.2d 189. We defer to the trial court's findings of fact and its weighing of disputed facts. Williams v. State, 277 Ga. 598, 599(1), 592 S.E.2d 848 (2004). We turn then to the first stage of the analysis.

1. Presumptive prejudice.

Pretrial delay is presumptively prejudicial if it approaches one year. Doggett, 505 U.S. at 652, n. 1, 112 S.Ct. 2686. “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant's speedy trial motion was granted or denied.” Porter, 288 Ga. at 526(2), 705 S.E.2d 636. Additionally, “if the trial court enters a new order [granting or] denying a motion to dismiss on speedy trial grounds, the length of the pretrial delay runs to the entry of the new order rather than the original order, where an appellate court vacated the original order and remanded for the entry of a new order expressly applying the Barker–Doggett framework.” Richardson v. State, 318 Ga.App. 155, 158(1), 733 S.E.2d 444 (2012); see also Goddard v. State, 315 Ga.App. 868, 870–871, 729 S.E.2d 397 (2012).

Here, the trial court found that the 18–month pretrial delay was presumptively prejudicial. We agree that the pretrial delay was presumptively prejudicial. Indeed, the trial court's calculations understated the length of the delay. Because the trial court entered a second order subsequent to our decision to vacate and remand, the trial court erred in calculating the length of the delay as only the initial 18–month delay. The length of the delay should have been calculated from Takyi's October 3, 2008 arrest to the trial court's August 22, 2012 order again granting her motion to dismiss after remand, which would have added 28 months to the length of the delay, for a total delay of 46 months. Having resolved the threshold question, the trial court correctly proceeded to the Barker–Doggett four-factor balancing test.

2. The Barker–Doggett factors.

In this stage of the analysis, a court should consider “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for the delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result.” Doggett, 505 U.S. at 651, 112 S.Ct. 2686.

(a) Whether the pretrial delay was uncommonly long.

To determine whether a pretrial delay is uncommonly long, the court must analyze “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Ward v. State, 311 Ga.App. 425, 428(2), 715 S.E.2d 818 (2011).

In the prior appeal, we held that, although the trial court failed to clearly separate the threshold inquiry of length of the delay from the question of whether the 18–month delay was uncommonly long, the trial court properly found that the pretrial delay was uncommonly long. The trial court corrected this error in its second order and explicitly found that the 46–month delay was uncommonly long, “especially for misdemeanor traffic offenses with one witness and no follow up investigation.” See State v. Buckner, 292 Ga. 390, 393(3)(a), 738 S.E.2d 65 (2013) (the complexity and seriousness of the charges at issue are relevant in weighing the length of the delay); Barker, 407 U.S. at 530–32, 92 S.Ct. 2182. Because there was some evidence of an uncommonly long delay, the trial court did not abuse its discretion in weighing this factor in Takyi's favor.

(b) Whether the government or the defendant is more to blame for the delay.

As to the second Barker–Doggett factor, courts must consider “both the reason for the delay and whether this is attributable to the defendant or the State.” Richardson, 318 Ga.App....