State v. Wood

• Decision Date: 30 June 2016
• Docket Number: A16A0023
• Parties: The State v. Wood.
• Court: Georgia Court of Appeals

338 Ga.App. 181

790 S.E.2d 84

The State

v.Wood.

A16A0023

Court of Appeals of Georgia.

June 30, 2016

Reconsideration Denied July 15, 2016

George R. Christian, Macon, Brian M. Rickman, Atlanta, for Appellant.

James E. Staples Jr., Ashleigh Bartkus Merchant, Marietta, for Appellee.

Peterson, Judge.

The State appeals from the trial court's grant of defendant Johann Michael Wood's motion to dismiss the indictment on constitutional speedy trial grounds, arguing that the trial court erred in considering Wood's constitutional speedy trial motion without Wood having joined the issue or subjected himself to the court's jurisdiction, without Wood being present in court, and in failing to accord any weight to the trial delay caused by Wood's own actions. We vacate the trial court's order and remand for the trial court because the trial court made a factual error regarding a reason for the pre-trial delay that must be reconsidered.

The evidence in the record reveals the following facts. Sometime in 2006, Wood allegedly inserted his fingers into the victim's vagina and touched her breasts. The victim, a member of Wood's extended family, was less than 16 years old at the time. Wood became aware that the victim made allegations to her family regarding his conduct, and he allegedly made a statement to one of his sisters that he was considering being chemically castrated. Wood's and the victim's families also discussed how to resolve the matter among themselves. The victim's mother allegedly told Wood she was not planning on making a police report, yet Wood's father and brother testified that the victim's mother's boyfriend made threats against Wood's life. Wood claims to have left the country to live with his mother, who was a resident of the Netherlands, on January 9, 2007. Warrants were issued for Wood's arrest on these charges on February 12, 2007, but they were never executed. On January 5, 2009, Wood was indicted on three counts of child molestation and three counts of aggravated sexual battery. His arraignment was set for January 27, 2009. Notice of the arraignment was mailed to his last known address in Georgia. When Wood did not appear for arraignment, a bench warrant was issued. At the request of the State, the case was dead docketed in March 2010 on the basis that Wood was a fugitive.

On September 9, 2013, Wood was re-indicted on the same charges contained in the 2009 indictment. An arrest warrant was subsequently issued based on the re-indictment.

Counsel for Wood entered an appearance on October 28, 2013. On March 23, 2015, new counsel for Wood entered an appearance and filed a motion to dismiss the indictment for violation of Wood's constitutional right to a speedy trial. Wood's prior counsel speculated in correspondence with counsel for the State that he was being replaced as counsel because he had refused to file a motion demanding a speedy trial.

In his motion to dismiss on constitutional speedy trial grounds, Wood stated that the U.S. government executed an extradition request to Finland on October 22, 2013, although the request is not part of the record before us. Wood claimed that his arrest and detention in Finland in September 2013 was the first time he became aware of the charges against him. Wood also represented that he was released on bond in April 2014, he fought extradition efforts, and has since been subject to a travel ban, meaning he is generally unable to leave Finland outside of agreeing to extradition to the U.S.

The State did not file any response to Wood's motion to dismiss. The trial court held a hearing on Wood's motion and subsequently granted it in a thoughtful and comprehensive 32–page opinion. The State filed a motion for reconsideration and for a stay pending appeal, which the trial court denied for lack of jurisdiction without considering the merits,¹ and this appeal followed.

1. Before addressing the merits of the State's enumerations of errors, we must first address the State's reference to evidence submitted with its motion for reconsideration following the grant of Wood's motion to dismiss, which the State argues shows that the trial court abused its discretion in granting that motion. Specifically, the State introduced affidavits and other supporting documentation accompanying the request to extradite Wood that the parties mistakenly believed were already in the record. This evidence shows among other things that, contrary to testimony at the motion to dismiss hearing, Wood had contacted family members to inquire about the status of criminal charges against him. The State argues that this evidence may “shed light on whether the Trial Court's discretion was abused in reaching its decision to dismiss the indictment, particularly given its criticism of the State for its failure to present any evidence, rebut any testimony, or cite any legal authority to show that [Wood's] right to a speedy trial has not been violated.” The State also attached an affidavit, dated after the hearing on Wood's motion to dismiss, from a trial attorney in the United States Department of Justice that provided detailed information about the extradition process.

To the extent the State relies upon any of the evidence submitted with its motion for reconsideration, that evidence is not properly before us. A party “cannot rely on evidence presented after trial to show that the trial court erred in [making] a decision the court had to make based on the evidence it had at that time.” Teasley v. State , 293 Ga. 758, 763 (3) (b), 749 S.E.2d 710 (2013) (emphasis in original).² Thus, in considering the State's arguments on appeal, we are limited to the evidence submitted to the trial court when it ruled on Wood's motion.

2. The State argues that the trial court erred in considering Wood's constitutional speedy trial claims because he had not entered a plea or otherwise subjected himself to the court's jurisdiction. We disagree.

The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. Amend. VI. The Georgia Constitution also guarantees criminal defendants the right to a speedy trial, Ga. Const., Art. I, Sec. I, Para. XI (a), and “[t]he speedy trial right enshrined in the Georgia Constitution is coextensive with the federal guarantee.” Ruffin v. State , 284 Ga. 52, 54, 663 S.E.2d 189 (2008) (footnote omitted). Constitutional speedy trial claims are analyzed under the framework set forth in the U.S. Supreme Court's decisions 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) A threshold determination in evaluating an alleged denial of the constitutional right to a speedy trial is whether the accused has been subjected to a delay that is presumptively prejudicial. Jones v. State , 296 Ga. 561, 570, 769 S.E.2d 307 (2015). If it is, the court is to apply a balancing test of the Barker factors: “length of delay, reason for the delay, the defendant's assertion of the right, and prejudice to the defendant.” Jones , 296 Ga. at 569–70 (7), 769 S.E.2d 307. In reviewing a trial court's consideration of whether a delay in bringing an accused to trial amounts to a denial of his right to a speedy trial, “we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion[.]” State v. Buckner , 292 Ga. 390, 391, 738 S.E.2d 65 (2013) (internal citation omitted).

It is well settled that the constitutional right to a speedy trial attaches either at the time of the defendant's arrest or when formal charges are brought, whichever occurs earlier. See United States v. Marion , 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ; Haism a n v. State , 242 Ga. 896, 897, 252 S.E.2d 397 (1979). Wood's constitutional right to a speedy trial arose on the date of the first indictment in January 2009.

The State essentially argues that Wood could not assert his constitutional speedy trial right in absentia. The State acknowledges that a defendant can waive his presence for court hearings, but contends a defendant may do so only after presenting himself in court. However, a defendant may waive formal arraignment, including through his conduct. See Ferrell v. State , 149 Ga.App. 405, 406, 254 S.E.2d 404 1979.

Here, even though Wood has not been properly arraigned, his filing of a motion to dismiss on speedy trial grounds constituted waiver of the arraignment. See id. (the demand for trial and the filing of a motion to suppress constituted waiver by conduct). Moreover, we have stated that “a defendant is not procedurally barred from raising a constitutional speedy trial claim at any time up to the point of trial, [although] a defendant's failure to assert his claim in a timely manner can be weighed heavily against him as part of the Barker analysis.” Disharoon v. State , 288 Ga.App. 1, 4 (1) (c), 652 S.E.2d 902 (2007) (citation and punctuation omitted). The State's arguments do not present a compelling reason to preclude Wood from asserting his constitutional speedy trial claim.

The State first argues that, because Wood had the right to be present at all critical stages of a criminal prosecution, he had an obligation to appear in court before the court could consider his motion to dismiss. See Fair v. State , 288 Ga. 244, 260, 702 S.E.2d 420 (2010) (providing that under both the Georgia and the federal constitutions, a criminal defendant has the “right to be present at all critical stages of his trial.”) (citation omitted). “However, the right to be present belongs to the defendant, and he is free to relinquish it if he so chooses.” Hampton v. State , 282 Ga. 490, 492 (2) (a), 651 S.E.2d 698 (2007) ; see also Pennie v. State , 271 Ga. 419, 421, 520 S.E.2d 448 (1999) (“[A] defendant may personally waive his...