Stewart v. the State.

• Decision Date: 06 July 2011
• Docket Number: No. A11A0474.,A11A0474.
• Citation: 713 S.E.2d 708,310 Ga.App. 551
• Parties: STEWARTv.The STATE.
• Court: Georgia Court of Appeals

310 Ga.App. 551

713 S.E.2d 708

11 FCDR 2304

STEWART

v.The STATE.

No. A11A0474.

Court of Appeals of Georgia.

July 6, 2011.

Maryann F. Blend, Decatur, for appellant.Daniel J. Porter, Dist. Atty., Franklin P. Clark, Samantha Routh, Asst. Dist. Atty., for appellee.MILLER, Presiding Judge.

Glenn Stewart was indicted on several counts of aggravated child molestation (OCGA § 16–6–4(c)) and child molestation (OCGA § 16–6–4(a)). He subsequently filed a motion to dismiss the indictment, alleging a violation of his constitutional right to a speedy trial. The trial court entered an order denying Stewart's motion, from which he appeals. We discern no error and affirm.

We review a “denial of a motion to dismiss the indictment on speedy trial grounds for abuse of discretion....” (Citations omitted.) Ruffin v. State, 284 Ga. 52, 65(3), 663 S.E.2d 189 (2008).

The record shows that Stewart was arrested on December 16, 2004. Stewart posted bond and was released from custody on March 2, 2005, and has not been in custody since. On or around February 1, 2006, the grand jury returned an indictment charging Stewart with two counts of aggravated child molestation. Stewart was arraigned on May 16, 2006. Stewart's attorney was on a leave of absence from July to October 2006.

Stewart's case first appeared on the trial calendar in March 2007. At the March 7, 2007, calendar call, Stewart's case was continued as Stewart's attorney had a leave of absence that conflicted with the March 2007 trial week. Stewart's case was marked ready and on call for trial at each of the following calendar calls in April, May, and June 2007.

In July 2007, a new prosecutor was assigned to Stewart's case. In familiarizing himself with Stewart's case, the new prosecutor interviewed the victim and determined that the case needed to be reindicted to include additional charges and an additional victim. Stewart's case was thus continued from both the July and August 2007 trial calendars. Stewart's case was also continued from the September 2007 trial calendar, since Stewart's attorney had a leave of absence during part of the September 2007 trial week.

The grand jury returned Stewart's second indictment on September 5, 2007, which, in addition to the previous two counts of aggravated child molestation in his first indictment, set forth an additional count of aggravated child molestation and one count of child molestation. This second indictment also added another count of child molestation involving a second victim. On October 24, 2007, Stewart formally waived his arraignment on the second indictment.

Thereafter, Stewart's case did not appear on the trial calendar at all during 2008. The record also reflects that Stewart's attorney was scheduled for two leaves of absence during 2008—one from February 28, 2008, to March 3, 2008, and the other from September 15, 2008, to January 2, 2009. Stewart's case next appeared on the trial calendar in February 2009, and thereafter appeared on each successive trial calendar through December 2009. Stewart was excused from appearing at all but three of the 2009 calendar calls. Out of the eleven calendar calls in 2009, Stewart's case was marked ready and on call for trial at eight of the eleven calendar calls in 2009; at the September 2009 calendar call, he was ordered to appear for trial, but his case was not reached during the trial week. Stewart's case was continued from four of the calendar calls in 2009—March pursuant to a joint request, May pursuant to the State's request, June due to a leave of absence obtained by Stewart's attorney, and September by the judge.

In March 2010, the prosecutor met with the first victim again. Based on this 2010 meeting, the prosecutor decided to reindict Stewart for a third time to reflect changes in the date ranges of Stewart's charges. The grand jury returned the third and final indictment on April 14, 2010, charging Stewart with the same offenses set forth in the second indictment—three counts of aggravated child molestation and one count of child molestation involving the original victim, and one count of child molestation involving the second victim. Stewart appeared for his arraignment on this third indictment on April 21, 2010. Pursuant to discussions between the prosecutor and Stewart's attorney, the parties understood that the State intended to proceed to trial in May 2010 under this third indictment.

On April 22, 2010, the parties appeared for a previously set hearing on several pretrial motions. At the end of this hearing, Stewart filed for the first time a motion to dismiss the indictment due to a violation of his constitutional right to a speedy trial. Because the State had not been previously informed of Stewart's motion to dismiss, it was not prepared to go forward on the motion at the April 22, 2010, hearing; accordingly, a hearing on the motion was held on June 16, 2010. On July 9, 2010, the trial court entered an order denying Stewart's motion to dismiss. Stewart now appeals from this order.

An analysis of a constitutional speedy trial claim has two stages. The first stage requires a determination of whether the interval from the defendant's arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” Ruffin, supra, 284 Ga. at 55(2), 663 S.E.2d 189 (citing Doggett v. United States, 505 U.S. 647, 651–652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Where the delay is only ordinary, rather than presumptively prejudicial, the defendant's speedy trial claim fails at the threshold. Id.; Doggett, supra, 505 U.S. at 651–652, 112 S.Ct. 2686. A delay that is deemed to be presumptively prejudicial, however, triggers the second stage of the analysis. Id. At this second stage, a court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers the conduct of both the State and the defendant (i.e., the Barker–Doggett factors): (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Falagian v. State, 300 Ga.App. 187, 188(1), 684 S.E.2d 340 (2009) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). “Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.” (Citation omitted.) Davis v. State, 301 Ga.App. 155, 156, 687 S.E.2d 180 (2009).

1. Presumptive Prejudice. “Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” (Footnote omitted.) Salahuddin v. State, 277 Ga. 561, 562, 592 S.E.2d 410 (2004). Here, the relevant interval was the time that elapsed between Stewart's December 16, 2004 arrest and the trial court's July 9, 2010 denial of Stewart's motion to dismiss. Accord id. The State concedes, and we agree, that this case long ago crossed the presumptive prejudice threshold. See Ruffin, supra, 284 Ga. at 55(2)(a), 663 S.E.2d 189; see Chambers v. State, 213 Ga.App. 414, 415, 444 S.E.2d 820 (1994) (“As a delay approaches one year, in general it is presumptively prejudicial.”) (Citation omitted.). Therefore, this case must proceed to the second stage Barker–Doggett analysis of a constitutional speedy trial claim.

2. Barker–Doggett Analysis.

(a) Whether delay was uncommonly long. The trial court found that the pretrial delay in this case was uncommonly long and presumptively prejudicial, thus triggering an analysis of the remaining factors under Barker–Doggett.

As an initial matter, we find that the trial court misapplied the law by considering the Barker–Doggett length of delay factor simultaneously with its determination of whether the pretrial delay was sufficiently long to be considered presumptively prejudicial. While “[t]he length of the pretrial delay in absolute terms plays a role in the threshold determination of presumptive prejudice ... it also wears another hat as one of the four interrelated criteria that must be weighted in the balance at the second stage of the Barker–Doggett analysis.” (Punctuation omitted.) Ruffin, supra, 284 Ga. at 56(2)(b)(i), 663 S.E.2d 189. “The uncommon length of the pretrial delay thus merits consideration beyond its use as a liminal screening mechanism.” Id. (citing Doggett, supra, 505 U.S. at 652, 112 S.Ct. 2686, 120 L.Ed.2d 520).

Nevertheless, we agree that a pretrial delay of over five years is uncommonly long, and as such, is a factor to be weighed against the State on the Barker–Doggett scale. Stewart contends on appeal, however, that our opinion in Davis, supra, 301 Ga.App. at 157, 687 S.E.2d 180, requires this factor to be weighed “heavily” against the State. We disagree.

The abuse of discretion we found in Davis was a result of the trial court's failure to consider the length of delay factor whatsoever in its Barker–Doggett balancing. Davis, supra, 301 Ga.App. at 157, 687 S.E.2d 180. Such is not the case here, where the trial court did consider the length of delay factor, albeit simultaneously with the presumptive prejudice factor, and weighed it against the State in the Barker–Doggett analysis. As such, we cannot say it was an abuse of discretion insofar as the trial court declined to weigh this factor “heavily” against the State. See, e.g., State v. Moses, 301 Ga.App. 315, 317–318(2)(a), 322(3), 692 S.E.2d 1 (2009) (finding no abuse of discretion where the length of pretrial delay, at a little over four years, was weighed as a factor against the State, but not specifically weighed heavily against the State).

(b) Whether Stewart or the government is more to blame for delay. The trial court determined that this factor weighed against the State on the Barker–Doggett scale. Nevertheless, Stewart again argues that the trial court should have...