The State v. Moses

• Decision Date: 17 November 2009
• Docket Number: No. A09A1284.,A09A1284.
• Citation: 692 S.E.2d 1,301 Ga.App. 315
• Parties: The STATEv.MOSES.
• Court: Georgia Court of Appeals

301 Ga.App. 315

692 S.E.2d 1

The STATEv.MOSES.

No. A09A1284.

Court of Appeals of Georgia.

Nov. 17, 2009.

Paul L. Howard Jr., Dist. Atty., Peggy R. Katz, Asst. Dist. Atty., for appellant.

Marilyn Primovic, Ashleigh B. Merchant, for appellee.

ADAMS, Judge.

According to the trial court's order and insofar as we can ascertain from the incomplete record before us,¹ it appears that appellee Dante Moses was arrested sometime around December 9, 2004 for the offenses of armed robbery, aggravated assault with intent to rob, possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon; he was indicted for those offenses on or about December 21, 2004.²

His case was called for trial on June 12, 2006,³ but dismissed for “want of prosecution” because the State declared it was not ready to proceed. Moses was re-indicted on June 30, 2006 and subsequently re-arrested on August 12, 2006. He was released on bond September 11 or 12, 2006. A “Complex Criminal Case Management Order” was filed on September 13, 2006.

On November 14, 2008 Moses filed a motion to dismiss the indictment, asserting that his constitutional right to a speedy trial had been violated. In this motion, he asserted a demand for trial, noting that his case had not yet been placed on a trial calendar. Following a hearing, the trial court granted the motion on January 8, 2009, and the State timely filed the present appeal.

We review the trial court's order granting the motion to dismiss the indictment under an abuse of discretion standard. On appeal, “[t]he question is whether the trial court abused its discretion in ruling that [Moses'] speedy trial rights were violated.” State v. Redding, 274 Ga. 831, 832, 561 S.E.2d 79 (2002). “ ‘However, where, as in this case, the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court's ultimate ruling is diminished.’ Williams v. State, [277 Ga. 598, 601(1)(e), 592 S.E.2d 848 (2004) ].” Hester v. State, 268 Ga.App. 94, 96, 601 S.E.2d 456 (2004).

The template for deciding all constitutional speedy trial claims under the Sixth Amendment and the Georgia Constitution is laid out in the 1972 case of Barker v. Wingo, [407 U.S. 514, 530(IV), 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] and the 1992 decision in Doggett v. United States, [505 U.S. 647, 651(II), 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) ].... The analysis has two stages. First, the court must determine whether the interval from the accused's arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” If not, the speedy trial claim fails at the threshold. If, however, 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.

Ruffin v. State, 284 Ga. 52, 55(2), 663 S.E.2d 189 (2008).

1. Presumptive Prejudice. Here, the time between the earlier of the date of the original arrest or the date of the original indictment and the January 8, 2009 order granting Moses' motion to dismiss slightly exceeded four years.⁴ This delay was presumptively prejudicial, as conceded by the State, thus triggering the analysis under the Barker-Doggett balancing test. See, e.g. Brannen v. State, 274 Ga. 454, 455, 553 S.E.2d 813 (2001) (noting previous cases that found a fifty-one-month delay “egregious” and a delay of more than two years “deplorable”); State v. Giddens, 280 Ga.App. 586, 587, 634 S.E.2d 526 (2006) (delay of more than eight months usually considered presumptively prejudicial).

2. Barker-Doggett Balancing Test. The four factors that must be considered during the second stage of a constitutional speedy trial analysis are: “(i) whether [the] delay before trial was uncommonly long, (ii) whether the government or the [accused] is more to blame for that delay, (iii) whether, in due course, the [accused] asserted the right to a speedy trial, and (iv) whether he ... suffered prejudice as the delay's result.” (Punctuation omitted.) Ruffin, 284 Ga. at 56(2)(b), 663 S.E.2d 189. State v. Johnson, 274 Ga. 511, 512, 555 S.E.2d 710 (2001); Hayes v. State, 298 Ga.App. 338, 340(2), 680 S.E.2d 182 (2009).

No one of these factors, standing alone, is either a necessary or sufficient condition to a finding of a deprivation of the right to a speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. Thus, the second stage of the constitutional speedy trial analysis requires courts to engage in a difficult and sensitive balancing process and necessarily compels them to approach speedy trial cases on an ad hoc basis.

(Citation and punctuation omitted.) Hayes, 298 Ga.App. at 340(2), 680 S.E.2d 182.

(a) Length of the delay. Although the trial court properly found the length of the delay to be presumptively prejudicial, and therefore sufficient to trigger consideration of the Barker-Doggett factors, it failed to also weigh the length of the delay in conducting that analysis.

It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. Ruffin, 284 Ga. at 56-57(2)(b)(i), 663 S.E.2d 189. This is because uncommonly

long delays have a “tendency to compromise the reliability of trials in ways that neither party can prove, or for that matter, identify.” ... [ Ruffin, 284 Ga.] at 56(2)(b)(i), 663 S.E.2d 189. As a result, the weight accorded the other facts in the balancing test depends, to a large degree, on the length of the delay. See, e.g. Doggett, supra, 505 U.S. at 657(III)(B), 112 S.Ct. 2686 (even where the delay in prosecution results from governmental negligence “our toleration of such negligence varies inversely with its protractedness”) Ruffin, supra, 284 Ga. at 57(2)(b)(i), 663 S.E.2d 189 (the longer the delay, the stronger the presumption that it has prejudiced the accused).

Hayes, 298 Ga.App. at 341(2)(a), 680 S.E.2d 182.

In this case, the slightly more than four-year delay far exceeds the one-year benchmark for presumptive prejudice; therefore this factor is weighed against the State. Ruffin, 284 Ga. at 58(2)(b)(i), 663 S.E.2d 189; Robinson v. State, 298 Ga.App. 164, 167 (1)(b)(i), 679 S.E.2d 383 (2009).

(b) Whether the Government or the Accused is More to Blame for the Delay. The second factor in the Barker-Doggett analysis requires the court to examine both the reason for the delay and whether this is attributable to the defendant or to the State. Johnson, 274 Ga. at 512, 555 S.E.2d 710. Here the trial court found, and the State concedes, that the responsibility for the delay in his case belonged to the government. Thus, analysis of this factor turns on the State's reasons for the delay and how heavily those reasons should weigh against the State.

As stated above, the total delay here was slightly in excess of 48 months from the time of the first arrest/indictment to the time the trial court granted Moses' motion to dismiss. When the case was first placed on a trial calendar after approximately 17-18 months, Moses appeared and announced ready for trial. But the case was dismissed for want of prosecution after the State announced it was unprepared to try the case because the assigned prosecutor was no longer employed by the district attorney's office. The case continued to go untried in the ensuing months as it apparently continued to be assigned to different assistant district attorneys; further, both the trial court and the prosecution attributed the delay to an overcrowded docket. As we recently noted, echoing both our Supreme Court and the United States Supreme Court:

Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply

because the accused cannot demonstrate exactly how it has prejudiced him....

Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness.... Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority. The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it. [ Ruffin, 284 Ga. at 60(2)(b)(ii), 663 S.E.2d 189, quoting Doggett, 505 U.S. at 656-657, 112 S.Ct. 2686.]

Arbegast v. State, 301 Ga.App. 462, 465-466(2)(b), 688 S.E.2d 1 (2009). This factor is thus also weighed against the State.

(c) Timeliness of the assertion of the right to a speedy trial. “Because a defendant may benefit by delaying a trial, this Court has recognized that a defendant has a responsibility to assert his right to a speedy trial.” (Punctuation omitted.) Hester, 268 Ga.App. at 98(3),...