The State v. Thaxton.

• Decision Date: 28 July 2011
• Docket Number: No. A11A0727.,A11A0727.
• Citation: 715 S.E.2d 480,311 Ga.App. 260,11 FCDR 2573
• Parties: The STATEv.THAXTON.
• Court: Georgia Court of Appeals

311 Ga.App. 260

715 S.E.2d 480

11 FCDR 2573

The STATE

v.THAXTON.

No. A11A0727.

Court of Appeals of Georgia.

July 14, 2011.Reconsideration Denied July 28, 2011.

Garry Thomas Moss, District Attorney, Cliff Head, Patricia Gail Hull, Assistant District Attorneys, for appellant.J. Alfred Johnson, Marietta, for appellee.MILLER, Presiding Judge.

The State appeals from the grant of defendant Randall Thaxton's motion for discharge and acquittal for violation of his constitutional right to a speedy trial. See OCGA § 5–7–1(a)(1) (authorizing the State to appeal, among other things, from the dismissal of an indictment). The State contends that the trial court erred in its analysis of the Barker¹ factors by: (i) failing to weigh heavily against Thaxton his failure to assert his right to a speedy trial before indictment, and (ii) failing to treat as relatively benign the post-arrest, pre-indictment delay at issue given the relative significance of the parties' activities in this case. For the reasons that follow, we reverse the trial court's order and remand this case with direction.

The record shows that Randall Thaxton was arrested on or about October 30, 2008, for seven counts of dogfighting (OCGA § 16–12–37), cruelty to animals (OCGA § 16–12–4), and possession of more than one ounce of marijuana (OCGA § 16–13–30). Thaxton was appointed counsel on November 4, 2008, and has been represented by counsel at all times since that date.

On December 3, 2008, Thaxton entered into a consent bond and was released from jail. The conditions of Thaxton's release on bond included GPS monitoring (except for verified daytime employment) and avoidance of all contact with animals.

On January 11, 2010, Thaxton was indicted on one felony count of possession of more than one ounce of marijuana (OCGA § 16–13–30(j)(1)), and three counts of misdemeanor cruelty to animals (OCGA § 16–12–4(b)). A series of continuances to facilitate discovery were thereafter granted at Thaxton's request. On September 27, 2010, the trial court granted the last of Thaxton's requests for continuance and contemporaneously granted appointed counsel's motion to withdraw as counsel, and Thaxton's current counsel was retained to represent him.

Thaxton filed his motion for discharge and acquittal on February 15, 2010, pointing to pre-indictment delay following his arrest. The trial court granted Thaxton's motion, finding that the pre-indictment delay was excessive and that Thaxton suffered prejudice to his defense. The State filed a motion for reconsideration of the decision. Following a hearing, the trial court denied the State's motion, upholding its dismissal of the criminal action based upon a violation of the constitutional right to a speedy trial. The instant appeal ensued.

Two types of pretrial delay have been recognized as possible violations of an accused's constitutional rights to a speedy trial. One type is delay that precedes the arrest or the indictment, which implicates due process guarantees under the Fifth and Fourteenth Amendments. See Jones v. State, 284 Ga. 320(1), 667 S.E.2d 49 (2008). The second type of pretrial delay is that which occurs after an arrest or indictment, to which Sixth Amendment standards apply. See id. at 322(2), 667 S.E.2d 49; Haisman v. State, 242 Ga. 896, 898(2), 252 S.E.2d 397 (1979). Significantly, at the point of arrest, one becomes “an accused” and Sixth Amendment standards apply. See Haisman, supra, 242 Ga. at 898(2), 252 S.E.2d 397 (citing Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) and United States v. Marion, 404 U.S. 307, 320–325(III), 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)).

In this case, Thaxton's motion for discharge and acquittal complained of the 15–month delay that occurred after the date of his arrest on or about October 20, 2008. Since the delay occurred after his arrest, Sixth Amendment standards must be applied in resolving the instant speedy trial claim. See Haisman, supra, 242 Ga. at 898(2), 252 S.E.2d 397.

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, [supra,] and the 1992 decision in Doggett v. United States [, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992),] which is to date the Supreme Court's last detailed discussion of the topic. 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.

(Punctuation and footnotes omitted.) Ruffin v. State, 284 Ga. 52, 55(2), 663 S.E.2d 189 (2008). The Barker balancing factors are as follows: (a) whether pretrial delay was excessively long; (b) whether the defendant or the State is primarily responsible for the delay; (c) whether the defendant timely asserted his right to a speedy trial; and (d) whether the defendant was prejudiced by the delay. State v. Porter, 288 Ga. 524, 525–526(2)(a), 705 S.E.2d 636 (2011). No one factor is necessary or sufficient to sustain a finding that the right to a speedy trial has been denied; rather, “the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.” (Citation omitted.) State v. Gleaton, 288 Ga. 373, 374, 703 S.E.2d 642 (2010). On appeal, we review the trial court's weighing of each Barker factor and its balancing of all four factors only for abuse of discretion. Porter, supra, 288 Ga. at 525(2) (a), 705 S.E.2d 636.

However, where 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. In addition, the trial court's order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker analysis.

(Citations and punctuation omitted.) Id. at 526(a), 705 S.E.2d 636. The trial court made several errors in its application of this framework to Thaxton's speedy trial claim, which requires reversal and remand of the case for proper consideration. See id.

1. The Threshold Inquiry. Prior to application of the Barker balancing test, we first consider the length of the delay.

The length of the delay factors into the speedy trial analysis in two respects: First, a court must determine whether the delay has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, since, by definition, the accused cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case with customary promptness. If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time. However, the presumptive prejudice arising from delay cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria. Instead, it is part of the mix of relevant facts, and its importance increases with the length of delay.

(Citations and punctuation omitted.) Brown v. State, 287 Ga. 892, 894–895(1)(a), 700 S.E.2d 407 (2010). See also Higgins v. State, 308 Ga.App. 257, 258–259(1), 707 S.E.2d 523 (2011).

“The constitutional right to a speedy trial attaches on the date of the arrest or when formal charges are initiated, whichever first occurs.” (Citation and punctuation omitted.) Higgins, supra, 308 Ga.App. at 259(1), 707 S.E.2d 523. “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, supra, 288 Ga. at 526(2)(b), 705 S.E.2d 636. Under this calculation, the delay extended from Thaxton's arrest on or about October 30, 2008, until the grant of Thaxton's speedy trial motion on October 6, 2010. This period reflects a delay of approximately 23 and a half months.² Generally, a delay exceeding one year is deemed as presumptively prejudicial. See Porter, supra, 288 Ga. at 526–527(2)(b), 705 S.E.2d 636. Since the delay in this case was presumptively prejudicial, the application of the Barker balancing test was in fact triggered. See id.

2. Barker Balancing Test.

(a) Length of the Delay. Under the first factor of the Barker test, we again consider the full length of the delay.

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. As the [United States] Supreme Court has explained, this latter inquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time.

(Citations and punctuation omitted.) Ruffin, supra, 284 Ga. at 56–57(2)(b)(i), 663 S.E.2d 189. “A delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” (Citation omitted.) Higgins, supra, 308 Ga.App. at 260(2)(a), 707 S.E.2d 523.

Here, the trial court found that the pre-indictment delay “was excessive and inordinately so.” The trial court further explained...