Torres v. State
| Decision Date | 26 October 1998 |
| Docket Number | No. S98A1249.,S98A1249. |
| Parties | TORRES v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Neil L. Heimanson, Adam Strain Poppell, III, Darien, for Jorge Ivan Torres.
Dupont K. Cheney, Dist. Atty., J. Thomas Durden, Jr., Asst. Dist. Atty., Hinesville, Thurbert E. Baker, Atty. Gen., Department of Law, Atlanta, for the State.
After allegedly robbing the victim of her van, cash and jewelry Jorge Ivan Torres and a co-defendant, David Cordova, kidnapped and later killed her. Based upon these events, they were indicted by a federal grand jury for carjacking, and Torres entered a plea of guilty. Torres and Cordova also were indicted on state charges of felony murder, armed robbery, and kidnapping with bodily injury. The State is seeking the death penalty. A third co-defendant, Jose Vaca, allegedly supplied the pistol used in the crimes, and he was charged with felony murder and armed robbery. In this case, Torres brings a pre-trial direct appeal from the overruling of his plea of former jeopardy and from the denial of his motion for a judgment of acquittal by reason of the denial of his constitutional right to a speedy trial. See Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985); Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982).
1. Torres' plea of former jeopardy is based on OCGA § 16-1-8(c), which provides as follows:
A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.
One of the elements of the federal offense of carjacking is the taking of a motor vehicle which has been transported in interstate commerce. 18 U.S.C. § 2119. The State will not have to prove this element to obtain a conviction of any of the state offenses with which Torres is charged. Conversely, each state offense requires proof of facts not required to prove the federal carjacking offense. Felony murder requires proof of the death of the victim. The armed robbery requires proof of the taking of the victim's money and jewelry. The kidnapping requires proof of the asportation of the victim. Because the facts necessary to prove the federal charge of carjacking are clearly different from the facts necessary to prove the state charges, the federal prosecution is not a bar to the state prosecution. Satterfield v. State, 256 Ga. 593, 595(2), 351 S.E.2d 625 (1987); Brown v. State, 181 Ga.App. 795, 796, 354 S.E.2d 3 (1987).
2. Because of the 28-month delay between Torres' arrest and his motion for acquittal, the factors to be weighed are: the reason for the delay; Torres' assertion of his constitutional right to a speedy trial; and the prejudice to him. Johnson v. State, 268 Ga. 416, 417(2), 490 S.E.2d 91 (1997); Brown v. State, 264 Ga. 803, 805(2), 450 S.E.2d 821 (1994); Baseman v. State, 263 Ga. 730, 732(1)(a), 438 S.E.2d 626 (1994). The trial court found that the delay was attributable to the quashing of the first indictment at the joint request of Torres and his co-defendants, and the ensuing revision of the method of grand jury selection to ensure a fair and impartial grand jury. This reason for the delay weighs against Torres' contention that his constitutional right was violated. High v. Zant, 250 Ga. 693, 697(8), 300 S.E.2d 654 (1983). See also Wilson v. State, 181 Ga. App. 337, 338(1), 352 S.E.2d 189 (1986) (). Although Torres did file a speedy trial demand, it was based on state statutory grounds rather than the constitutional ground raised in this appeal and asserted for...
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State v. Johnson, S01A0991.
...2182, 33 L.Ed.2d 101 (1972) and finding a violation of the constitutional right to a speedy trial in this case. Torres v. State, 270 Ga. 79, 81(2), 508 S.E.2d 171 (1998). Those four factors are "(1) the length of the delay; (2) the reason for the delay and whether this is attributable to th......
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