Walker v. State

• Decision Date: 19 March 2012
• Docket Number: No. S11A1449.,S11A1449.
• Citation: 290 Ga. 696,723 S.E.2d 894,12 FCDR 977
• Parties: WALKER v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 977

290 Ga. 696

723 S.E.2d 894

WALKER

v.The STATE.

No. S11A1449.

Supreme Court of Georgia.

March 19, 2012.

Harold Burton Baker, Gerald P. Word, for appellant.

Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Gregory Warren Winters, Dist. Atty., John Allen Regan, Asst. Dist. Atty., for appellee.

NAHMIAS, Justice.

Appellant Lillian Walker challenges the trial court's denial of her motion for discharge and acquittal under the speedy trial statute for capital cases, OCGA § 17–7–171. This case requires us to decide whether, following a defendant's demand for speedy trial, OCGA § 17–7–171(b) requires only two, or more than two, full terms of court to pass without a trial before the defendant is entitled to discharge and acquittal (assuming the other requirements of the statute have been met). Although several prior appellate decisions involving OCGA § 17–7–171 have said in dicta that only two terms must pass, OCGA § 17–7–171(b) plainly says that “more than two” terms of court must expire, and we must follow the statutory text instead of those inaccurate dicta. Accordingly, we affirm the trial court's ruling that Appellant's motion for discharge and acquittal was premature.

1. The Superior Court of Peach County has three terms of court a year, which begin in March, August, and November. See OCGA § 15–6–3(23). During the August 2009 term of that court, Appellant was indicted for malice murder, felony murder, armed robbery, and theft by taking a motor vehicle. During the same term, Appellant filed a statutory demand for speedy trial. Because she is charged with three crimes that are “capital offenses” for speedy trial purposes, her demand is governed by OCGA § 17–7–171. See Turner v. State, 269 Ga. 392, 393, 497 S.E.2d 560 (1998) (holding that murder is a “capital offense” for purposes of OCGA § 17–7–171); White v. State, 202 Ga.App. 370, 371, 414 S.E.2d 296 (1991) (holding that armed robbery is a “capital offense” for purposes of OCGA § 17–7–171); Cleary v. State, 258 Ga. 203, 205, 366 S.E.2d 677 (1988) (holding that “where a multi-count indictment includes both capital and noncapital offenses, the time for trial upon a proper demand by a defendant is the time allowed under OCGA § 17–7–171 for the more serious offenses”), disapproved in part on other grounds, Mize v. State, 262 Ga. 489, 490, n. 1, 422 S.E.2d 180 (1992).

In the two terms of court (November 2009 and March 2010) that followed the term in which Appellant filed her speedy trial demand, no trial occurred. The third term (August 2010) also expired without a trial; however, during that term, the State filed a notice of intent to seek the death penalty. On February 1, 2011, in the fourth term (November 2010) following the one in which Appellant's demand was filed, Appellant filed a motion for discharge and acquittal, contending that, because two terms had expired after the filing of her demand, she was entitled to be automatically discharged and acquitted under OCGA § 17–7–171(b). The parties stipulated that at all of these terms of court juries were “impaneled and qualified to try the defendant.” Id.

The State's filing of a notice of intent to seek the death penalty typically resets the statutory speedy trial clock, which will not start over “until the convening of the first term following the completion of pretrial review proceedings in the Supreme Court under Code Section 17–10–35.1.” OCGA § 17–7–171(c). See Franks v. State, 266 Ga. 707, 707, 469 S.E.2d 651 (1996). However, the filing of a death penalty notice cannot reset a speedy trial deadline that has already expired. See Labovitz v. Hopkinson, 271 Ga. 330, 333, and n. 5, 519 S.E.2d 672 (1999) (noting that under the speedy trial statutes, “[t]he discharge and acquittal occurs by operation of law at the close of the last term at which the defendant could be tried timely”); Smith v. State, 192 Ga.App. 604, 604–605, 386 S.E.2d 370 (1989) (holding that because a defendant's discharge and acquittal occurs by operation of law at the close of the last term at which he could be timely tried, the waiver of his demand at a subsequent term has no effect and does prevent discharge and acquittal when sought).

Applying these principles to this case, if OCGA § 17–7–171(b) requires the discharge and acquittal of a defendant when two terms of court have expired after the filing of a statutory demand for speedy trial in a capital case, Appellant was entitled to be discharged and acquitted by operation of law at the close of the March 2010 term of court, and the State's filing of the death penalty notice in the following August 2010 term had no speedy trial effect. However, if OCGA § 17–7–171(b) requires that more than two terms of court expire before a defendant is entitled to discharge and acquittal, then the State's filing of the death penalty notice during the third term had the effect of resetting the statutory speedy trial clock, and Appellant's motion for discharge and acquittal was premature. The trial court adopted the latter reading of OCGA § 17–7–171(b) and denied Appellant's motion as premature. We affirm.¹

2. OCGA § 17–7–171(a) specifies how and when a defendant accused of a capital offense may file a statutory demand for a speedy trial.² Subsection (b) of the statute then states:

If more than two regular terms of court are convened and adjourned after the term at which the demand for speedy trial is filed and the defendant is not given a trial, then the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment, provided that at both terms there were juries impaneled and qualified to try the defendant and provided, further, that the defendant was present in court announcing ready for trial and requesting a trial on the indictment.

In ordinary English, “ more than two regular terms of court” means just that—a number of regular court terms greater than two. See OCGA § 1–3–1(b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art....”). OCGA § 17–7–171(b) specifies that the counting begins with the terms “ after ” the term in which the speedy trial demand is filed, and it further specifies that ongoing terms are not counted, only terms that have been “convened and adjourned.” Thus, under the plain language of OCGA § 17–7–171(b), a defendant accused of a capital offense may be discharged and acquitted only if she is not given a trial after at least three full terms of court have expired since the term in which her demand was filed.

Appellant contends that this reading is undermined by the proviso that follows, requiring that “at both terms” juries be impaneled and qualified to try the defendant. To be sure, the word “both” refers to only two things, and so there is some tension between the “more than two ... terms” requirement for acquitting a defendant at the start of subsection (b) and the reference to “both terms” later in the same provision. However, this tension cannot be resolved to conclude that only two terms without a trial need to follow the filing of a speedy trial demand for a capital case to be dismissed, for several reasons.

First, it is impossible for “more than two” full terms to expire at or before the end of “both” terms. Reading “more than two” to mean “two” renders the words “more than” surplusage, and we normally avoid construing statutes to leave parts of them meaningless. See State of Ga. v. C.S.B., 250 Ga. 261, 263, 297 S.E.2d 260 (1982). On the other hand, it is possible for something to happen in “both terms” within a span of three (or more) terms. Thus, the numerical references in subsection (b) may be reconciled by reading the statute to require that juries be available in at least two (“both”) terms during the at least three (“more than two”) terms that must expire without a trial before the defendant can be acquitted.

Second, when what is now OCGA § 17–7–171(b) was first enacted in 1952, see Ga. L.1952, p. 299, § 2, the clause in which “both terms” appears was taken verbatim from the older speedy trial statute applicable to non-capital cases, see OCGA § 17–7–170, while the passage in which “more than two regular terms” appears is significantly different than the corresponding passage of OCGA § 17–7–170. If required to choose whether the General Assembly meant us to follow the former or the latter, we should give more weight to the language the legislature specifically crafted for the capital case context over the phrase it simply copied from the statute applicable to non-capital cases.

Finally, in light of the “extreme sanction” for violations of the speedy trial statutes—dismissal of the case with prejudice and without a trial—these statutes are interpreted strictly against defendants who seek to invoke them. See, e.g., State v. Varner, 277 Ga. 433, 434, 589 S.E.2d 111 (2003). These are not penal laws, but rather laws that give defendants a benefit—here, the potential dismissal of capital murder charges. See id. at 434, n. 1, 589 S.E.2d 111. Construing OCGA § 17–7–171(b) strictly against defendants, any inconsistency between “more than two” terms and “both” terms must be resolved to authorize acquittal only when more than two terms have expired without a trial after the term in which the speedy trial demand was filed.

Appellant also cites a number of cases involving OCGA § 17–7–171 from this Court and the Court of Appeals, which contain statements to the effect that only two terms of court must pass between the filing of the speedy trial demand and the dismissal of the charges. See, e.g., all with emphasis added, Tutt v. State, 267 Ga. 49, 50, 472 S.E.2d 306 (1996) (saying that OCGA § 17–7–171(b) “provides for discharge and acquittal in capital cases if a defendant is not given a trial within two regular terms of court following the filing of a demand for trial,” and then ruling against the defendant's claim because he pled...