Washington v. State, 34415
| Decision Date | 27 March 1979 |
| Docket Number | No. 34415,34415 |
| Parties | WASHINGTON v. The STATE. |
| Court | Georgia Supreme Court |
Ashman & Zipperer, Ralph L. Lorberbaum, Savannah, for appellant.
Arthur K. Bolton, Atty. Gen., Russell N. Sewell, Jr., Asst. Atty. Gen., Andrew J. Ryan, III, Dist. Atty., Robert M. Hitch, III, Asst. Dist. Atty., for appellee.
Michael Washington, hereinafter appellant, appeals from his conviction in the Chatham County Superior Court of armed robbery, kidnapping, and murder. He was sentenced to life imprisonment on the murder charge and 15 years on each of the armed robbery and kidnapping charges. 1
The circumstances leading up to the arrest of appellant are as follows. On April 15, 1976, an automobile with North Carolina license plates was recovered in Savannah, Georgia by the police. The vehicle was found to belong to Heustus Wilson Beck, later identified as the victim of the crime. The recovery of the automobile led to the arrest of Michael Shavers (a co-defendant of appellant) on May 4, 1976. Shavers led the police to an area commonly known as Rossignol Hill and directed the officers to the remains of a decomposed human body. The officers recovered several items at the site including a human skull, a pair of eyeglasses, and an upper denture plate. Shavers made a statement to the police but this statement was not admitted in evidence against appellant at his trial. Based on information received from Shavers, appellant was arrested for murder that same night of May 4, 1976. Appellant was advised of his constitutional rights after which he gave a statement describing the commission of the crime. Appellant's statement was introduced into evidence at his trial. A 9mm pistol, identified as belonging to the victim was recovered from co-defendant Shavers.
Based on the evidence adduced at trial, the jury could find the following facts. On April 9, 1976, appellant, Shavers, and a man called "Red", were walking through town when one of them suggested that they get some money. Someone said they should "go to the Ramada Inn and get us a man." They there found the victim, kidnapped him in his car, and started driving towards Rossignol Hill. On the way the victim was forced to lie on the floor of the car while appellant robbed him of his money. At Rossignol Hill, Red suggested that they shoot the victim while a train was passing to drown the noise. Shavers and appellant both fired at the victim as he attempted to run away. Shavers followed the victim into the bushes and fired the fatal shot. The three men then divided the stolen money and went their separate ways.
Appellant was indicted for murder, kidnapping, and armed robbery and the jury found him guilty on all three indictments. He cites six enumerations of error in his appeal to this court. We find no error and affirm all three convictions.
1. Appellant first asserts that the trial court erred in overruling his motion to dismiss for lack of speedy trial. Appellant was arrested on May 4, 1976, and was incarcerated until his trial on April 24, 1978, over 23 months later.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused's constitutional right to a speedy trial had been violated. These factors are: (a) The length of the delay, (b) the reason for the delay, (c) the defendant's assertion of his right, and (d) the prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. 2182. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant. We must apply these factors to the facts of the case at bar to determine if appellant's right to a speedy trial has been abridged. Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760 (1975).
(a) Length of delay 23 months and 10 days is a very long time to be in jail awaiting trial. This is especially true where, as here, the appellant was not serving time for any other offense. It should be noted, however, that during this period of time, appellant was also being held for trial on another murder charge.
(b) Reason for delay At the hearing on appellant's motion to dismiss, the district attorney testified that the case had been set down for trial a couple of times but that it had been continued. The first continuance occurred because a prosecution witness, a California dentist, was unavailable. The second continuance was because appellant's attorney was unavailable even though the prosecution witness had come from California. The district attorney testified that nothing was ever done by his office to purposefully delay the trial and that even after the demand for trial was withdrawn, he discussed setting the case down for trial with appellant's attorney. The district attorney testified that appellant's attorney stated at that time that he may not continue to represent the appellant. When in January or February of 1978, the district attorney told appellant's attorney the case was going to have to be tried, the attorney withdrew as he had not been paid. Appellant's present attorney was appointed in February of 1978 and the trial was held in April.
(c) Defendant's assertion of his right Appellant was represented by counsel throughout the entire period of his incarceration. His first attorney was Retained by him shortly after his arrest and remained his attorney until his present appointed attorney took over the case in February, 1978. Appellant's first attorney filed a demand for trial in February, 1977 and a trial date was set. The case was removed from the trial calendar and the demand for trial was withdrawn in May, 1977. No subsequent demand for trial was made. Appellant's present attorney never made a demand for trial but, rather, in April, 1978, filed a motion to dismiss for lack of speedy trial.
(d) Prejudice to the defendant In this area, the Supreme Court in Barker v. Wingo, supra, identified three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.
It is practically undisputable that 23 months and 10 days of pretrial incarceration, standing alone, is oppressive. Here, appellant was not serving time for any other offense but was simply awaiting trial in this and one other case. 2 As for minimizing anxiety and concern, there was some evidence in the record that appellant attempted suicide while in jail.
Appellant's primary assertion of prejudice had to do with the impairment of his defense. At the motion hearing he testified that he had lost track of three of his character witnesses and an alibi witness. An examination of the record of appellant's testimony at his hearing shows this allegation of prejudice to be meritless. Two of his character witnesses whom he had lost track of were his mother and his sister. The third was an individual whose last name appellant could not remember and who had died shortly after appellant was arrested. Appellant, who was nineteen when he was arrested, had lived in Savannah until he was eighteen years old and yet the only character witnesses he could come up with were ones who were unavailable. The record indicates that appellant's first attorney was, in fact, in contact with appellant's family until the time he withdrew as counsel. Even if he were not, it is difficult to believe that appellant would have wanted the testimony of a mother and sister who did not even keep in touch with him. Furthermore, since the third character witness died shortly after appellant's arrest, it did not matter when the trial was held as far as his testimony was concerned.
Appellant also asserted that he lost track of an alibi witness, one Tommy Brown, who was allegedly in Atlanta with him on the night of the murder. As stated above, appellant was represented by retained counsel all during this time. There was no testimony that counsel was urged to try and find this witness and keep track of him. Counsel testified that at one point appellant gave him a List of witnesses and he went off to interview them but nothing more on this appears in the record. Thus, appellant has not shown that his defense was impaired by the delay in his trial.
Weighing all of these factors and considering all the facts involved, we find that this appellant has not been denied his right to a speedy trial. The evidence indicates that appellant's first counsel was instrumental in the case being delayed. We need not decide if the withdrawal of a demand for trial which is not refiled constitutes a waiver of the right to a speedy trial though it well might. There has been no allegation of ineffective assistance of counsel with regard to appellant's first counsel. We can well assume that the decision not to file a demand for trial and to encourage the delay of the case was a matter of trial tactics engaged in for the benefit of appellant. We cannot hold that such tactics constitute a denial of his right to a speedy trial. See Barker v. Wingo, supra, wherein it appeared that Barker did not want a speedy trial.
2. In his second enumeration of error, the appellant contends that the trial court erred in allowing into evidence a statement made by him which incriminated him. He urges that the statement was not freely and voluntarily given but was given under duress, force and threat.
At the Jackson-Denno hearing (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)), a State witness testified that the appellant had been given his...
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