Western v. State

• Decision Date: 01 November 2016
• Docket Number: A16A0952
• Citation: 339 Ga.App. 279,793 S.E.2d 180
• Parties: WEST v. The STATE.
• Court: Georgia Court of Appeals

339 Ga.App. 279

793 S.E.2d 180

WEST

v.The STATE.

A16A0952

Court of Appeals of Georgia.

November 1, 2016

Long Dai Vo, for Appellant.

Joshua Bradley Smith, Rebecca Ashley Wright, Justin M. Mullis, for Appellee.

Branch, Judge.

On appeal from his conviction for sexual battery, Willie C. West, Jr., argues that the evidence was insufficient and that the trial court erred when it denied his motion for new trial asserting a violation of his constitutional right to a speedy trial. We find the evidence for his conviction sufficient, but we also conclude that the trial court failed to consider some of the factors critical to West's constitutional speedy trial claim. We therefore vacate and remand for further proceedings consistent with this opinion.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted and emphasis omitted).

Thus viewed in favor of the trial court's judgment, the record shows that on September 5, 2009, the nine-year-old victim was playing in the yard of a friend's house and was bent over petting West's dog when West rubbed her "front bottom private area" over her clothing for "a few seconds." West, who is the friend's step-grandfather, told the victim to wear a dress when she visited on the next day. The victim immediately reported the touching to her mother, who notified the police and identified West. The victim repeated her account of the attack to a child advocate, who testified as to the circumstances and content of her interview of the victim at trial. During an interview by an investigator, West did not deny touching the child, but explained that he was trying to prevent her from being bitten by his dog.

West, who had been out on parole from a 1973 murder conviction for more than ten years, was arrested on September 17, 2009. That same day, West requested an appointed attorney. A preliminary hearing and a bond hearing were held, and bond was initially granted in the amount of $20,000. On October 29, 2009, West was charged with child molestation. On November 5, 2009, West went before the parole board, which revoked his parole. West thus spent the rest of the period from November 2009 to his June 2013 trial in confinement.

On November 20, 2009, a public defender filed a motion for discovery on West's behalf. More than a year later, on December 29, 2010, West filed a pro se speedy trial demand, citing OCGA § 17–7–170, Georgia's speedy trial statute. Nothing was filed in the case between December 2010 and January 6, 2011, when the trial court issued an order that West be transported to court for his arraignment, which took place on February 11, 2011. A status conference was held on March 25. Although he was originally scheduled to go to trial on April 26, 2011, West began complaining to the public defender's office in early April 2011 about the quality of the representation he was receiving, alleging that he had heard nothing from the public defender's office before his arraignment and that the attorney representing him at that time was "totally unprepared."

West made further complaints to the trial court about his representation in the course of the spring and summer of 2011, and filed a bar complaint against his attorney in August 2012. Between February 2011 and June 2013, trial was scheduled seven times. The State asked for a continuance on only one of these occasions, in December 2011, because the victim's forensic interviewer, whom the State characterized as a "necessary witness," was unavailable. At the conclusion of the trial held in June 2013, a jury found West guilty of sexual battery, he was convicted and sentenced to five years without credit for time served. In an amended motion for new trial, West's counsel asserted that his constitutional right to a speedy trial had been violated. At the hearing on West's motion for new trial, West testified that his parole from a 1973 murder conviction was revoked as a result of his arrest for sexual battery; that his assigned attorney "was not representing [him] as [he] wanted to be represented"; that he had wanted to hire a private attorney but could not do so because he was indigent; and that he had filed a bar complaint against his attorney in August 2012. At the same hearing, the prosecutor testified that West had asked for and was granted continuances "six or seven" times because he was dissatisfied with his representation.

In October 2015, the trial court denied West's motion for new trial, finding that his constitutional speedy-trial right was not violated because (1) part of the delay was attributable to West, "who repeatedly requested a continuance, ostensibly for the purpose of hiring new counsel, which [he] failed to do"; (2) West "failed to adequately assert his right" in that he filed his statutory speedy trial demand pro se while he was represented by counsel, with the result that the pro se demand "had no legal effect"; and (3) West had failed to show that his defense at trial was prejudiced by the delay.

1. Although West contests the sufficiency of the evidence against him, it is axiomatic that the testimony of a child victim of sexual battery is alone sufficient to authorize a guilty verdict. See Lee v. State , 306 Ga.App. 144, 145 (1), 701 S.E.2d 582 (2010). It follows that the evidence outlined above, including the testimony of the victim at trial, was sufficient to sustain West's conviction for sexual battery. See OCGA § 16–6–22.1 (a), (b) (defining sexual battery as "intentionally mak[ing] physical contact with the intimate parts of the body of another person without the consent of that person"); Watson v. State , 297 Ga. 718, 721 (2), 777 S.E.2d 677 (2015) (noting that sexual battery "does not necessarily involve sexual conduct"); Jackson , supra.

2. West also argues that the trial court abused its discretion when it denied his plea in bar based on an alleged violation of his constitutional right to a speedy trial.

"The United States and Georgia Constitutions both guarantee a criminal defendant the right to a speedy trial[.]" Weems v. State , 310 Ga.App. 590, 590–591, 714 S.E.2d 119 (2011). "[T]hese rights attach at the time of arrest or when formal charges are brought, whichever is earlier." Id. (punctuation and footnote omitted). We examine West's constitutional speedy-trial claim under the four-part analysis established in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and clarified in Doggett v. United States , 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

In the first stage of the Barker– Doggett analysis, "the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial." Ferguson v. State , 303 Ga.App. 341, 342, 693 S.E.2d 578 (2010) (citation and punctuation omitted). "The pretrial delay is measured from the arrest of the accused or initial formal accusation brought against the accused to the beginning of the trial." Weems , 310 Ga.App. at 592 (1), 714 S.E.2d 119 (footnote omitted). "As a delay approaches one year, it generally is presumptively prejudicial." Id. (footnote omitted). "[I]f the trial court finds that the delay has passed the point of presumptive prejudice, it must then engage in the second stage" of the analysis, in which it considers "(i) whether the delay before trial was uncommonly long, (ii) whether the government or the criminal defendant is more to blame for that delay, (iii) whether, in due course, the defendant asserted the right to a speedy trial, and (iv) whether he or she suffered prejudice as the delay's result." Id. (citation and punctuation omitted). "Absent an abuse of discretion, we must affirm the trial court's balancing and weighing of the four Barker factors." State v. Thompson , 334 Ga.App. 692, 693, 780 S.E.2d 67 (2015) (citation and punctuation omitted).

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.

State v. Porter , 288 Ga. 524, 526 (2) (a), 705 S.E.2d 636 (2011) ) (citations and punctuation omitted).

(a) Whether Delay was Presumptively Prejudicial. "The pretrial delay is measured from the arrest of the accused or initial formal accusation brought against the accused to the beginning of the trial." Weems , 310 Ga.App. at 591, 714 S.E.2d 119 (footnote omitted). West's trial was delayed three years and nine months, or 45 months, from the date of his arrest in September 2009 to the trial held in June 2013. Although the trial court made no finding of presumptive prejudice, the 45–month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker– Doggett test, "with the length of the delay also factored into [its] consideration of prejudice." Bass v. State , 275 Ga.App. 259, 260 (1), 620 S.E.2d 184 (2005), citing State v. Johnson , 274 Ga. 511, 512 (1), 555 S.E.2d 710 (2001).

(b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long.

"A 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...