Jenkins v. State , 294 Ga. 506 ( 2014 )

FINAL COPY
294 Ga. 506S13A1387. JENKINS v. THE STATE.
HINES, Presiding Justice.
Larry Jenkins appeals the denial of his motion to dismiss the indictment
against him and his plea in bar based upon the grounds that his retrial for two
murders and related crimes would violate the constitutional prohibition against
double jeopardy and the constitutional right to a speedy trial. For the reasons
that follow, we affirm.
In September 1995, Jenkins was convicted of the malice murders,
kidnappings with bodily injury and armed robbery of two victims, and the theft
of $600 in coins. The jury recommended a death sentence for each of the
murders, finding nine aggravating circumstances. The trial court sentenced
Jenkins to death, Jenkins appealed, and this Court affirmed. See Jenkins v. State,
269 Ga. 282 (498 SE2d 502) (1998). Jenkins filed a petition for a writ of habeas
corpus on March 4, 1999, and after evidentiary hearings in December 2002 and
January 2003, the habeas court vacated Jenkins’ death sentences and
convictions, finding that Jenkins was 17 years old at the time of the crimes and
that the Supreme Court of the United States had declared death sentences for
crimes committed by persons under the age of 18 to be unconstitutional. See
Roper v. Simmons, 543 U. S. 551, 568 (125 SCt 1183, 161 LE2d 1) (2005). The
habeas court further found that Jenkins’ trial counsel rendered ineffective
assistance in the guilt/innocence phase of Jenkins’ trial, that Jenkins’s trial
counsel had a conflict of interest, and that there was prosecutorial misconduct
in that the State, inter alia, suppressed evidence of the involvement of an
unindicted suspect, evidence related to the mental state of a key prosecution
witness, and contradictory prior statements of testifying prosecution witnesses.
The Warden appealed, and this Court affirmed the judgment of the habeas court,
ordering a new trial based upon the habeas court’s determination that Jenkins’s
counsel rendered ineffective assistance in the guilt/innocence phase of the trial.1
See Terry v. Jenkins, 280 Ga. 341 (627 SE2d 7) (2006).
1
As noted, the habeas court determined that Jenkins was 17 when the crimes were committed;
therefore, it vacated Jenkins’ death sentences in light of Roper v. Simmons. The Warden did not
appeal the ruling vacating Jenkins’ death sentences, and under Roper, Jenkins is no longer subject
to those sentences.
2
On June 27, 2011, Jenkins filed a “Motion to Dismiss Indictment and Plea
in Bar” seeking to bar his retrial on the grounds, inter alia, that it would violate
the “fair trial” and speedy trial guarantees and the prohibitions against double
jeopardy under the Federal and State Constitutions. On May 16, 2012, Jenkins
filed a “Motion to Bar Retrial Under the State and Federal Double Jeopardy
Clauses.” It was denied on October 22, 2012. On November 14, 2012, he filed
a “Plea in Bar Based Upon Violations of the Defendant’s Constitutional Right
to a Speedy Trial.” By consent of Jenkins and the State, on that same date the
trial court entered an order vacating the October 22, 2012 denial order on the
basis that the court would enter a consolidated order on the motion to dismiss
indictment and the pleas in bar following a scheduled hearing in the matter. On
January 28, 2013, the trial court denied the pending motion and pleas in bar.
1. Jenkins contends that the trial court erred in denying his motions and
pleas in bar because his retrial would constitute double jeopardy under the
United States and Georgia Constitutions for the reason that the prosecution
committed intentional misconduct which violated due process, and thus, denied
him his right to a fair trial. He urges this Court to adopt a reading of the Georgia
constitutional protections against double jeopardy as that set forth in the caselaw
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of other jurisdictions, which have found that prosecutorial misconduct, similar
to that alleged in Jenkins’s case, warranted discharge.2 But, Jenkins’s argument
is unavailing.
This Court is to assess the factual findings of the trial court under the
standard of clear error, but this Court is to independently examine the trial
court’s conclusions of law. See State v. Caffee, 291 Ga. 31, 33 (3) (728 SE2d
171) (2012). The legal standard employed by the trial court, and its resulting
legal conclusions are not in error. Jenkins complains that the trial court relied
on the legal standard set forth in State v. D’Auria, 229 Ga. App. 34 (492 SE2d
918) (1997):
As a general rule, a post-conviction reversal or grant of a motion for
new trial which is not based on insufficiency of the evidence does
not preclude retrial. [Cit.] There is an exception to this general rule,
however: The defendant cannot be retried if the retrial is
necessitated by prosecutorial misconduct which was intended to
2
Jenkins relies principally upon the caselaw of Pennsylvania and New Mexico, specifically
Commonwealth v. Smith, 532 Pa. 177 (615 A 2d 321) (1992) (failing to disclose exculpatory
evidence, intentionally suppressing evidence on direct appeal, and attempting to discredit a witness
constituted prosecutorial misconduct which violated Pennsylvania Constitutions’ double jeopardy
clause) and State v. Breit, 122 N.M. 655 (930 P 2d 792) (1996) (double jeopardy clause of New
Mexico Constitution bars retrial following mistrial based on prosecutorial misconduct when
prosecutor knows conduct is improper and prejudicial and either intends to provoke mistrial or acts
in willful disregard of the possibility of mistrial, retrial, or reversal; prosecutors’ pervasive,
incessant, and outrageous misconduct, which had resulted in mistrial, barred re-prosecution).
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subvert the protections afforded by the Double Jeopardy Clause.
[Cits.]
Id. at 35. (Citations and punctuation omitted.) And, the Double Jeopardy
Clauses of both the Federal and State Constitutions
[protect] criminal defendants from three governmental abuses: a
second prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multiple
punishments for the same offense.
Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d 564) (2010). In D’Auria, it was
noted that some defendants have argued, as Jenkins is now doing, that double
jeopardy should preclude a defendant’s retrial whenever the prosecutors’
intentional misconduct is egregious and prejudicial so that it denies the
defendant a fair trial. State v. D’Auria at 35. However, for this Court to
interpret the double jeopardy bar so expansively would be tantamount to making
the constitutional protection a type of exclusionary rule. Id.; Roscoe v. State,
286 Ga. 325 (687 SE2d 455) (2009).
Generally, the Double Jeopardy Clauses of both the Federal and State
Constitutions do not protect a criminal defendant from being put in jeopardy of
life and liberty more than once for the same offense in the case of the grant of
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a new trial following conviction or when there is a mistrial. Williams v. State,
288 Ga. at 8 (2). And, with rare exceptions, even in the situation in which a
defendant was deprived of effective assistance of counsel but the evidence was
nevertheless sufficient to convict, the proper remedy is not to discharge the
defendant but rather to reverse the defendant's conviction and remand the matter
for a new trial. Green v. State, 291 Ga. 287, 288-289 (1) (728 SE2d 668)
(2012). However, double jeopardy does prohibit the retrial of a criminal
defendant when the State does not produce sufficient evidence at the initial trial
to sustain a conviction. Dinning v. State, 267 Ga. 879, 880 (485 SE2d 464)
(1997). It also precludes retrial when the defendant is granted a mistrial or a
reversal on appeal of his or her conviction in the case of intentional
prosecutorial misconduct, which is “purposefully designed to secure an
opportunity to retry the case.” Id.This Court has determined that the evidence at Jenkins’s initial trial was
sufficient to enable a rational trier of fact to find Jenkins guilty of the crimes
charged beyond a reasonable doubt. Jenkins v. State, 269 Ga. at 284.
As to the issue of the intent of the prosecutorial misconduct found by the
habeas court, there is no showing that the State’s conduct was aimed at aborting
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the trial and securing an opportunity to retry the case. Dinning v. State, 267 Ga.
at 880. In fact, quite the contrary. Jenkins acknowledges in his argument to this
Court that “[t]he evidence is clear that the State was not trying to induce a
mistrial,” but rather was trying to obtain his convictions. Thus, the trial court
properly concluded that double jeopardy does not bar Jenkins’s retrial.
2. There is likewise no merit to Jenkins’s further claim that the trial court
erred when it denied his plea alleging that the State had violated his Federal and
State Constitutional rights to a speedy trial.
In examining an alleged denial of the constitutional right to a
speedy trial, courts must engage in a balancing test with the
following factors being considered: (1) the length of the delay; (2)
the reasons for the delay; (3) the defendant's assertion of the right
to a speedy trial; and (4) prejudice to the defendant. Barker v.
Wingo, 407 U.S. 514 [(92 SCt 2182, 33LE2d 101) (1972)]. The
existence of no one factor is either necessary or sufficient to sustain
a speedy trial claim, and a trial court's findings of fact and its
weighing of disputed facts will be afforded deference on appeal. We
review the trial court's ruling for abuse of discretion.
Higgenbottom v. State, 290 Ga. 198, 200 (1) (719 SE2d 482) (2011). However,
before the Barker v. Wingo test is applied, there must be a threshold
determination as to whether the interval between the accused’s arrest,
indictment, formal accusation, or other triggering event and the trial is
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sufficiently long for it to be “presumptively prejudicial.” Id. If that presumption
is unwarranted, then the analysis goes no further because the speedy trial claim
fails; however, if the delay raises the presumption of prejudice, then the analysis
proceeds to the examination of all the Barker v. Wingo factors. Id.(a) Threshold Inquiry. In general, a delay of one year in prosecuting a
crime is considered to be delay which is presumptively prejudicial. Brock v.
State, 293 Ga. 156, 158 (2) (a) (743 SE2d 410) (2013). Jenkins urges that
because of the intentional prosecutorial misconduct and the lack of conflict-free
counsel at trial, the delay should be measured from the date of arrest. However,
as the trial court noted, Jenkins did not raise the denial of his right to a speedy
trial prior to his first trial, on direct appeal of his convictions, or in his habeas
corpus proceeding. The delay in this case, in which no retrial has occurred, is
properly calculated from the date of the remittitur from this Court following the
affirmance of the judgment of the habeas court, which was April 6, 2006, to the
date the superior court denied Jenkins’s motions, which was January 28, 2013.
See Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012). Thus, the
relevant amount of time is approximately six years and nine months, and the
State agrees that such delay raises the presumption of prejudice.
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(b) The Four Barker Factors
(1) Length of Delay. The State concedes that the length of the delay is
uncommonly long and should be weighed against it.
(2) Reasons for the Delay. This pivotal factor examines whether the
defendant or the State bears more responsibility for the delay. Phan v. State,
290 Ga. at 593 (1) (b). The trial court assessed this factor in three stages: (a)
the period between the filing of Jenkins’s habeas corpus petition in 1999 to its
disposition in 2006; (b) the period between the return of the case to the trial
court in 2006 to “the middle of 2011,” at which time Jenkins filed one of the
present motions and pleas, indicating that plea negotiations were at an end; and
(c) the period between mid-2011 until the disposition of the motions and pleas
in 2013.
(i) 1999-2006. The trial court concluded that any delay during this period
was attributable to the State because the responsibility for the untimely
disposition of court proceedings rests with the courts and delays attributable to
the courts are attributable to the State. See State v. Takyi, 322 Ga. App. 832, 837
(2) (b) (747 SE2d 24) (2013). And, the State does not offer any evidence in
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dispute. However, this interval should not have been included in the trial
court’s analysis because, as has been noted, the date triggering consideration of
the Barker v. Wingo factors in this case is April 6, 2006.
(ii) 2006-mid-2011. The record supports the trial court’s conclusion that
this delay was attributable to both the State and the defense. As noted by the
trial court, the unique posture of the case contributed to the delay in completing
it; after Jenkins’s convictions were vacated, he again became eligible for
appointed counsel, and there arose confusion as to whether habeas counsel
would continue to represent him or whether the State’s indigent defense
program would assume responsibility for the case; habeas counsel had multiple
scheduling conflicts and made requests for extensions of time; with the
elimination of the death penalty for Jenkins, it was represented to the trial court
that the case was likely to be resolved by a plea; there were several hearings set
to determine how to conclude the case; and because of the peculiar
circumstances, the trial court permitted a longer than normal time for plea
negotiations.
The State takes issue with attributing any delay to it and cites the
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numerous rescheduling requests by defense counsel. However, the trial court
plainly recognized the defense’s role in the protracted proceedings, but it
properly also acknowledged the contributing difficulty of confusion involving
Jenkins’s indigent defense. See Phan v. State, 290 Ga. at 593-595 (1) (b).
Thus, the trial court correctly concluded that both the State and the defense
shared the responsibility for this period of delay, and the second factor of the
Barker v. Wingo analysis is neutral for this period of time. Id. at 595 (1) (b).
(iii) Mid-2011-2013. The record also supports the trial court’s
determination that the extended period of plea negotiations and efforts to
determine the future of Jenkins’s legal representation ended with the filing of
the present defense motions and pleas, which if granted, would bar retrial.
Jenkins does not offer evidence to dispute the court’s further findings that delay
in hearing the motions and pleas was due to the representation by both the State
and the defense that the issues to be resolved could be decided on the basis of
stipulations made; that the stipulations ultimately submitted by the defense were
“argumentative and unworkable,” resulting in the court electing not to proceed
by stipulation; and that while defense counsel felt the responsibility to file and
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pursue the motions and pleas, it did not alter the fact that the case would have
been brought to trial but for the need to hear and rule on them. Consequently,
the court appropriately concluded that the post-remand delay should be weighed
against Jenkins, but that inasmuch as it was, inter alia, in the pursuit of
legitimate motions and pleas, it was “relatively benign.”
In sum, both the State and Jenkins must be held responsible for the
reasons for the delay.
(3) Assertion of the Right to a Speedy Trial. Jenkins does not dispute the
trial court’s finding that he first asserted his right to a speedy trial in November
2012. Yet, he urges that this factor should be weighed heavily against the State
because he contends he was unable to assert his right to a speedy trial from the
time of his indictment in 1993 until January 2011 due to the government’s
failure to appoint him conflict-free counsel and its decision to withhold
exculpatory evidence. However, as the trial court aptly noted, this factor must
be considered in light of the changes in the law since Jenkins was indicted in
1993 and its implications for the course of his case.
As noted, Jenkins was indicted in 1993, tried in 1995, granted habeas
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relief in 2005, and the judgment of the habeas court was affirmed in 2006.
Therefore, he was properly held fully accountable for his failure to demand a
speedy trial from the 2006 affirmance of his grant of habeas relief until 2012.
During this time, there was no evidence of any conflict of interest of defense
counsel or of any government action which would have prevented Jenkins from
raising his right to a speedy trial. Thus, this factor must be weighed heavily
against Jenkins. See State v. Pickett, 288 Ga. 674, 677 (2) ( c) (3) (706 SE2d
561) (2011).
(4) Prejudice to the Defendant. This factor should be assessed in light
of the interests of defendants which the speedy trial right was designed to
protect, that is, to prevent oppressive pretrial incarceration, to minimize the
accused’s anxiety and concern, and to limit the possibility of impairment of the
defense. State v. Johnson, 291 Ga. 863, 867 (2) (d) (734 SE2d 12) (2012), citing
Doggett v. United States, 505 U. S. 647, 654 (III) (A) (112 SCt 2686, 120 LE2d
520) (1992).
The trial court found that while all incarceration is oppressive to some
degree and that anyone facing two murder charges presumably suffers some
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degree of anxiety and concern, there was no showing that anything about
Jenkins’s confinement was “outside the norm” or any evidence of an
extraordinary impact upon him resulting from anxiety and concern. Indeed,
Jenkins has made no showing that he has been subjected to substandard
conditions in jail, nor has he demonstrated that he has suffered anxiety and
concern over and above that which would be expected during incarceration, and
experienced by one who was to be tried on the charges of which Jenkins is
accused. State v. Johnson,291 Ga. at 867 (2) (d). But regardless, the length of
the pretrial delay alone raises the presumption of prejudice. Id.
Jenkins maintains that he has “suffered severe prejudice” as a result of the
delay principally because the individual who he claims shot the victims “is
currently wanted due to absconding from post-conviction supervision,” and may
not be apprehended prior to retrial. However, the trial court properly found that
the presumption of prejudice has been overcome because, inter alia, assuming
that such individual is not found prior to trial, the defense has the ability to
present already-obtained evidence claimed to support the individual’s
involvement, and thus, present its apparent theory that a third party committed
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the crimes. Additionally, upon retrial, Jenkins will be able to avail himself of
the evidence withheld by the State at his first trial. It should also be noted that
in general, the inevitable effects of the passage of time on witnesses’ memories
and availability of evidence tend to help rather than hinder the accused inasmuch
as the State must carry the burden of proving beyond a reasonable doubt each
element of its case. Brock v. State, 293 Ga. 156, 160 (2) (743 SE2d 410) (2013).
(c) Balancing the Factors. This test compels the examining court to
consider and weigh all four factors in the context of the particular circumstances
of the case at issue. State v. Porter, 288 Ga. 524, 533 (2) (d) (705 SE2d 636)
(2011). And, plainly the trial court did so in this case; its balancing was
reasoned and reasonable. State v. Buckner, 292 Ga. 390, 399 (3) (e) (738 SE2d
65) (2013). Simply, there was no abuse of the trial court’s discretion in
applying the test of Barker v. Wingo and ultimately denying Jenkins’s motions
and pleas to bar his retrial on the basis of the violation of his constitutional right
to a speedy trial. Id.Judgments affirmed. All the Justices concur.
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Decided February 24, 2014.
Murder, etc. Wayne Superior Court. Before Judge Scarlett.
Jonathan P. Lockwood, for appellant.
Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant
District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, for appellee.
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