Williams v. State , 260 Ga. App. 290 ( 2003 )

Adams, Judge.

Frank Lee Williams appeals the trial court’s denial of his motion to dismiss for failure to provide him a speedy trial based on the Sixth Amendment of the Constitution of the United States. For the following reasons, we reject Williams’ argument and affirm.

Preliminarily, we note that this is the second appearance of this case in this court. On August 23, 2001, this court dismissed Williams’ appeal, based on the rationale of Callaway v. State, 251 Ga. App. 11 (553 SE2d 314) (2001). Williams appealed the dismissal, and, after granting certiorari, the Supreme Court consolidated this case with two other similar dismissals from this court. In Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002), the Supreme Court reversed the three dismissals and determined that pretrial orders denying constitutional speedy trial claims are directly appealable. Thus, this case is now before us on remand from the Supreme Court.¹

The record before us shows that the acts for which Williams was charged — trafficking in cocaine and violation of the Georgia Controlled Substances Act — occurred on or about December 3, 1997. On May 29, 1998, the indictment was filed, charging Williams with trafficking in cocaine and violating the Georgia Controlled Substances Act by selling cocaine. Williams was apparently arrested after the indictment was filed. On July 7, 2000, Williams moved for a dismissal of the indictment based on a violation of his Sixth Amendment right to a speedy trial. On July 11, 2000, the superior court denied Williams’ motion to dismiss the indictment, and Williams appeals this denial.

In his sole enumeration of error, Williams argues that the superior court’s denial of his motion for discharge and acquittal was erroneous. He contends that the delay in trying his case was presumptively prejudicial and violated his constitutional rights. He further argues, citing Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994), that where no reason appears for the delay in bringing a case to trial, the court must treat it as caused by the negligence of the State.

We note that the trial court’s decision with regard to this type of motion will not be reversed unless an abuse of discretion is shown. Callaway v. State, 258 Ga. App. 118 (572 SE2d 751) (2002). In determining the time framework within which to analyze Williams’ claim, we note this speedy trial right attaches “at the time of arrest or when formal charges are brought, whichever is earlier.” (Citation omitted.) Boseman v. State, 263 Ga. at 731. Using this guideline in this case, we find that Williams’ right to a speedy trial attached on the date the formal charges were brought, May 29, 1998.

We next evaluate Williams’ claims with reference to the relevant criteria, as set forth by the court in Boseman v. State:

In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 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 [:] (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. 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. As to the prejudice factor, there are 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.

(Citations and punctuation omitted.) Boseman v. State, 263 Ga. at 731-732 (1).

a. Length of Delay.

This factor actually figures into the speedy trial analysis in two respects. First, a court must determine whether the delay has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, since, by definition, the accused cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case with customary promptness. If the delay passes this threshold test of presumptive prejudice, then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time.

(Citations and punctuation omitted.) Boseman v. State, 263 Ga. at 732 (1) (a).

The Boseman court stressed that even if there was a presumption of prejudice because of the delay, it was important to examine the other criteria. In this case, the 26-month delay raises a presumption of prejudice, similar to the presumption of prejudice which the 27-month delay raised in Boseman. Accordingly, we now analyze the other factors to determine if Williams was denied his constitutional right to a speedy trial,

b. Reason for Delay.

“At the outset, we note that nowhere in the record does it show that the State has deliberately attempted to delay the trial in order to hamper the defense, a. serious abuse that would be weighted against the State. [Cit.]” Boseman v. State, 263 Ga. at 732 (1) (b).

It appears from the record that many of the delays in bringing the case to trial were attributable to defense counsel. The State pointed out at the hearing on Williams’ motion that he had experienced problems maintaining defense counsel; at the start of the case, he was represented by attorney Ike Emmanuel Duru. Duru voluntarily surrendered his license to practice law on May 30, 2000.²

After noting that the case had been put on a trial calendar on December 3,1999; March 27, 2000; and April 24, 2000, the trial court recalled that Duru failed to show up for many calendar calls and that it was difficult commanding Duru’s presence in the courtroom. The court also recalled that as of March 2000, Williams was going to hire another attorney to try the case in April 2000. Furthermore, the court noted that the State had been ready the “last three or four trial calls” to try the case.

In summary, the delay appears to have been primarily attributable to Williams, not to the actions of the State. Of course,

merely because counsel is not diligent in protecting the right to a speedy trial is no excuse for the failure of the State to intervene and prevent an egregiously long period of pretrial detention. However, we must acknowledge that delay often does work to the advantage .of an accused, and thus can be the result of a tactical decision.

(Punctuation and footnotes omitted.) Smith v. State, 275 Ga. 261, 263 (564 SE2d 441) (2002). Accordingly, this factor “must be weighed as a ‘relatively benign’ consideration against the State.” (Footnote omitted.) Id. at 263.

c. Defendant’s Assertion of His Right to Speedy Trial.

Williams concedes that he did not assert his right to a speedy trial until 26 months after the filing of the indictment. This delay in asserting his right must be weighed against Williams. Boseman v. State, 263 Ga. at 733. See also Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001); Perry v. Mitchell, 253 Ga. 593, 595 (322 SE2d 273) (1984).

d. Prejudice to Defendant.

In evaluating the final factor from Barker v. Wingo — prejudice to the defendant —, we note:

we consider three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired. [Cit.]

Nelloms v. State, 274 Ga. at 181. Here, the record indicates that Williams has been free on bail so there has been no oppressive pretrial incarceration; furthermore, “he has not made a showing of any specific anxiety or concern [to] balance this factor in his favor.” Id. Moreover, although Williams has asserted general claims of prejudice, he has not demonstrated any specific prejudice to the defense. Johnson v. State, 268 Ga. 416, 418 (2) (490 SE2d 91) (1997).

Balancing all of these factors, we conclude that the superior court did not abuse its discretion in ruling that Williams could not prevail on his claim that he was denied his constitutional right to a speedy trial.

Judgment affirmed.

Mikell, J., concurs. Blackburn, P. J., concurs and concurs specially.

1 The other two cases remanded from the Supreme Court in Callaway are Callaway v. State, 258 Ga. App. 118 (572 SE2d 751) (2002), and Coney v. State, 259 Ga. App. 525 (578 SE2d 193) (2003).

2 See In the Matter of Duru, 272 Ga. 447 (531 SE2d 357) (2000).