State v. Hunsberger ( 2016 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Julio Angelo Hunsberger, Petitioner.
Appellate Case No. 2015-000085
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Edgefield County
R. Knox McMahon, Circuit Court Judge
Memorandum Opinion No. 2016-MO-029
Heard December 2, 2015 – Filed October 12, 2016
REVERSED
Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, Senior
Assistant Attorney General Melody Jane Brown, all of
Columbia, and Solicitor Donald V. Myers, of Lexington,
all for Respondent.
CHIEF JUSTICE PLEICONES: We granted certiorari to review the decision of
the Court of Appeals, which upheld the denial of Petitioner Julio Hunsberger's
speedy trial motion. State v. Hunsberger, Op. No. 2014-UP-382 (S.C. Ct. App.
filed Nov. 5, 2014). We now reverse. See State v. Alexander Hunsberger, Op. No.
27671 (S.C.Sup.Ct. filed October 12, 2016).
REVERSED.
BEATTY and HEARN, JJ., concur. Acting Justice Jean H. Toal, dissenting in
a separate opinion in which KITTREDGE, J., concurs.
ACTING JUSTICE TOAL: I respectfully dissent. Because Julio Hunsberger
(Petitioner) never made a demand for trial and the record indicates that Petitioner
did not actually desire a speedy trial prior to the call of his case, it is my opinion
that the majority erred in summarily reversing Petitioner's direct appeal pursuant to
the Court's stated reasons for granting co-defendant Alexander Hunsberger's
speedy trial motion in State v. Alexander L. Hunsberger.1 Because I would affirm
the trial court for the reasons stated in the court of appeals' opinion, see State v.
Julio Angelo Hunsberger, Op. No. 2014-UP-382 (S.C. Ct. App. filed Nov. 5,
2014), I would dismiss the writ of certiorari as improvidently granted.
On September 3, 2001, Samuel Sturrup (the victim) was murdered. The
State alleged Steven Barnes, Richard Cave, Antonio Griffin, and Charlene
Thatcher began an assault on the victim in Georgia because Barnes believed the
victim had stolen money from him. Barnes called Petitioner and his brother,
Alexander Hunsberger, who drove from South Carolina to Augusta, where the
group placed the victim in the trunk of Petitioner's car. Barnes, Cave, Griffin, and
Thatcher followed Petitioner and Alexander in another vehicle to a remote area of
Edgefield County. When they arrived, Barnes ordered everyone in the group to
shoot the victim, and Barnes fired the fatal shot into the back of the victim's head.
Petitioner was arrested for murder on January 25, 2002.2 On February 16,
2005, Petitioner was transferred to Georgia to face additional charges there. On
September 12, 2006, he was convicted in Georgia for the crime of kidnapping with
bodily injury and sentenced to life imprisonment. On September 30, 2011,
Petitioner was transferred back to South Carolina.3 The State first sought to call
1
Op. No. 2014-UP-381 (S.C. Sup. Ct. filed Nov. 5, 2014) (finding Petitioner
Alexander Hunsberger was deprived of his constitutional right to a speedy trial and
dismissing his murder charge).
2
Petitioner's first attorney was appointed in 2002. Because Petitioner complained
throughout 2004 and 2005 that he had not seen his attorney, another public
defender was appointed. This attorney was relieved in June 2010. Petitioner's
final counsel was appointed in June 2010 and represented him at his trial.
3
During this time, the State sought the death penalty against Petitioner's co-
defendant, Steven Barnes. The State contends it chose to try Steven Barnes first of
Petitioner's case for trial in October 2011, but Petitioner moved for a continuance.
Petitioner's South Carolina trial began on January 9, 2012, and for the first time
during pre-trial motions, Petitioner invoked his right to a speedy trial and moved to
dismiss his case.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy . .
. trial." U.S. Const. amend. VI; see also S.C. Const. art. I, § 14 ("Any person
charged with an offense shall enjoy the right to a speedy . . . trial."). The right has
been described as "necessarily relative," in that "[i]t is consistent with delays and
depends upon circumstances." State v. Langford, 400 S.C. 421, 441, 735 S.E.2d
471, 481 (2012) (quoting Beavers v. Haubert, 198 U.S. 77 (1905)). In other words,
"[a] speedy trial does not mean an immediate one; it does not imply undue haste,
for the [S]tate, too, is entitled to a reasonable time in which to prepare its case; it
simply means a trial without unreasonable and unnecessary delay." Id. at 441, 735
S.E.2d at 481–82 (quoting Wheeler v. State, 247 S.C. 393, 400, 147 S.E.2d 627,
630 (1966)).
Even though the United States Supreme Court has provided that speedy trial
issues should be resolved on an ad hoc basis, the Court has identified several
factors to be considered when deciding speedy trial issues, including: (1) the length
of the delay; (2) the reason(s) the government provides to justify the delay; (3) the
timing of the defendant's assertion of his right to speedy trial; and (4) the prejudice
resulting to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); see also
State v. Foster, 260 S.C. 511, 197 S.E.2d 280 (1973) (recognizing Barker factors
as applicable under South Carolina law). The Supreme Court has explained that
not one of these factors is "either a necessary or sufficient condition to the finding
of a deprivation of the right of speedy trial." Barker, 407 U.S. at 533. Rather, the
factors are interrelated and "must be considered along 'with such other
circumstances as may be relevant.'" Langford, 400 S.C. at 441, 735 S.E.2d at 482(quoting Barker, 407 U.S. at 533). Thus, courts should weigh "'the conduct of both
the prosecution and the defense.'" Id. at 441–42, 735 S.E.2d at 482 (quoting
Barker, 407 U.S. at 529–30).
The "triggering mechanism" of the Barker analysis is the length of the delay.
Id. at 442, 735 S.E.2d at 482 (citing Barker, 407 U.S. at 530). When a defendant
asserts his speedy trial right, the court "should not even examine the remaining
factors '[u]ntil there is some delay which is presumptively prejudicial.'" Id.the co-defendants. Barnes was arrested in January 2002, convicted in Georgia for
kidnapping in 2003, and sentenced to death in South Carolina in September 2010.
(quoting Barker, 407 U.S. at 530). "The clock starts running on a defendant's
speedy trial right when he is 'indicted, arrested, or otherwise officially accused,'
and therefore we are to include the time between arrest and indictment." Id.(quoting United States v. MacDonald, 456 U.S. 1, 6 (1982)). Notably, however,
"even the length of time necessary to trigger the full inquiry 'is necessarily
dependent upon the peculiar circumstances of the case.'" Id. (quoting Barker, 407
U.S. at 530–31). Further, the Supreme Court has explained that "as the term is
used in this threshold context, 'presumptive prejudice' does not necessarily indicate
a statistical probability of prejudice; it simply marks the point at which courts
deem the delay unreasonable enough to trigger the Barker enquiry." Doggett v.
United States, 505 U.S. 647, 652, n.1 (1992).
Let us assume that the time period in question triggers further inquiry into
the delay.4 This case yields two additional, but notable, distinctions from State v.
Alexander Hunsberger which in my opinion weigh very heavily against reversal in
this case.5 First, Petitioner never made a demand for a speedy trial until after his
trial began. Further, during the hearing on the motion, Petitioner's counsel
admitted he chose not invoke the speedy trial right as a matter of strategy.
As noted by the trial court, the fact that Petitioner did not make a demand for
trial does not operate as an automatic procedural bar to hearing the motion to
dismiss based on the invocation of the speedy trial right. Instead, the failure to
make a demand for trial is merely another factor in the Barker analysis. See State
v. Waites, 270 S.C. 104, 108, 240 S.E.2d 651, 653 (1978) (recognizing Barker's
explicit rejection of the notion that the failure to demand a trial constituted the
waiver of the speedy trial right).
However, this Court has acknowledged that "the manner in which the
defendant asserts his right [to a speedy trial] is an important factor to be
considered" when analyzing whether a defendant speedy trial motion should be
granted, and Barker "'emphasize[d] that failure to assert the right will make it
4
The timeline in Alexander Hunsberger's case and Petitioner's case is very similar.
5
In State v. Alexander Hunsberger, the Court found that of the delay chargeable to
the State, the State's reasons for the delay in Alexander's prosecution were
insufficient to overcome the prejudice befalling him in light of the presumptively
prejudicial length of the delay and the fact that Alexander asserted his right to a
speedy trial three times. See Op. No. 27671 (S.C. Sup. Ct. filed October 12,
2016). I disagree that that case should be reversed. See id. (Toal, J., dissenting).
difficult for a defendant to prove that he was denied a speedy trial.'" Id. (quoting
Barker, 407 U.S. at 532). In State v. Waites, the defendant was arrested on August
26, 1974, and on that date, his attorney requested a preliminary hearing which was
then scheduled for September 25, 1974. Id. at 106, 240 S.E.2d at 652. Due to
scheduling changes and the magistrate's recusal and subsequent transfer of the case
to another magistrate, the preliminary hearing was not held until December 29,
1976—two years and four months after the service of the defendant's arrest
warrants. Id. at 106–07, 240 S.E.2d at 652. There, the Court found "significant"
the fact that Waites "waited approximately twenty-eight months before claiming he
had been denied his constitutional right to a speedy trial" even though he had been
represented by counsel. Id. at 109, 240 S.E.2d at 653 (citation omitted)). In my
opinion, Petitioner's failure to assert his speedy trial right until after trial is likewise
significant in balancing the Barker factors. As noted by the court of appeals,
Although almost ten years passed between [Petitioner's] arrest and his
trial, the trial court noted that [Petitioner] was only detained in South
Carolina from January 25, 2002, to February 16, 2005, before he was
released to Georgia. This three-year period would have been sufficient
to trigger further review of his speedy trial rights; however, he never
asserted them.
Op. No. 2014-UP-382 (S.C. Ct. App. filed Nov. 5, 2014) (emphasis added).
Unlike cases in which a defendant merely sleeps on his right to a speedy
trial, Petitioner's failure to raise his right is made more significant because it was
intentional. Here, the delay in resolution—apart from the State's given reasons of
the Georgia prosecution and Steven Barnes capital murder case delay—was
occasioned partly as a matter of trial strategy. In fact, counsel for Petitioner stated
he was hoping that the prosecution of Steven Barnes would lead to the State
choosing not to prosecute Petitioner due to his life sentence in Georgia. At the
hearing, Petitioner's counsel explained, "Sometimes that [asserting the right] can be
a dangerous proposition. You may get just what you ask for." Thus, the record
clearly evinces a desire on Petitioner's part not to go to trial.
In Barker, the defendant did not object to the Commonwealth of Kentucky
seeking sixteen separate continuances in his trial date. In assessing the speedy trial
motion, the Supreme Court stated, "[B]arring extraordinary circumstances, we
[should] be reluctant indeed to rule that a defendant was denied this constitutional
right on a record that strongly indicates, as does this one, that the defendant did not
want a speedy trial." 407 U.S. at 536 (emphasis added). This record makes clear
that Petitioner sought to delay trial to reap the potential benefits from the delay.
Therefore, it is my opinion that this case certainly does not present the
extraordinary circumstances envisioned by Barker in which a court could find
Petitioner's right to a speedy trial was violated in the face of his stated intent to
avoid trial pending the outcome of the Barnes murder trial.
As the United States Supreme Court has made clear again and again, the
assessment of the assertion of a speedy trial right is extremely fact-specific. In my
opinion, the majority erred in relying on State v. Alexander Hunsberger to
summarily reverse this case. Because I agree with the court of appeals that the trial
judge should be affirmed, I would dismiss the writ of certiorari as improvidently
granted.
KITTREDGE, J., concurs.