In December 1983 a Cobb County jury found appellant William Donald Andrews guilty of aggravated assault and aggravated battery in connection with a shooting incident that had occurred in August of 1980. On the day following the incident, investigating officers, acting on probable cause based on interviews with eyewitnesses, obtained a warrant for the arrest of appellant Donald Andrews and his brother Ronnie Andrews, both of whom had been implicated by the eyewitness testimony. Appellant was not apprehended until September of 1981, or more than a year after the incident. In December of that same year, three months after the arrest, the state dismissed the warrant as against appellant for insufficient evidence to sustain a conviction. The determination of insufficiency of evidence was apparently attributable to some confusion on the part of the witnesses, resulting from the similarity of the brothers’ names.
In January 1983, more than one year after the dismissal of the warrant against appellant and approximately two and one-half years after the time of the alleged offense, appellant’s brother Ronald was arrested on the August 1980 warrant, and in May of that year an indictment was returned charging both Donald and Ronald with aggravated assault and aggravated battery. A warrant for appellant’s arrest on both charges was issued in August 1983, and he was arrested on September 24, 1983. Shortly thereafter he was indicted on a separate and unrelated charge of aggravated assault. The latter charge is not involved in this appeal.
*23 Less than one month after his arrest on the August 1983 warrant, appellant on October 17, 1983, filed a motion to dismiss on the ground that his speedy trial rights had been violated. After a hearing the court denied the motion, and the case went to trial December 12, 1983. After being convicted on both counts, appellant was sentenced to fifteen years and eight months’ incarceration, seven years’ probation, and restitution in the amount of $10,727.45. His motion for new trial on the general grounds was denied, and on appeal he enumerates five errors pertaining to an alleged abrogation of his speedy trial rights: (1) the trial court erred in holding that actual prejudice must be shown in order to warrant dismissal on speedy trial grounds, and in holding (2) that no prejudice was shown; (3) the court further erred in holding that it was necessary for appellant actually to assert his speedy trial rights in order to obtain dismissal on speedy trial grounds; (4) the court was in error in ruling that speedy trial rights do not attach until the accused is indicted; and (5) the court erred in denying the motion to dismiss the indictment. Held:
OCGA § 17-7-170 (a) provides that “[a]ny person against whom a true bill of indictment... is found . . . may enter a demand for trial at the court term at which the indictment... is found or at the next succeeding regular court term thereafter . . .” The statute further provides (section (b)) that “[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, . . . he shall be absolutely discharged and acquitted of the offense charged . . .”
It is well settled in Georgia law that the protection conferred by the statute, supra, attaches with the formal indictment or accusation.
Hall v. Hopper,
In Georgia, there are at least six protectors of a person’s right to have the state try him within a reasonable time after an offense is committed or be precluded from doing so. One is the statute of limitations with regard to criminal charges. No doubt such Georgia statutes have the same purpose recognized by the United States Supreme Court as related to federal statutes: “. . . ‘the applicable statute of
*24
limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges’ ” and so guards against prejudicial pre-accusation delays.
United States v. Marion,
A second protection is the statute requiring trial of an indictment within two terms of court at which a jury is available, when a demand for trial is made. OCGA § 17-7-170, supra. Again, this statutory device affords appellant no banner because it runs from the return of the indictment or filing of the accusation. Here the indictment was returned in May and defendant was tried in December. Although that was apparently beyond two terms, defendant had not filed a demand for trial and in fact did not want one; instead, in October he had moved to dismiss the indictment for lack of speedy trial, which violation he claimed had already matured.
The third protection is the Constitution of the State of Georgia. The 1976 Constitution was in effect at the time, but defendant did not invoke its guarantees. Although his motion asserts violation of due process of the United States and Georgia constitutions, he fails to specify the section referred to in the latter unendingly long document. He filed no brief to substantiate or specify by citation his superficial state constitutional claim, and he failed to address it at all in the hearing below. Nor has he raised it in any manner in this court. Thus compliance with its tenets is not at issue here.
Belger v. Exchange Bank,
Next we come to the United States Constitution. The sixth amendment right to a speedy trial relates to the period of time between the date of arrest, or when formal charges (indictment or accusation) are brought, whichever is earlier, and the date of trial.
United States v. Marion,
supra at 307;
Dillingham v. United States,
The fifth protection would be the speedy trial provision of the Georgia Constitution. At the time, it was contained in Art. I, Sec. I, Par. XI: “Every person charged with an offense against the laws of this State . . . shall have a public and speedy trial by an impartial jury.” But it was not invoked even nominally by defendant and for good reason. It would not apply because it becomes “operative when the accused is charged.” Hall v. Hopper, supra at 626 (citing “Code Ann. § 2-105,” referring to the paragraph in the Constitution of 1945 which contained the speedy trial clause).
Now, what defendant did assert below and calls upon here is a sixth protection, the due process clause of the fourteenth amendment of the federal constitution. Although not clearly articulated, the cases cited and arguments made in the trial court and here, and the trial court’s ruling, demonstrate this as the primary shield upon which defendant relied.
The United States Supreme Court has held that where the delay occurs in the investigative stage
before
either arrest or indictment, due process, not sixth amendment, standards apply.
United States v. Lovasco,
Relating those questions to appellant’s case, he has shown no violation of his right to due process pursuant to the federal constitution by the trial of the charge forty months after the offenses occurred. The explanations for the delay, and the absence of evidence compelling a finding of substantial prejudice, support the trial court’s rulings in this case. As said in
United States v. Lovasco,
supra at 790: “But the [federal] Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment. Judges are not free, in defining ‘due process,’ to impose on law enforcement officials our ‘personal and private notions’ of fairness and to ‘disregard the limits that bind judges in their judicial function.’
Rochin v. California,
The record in the case sub judice, including the multiple volumes of transcript, indicates that in the fact situation obtaining here, neither appellant’s statutory right to a speedy trial nor any of his constitutional due process or speedy trial rights has been abrogated. Our study of the record persuades us that appellant’s speedy trial rights were in no way violated, and that the judgment of the trial court was without error.
Judgment affirmed.
Notes
In one case,
State v. Weeks,
According to United States v. Marion, supra at 325-326, the prejudice which is referred to is “actual prejudice to the conduct of the defense”; the “real possibility of prejudice inherent in any extended delay” is not enough. In addition to the infirmity of a motive of tactical advantage, Marion also points to harassment as a prohibited basis.