651 S.E.2d 218 | Ga. Ct. App. | 2007
Terry Lincoln Bell appeals the denial of his motion to dismiss the indictment against him for an alleged violation of his right to a speedy trial under the United States and Georgia Constitutions. We affirm.
The record reveals that Bell was arrested on November 8, 2004. The grand jury returned an indictment against him on February 2, 2005, charging that he hijacked a motor vehicle and attempted to commit armed robbery. On March 8, 2005, Bell filed a pleading entitled “Consolidated Discovery Motion, General Demurrers, and Preliminary Motions to Suppress,” which included a “notice” that he did not and had not waived any federal or state statutory or constitutional rights. On December 29, 2005, Bell filed his first request to file an out of time demand for speedy trial. Between December 29, 2005 and April 26, 2006, Bell filed seven constitutional demands for
The right of an accused to a speedy trial is guaranteed by both the Federal and Georgia Constitutions and attaches at the time of arrest or when formal charges are brought, whichever is earlier.
Length of delay. The record shows that Bell was arrested on November 8, 2004. He filed his initial constitutional speedy trial claim approximately thirteen months later, and the trial court did not rule on that claim for another ten months. Approximately 24 months elapsed, therefore, between Bell’s arrest and the denial of his speedy trial motion. As the State concedes and the trial court properly found, the delay here was presumptively prejudicial, triggering an analysis of the remaining three factors, because “[a] s a general rule, any delay approaching a year raises a threshold presumption of prejudice.”
Reason for delay. In its order, the trial court concluded that “[t]he State was unable to announce ready for trial because a material witness, the lead officer in the case, was unavailable by reason of being on active duty as a member of the armed forces of the United States and was serving in Iraq.” At the hearing on Bell’s motion to dismiss, Officer Heather VanKampen testified that she was on active duty for the Georgia Army National Guard from April 2, 2004 until June 4, 2006.
Bell contends that VanKampen was not a necessary and material witness for the State. But we defer to the trial court’s factual findings in analyzing a defendant’s argument that he was denied his right to
However, there is no explanation in the record for the remainder of the delay and, therefore, we must treat that portion “as caused by the negligence of the State in bringing the case to trial.”
The defendant’s assertion of his right to speedy trial. Bell failed to file a timely statutory speedy trial demand, and he did not affirmatively assert his constitutional right to a speedy trial until December 29, 2005, ten months after his indictment and thirteen months after his arrest.
Prejudice to the defendant. “ ‘The test for whether a defendant has been prejudiced requires the court to consider three interests: preventing oppressive pretrial incarceration, minimizing a defendant’s anxiety and concern, and limiting the possibility that the defense will be impaired.’ ”
Unquestionably, Bell’s two-year incarceration was burdensome.
Balancing the foregoing factors, particularly Bell’s failure to show that the State’s delay specifically impaired his defense, we conclude that the trial court did not abuse its discretion in denying Bell’s motion to dismiss.
Judgment affirmed.
See Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994).
407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).
See Boseman, supra.
See id.
Hardeman v. State, 280 Ga. App. 168, 169 (633 SE2d 595) (2006).
Nusser v. State, 275 Ga. App. 896, 897 (622 SE2d 105) (2005).
VanKampen returned home for a two-week leave in January 2006.
See Christian v. State, 281 Ga. 474, 475-476 (2) (640 SE2d 21) (2007).
See id.; OCGA § 17-8-31 (b) (“It shall be the duty of any judge of the courts of this state to continue any case in the court upon a showing by the state or the defendant that a material and necessary witness is unavailable by reason of being on active duty as a member of the National Guard or as a member of a reserve or active component of the armed forces of the United States.”).
Boseman, supra at 733 (1) (b).
Thomas v. State, 274 Ga. 492, 494 (555 SE2d 693) (2001).
We reject any argument that the single paragraph entitled “Notice of Non-Waiver of Rights” contained within his 15-page “Consolidated Discovery Motion, General Demurrers, and Preliminary Motions to Suppress” filed on March 8, 2005 constituted a sufficient assertion of Bell’s constitutional right to a speedy trial.
277 Ga. App. 374 (626 SE2d 579) (2006).
See id. at 378 (3).
See Jackson v. State, 279 Ga. 449, 453 (3) (614 SE2d 781) (2005) (19-month delay between indictment and defendant’s assertion of right to speedy trial weighs against him);
Nusser, supra at 900.
See id.
See Jackson v. State, 272 Ga. 782, 785 (534 SE2d 796) (2000).
Id. at 786; see Mullinax v. State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001); Boseman, supra at 733.
See Mullinax, supra at 759-760; Jackson, supra; Oni v. State, 285 Ga. App. 342, 345 (2) (e) (646 SE2d 312) (2007).