This is а direct appeal from the trial court’s denial of appellants’ motion to dismiss the indictment on constitutional speedy trial grounds. Appellants Kevin Brewington, Tyrone Brown, and Gary Brown were identified as accomрlices in the March 2006 shooting deaths of Norris Degree and Stanley Brown at an apartment building in Clayton County. Brewington and Tyrone Brown were arrested and incarcerated in March 2006, while Gary Brown was arrested and incarcеrated in November 2006. Brewington and Gary Brown were tried from November 16, 2009 to November 24, 2009, with the matter resulting in a mistrial due to a hung jury. Tyrone Brown, whose case was severed from the November 2009 trial of his co-defendants, has yet to be tried.
In June 2009, prior to their trial, appellants Brewington and Gary Brown filed a motion to dismiss the indictment on constitutional speedy trial grounds, the trial court denied the motion on August 25, 2009, and appellants did not appeal. On December 2, 2009, shortly after the mistrial was declared, appellants Brewington and Gary Brown filed another motion to dismiss the indictment on speedy trial grounds. Meanwhile, the trial court specially set the new trial for March 15, 2010. On March 11, 2010, Tyronе Brown orally joined his co-defendants’ motion. On March 16, 2010, the trial court issued an order denying the motion to dismiss and each appellant filed an appeal.
1. The Sixth Amendment of the United States Constitution guarantees that, “[i]n аll criminal prosecutions, the accused shall enjoy the right to a speedy ... trial. . . .” This right is enshrined in the Georgia Constitution and is co-extensive with the federal guarantee made applicable to the states by virtue of thе Fourteenth Amendment of the United States Constitution. Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a);
Ruffin v. State,
Case Nos. S10A1857 and S11A0017
2. Appellants Brewington and Gary Brown contend that the length of delay is from the time of their arrest through the denial of their December 2 motion to dismiss on speedy trial grounds. While typically the time for speedy trial attаches at the date of arrest (or date of indictment/accusation if earlier),
1
in this case appellants Brewington and Gary Brown were actually tried. Although they moved for dismissal on speedy trial grounds prior to their Nоvember 2009 trial, they did not appeal the denial of that motion prior to being tried. Therefore, as to these two defendants, the relevant time frame for purposes of the instant motion to dismiss on constitutional spеedy trial grounds is from the date of the mistrial, November 25, 2009, through the date the motion was denied on March 16, 2010. See
Jakupovic v. State,
supra,
*522 Case No. S11A0018
3. (a) Appellant Tyrone Brown has been incarcerated since his arrest in March 2006. Because appellant has not been tried since his arrest, it is presumed that the four-year delay is prеjudicial.
Ruffin v. State,
supra,
(b) The facts concerning the delay of Tyrone Brown’s prosecution and which are applicable to the Barker-Doggett analysis are as follows:
The original trial date set in this case was February 18, 2008. Appellant Tyrone Brown sought a continuanсe on February 13, 2008 (which his co-defendants joined and which the trial court granted) in order to obtain discovery from the State. That same month, appellant’s counsel was removed from the case by the Clayton County Indigent Defense Committee until the trial court ordered counsel’s reinstatement in April 2008. On September 18, 2008, appellant Tyrone Brown filed a constitutional demand for speedy trial; however, it is not entirely clear from the record what became of this demand. 2 During the case, appellant’s attorney also filed motions in the trial court regarding a fee dispute she was having with the indigent defense committee. In September 2009, all the parties agreed to a continuance in order to travel to Boston for a witness deposition. On the first day of the November 2009 trial, Tyrone Brown’s attorney announced “not ready” because she had stopped preparing for trial due to her fee dispute. As a result, the trial court severed Tyrone Brown’s case from his co-defendants, removed his original attorney from the case, and ordered new counsel to be appointed for appellant. In January 2010, the trial court granted the State’s motion to have Tyrone Brown rejoined to the re-scheduled trial of his co-defendants. On March 11, 2010, during calendar call, appellant orally joined his co-defendants’ December 2 motion to dismiss the indictment on constitutional speedy trial grounds.
(i)
Whether the delay was uncommonly long.
In this case, the trial court did not consider the length of the delay beyond the threshold question of presumptive prejudice becausе it did not
*523
mention whether the delay was uncommonly long.
3
See
Ruffin v. State,
supra,
(ii)
Reason for delay and whether the government or the defendant is more responsible for the delay.
It appears from the record that the reason for the delay of appellant’s trial was the actions of his trial counsel, including seeking a continuance days before the first trial was set in February 2008, рursuing her fee dispute in the midst of trial preparations, ceasing trial preparations, and announcing “not ready” at the opening of the November 2009 trial. Based on such an announcement, the trial court had no сhoice but to sever Tyrone Brown from the trial and appoint a new attorney further exacerbating delay. Since defense counsel’s actions overshadowed the vigorous representation of her cliеnt, the delay lies squarely with the defense. See
Smith v. State,
(iii)
Assertion of right.
In Seрtember 2008, more than two years after his arrest, appellant Tyrone Brown first filed a constitutional demand for a speedy trial. For reasons not made clear from the record, that demand was not disposed by the trial court and/or not diligently pursued by appellant. A year and a half later, on the eve of the March 2010 trial, Brown orally joined his co-defendants’ motion to dismiss on constitutional speedy trial grounds. This Court has held that a delay of nineteen months in asserting constitutional speedy trial rights weighs against the defendant.
Jackson v. State,
(iv)
Prejudice to defendant.
There are three factors to be considered when determining prejudice to the defendant: (1) whether there has been oppressive pre-trial incarceration; (2) the anxiety and concern of the accused; and (3) the possibility of harm to the accused’s defense.
Ruffin v. State,
supra,
In light of the above, the trial court did not abuse its discretion when it determined there was not a speedy trial violаtion in regard to appellant Tyrone Brown.
Judgment affirmed.
Notes
See
Smith v. State,
The trial court’s order denying the instant motion to dismiss states that Tyrone Brown’s attorney “apparently. . . dismissed [the September 2008 constitutional speedy trial demand].” The prosecutor stated at the hearing on March 15, 2010, that he believed Tyrone Brown’s original attorney had withdrawn the demand, but his memory was unclear. Nothing else in the record indicates the disposition of Tyrone Brown’s September 2008 constitutional demand for a speedy trial.
The trial court stated the following concerning the length of delay:
The alleged offenses occurred on March 20, 2006. Kevin Brewington has been in jail since March 29, 2006, and Gary Brown has been incarcerated since November 8, 2006. It has been almost exactly four years since the offense date. Two defendants have been incarcerated almost the entire four years and Gary Brown has been incаrcerated for over three years and four months. A delay of this length is presumptively prejudicial.
Although the trial court listed the four
Barker v. Wingo
factors and made the determination that the delay was presumptively prejudicial, the trial court did not make any findings or conclusions as to whether the delay was uncommonly long as set forth in
Ruffin v. State,
supra,