Tаmmy Faye Carder appeals from the denial of her plea in bar urged on the basis that she was denied her constitutional right to a speedy trial. For the reasons that follow, we affirm the trial court’s order.
The record and transcript show that the offenses giving rise to the charges against Carder ocсurred on June 18, 2005, and that Carder was arrested at that time and had retained counsel by July 11, 2005. Over three years later, on August 4, 2008, an indictment was returned against her charging her with two counts of homicide by vehicle, one count of homicide by vehicle in the second degree, two counts of serious injury by motor vehicle, one count of DUI — less safe, and one count of failure to maintain lane.
On September 22, 2008, Carder filed a motion in limine and request for a
Jackson-Denno
hearing; she filed a supplement to that motion on April 6, 2009. The trial court granted the motion in part, excluding evidence of Carder’s statements to the arresting officer made at the hospital after the accident and excluding her refusal to take the state-administered
On December 11, 2009 this Court issued its opinion affirming in part and reversing in part the trial court’s order, and Carder filed a motion for reconsideration of that opinion on December 18, 2009. We denied her motion on January 11, 2010, and she applied for certiorari to our Supreme Court on January 25, 2010. The Supreme Court denied her petition on June 28, 2010, issued the remittitur to this Court on July 19, 2010, and this Court issued the remittitur to the trial court on July 23, 2010.
Although the notices do not appear in the record, it appears undisputed that the case was then placed on severаl trial calendars, including one for the week of September 20, 2010. However, on September 15, 2010, Carder filed her plea in bar asserting a violation of her constitutional right to a speedy trial, which the trial court denied on October 11, 2010, and Carder filed the present appeal.
As both our appellate courts have recited on numerous occasions, when considering a motion to dismiss on the grounds that an accused’s constitutional speedy trial right has been violated, the court applies the test set forth in
Barker v. Wingo,
1.
Presumptive Prejudice.
The threshold consideration is “ ‘whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” If not, the speedy trial claim fails at the threshold.’
Ruffin
[v.
State],
284 Ga. [52, 55 (
2.
The Barker-Doggett Balancing Test.
The four factors the court must consider, and ultimately weigh, in this stage are: (1) whether the delay was uncommonly long, (2) whether the government or the
accused is more to blame for the delay, (3) whether, in due course, the accused asserted the right, and (4) whether the accused has suffered prejudice as the result оf the delay. E.g.,
Porter,
However, it is important to bear in mind that these four factors do not constitute an exhaustive list, have no talismanic qualities and must be considered together with such other circumstances as may be relevant in light
(a) Whether the delay was uncommonly long. Although both appellate courts as well as trial cоurts sometimes overlook this first factor,
[i]t is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify.
(Footnote omitted.)
Simmons v. State,
The trial court in this case did consider this factor, and properly found, as the State conceded, that the approximately 38-month delay from the time of Carder’s arrest to the time she was indicted was uncommonly long, attributable to the State and must be weighed against it. And although, as will be discussed more thoroughly below in analyzing the reason for the delay, the remainder of the delay was not wholly attributable to the State, given the procedural history of the case and the lengthy initial delay, the trial court properly weighed this factor against the State.
(b)
Reasons for the delay (whether the government or the accused is more to blame for the delay).
As our Supreme Court noted in
Ruffin,
Some amount of pretrial delay is unavoidable, and evеn quite extended intervals between arrest or indictment and trial are sometimes both necessary and reasonable. Conse quently, the reason for the delay is pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factоrs. Thus, as the United States Supreme Court put it, “(t)he flag all litigants seek to capture is the second factor, the reason for the delay.” [United States v. Loud Hawk,474 U. S. 302 , 315 (106 SC 648, 88 LE2d 640) (1986).]
As noted above, the delay here was attributable to several factors, although a large portion of the delay was caused by the State in failing to indict Carder for over three years. The State concedes that for that reason this factor must also be weighed against it, but argues that this factor should not be given heavy weight because the delay was on account of staffing shortages in the district attorney’s office. We agree that there is no evidence hеre that the State deliberately attempted to hamper the defense, harass the accused or otherwise gain an improper advantage, and thus this factor should not be weighed heavily against the State.
Ruffin,
Moreover, the remainder of the delay was due to the actions, or inactions, оf both parties. Although Carder filed a motion in limine and requested a Jackson-Denno hearing on September 22, 2008, she did not amend that motion until April 6, 2009, during which time the trial court noted the case had appeared on numerous trial calendars. After Carder amended her motion, the trial court acted quickly on the motion, ruling pаrtially in her favor.
The State then exercised its right to file a direct appeal to this Court, and this Court issued its opinion on December 11, 2009, reversing a portion of the ruling which had been adverse to the State.
Carder,
(c)
Whether the accused asserted the right in due course.
The trial court weighed this faсtor heavily against Carder, noting that she had been represented by counsel since shortly after she had been arrested, and Carder does not directly challenge that finding, instead arguing that she had not waived her right to file her plea in bar based on constitutional speedy trial grounds by failing to request a speedy trial at an earlier date. While this is true, e.g.,
Hester v. State,
In
Ferguson,
It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant. ... A court will weigh this factor heavily against the defendant particularly where the defendant . . . has been represented by counsel since soon after . . . аrrest [cit.] and . . . does not raise the speedy trial issue until filing a motion to dismiss just before trial.
(Citation and footnote omitted.) Id. at 344 (2) (c). These are the same circumstances that exist here, and we find that the trial court did not abuse its discretion by weighing this factor heavily against Carder.
Over v. State,
(d)
Whether the accused suffered prejudice as the result of the delay.
Carder is correct that given the length of the delay, there is a presumption of prejudice in this case.
Porter,
The constitutional right to a speedy trial is designed to protect three interests, and it is those three interests we evaluate in examining the prejudice component: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; (3) limiting thе possibility of the impairment of the defense.
State v. White,
In this case, there is no claim of oppressive pretrial incarceration. As to the remaining interests, “ ‘[t]o establish prejudice, the defendant must show
actual
anxiety and concern and
specific evidence
of how the delay impaired his ability to defend himself.’ (Citations and punctuation omitted; emphasis in original.)
Mullinax v. State,
Carder testified that she had been going to grief counseling since sometime after the accident, that she suffered from post-traumatic stress syndrome, “major, deep depression” and anxiety. She also testified that she had been involuntarily committed to an in-patient treatment facility. However, Carder’s testimony demonstrated that this anxiety and concern was caused by the accident giving rise to the charges against her, and did not
Turning to the impairment of Carder’s defense, this factor is the most serious “ ‘because the inability of a defendant adequately to prepare [her] case skews the fairness of the entire system.’ ” (Footnote omitted.)
Simmons,
But, “[i]f the defendant’s argument is that a witness has become unavailable, he ‘must show that the unavailable witnesses] could supply material evidence for the defense.’ ”
Ferguson,
As to her fiancé’s testimony, Carder testified that she had last seen him approximately an hour and a half before the accident, but like her parents, he was not with her at thе time of the accident. Moreover, as the trial court found, Carder also testified that just prior to the accident, and after she had last seen her fiancé, she went to a Hallmark store, where she was a regular customer and well known by the staff, and was in the store for 45 minutes. Carder further testified that the aсcident happened just 18 minutes later. Thus, as the trial court concluded, these other available witnesses were possibly in a much better position than her fiancé to testify about her condition just prior to the accident, and could testify on her behalf for the same purpose. Thus, the trial court did not аbuse its discretion by finding that no actual prejudice as a result of the delay had been demonstrated in this case.
(e) Balancing the four factors. In this case, the first two factors were weighed against the State, although not heavily, while the third factor was heavily weighed against Carder. And no actual prejudice to the defense was demоnstrated.
Thus, although we do not condone the State’s negligence in failing to bring Carder to trial in a timely fashion, that consideration is outweighed by the facts that Carder suffered little actual prejudice to her defense, suffered no unduly oppressive pretrial incarceration and waited a significant amount of time before asserting her right to a speedy trial. Under these circumstances, the trial court did not abuse its discretion by rejecting Carder’s claim that her constitutional speedy trial rights had been violated.
Hassel v. State,
Judgment affirmed.
Notes
If the accused files a motion to dismiss on constitutional speedy trial grounds, the delay is measured from the earlier of the date the accused is arrested or indicted and the date the trial court denies the motion.
Porter,