Following a jury trial, Michael Chalk was convicted of child molestation (OCGA § 16-6-4 (a) (1)) and public indecency (OCGA § 16-6-8 (a) (2)). Chalk filed a motion for new trial, which the trial court denied. Chalk appeals, contending that his trial counsel was ineffective, and that the unreasonable delay in preparation of the transcript was a violation of his due process rights. We discern no error and affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.
(Citations and punctuation omitted.) Damerow v. State,
So viewed, the evidence shows that in September 2005, P. B., who was then nine years old, was riding her scooter by Chalk’s house when she heard a tapping noise. When P. B. looked in the direction of Chalk’s house, she saw him standing naked and masturbating in front of the window. P. B. ran home to tell her mother.
Several weeks later, on October 7, 2005, P. B.’s five-year-old brother, D. B., was walking home from school when Chalk called out, “Hey, little boy.” D. B. looked over in the direction of Chalk’s house. D. B. saw the front door open to Chalk’s house and observed Chalk
That same afternoon, another victim, who was then 20 years old, was visiting Chalk’s neighbor. The victim heard someone whistling and thought her friend was trying to get her attention. The victim looked around and saw Chalk standing naked in front of his window and masturbating. The victim ran inside the house to tell her friend about the incident. The two women looked out the window and saw a naked Chalk wiping the inside of his window with a towel. The police were later notified. Chalk was subsequently arrested, charged, and convicted of two counts of child molestation and one count of public indecency.
1. Chalk contends that his trial counsel was ineffective in several respects.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington,466 U. S. 668 , 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.
(Citations and punctuation omitted.) Bridges v. State,
(a) Chalk contends that the evidence showed that the date alleged in Count 2 was erroneous, and that trial counsel was ineffective by failing to file a special demurrer to challenge the erroneous date alleged. We disagree.
Since “a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support
To succeed on his ineffective assistance claim, [Chalk] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.
(Citation and punctuation omitted.) Id.
Here, Count 2 of the indictment charged that the offense of child molestation against P. B. occurred “on or about October 7, 2005,” and did not specifically allege that the date of the offense was material. For this reason, the date alleged was not a material element to be proven with specificity by the State. See Robbins v. State,
(b) Chalk next contends that his trial counsel was deficient by failing to depose his father, a “potential alibi-type” witness who died prior to trial. We disagree.
At Chalk’s trial, Chalk’s mother testified that prior to his death from cancer in November 2007, Chalk’s father, Jay Chalk, was interviewed by police officers regarding Chalk’s activities on October 7, 2005. According to Chalk’s mother, Jay Chalk had told police officers that he and Chalk were at home together on October 7,2005, and that the two watched a movie that started at approximately 2:30 p.m.
At the motion for new trial hearing, trial counsel testified that he was made aware in the summer of 2007 that Jay Chalk had been diagnosed with cancer. Jay Chalk’s illness progressed quickly, as he became verbally unresponsive and was admitted to the hospital in September 2007 before passing away in November 2007. Although trial counsel had always intended to call Jay Chalk as a trial witness, trial counsel stated that he elected not to depose Jay Chalk based on trial strategy. Trial counsel explained that given Jay Chalk’s condition, he believed he could not adequately prepare Jay Chalk for a deposition, and that he did not want to give the State the opportunity to cross-examine Jay Chalk since portions of his testimony would not be beneficial to the defense. Counsel’s decision not to depose Jay Chalk under the circumstances was a reasonable strategy and did not constitute ineffective assistance of counsel. Cf. Polite v. State,
(c) Chalk also contends that his trial counsel was ineffective for failing to move to dismiss the indictment based on the State’s violation of his Sixth Amendment right to a speedy trial. We disagree.
To prevail on a claim of ineffective assistance of counsel for failing to file a motion to dismiss on speedy trial grounds, Chalk must show that the motion would have been granted had it been filed. See Stanford v. State,
(ii) Length of the delay. The 36-month pretrial delay in this case was uncommonly long, and is a factor weighed against the State. See Ditman, supra,
(iii) Reasons for the delay. The record reveals that the delay from Chalk’s arrest in October 2005 to his indictment in February 2007 — a period of 16 months—was caused by the State’s delay in performing DNA tests on various pieces of evidence. As for the remaining 20 months of delay, the case first appeared on the trial calendar in May 2007, but a continuance was granted at Chalk’s request. The record does not show when the case appeared on the trial calendar after May 2007. At the motion for new trial hearing, trial counsel stated that he had asked for several continuances for various reasons. Trial counsel also indicated that the State had requested one continuance, and that there were times when the case appeared on the trial calendar but was not reached. “[Wjhen there is no apparent reason for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Punctuation and footnote omitted.) Johnson v. State,
(iv) Assertion of the right. Trial counsel testified that while Chalk was anxious about the length of the delay, Chalk never requested a speedy trial and did not object to the continuances requested by trial counsel. Chalk’s failure to assert a speedy trial claim is weighed against him. See Nealy v. State,
(v) Prejudice to Chalk’s defense. Chalk asserts that he was prejudiced by the delay since his father was no longer available to testify at his trial. However, as discussed above in Division 1 (b), Jay Chalk’s statements that were favorable to the defense were introduced into evidence through Chalk’s mother’s testimony, and Chalk
Balancing the pertinent Barker-Doggett factors, Chalk has failed to establish that the 36-month delay violated his constitutional right to a speedy trial. Therefore, even if trial counsel was deficient for failing to raise the speedy trial claim, Chalk cannot demonstrate that this failure prejudiced his defense, and his ineffective assistance claim on this ground fails. See Nealy, supra,
2. Chalk contends that the unreasonable delay in the preparation of the transcripts violated his due process rights. There is no merit in his contention.
The similarity of a defendant’s interests in a speedy trial and a speedy appeal are such that the balancing test adopted for speedy trial violations in Barker v. Wingo,407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), should be applied to situations in which a defendant claims that a delay in the appellate process is violative of due process of law. The four factors enunciated in Barker v. Wingo . . . are the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
(Citation, punctuation and footnote omitted.) Smith v. State,
Here, the record shows that the total delay in preparing the requested transcripts was approximately 34 months. Although such a delay is lengthy, “the mere passage of time is not enough, without more, to constitute the denial of due process.” (Citation and punctuation omitted.) Graham, supra,
Judgment affirmed.
Notes
The testimony of Chalk’s mother was admitted under the necessity exception to the hearsay rule. See OCGA § 24-3-1 (b); Jennings v. State,