Yusef Jackson was indicted for the offenses of malice murder (OCGA § 16-5-1 (a)), felony murder (OCGA § 16-5-1 (c)), possession of a firearm during the commission of a crime (OCGA § 16-11-106), and possession of a firearm by a convicted felon (OCGA § 16-11-131). Following a jury trial, Jackson was found guilty of possession оf a firearm during the commission of a crime based on the theory of party to a crime, but he was found not guilty of the remaining offenses. He appeals from his conviction and the denial of his motion for new trial, contending that the evidence was insufficiеnt to support the verdict, and that the jury’s verdict of guilty as to possession of a firearm during the commission of a crime and not guilty as to possession of a firearm by a convicted felon is inconsistent and mutually exclusive. Jackson also contends that thе trial court erred in denying his motion to dismiss and bar prosecution based on the violation of his constitutional right to a speedy trial. For the following reasons, we affirm.
1. Jackson contends that the evidence was insufficient to support his conviction of рossession of a firearm based on party to a crime. We disagree.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia,443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
(Citation omitted.) Clark v. State,
So viewed, the evidence shows that on July 5, 2006, Torrence “Cooley” Roston was shot and killed as he was going to the bathroom
Jackson was considered a suspect immediately after the shooting. A few weeks before the shooting, Roston and his friend, Conrad George, had attacked Jackson inside Frankie J’s and badly beaten him. During their investigation after the shooting, the police searched the cаr that Roston had been driving and found Jackson’s ID in the vehicle. Jackson’s phone records put him in the area of the shooting at the time of the crime, and his phone records also indicated that he had been in contact with another individual, Anthony Joynеr, minutes before the shooting occurred. During the investigation, Joyner provided statements to the police that he had called Jackson on the night of the shooting to purchase drugs from him and that he had mentioned to Jackson that Roston was at Frankiе J’s that night. After Joyner purchased drugs from Jackson, Jackson had stated to Joyner that he was going to “F that —• straighten that F nigger out.” However, as the evidence against Jackson was weak and circumstantial, he was not arrested or charged at that time, and the investigation became cold.
In August 2006, Jackson was arrested on unrelated charges for which he was ultimately convicted. While Jackson .was in Coastal State Prison, he was housed in the same dormitory with another inmate, Stacy Faison. After Faison was trаnsferred to another prison facility, Faison contacted the district attorney in Savannah in November 2007 to offer information that he had learned from Jackson concerning the shooting. Detectives from the Savannah Police Department went to talk to Faison on November 16, 2007, and he told them that Jackson had admitted to him that he killed Roston because Roston had beaten him up and that Roston had taken his ID after the fight. Specifically, Jackson said that he and an individual referred to as “T” shot Roston as he was going to the bathroom outside Frankie J’s. Based on this information and the subsequent follow-up investigation concerning Faison’s statements, the State indicted Jackson on April 21, 2010.
OCGA § 16-2-20 (a) provides that “[ejvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” And a person is a party to a crime if that person “[d]irectly commits the crime;... [ijntentionally aids or abets in the commission of the crime; or . . . [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime.” (Punctuation omitted.) OCGA § 16-2-20 (b) (1), (3) and (4). See also Collins v. State,
2. Jackson contends that the trial court erred in denying his motion to dismiss and bar prosecution for violation of his constitutional right to a speedy trial. We discern no error.
Although Jackson was immediately considered a suspect in the shooting death of Roston in July 2006, the evidence against him at that time was circumstantial until Faison came forward in November 2007, with Jackson’s jailhouse confession. By that time, a potential witness, George, and a potential co-defendant, Teonne Spencer, had died. Thereafter, the State’s follow-up investigation of the information provided by Faison was not completed until February 2010, and Jackson was indicted on Aрril 21, 2010. Jackson filed a statutory demand for a speedy trial on August 30, 2010, and the motion to dismiss based on violation of his constitutional right to a speedy trial on November 12, 2010.
Jackson alleges that his constitutional right to a speedy trial was violated because оf the State’s four-year delay in the investigation prior to his indictment, and that the delay was presumptively prejudicial because it prevented him from interviewing potential witnesses and a possible co-defendant. However, the right to a speedy trial under the state and federal constitutions attaches at the time of arrest or when formal charges are brought, whichever is earlier. Wimberly v. State,
In determining whether a defendant’s constitutional right to a speedy trial has been violated, the trial court must engage in a balancing test in which the court assesses the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant^]” togethеr with such other circumstances as may be relevant. (Footnote omitted.) Barker v. Wingo,
In this case, Jackson failed to show that the approximate seven-month delay since his indictment was presumptively prejudicial. Jackson’s argument, both in his motion to dismiss before the trial court and on appeal to this Court, is based on the assertion that the fоur-year delay prior to his indictment was presumptively prejudicial. As noted above, Jackson’s constitutional rights to a speedy trial did not attach until his indictment. “Where the delay occurs in the investigative stage before either arrest or indictment, due proсess, not sixth amendment, standards apply.” (Citation and punctuation omitted.) Roebuck v. State,
A due process violation requires a finding 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage.
(Citation and punctuation omitted; emphasis in original.) Id.
Jackson contends that the four-year delay between the shooting and his indictment was prejudicial because potential witnesses and a possible co-defendant are now deceased. However, “any prejudice which results merely from the passage of time cannot create the requisite prejudice.” (Citation and punctuation omitted.) Roebuck, supra at 205 (4). Furthermore, the record shows that the delay between the shooting and the indictment was the result of the State’s decision to conduct further investigation, and the “[d]elay occasioned by the ongoing investigation of a case does not rise to the level of a due process violation.” (Citations omitted.) Id.
As the circumstances of this case warrant the finding that Jackson’s allegations of pre-indictment delay do not amount to a due process violation, and because Jackson failed to show that the six-month, twenty-three-day delay between Jackson’s indictment and the filing of his motion to dismiss was presumptively prejudicial, the
3. Jackson contends that the jury’s verdict of guilty of possession of a firearm during the commission of a crime based on party to a crime and not guilty of possession of a firearm by a convicted felon is improper because it is inconsistent and mutually exсlusive. We disagree.
In Milam v. State,
Jackson contends that the jury’s verdicts of guilty as to the possеssion of a firearm during the commission of a crime and not guilty to possession of a firearm by a convicted felon are mutually exclusive. However,
verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other. Thus, the rule against mutually exclusive verdicts applies to multiple guilty verdicts which cannot be logically reconciled; the rule is not implicated where, as here, verdicts of guilty and not guilty are returned.
(Citation, punctuation and emphasis omitted.) Turner v. State,
The sole exception to the abolition of the inconsistent verdict rulе applies “when instead of being left to speculate about the unknown motivations of the jury the appellate record makes transparent the
Judgment affirmed.