Ricky J. Johnson was indicted on one count of burglary and four counts of theft by taking. Thereafter, Johnson filed a motion to dismiss/plea in bar to these charges, alleging that his Sixth Amendment right to a speedy trial had been violated. The trial court denied Johnson’s motion, and this appeal follows, in which Johnson contends that the court erred in its analysis of the required Barker 1 factors. For the reasons set forth infra, we vacate the trial court’s order and remand for reconsideration.
The record shows that Johnson was arrested on November 8, 2007, and was thereafter appointed indigent-defense counsel on November 21, 2007. Johnson’s first attorney, Parker McFarland, 2 quickly realized that he had also been appointed to represent Johnson’s co-defendant and informed Johnson upon his initial visitation that he would be unable to serve as his counsel. 3
Thereafter, on November 30, 2007, Johnson signed (and presumably mailed) a pro se demand for a constitutional speedy trial, which was filed by the clerk of court on December 6, 2007. Also on November 30, 2007, the indigent-defense administrator for Forsyth County appointed Gregg Schuder to represent Johnson. 4 And while the appointment form was not filed with the clerk of court until December 5, 2007, Schuder signed an entry of appearance on December 3, which was then filed with the court on December 4. Schuder thereafter filed a number of motions on Johnson’s behalf, but he did not file a speedy-trial demand.
On January 9, 2008, after spending approximately two months in jail on the charges relevant to the case sub judice, Johnson was granted a bond. Nevertheless, he remained incarcerated on other charges. And between February 2008 and October 2008, the record before us is more or less silent. 5 But on October 30, 2008, Schuder filed a request to withdraw as Johnson’s counsel, which did not indicate any reason for making such a request. Then, on January 5, 2009, Johnson was indicted on the above-referenced charges. And 11 days later, on January 16, 2009, the trial court granted Schuder’s request to withdraw as counsel. The order gave no indication as to why Schuder withdrew from his representation of Johnson.
Nearly two months passed before Kelly Turner was appointed to represent Johnson on March 11, 2009. Johnson’s case was then placed on the trial calendar for June, but on July 1, 2009, the trial court granted a motion made by Johnson to extend the time for filing motions. On July 13, 2009, Johnson—while still represented by Turner—filed a pro se demand for a speedy trial pursuant to OCGA § 17-7-170 and the Georgia and United States Constitutions. The case was then placed on trial calendars for August, September, October, and December in 2009 and
But on December 28, 2009, Turner filed a motion to withdraw as counsel, citing an “impassible conflict” and Johnson’s belief that she was “working in concert with the District Attorney’s Office to prosecute him.” The trial court granted Turner’s request to withdraw on January 15, 2010, 6 and Johnson’s case was then continued until the February 2010 trial calendar.
In late January, attorney Rex McClinton was appointed to represent Johnson. The case was then placed on the trial calendars for April, May, and June 2010. But due to conflicts in his schedule, McClinton was unable to go to trial in June, and on July 8, 2010, Johnson filed his motion to dismiss/plea in bar, alleging a violation of his right to a constitutional speedy trial. The case was then placed on the trial calendars for August and September 2010.
On September 24, 2010, the trial court denied Johnson’s motion to dismiss, and Johnson timely filed a notice of appeal with the trial court in October. 7 In March 2011, Johnson’s current counsel was appointed after McClinton unexpectedly passed away. This appeal follows. 8
On appeal, Johnson contends that the trial court erred in (1) denying his motion to dismiss when the delay in bringing him to trial was presumptively prejudicial; (2) finding that the delay was primarily caused by Johnson’s difficulty with his appointed counsels; (3) finding that Johnson failed to assert his right to a speedy trial; and (4) finding that Johnson did not suffer prejudice by the delay.
At the outset, we note that pursuant to
Barker v. Wingo
9
and
Doggett v. United States,
10
there are two stages to a trial court’s analysis when considering a criminal defendant’s motion to dismiss on the basis of a constitutional speedy trial violation. First, the court must determine whether the delay between arrest, indictment, or other formal accusation and trial is presumptively prejudicial.
11
If the delay is presumptively prejudicial, the court must then proceed to the second step, “which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether
the accused has been deprived of the right to a speedy trial.”
12
The four factors in this
When the trial court balances the foregoing factors, “[n]o one factor is necessary or sufficient to sustain a finding that the right to a speedy trial has been denied,” and the factors should instead be considered together in balancing the conduct of the defendant and the State. 14 And on appeal, “we review the trial court’s weighing of each Barker factor and its balancing of all four factors only for abuse of discretion.” 15 But when the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, “the deference owed the trial court’s ultimate ruling is diminished.” 16 And here, the trial court made several errors in its application of the Barker framework to Johnson’s speedy-trial claim, which requires that we vacate and remand the case for proper consideration. 17 We will address each of the factors—and Johnson’s enumerations of error—in turn.
1. Step One: Presumptive Prejudice. As a threshold inquiry, the trial court must consider whether the delay in bringing the accused to trial is presumptively prejudicial. 18 If the delay is not presumptively prejudicial, “the speedy trial claim fails at the threshold.” 19 But if the delay is indeed presumptively prejudicial, “the court must proceed to the second step of the Barker-[D]oggett analysis . . . .” 20
To calculate the length of the delay when the defendant has not been brought to trial, the trial court must look “from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” 21 This is because the constitutional right to a speedy trial attaches when the defendant is arrested or when formal charges are initiated—whichever occurs first. 22 And in general, a delay exceeding one year is presumptively prejudicial. 23
Using this calculation, the delay between Johnson’s arrest on November 8, 2007, and the denial of his speedy trial motion on September 24, 2010, was approximately 35 months—well over one year. And while the trial court incorrectly determined that the delay in this case amounted to approximately 33 months, it nevertheless properly concluded that the delay was presumptively prejudicial and continued its analysis.
2.
Step Two: The Four
Barker
Factors.
Initially, we note that the factors emphasized in
Barker
and
Doggett
do not constitute an exhaustive list, “have no talismanic qualities,” and “must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee.”
24
(a) Whether the Delay Before Trial was Uncommonly Long. While the length of delay “plays a role in the threshold determination of presumptive prejudice,” it is also considered “as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.” 25 And in line with well-established precedent from the Supreme Court of the United States, our own Supreme Court has cautioned that “[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 . . . .” 26
Here, the trial court’s order reflects that the court conflated its consideration of the length of delay in the threshold inquiry with its consideration of the first Barker factor, which was clearly in error. 27 Indeed, the trial court’s finding in this regard was limited to a statement that the delay was approximately thirty-three months and that delays approaching one year are presumptively prejudicial. Accordingly, the trial court on remand must assess whether the delay in Johnson’s case—the calculation of which should be made as explained supra—was uncommonly long and/or excessive, keeping in mind that “[a] delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” 28 The court must then consider the weight of this factor. 29
(b) Reason and Responsibility for the Delay. This second factor requires a trial court “to examine both the reason for the delay and whether the delay was attributable to the defendant or to the State.” 30 And because some amount of pretrial delay is unavoidable, “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 factors.” 31
In this regard, “[djeliberate delay to gain an improper advantage over the accused strikes at the very heart of the speedy trial guarantee and is thus ‘weighted heavily against the government’ in the
overcrowded dockets, the government’s failure to provide for sufficient numbers of judges, prosecutors, or indigent defense counsel, neglect by the prosecution or other government agents, mere convenience of the prosecution, or the desire to avoid the expense of separate trials for two defendants involved in the same crime [ 36 ]
would all weigh against the State, although “less heavily than delay designed to sabotage the accused’s case.” 37 Finally, when 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.” 38
In denying Johnson’s motion to dismiss, the trial court determined that the delay was caused primarily by Johnson’s “difficult behavior and the legitimate actions taken by his attorneys.” The court then referred to Johnson’s attorneys having filed “multiple motions, including a Motion to Extend Time For Filing Motions” and “additional motions [by Ms. Turner] throughout 2009,” and a motion “to hire a fingerprint expert.” Finally, the court noted that the case “has appeared on multiple trial calendars, but the readiness of the case for trial has been affected, at least in part, by counsel’s conflicts and a leave of absence.” Presumably, the trial court weighed this factor against Johnson.
The trial court’s analysis, however, failed to discuss Johnson’s first attorney, Parker McFarland, or Johnson’s second attorney, Gregg Schuder, whose representation accounts for the period between late 2007 and early 2009. 39 The court also neglected to consider the State’s delay in indicting Johnson or any other portion of the delay which might otherwise be attributable to the State. 40 Furthermore, with regard to the motions filed by Turner, Johnson testified that discovery-related motions were filed because the State had not yet turned over all evidence—a contention that also merited consideration by the trial court. 41 On remand, the trial court must reconsider the reasons for delay and whether Johnson or the State is responsible for the various and sundry contributing factors. 42
In remanding for reconsideration, we note that although the State argued before the trial court that Attorney Schuder withdrew due to having conflicts with Johnson, the
Additionally, we note that when questioning Johnson during the motion-to-dismiss hearing, the State made reference to some confusion regarding Schuder’s withdrawal, suggesting that he had erroneously been permitted to withdraw as counsel of record in July 2008 but was reappointed before withdrawing again in January 2009. But the record before us only reflects Schuder’s appointment in late 2007 and his withdrawal in 2009 (though, as noted supra, the appointment form from 2007 inexplicably contains a handwritten notation of “reappointment”).
Given the incomplete record and the scant findings of fact in support of the trial court’s decision, we are constrained to remand so that the court can reconsider the circumstances giving rise to the delay and reassess the causes for the delay with regard to the principles outlined supra before reweighing this factor. 44
(c) Assertion of the Right to a Speedy Trial. Although the filing of a speedy-trial demand is not “a prerequisite for a plea in bar for failure to have a speedy trial on constitutional grounds,” 45 a defendant nevertheless has the responsibility to “assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” 46 In this regard, the “timing, form, and vigor of the accused’s demands to be tried immediately should be considered in determining the weight given to the assertion-of-the-right factor.” 47 Indeed, a defendant “may assert his constitutional right to a speedy trial at any time after he is arrested; he need not wait until indictment.” 48
And here, the trial court disposed of this factor by finding that “[w]hile the Defendant’s counsel did not assert Defendant’s right until the filing of this Motion, the Court recognizes that Defendant (not his counsel) attempted to assert his right by his ineffective filing of demands for speedy trial on December 6, 2007 and July 13, 2009.” The trial court then cited our well-established case law that trial courts are authorized to find pro se demands of no legal effect when a criminal defendant is represented by counsel. 49 In finding that Johnson’s pro se demands were ineffective, the trial court presumably weighed this factor against Johnson, which Johnson claims was in error.
It is well established that “[t]he Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel.”
50
Thus, Johnson’s July 13, 2009
(d) Whether Defendant Suffered Prejudice. In evaluating this final factor, “we consider three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” 54 Of these considerations, the last has been deemed the most serious “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” 55 And here, the trial court found that each consideration weighed in favor of the State.
(i) Preventing Oppressive Pretrial Incarceration. The trial court found that the first factor weighed in favor of the State because Johnson was incarcerated on other charges. Johnson contends that the trial court thereby erred. We agree, and the trial court must reconsider this interest on remand.
With regard to a defendant incarcerated on other charges, the Supreme Court of the United States has opined that a delay in bringing such a person to trial could aggravate and compound the three concerns of prejudice. 56 Specifically, the Supreme Court has suggested that “the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed.” 57 Additionally, “the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.” 58 Accordingly, the trial court erred by weighing this factor in favor of the State because Johnson was incarcerated on other charges, and the court must reevaluate this factor on remand.
(ii)
Minimizing Anxiety and Concern to the Defendant.
Because
anxiety and concern are “always present to some extent,” absent some unusual showing, this factor is not likely to be determinative in a defendant’s
(iii) Limiting Possibility of Impaired Defense. Johnson also argues that during the delay in bringing his case to trial, his girlfriend—who would have served as an alibi witness—passed away. According to Johnson, his deceased girlfriend would have testified to being with him on the night that the relevant crimes were committed. However, because it is undisputed that his girlfriend’s son also saw Johnson that night and could present the same alibi testimony, the court found that this final interest weighed against Johnson.
To establish prejudice by an impaired defense, Johnson was required to “show that the missing witness could supply material evidence for the defense.” 61 And it is well established that “[i]f witnesses die or disappear during a delay, the prejudice is obvious.” 62 Although Johnson argues that testimony by his deceased girlfriend’s son will be less credible due to the son only having stopped by when the girlfriend was with Johnson the entire night, the purported testimony would still present Johnson’s alibi. Thus, to the extent that the trial court weighed this consideration in the State’s favor because available testimony would be cumulative of the purported testimony by the missing witness, the trial court did not err. 63
However, as additional support for its finding, the trial court found that Johnson had failed to properly preserve an alibi defense. To the extent that the trial court weighed this factor in favor of the State/against Johnson because Johnson did not file a notice of intention to call an alibi witness, the trial court erred.
Pursuant to OCGA § 17-16-5, upon written demand by the prosecuting attorney, “the defendant shall serve within ten days of the demand ... or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi.” 64 Johnson not having gone to trial, it was improper to hold that he had failed to preserve the use of an alibi witness.
(e)
Balancing the
Barker
Factors.
Because the trial court made factual findings that were unsupported by the record and misapplied the
Barker
factors, “the deference we owe to the trial court’s ultimate ruling is diminished.”
65
And given these errors, we cannot conclude that “the trial court would have still been required to weigh those factors in the manner in which it did, so as to
Accordingly, for all the forgoing reasons, we vacate the trial court’s judgment and remand the case for proceedings consistent with this opinion. 68
Judgment vacated and case remanded with direction.
Notes
Barker v. Wingo,
Because Johnson has been appointed five different attorneys, we will refer to them by name in an effort to avoid any confusion.
A Certificate of Initial Visitation filed with the trial court on December 12,2007, reflects conflicting information regarding the date of this visit. According to Johnson, the visit occurred on November 23, 2007, but McFarland indicated that the visit occurred on November 28, 2007. We note that the record does not contain a notice of withdrawal by McFarland. Instead, McFarland’s withdrawal is memorialized through an explanation by Johnson’s counsel at the motion-to-dismiss hearing and, to some extent, by Johnson’s testimony. Nevertheless, the State does not dispute the general timing or circumstances of McFarland’s withdrawal.
We note that “Reappointment” was inexplicably handwritten at the top of this form, over the title “Appointment of Counsel.”
The record reflects two notices of arraignment and a bondsman surrender during this period, but it does not reflect any motions filed by Schuder or any other documents.
Although the trial court held a hearing on Turner’s motion to withdraw, the record before us does not contain a transcript from this hearing.
Even after Johnson filed his notice of appeal, the trial court continued to place his case on trial calendars for January, February, May, and June 2011. In July 2011, Johnson wrote to the clerk of the superior court to inquire as to the status of his appeal after learning that the record had not been transmitted to this Court. We remind the trial court that “pre-trial orders denying a constitutional speedy trial claim are directly appealable.”
Callaway v. State,
We pause to note that although the State provided citations to the record in its brief, the State’s record citations are unhelpful as they do not correspond to the record before this Court, and in some instances, the State cites to documents and/or transcripts that are not in the record before us. We remind the State that “this Court will not cull the record on a party’s behalf.”
Potts v. State,
State v. Thaxton,
Thaxton,
Thaxton,
Thaxton,
Id. at 262-63.
Id.
at 263 (punctuation omitted);
see also Ditman v. State,
See Thaxton, 311
Ga. App. at 263.
See generally State v. Porter,
See Thaxton,
Ruffin,
Id.
Thaxton,
Id.
Id. at 264 (1).
Ruffin,
Id. at 56 (2) (b) (i) (further holding that although lengthy pretrial delay cannot alone support a finding that a defendant’s constitutional right to a speedy trial has been violated, it is “part of the mix of relevant facts, and its importance increases with the length of delay” (punctuation omitted)).
Id.
at 56-57 (2) (b) (i) (further holding that because “the presumption that pretrial delay has prejudiced the accused intensifies over time,” an uncommonly long or excessive pretrial delay “merits consideration beyond its use as a liminal screening mechanism” (punctuation omitted));
see also Doggett,
See State v. Reimers,
Thaxton,
See, e.g., id.
(holding that “[t]o the extent that the majority of the delay occasioned . . . was attributed to the pre-indictment delay, such delay was significant in the analysis of this factor,” which was presumably weighed against the State);
Grizzard v. State,
Thaxton,
Ruffin,
Ruffin,
Id. (providing, as examples, a defendant “going on the lam to avoid prosecution, filing a series of frivolous pretrial motions, or securing the unavailability of a critical prosecution witness”).
See id. at 59-60 (2) (b) (ii) (recognizing inherent delays caused by State’s need to track down critical witnesses and the time that must be afforded to trial and appellate courts to consider motions and appeals in a “just and thoughtful manner”).
Id. at 60 (2) (b) (ii).
Id.
Id.; see also id. at 61 (2) (b) (ii) (holding that “the government” is not limited to the prosecution and instead encompasses all state actors, including judges and indigent defense).
Id. at 61 (2) (b) (ii) (punctuation omitted).
See Simmons v. State,
See Ditman,
See id. at 192 (2) (b) (trial court ignored allegation by defendant that “State was slow to comply with his discovery requests, which caused him to seek a continuance several months after . . . indictfment]”).
See id.
We also note that Johnson denied that such a hearing took place.
See supra notes 30-42 & accompanying text.
Ditman,
Simmons,
Porter,
Thaxton,
See, e.g., Maddox v. State,
Id.
(punctuation omitted);
see also Howard v. State,
Johnson urges us to adopt an exception for pro se motions that are filed when a criminal defendant’s counsel is mistaken as to the law and incorrectly refuses to file a motion on the defendant’s behalf. We decline to carve out such an exception and note that a criminal defendant has the option of making a claim for ineffective assistance of counsel when he or she believes that counsel’s representation was deficient in any respect.
See Howard,
As further detailed supra, Attorney McFarland was appointed on November 21, 2007, but shortly thereafter informed Johnson that he would be unable to serve as counsel. On November 30, 2007, Johnson signed his demand for a constitutional speedy trial, which was filed by the clerk of court on December 6, 2007. Also on November 30,2007, Gregg Schuder was appointed to represent Johnson, with the appointment form filed on December 5, 2007, and an entry of appearance filed on December 4.
Grizzard,
Ruffin,
See Smith v. Hooey,
Id.
Id.
Ditman,
Id.\ see also Brewington
v.
State,
Ditman,
State v. Redding,
See Jackson v. State,
OCGA § 17-16-5 (a) (emphasis supplied).
Davis v. State,
Id.
Reimers,
See Porter,