The question for decision in this murder case is whether the trial court erred by denying defendant’s motion for acquittal in which he claimed that his constitutional right to a speedy trial was abridged. We answer this question in the negative.
Joshua Glen Layman was initially indicted on November 10, 2003, for eight crimes stemming from the death of Cameron Green. Layman filed a special demurrer, asserting that the indictment failed
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to allege the date of the crimes with sufficient particularity. The trial court quashed the first indictment and the State appealed the trial court’s order, but this court affirmed, reasoning that the State was reasonably capable of narrowing the range of dates set forth in the indictment.
State v. Layman,
The State indicted Layman a fourth time, but moved to nolle prosequi the fourth indictment. Layman did not challenge this nolle prosequi. The State indicted Layman for a fifth, and final time, on December 5, 2005.
On August 30, 2007, two and a half weeks before the scheduled trial, Layman filed a motion for discharge and acquittal on the ground that he was denied his constitutional right to a speedy trial. In this regard, Layman asserted that the prosecution’s delay prejudiced his defense because two material witnesses died: Kristie Holbrook, on March 14, 2005, and Travis Gaites, on July 3, 2006. The trial court denied Layman’s motion.
Layman’s Sixth Amendment claim is analyzed under the four-part balancing test set forth in
Barker v. Wingo,
which requires that we consider: (1) the length of the delay; (2) reasons for the delay; (3) defendant’s assertion of the right; and (4) the prejudice to the defendant.
Barker v. Wingo,
Length of the Delay
The court must first consider the length of delay when conducting a
Barker
analysis.
Doggett v. United States,
Reasons for the Delay
To evaluate the reasons for delay, the court assigns various degrees of weight to the different reasons provided by the prosecution and the defense respectively.
Barker,
supra,
Thus, although the delay can be attributed to both sides, and perhaps more blame for the delay can be placed on the State than on Layman, there is nothing in the present case evidencing “that most serious abuse — ‘A deliberate attempt to delay the trial in order to hamper the defense.’
Barker v. Wingo,
supra,
Assertion of the Right
It is defendant’s responsibility to assert the right to a speedy trial.
Barker,
Layman claims that he did not seek an acquittal until August 2007 because the prejudice to his defense was not fully realized until that time. However, both of the witnesses who Layman alleges were material to his case died well over a year before Layman filed his motion. This delay in asserting the right to a speedy trial must be weighed heavily against Layman. See Nelloms, supra at 181 (51-month delay in asserting right to a speedy trial weighs against defendant).
Prejudice to the Defendant
To evaluate the fourth Barker factor, prejudice to the defendant, we consider three interests: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and limiting the possibility that the defense will be impaired. Boseman, supra at 733 (1). Layman asserts that his pretrial incarceration has caused him great anxiety and concern for his health and family. However, this generalized concern is not significant. Anxiety and concern of the accused are “ ‘always present to some extent, and thus absent some unusual showing [are] not likely to be determinative in defendant’s favor.’ ” Id. Additionally, we note that Layman’s pretrial incarceration was not excessive. 1
Impairment of the defendant’s ability to prepare his case is the most serious form of prejudice. Courts have recognized that as the time between the commission of the crime and the trial lengthens, witnesses may become unavailable or their memories may fade. Barker, supra at 521. Moreover, “[i]f witnesses die or disappear during a delay, the prejudice is obvious.” Id. at 532.
The witnesses who died, Holbrook and Gaites, were interviewed by the police and Layman’s investigators. Holbrook, who was Layman’s cousin and lived with him, and who knew the victim and saw him on the day before he disappeared, stated that on July 4, 2003, she woke up and asked Layman where the victim was; that Layman responded, “Cameron and I had a fight”; that Layman admitted to her later that day that he “had kicked Cameron’s butt today”; that after the victim disappeared she received a phone call from Layman’s *87 mother asking her to get a bag that Layman left at another individual’s residence; that she went to the residence, but did not retrieve the bag; and that a bag which was subsequently found in Lake Lanier was the bag she was asked to retrieve. Holbrook also stated that she and Layman were together the entire day and night of July 4, 2003.
Travis Gaites told the police that the victim was supposed to come to his house on July 3, 2003, but never arrived; and that the last time he spoke to the victim was the evening of July 4, 2003. He stated later, however, that he did not speak to the victim that evening.
The trial court found that “both deceased witnesses, based on witness statements provided to the court, appear to be more favorable to the State than the defendant.” Our review of the witnesses’ statements leads us to the same conclusion. Thus, we are hard pressed to find any prejudice to Layman resulting from the delay of trial and the death of these witnesses. Moreover, the State has agreed to stipulate to the statements the witnesses made to the police and to Layman’s investigators. This stipulation significantly reduces any prejudice to Layman. No other specific prejudice to the defense has been alleged or demonstrated.
While we do not approve of the delay occasioned here, we must review each case on its own facts. Balancing the foregoing factors, we conclude that the trial court properly ruled that Layman was not denied his constitutional right to a speedy trial.
Judgment affirmed.
Notes
Layman was free on bail from August 24, 2003 to February 20, 2007, when his bond was revoked.