*1
39
State,
Rozier
circumstances,
124
Ga. App.
Under these
(184
203),
481
SE2d
is not
and the trial court
controlling,
State,
Watts
did not err
Cook to
permitting
testify.
State,
894);
Lockleer
144 Ga.
4. For the reasons stated the trial court did appellant’s err motion for new trial. overruling Bell, J., Shulman, J., C. and Judgment affirmed. concur. May July
Submitted Decided Rehearing July denied Howe, Jr., Asinof, R. Donald B. Jesse G. Wesley Bowles, III, for appellant. Perren,
John T. District Kenneth L. Attorney, Assistant District Shigley, Attorney, appellee. THE
55958. MADDEN v. STATE. Judge.
Smith, appellant’s Was the to due violated right process preindictment delay which was both unreasonable and prejudicial? We find a violation under case; therefore, facts of this we reverse the judgment indictment. denying appellant’s motion to dismiss the
I. Facts 29, 1977, On November Grand County the Fulton Jury indicted the appellant, having with charging sold heroin to an agent undercover on October 15,1976. and October Until the arrested on appellant was 29, 1977, November being he had no notion that he was events investigated in connection with suspected in the indictment. transpiring the two dates named Prior a motion to arraignment, filed indictment, dismiss the that of over contending indictment months between the acts and the alleged operated At a his due to a fair trial. deny process right motion, appellant attempted prove on the hearing and unnecessary that unreasonable him to the extent was unable any offer defense. the evidence
On the reasonableness question, Lawson and agents, Ingram, showed that two undercover *2 that participated buy. agent in the Neither testified drug this connected with sort of buy any ongoing was undercover that an immediate arrest investigation such said, would spoil operation. the Their larger delay, they a of to a was to lack sufficient information form positive However, identification. both admitted agents they knew from the the last beginning appellant’s name, lived, where he and where he Eventually, worked. it was from the appellant’s employer the agents obtained of the picture appellant, thus positively with his full correlating appearance Moreover, name. Agent the Ingram generally knew from hav- appellant grown up in the same ing neighborhood with him. Uncontradicted appellant’s evidence showed that the employer cooperated police with in officers identification in matters and in general, particular, the employer was in cooperative this Ostensibly, case. pictorial the identification could have been obtained any time court, The subsequent buy. trial discounting excuses offered for obtaining positive identification and indictment, concluded, "I seeking find as a matter of fact for the of purpose the record and for the purpose of appeal case, this any that the passage of time between the sales to the identification was unreasonable plain view the access which the officer investigating had to the [identifying] information. . .” issue,
On the prejudice appellant contended the delay prevented him from mounting any defense to the A charges. jury waived, was and at the bench trial testified that he had no recollection of the on 12,1976, events October 16,1976. October didHe not recall where was, met, he did, whom what he or anything else about Lawson, those dates. Agent who actually made buys, was not able to recall the events either; he testified from his notes recorded shortly the transactions. The trial court found as fact that
appellant’s defense was "somewhat lapse under all the circumstances.” of time legal
Despite
conclusion, the trial court’s
its factual
upon
primarily
State, Glenn v.
Ga.
conclusion, based
(241
App.
indictment
that the
SE2d
not be dismissed.
Applicable
II. The
Standard
points up
precise
This case
the need for a
standard
guide trial courts when a defendant bases a due
preindictment
prearrest delay.
The United
claim
Supreme
problem in
States
Court has addressed this
two
Marion,
S. 783 argument In the court addressed an that the prohibited speedy provision of the Sixth Amendment preprosecution delay. Despite oppressive substantial (see, contrary argument e.g., Note, 20 L. Rev. Stan. 485-493) 475, prior the court held that the burdens of initiating prosecution comparable (restraint liberty, subjection *3 those after initiation to etc.), public scorn, costs, the defense and therefore protections of Amendment not be the Sixth would preprosecution period. extended to the The Marion court went on to note that statutes of provide primary guarantee against limitation "the bringing overly charges.” stale v. criminal United States supra, quoting Marion, 307, 322, 404 U. S. United States 627) Ewell, v. 383 U. LE2d S. SC (1966). open possibility But the court left the that some delays within the of limitation could nev- statute process ertheless result in due violations where actual prejudice delay. unnecessary purposeful resulted from The the ad- on, court went "To accommodate sound justice rights to a ministration of the of the defendant judgment necessarily fair trial will involve a delicate based on the United States circumstances in each case.” supra. 307, 325, 404 U. S. Lovasco,
In reasons the court the various reviewed why government delay pros- might legitimately proof complete adequate guilt, ecution to obtain in- of vestigation identify participants, crimes, of related case adequate and even to decide whether an otherwise held such legitimate The court prosecuted. not deprive in a defendant’s case "does delay investigative have might even if his defense been of due process, United lapse of time.” by somewhat 783,796, supra. holding 431 U. This is based S. a determination requires on due which of process analysis . . the action of . violates those complained "whether lie at the 'fundamental of which base of conceptions justice institutions,’ Holohan, our civil and political Mooney 112 . . . 294 U. S. and which define 'the sense of fair Rochin v. community’s play decency.’ California, U. LE S. [342 (1952).]” Id., p. 790. There no violation Lovasco purposes because crime; important society’s ferreting interest out thus purposes oppression caused outweighed delay.
III. The Present Case What was the And purpose of here? how does that purpose society’s answers, serve interest? The There respectively, are: wasn’t The any; doesn’t. court found the delay was The unreasonable. record sustains factual conclusion. The had the agents information and resources hand to close this case immediately, but it took over one year to do so. They offered no extrinsic reason for the delay, such as to protect their cover toor continue a related investigation. We are blind facts the Atlanta Police Department understaffed, is and its overworked; nevertheless, officers no recognizable interest of society promoted is when prosecution of a case such as this is without delayed, reason, for over one year.
The other side the analysis prejudice. is What was caused prejudice by the delay? obvious; The answer is *4 could not proffer a defense at all. Perhaps under other circumstances he would have been able to establish, say, an alibi. That opportunity is surely lost 13 passage months, save only most unusual circumstances’. Justice Douglas, concurring Marion, quoted the following statement from Regina v. (Somerset Robins, 1 C. Cox’s C. 114 Winter 1844), Assizes there had been a a two-year delay bringing where bestiality charge: " 'It is a put monstrous man on trial after a such of time. can he lapse How account his conduct far so If a man of a you back? accuse crime next day, may enabled to forward be his servants and bring family say time; he was and what he if where was about but preferred more, not charge for a can year how he clear No himself? man’s life be safe if would such It prosecution permitted. would be very unjust to put him on his trial.” United States v. U. S. 328-329, supra.
The oppressiveness delay of the here is by counterbalanced any laudatory purpose behind the State, In Glenn delay. Ga. App. supra, delay caused by investigation necessary to obtain sufficient identifying But, information. held, as the trial court delay for that here, reason was unreasonable there because already existed sufficient identifying information. Glenn State, supra, is therefore distinguishable, and we hold that the case, unreasonable this coupled with actual prejudice ensued, which amounted to a denial of process. The indictment have been dismissed.
Judgment Bell, J., Quillian, J., Webb, reversed. C. P. Shulman, JJ., Deen, J., Banke and concur. P. Birdsong, J., and McMurray, dissent. July 1978 Decided Submitted June
Rehearing July denied Doll, William J. for appellant. Slaton,
Lewis R. Drolet, District Attorney, J. Joseph Wall, Petersen, Carole E. R. David Assistant District Attorneys, for appellee.
Deen, Presiding
Judge, dissenting
rehearing.
case,
This
involving a
delay,
13-month
is controlled
Glenn State,
SE2d 447)
Justice
in the
Douglas, quoted
majority opinion
projects the better
rule or
in his timely
view
observation
*5
put
it
and monstrous to
unjust
on an old case that would
as it
bestiality
two-year delay,
one
trial
next
Yet
day.
better to accuse
we
would have been
abused his discretion under the
say
judge
cannot
identification and
delays
facts of this case as to
relating
these
crime lab results. We do not know whether
latter
two difficulties existed in the
arrest and trial as
bestiality
has a
charged. Society
related to the
date of act
alleged
crime,
in
out
and the trial
ferreting
interest
compelling
court should have a discretion within the facts of each case
United
as to
the lines of demarcation.
drawing
(1977).
55968. HUNT v. HARLEY-DAVIDSON MOTOR
COMPANY, INC. Judge. Birdsong,
Hunt suit brought against appellee Harley- Co., Inc., Davidson Motor in alleging, counts, two negli- gence products liability, as a result of which he had sustained injury. The trial court granted summary judg- ment, counts, as to both appellee, favor of and Hunt Held: appeals.
1. The uncontroverted evidence shows that Hunt purchased from a dealer a Harley-Davidson motorcycle, manufactured by appellee, and six approximately weeks after the purchase, appellant collided with the rear end of an automobile which he was following. As a result collision, appellant’s leg was injured. Appellant stated a deposition the motorcycle was, at all times pertinent, normal operating condition and that its brakes were functioning properly. Appellant’s sole contention is that injuries resulted from appellee’s failure to install bars,” "crash tubular steel bars which bolt to the motorcycle frame in front of the rider’s knees. Appellant that, stated prior accident, he had many years’ experience riding motorcycles, both with and bars,” without "crash and that he was aware of their use