Willie Moore appeals the order denying his motion to dismiss the indictment against him for violation of his constitutional right to a speedy trial. Because we conclude that the trial court did not abuse its discretion in weighing the relevant factors for determining whether there has been' a constitutional speedy trial violation, we affirm.
This is the third appearance of the case before the court. In its first appearance,
Moore v. State,
On April 19, 2004, Moore was arrested on the charge that he had molested his stepdaughter; within ten days, he was appointed counsel. He was able to post bond within a month of the arrest. From thence until October 2007, the matter lingered with the police and the district attorney’s offices; no indictment was obtained until November 29, 2007 (more than 43 months after the arrest), which included charges of statutory rape, aggravated child molestation, and child molestation. During the forty-three-month delay, the State lost two key files: the CID file containing the medical examinations and medical reports concerniñg the child victim, which included the results of the examination of the child’s vaginal area and hymen; and the main investigative report (and all case notes) created by the law enforcement agency investigating the case. No one could identify the physician who performed the medical examination nor the facility at which the examination took place.
On January 7, 2008, Moore was arraigned and pled not guilty. On January 15, Moore filed a plea in bar, moving to dismiss the case on the ground that his constitutional right to a speedy trial had been violated. Simultaneously, he filed a special demurrer (arguing that the indictment was defective in that it alleged only a range of dates for the criminal acts) and a demand for a speedy trial; however, he withdrew the speedy trial demand less than a month later on February 12. In April 2008, the court conducted an evidentiary hearing on the plea in bar, at which Moore’s wife testified and at which the parties stipulated to the key facts. In June 2008, the court entered an order making relevant findings of fact and denying the plea in bar; in that same order, the *220 court also denied the special demurrer on the ground that it was untimely (having been filed after arraignment).
Id. at 571. We affirmed the trial court’s order denying Moore’s plea in bar, id. at 576 (1), but vacated the trial court’s order denying his special demurrer as untimely and remanded the case with instruction to the trial court to hold a hearing to allow the state to present evidence on the demurrer. Id. at 576-577 (2). The remittitur was sent to the trial court on December 5, 2008.
Upon remand, the trial court granted the special demurrer, and within five weeks, on October 28, 2009, the state re-indicted Moore on charges of statutory rape, child molestation, and false imprisonment. On December 16, 2009, Moore filed a demand for speedy trial, plea in bar and motion to dismiss the second indictment, contending that his constitutional right to a speedy trial had been violated. The trial court denied the motion on February 12, 2010, and Moore appealed.
In
Moore v. State,
The template for deciding all constitutional speedy trial claims is laid out in
Barker v. Wingo,
In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation[,] whichever comes first[,] to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, 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.
(Citations and punctuation omitted.)
Ferguson v. State,
1. “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.”
State v. Porter,
2. (a) After determining that the delay is presumptively prejudicial so as to trigger application of the four factors of
Barker,
the length of delay must be reconsidered as the first factor.
Ruffin,
[W]e note that although the trial court properly concluded that the delay in this case was sufficient to require an analysis of [Moore’s] speedy trial claim, it does not appear from our reading of the order that the court weighed the length of the delay in conducting that analysis. . . . [T]o the extent the trial court failed to consider this factor in the Barker-Doggett balancing test, it erred.
(Citations and punctuation omitted.)
Arbegast v. State,
(b) As for the second
Barker
factor, the reason for the delay, the trial court considered the delay in two phases: the delay that took
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place between Moore’s arrest and the first motion to dismiss, and the delay that occurred subsequent to the ruling on that motion. The court found that the state’s negligence caused the first phase of the delay, a finding that we affirmed in
Moore I,
It also found that because there was no evidence that Moore caused the second phase of delay, that delay also weighed against the state. The court found, however, that there was likewise no evidence that the state intentionally caused this delay. Absent evidence that “the state deliberately attempted to delay the trial in order to hamper the defense,” this factor, even though weighing against the state, is relatively benign. (Citation omitted.)
Carraway v. State,
Moore argues that the trial court abused its discretion because it failed to account for its own role in contributing to the delay. But the court did assess the reason for the delay against the state, and Moore does not argue that the trial court intentionally delayed his proceedings so as to show that the trial court abused its discretion by determining that the reasons for delay were benign. For that matter, the trial court did not take into consideration the 21 months of delay caused by Moore’s prior appeals. See
Brewington v. State,
Moore also argues that the trial court abused its discretion in determining that the state’s delay was negligent instead of intentional. He points to the fact that the state waited 43 months after his arrest to file the original indictment. In
Moore I,
however, we found that “there was no evidence that this delay was malicious, but rather it appeared it was simply the neglect of government agents.”
Moore I,
(c) The third
Barker
factor is the defendant’s assertion of the right to a speedy trial. “It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citations and punctuation omitted.)
Brannen v. State,
(d) The trial court weighed the final
Barker
factor, prejudice to the defense, against Moore. When evaluating the prejudice factor in the speedy trial analysis, courts must consider the “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.” (Citation omitted.)
Nelloms v. State,
The trial court did not make findings or conclusions on the first two interests, pretrial incarceration and anxiety and concern.
If the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.
(Citation omitted.)
State v. Pickett,
We conclude that had the court considered these two interests, it would have had no discretion to reach a judgment different than it did: that Moore did not show that the delay prejudiced his defense. At the hearing on the motion to dismiss, Moore conceded that he did not suffer oppressive pretrial incarceration. As for his anxiety and concern, Moore testified about the strain the charges have placed on his marriage and the fact that six months before the hearing, because of his bond conditions, he had to move from his house because his stepson had moved back in. In
Moore I,
we observed that Moore did not challenge the trial court’s finding that he had not suffered any unusual anxiety or concern from the delay.
Moore I,
As for the most important third factor, see
Nelloms,
Although the passage of time is not alone sufficient to sustain a speedy trial claim, greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a defense.
(Citations omitted.)
Williams v.
State,
The delay in this case is substantial, but we have already affirmed in
Moore I
the trial court’s earlier finding that the loss of the files did not impair Moore’s defense, noting that Moore made no efforts to obtain for himself the medical examination records and that he made no showing that the files would have exonerated him.
Moore I,
Although the “law of the case” rule has been statutorily abolished, any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be. This law of the case rule is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases.
(Citation omitted.)
Bass v. State,
(e) “A trial court exercises substantial discretion in applying the
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Barker
balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” (Citation omitted.)
Porter,
We conclude that, had the trial court properly considered all relevant factors, it would have had no discretion to reach a judgment different than the judgment it reached.
Pickett,
Judgment affirmed.