This is an appeal from the denial of Robert Aaron Nusser’s motion for discharge and acquittal on constitutional speedy trial grounds. For the reasons set forth below, we conclude that the trial court did not abuse its discretion in denying Nusser’s motion.
The record reflects that in the early morning of October 27, 2001, an officer with the Georgia Tech Police Department arrested Nusser for the offenses of driving under the
On April 29, 2003, the Fulton County Solicitor-General filed an accusation against Nusser in the State Court of Fulton County. Nusser’s arraignment was set for September 5, 2003. Shortly before the arraignment, Nusser filed several motions in limine and requested a jury trial on the charged offenses.
Trial subsequently was scheduled for March 15, 2004. After receiving notice of the trial date, Nusser filed his motion for discharge and acquittal on constitutional speedy trial grounds on February 26, 2004. 1
The trial court proceeded with Nusser’s motion on the date of trial. The trial court entertained oral argument from the parties, heard testimony from Nusser, and reviewed medical records submitted by Nusser. The trial court found that Nusser had failed to make a demand for a speedy trial in a sufficiently timely manner and failed to show any prejudice resulting from the delay between his arrest and trial. Based on these findings, the trial court held that the facts weighed in favor of concluding that Nusser’s constitutional right to a speedy trial had not been violated. The trial court thus denied Nusser’s motion, and Nusser thereafter filed this direct appeal. 2
Nusser argues that he has been denied his constitutional right to a speedy trial under Art. I, Sec. I, Par. XI of the Georgia Constitution and under the Sixth Amendment to the United States Constitution. “We examine this claim under the four-part test of
Barker v. Wingo,
The length of the delay.
As a general rule, any delay approaching a year raises a threshold presumption of prejudice.
Doggett v. United States,
The reason for the delay.
The trial court concluded that this factor weighed in favor of Nusser, given that the only explanation provided for the delay was the high volume of cases routinely handled by the State Court of Fulton County. There is no evidence in the record that Nusser or the State sought any continuances, or that the State deliberately attempted to delay the case. Rather, at the pre-trial hearing on Nusser’s motion, the State indicated that the delay involved in this case “unfortunately” was not “unusual” given the caseload levels maintained by the Fulton County courts.
4
The defendant’s assertion of the right.
The trial court weighed the third
Barker
factor in favor of the State based on its finding that Nusser had failed to make a demand for a speedy trial in a timely manner. “[W]hile the state has a duty to bring [the defendant] to speedy trial, the defendant has a responsibility to assert that right.”
State v. Lively,
Nusser argues that the trial court failed to take account of the procedural history of the case as a whole in weighing this factor against him. Specifically, Nusser notes that the State failed to file* an accusation against him for 18 months after his arrest. He contends that, as a result, he was unable to assert his right to a speedy trial during that period, apparently based on the assumption that the constitutional right to a speedy trial cannot be asserted until a defendant has been indicted or accused. Nusser also contends that he did not receive any notice that an accusation had been filed until he later received notice of the arraignment date, and that, consequently, he was procedurally barred from making a speedy trial demand under OCGA§ 17-7-170 (a). 6
We find Nusser’s contentions unpersuasive. Nusser has conflated his ability to assert his
statutory
speedy trial right under OCGA § 17-7-170 with his ability to assert his
constitutional
speedy trial right. “Unlike the statutory protections conferred by OCGA [ § ] 17-7-170 . . . that attach with formal indictment or accusation,” a defendant’s constitutional speedy trial right “attaches upon arrest and can be asserted thereafter.”
Smith v. State,
Additionally, Nusser argues that the trial court erred in weighing the third
Barker
factor against him because his demand for a jury trial, which was made approximately six months before the trial date, should have been treated by the trial court as the date upon which he asserted his constitutional right to a speedy trial. We disagree. “[A] demand for a jury trial. .. does not invoke either a constitutional or statutory right to a speedy trial.” (Citations omitted.)
State v. Johnson,
The prejudice to the defendant.
Finding that Nusser failed to show any prejudice resulting from the delay between his arrest and trial date, the trial court weighed the fourth
Barker
factor in favor of the State. We find no error by the trial court. “The test for whether a defendant has been prejudiced requires the court to consider three interests: preventing oppressive pretrial incarceration, minimizing a defendant’s anxiety and concern, and limiting the possibility that the defense will be impaired.” (Footnote omitted.)
Beasley v. State,
As an initial matter, there was no concern of oppressive pre-trial incarceration caused by the delay in this case because Nusser was released on bond on the same date he was arrested. See
Nelloms v. State,
Nusser’s testimony that the delay had negative effects on his employment and ability to drive to work and school did not constitute an “unusual showing” of anxiety and concern under the circumstances of this case. Nusser admitted that he lost his job the weekend after his arrest, which contradicted his claim that his employment problems were caused by any delay in the proceedings. Furthermore, Nusser testified that he is currently employed and that he had at least one other job opportunity since his arrest but that he declined to accept it because it paid less. Finally, Nusser testified that although his physical driver’s license was taken from him at the time of his arrest, his license was not suspended and he could continue to legally drive even after the arrest using the documentation provided to him by the arresting officer. Thus, Nusser was unable to show that the delay in the case caused him to lose his employment or his ability to drive to work or school.
Finally, Nusser has failed to show that his defense was impaired by the delay. Nusser argued that the delay in proceedings caused him to lose the ability to present eyewitness testimony from the medical doctor who examined him on the date of his arrest. The trial court rejected Nusser’s argument, finding that the medical records written by Dr. Stansby containing his diagnostic observations of Nusser’s physical condition and his conclusions based thereon were sufficient to stand in the place of live testimony from the doctor, so long as the State was willing to stipulate to the admission of the contents of the records as substantive evidence at trial. 7
On appeal, the State emphasizes that it has not objected to the admission of the medical records and goes on to explicitly concede that
Significantly, however, the medical records were not included in the record on appeal in this case.
It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.
(Citation and punctuation omitted.)
Ross v. State,
Balancing of the four factors.
In sum, the trial court weighed the first and second
Barker
factors in favor of Nusser, weighed the third and fourth factors in favor of the State, and then concluded that on balance the facts weighed in favor of the conclusion that Nusser’s constitutional speedy trial right had not been violated. None of the four factors is “either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial,” and the trial court is afforded discretion in how it balances and weighs the factors together. (Citations and punctuation omitted.)
Nairon,
Given that Nusser waited until trial was imminent to assert his constitutional speedy trial right and failed to show any prejudice resulting from the 29-month delay between his arrest and trial date, we conclude that the trial court did not abuse its discretion in concluding that Nusser failed to show a constitutional violation. See
Nelloms,
Judgment affirmed.
Notes
Nusser did not make a statutory demand for speedy trial pursuant to OCGA § 17-7-170 (a).
“[A] defendant may directly appeal from the pre-trial denial of either a constitutional or statutory speedy trial claim.”
Callaway v. State,
“The same speedy trial standards apply to claims under the Georgia and United States Constitutions.” (Citation omitted.)
Nairon v. State,
At the pre-trial hearing, the State suggested that Nusser was in part responsible for the delay because his trial counsel had made two requests for leaves of absence; once in August 2003 and again in November 2003. However, neither request is contained in the record on appeal, and there is nothing in the record that indicates whether the requests were even granted. Furthermore, even assuming the requests were granted, the State presented no evidence as to the length of the granted absences or as to how they caused a delay in the setting of the trial date.
See
Callaway v.
State,
Under OCGA§ 17-7-170 (a), a defendant must make a statutory demand for a speedy trial within the court term during which the accusation is filed or in the next succeeding regular court term. “The State Court of Fulton County has six terms of court each year which commence on the first Monday of the following months: January, March, May, July, September, and November. OCGA § 15-7-40;
Price v. State,
See
Nelloms,
Citing
Dennis v. Adcock,
If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.
(Citations and punctuation omitted; emphasis supplied.) Id. at 428 (2). Nothing in
Dennis
suggests that an objection to the admission of the physician’s conclusions on the ground of improper foundation cannot be waived. See, e.g.,
Wabash Life Ins. Co. v. Jones,