Lead Opinion
Steve Richardson appeals from the trial court’s order denying his motion for discharge and acquittal for an alleged violation of his constitutional right to a speedy trial.
On May 1, 2007, Richardson filed a demand for discovery along with other consolidated motions. The State served him with some discovery materials on June 27, 2007, including copies of the indictment, the arrest warrants, the initial police report, supplemental police reports, handwritten witness statements, and a Georgia Crime Information Center report regarding Richardson. The discovery did not include photographs of the alleged crime scene location that had been taken by a crime scene photographer, the surveillance video of Richardson and the victim entering a stairwell where the alleged molestation occurred, or the videotaped forensic interview with the victim, all of which were referenced in a supplemental police report.
On July 11, 2008, Richardson filed a motion to compel in which he sought a copy of the crime scene photographs, the surveillance video, and the forensic interview of the victim, as well as updated contact information for the State’s witnesses. A few days later, on July 14, 2008, Richardson filed a motion for discharge and acquittal based on the alleged denial of his constitutional right to a speedy trial.
On March 29, 2010, the State served Richardson with supplemental discovery, providing him for the first time with copies of the crime scene photographs and the forensic interview. The State did not produce a copy of the surveillance video.
On August 24, 2010, the trial court entered its original order denying Richardson’s motion for discharge and acquittal, which, as previously noted, this Court vacated for failure to contain findings of fact and conclusions of law. See Richardson,
In its new order, the trial court calculated the length of the delay as the time that had elapsed between Richardson’s January 20, 2007 arrest and the court’s August 24, 2010 original order denying his motion for discharge and acquittal. The trial court went on to find that the pretrial delay was presumptively prejudicial; that the length of the delay was uncommonly long and weighed heavily against the State; that the reasons for the delay weighed “benignly’ against the State because there was no evidence that the State deliberately attempted to delay the trial or hamper Richardson’s defense; that
We recently summarized the applicable principles and framework for deciding constitutional speedy trial claims:
Both the United States and Georgia Constitutions grant defendants in criminal cases a right to a speedy trial. U. S. Const., Amend. VI; Ga. Const., Art. I, Sec. I, Par. XI (a). When considering a motion to dismiss on this ground, the court conducts a two-tier analysis [as set out in Barker,407 U. S. at 522-523 (II), and Doggett,505 U. S. at 651 ], Under the first tier, the court considers whether the delay is long enough to be presumptively prejudicial, and if so, then it considers under the second tier whether the delay constituted a speedy trial violation. In determining whether the delay violated the defendant’s speedy trial right, the court considers [four Barker-Doggett factors:] (1) whether the delay is uncommonly long; (2) the reasons and responsibilities for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant.
The four factors must be considered together, balancing the conduct of the [government] and the defendant on a case-by-case basis. We review a trial court’s decision to deny a motion seeking dismissal for a speedy trial violation under an abuse of discretion standard. . . .
Further, 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.
(Citations and punctuation omitted.) Watkins v. State,
“For serious crimes that do not involve unusual complexities, one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” (Citation and punctuation omitted.) Ward v. State,
Richardson contends that the trial court erred in calculating the length of the delay for determining presumptive prejudice. According to Richardson, the trial court should have calculated the length of the delay from his January 20, 2007 arrest to the trial court’s September 29, 2011 order again denying his motion for discharge and acquittal, for a total of four years and eight months. We agree with Richardson.
‘Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State,
Nevertheless, the trial court found that the pretrial delay crossed the threshold of presumptive prejudice, triggering analysis of the four Barker-Doggett factors, and neither Richardson nor the State disputes this finding. The trial court, therefore, acted within its discretion in finding presumptive prejudice. See, e.g., Ward,
2. The Barker-Doggett factors.
(a) Whether the pretrial delay was uncommonly long.
The first Barker-Doggett factor, whether the pretrial delay was uncommonly long, requires courts to analyze “the extent to which the
(b) The reasons and responsibility for the pretrial delay.
The second Barker-Doggett factor requires courts to analyze “both the reason for the delay and whether this is attributable to the defendant or the [S]tate.” (Citation and punctuation omitted.) Hayes v. State,
In analyzing the reasons for the pretrial delay, we are required to assign various degrees of weight to the different reasons provided by the prosecution and the defense respectively. For instance, deliberate delay to hamper the defense weighs heavily against the prosecution. More neutral reasons such as negligence or overcrowded courts weigh less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. In contrast, delay caused by the defense weighs against the defendant.... [Additionally,] there are occasions where the record is simply silent as to the reason for the delay, and in that context, we must treat the delay as caused by the negligence of the State in bringing the case to trial.
(Citations and punctuation omitted.) Sechler,
The trial court found that there was no evidence that the State had deliberately attempted to delay Richardson’s trial to hamper his defense or gain a tactical advantage. The court found that the delay attributable to the State instead had been caused by the overcrowded docket and by the fact that the case previously had been assigned to
Richardson maintains that the trial court abused its discretion by failing to weigh the reason for the pretrial delay more heavily against the State. We conclude that there was evidence to support the trial court’s findings regarding the cause of the delay up to the point of the court’s August 24, 2010 order. However, the trial court erroneously failed to consider the additional 13-month delay between its original August 24, 2010 denial of Richardson’s motion for discharge and acquittal and its second denial of the same on September 29, 2011.
“Notably, in determining whether the government or the defendant is more to blame for the pretrial delay, the government includes all state actors, even trial and appellate court judges.” Goddard,
If the trial court had properly added the thirteen months to the length of the pretrial delay, for a total delay of four years and eight months, it could have affected the court’s evaluation of how heavily to weigh the second Barker-Doggett factor against the State, and thus could have affected the court’s ultimate balancing of the four factors. This is because “[ejven benign negligence will begin to weigh more heavily against the State, the longer the delay caused by the same.” Hayes,
Accordingly, in light of the trial court’s failure to consider all relevant periods of pretrial delay, “we are constrained to remand this case again 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 [above] before reweighing this factor.” (Citation and punctuation omitted.) Goddard,
(c) Assertion of the right.
The third Barker-Doggett factor requires courts to analyze whether the defendant timely asserted his constitutional right to a speedy trial. See Howard v. State,
The trial court found that the almost 18-month delay between when Richardson was arrested and when he filed his motion for discharge and acquittal on speedy trial grounds should be weighed heavily against him. The court rejected Richardson’s contention that the State’s failure to timely provide him with discovery could be considered and weighed as part of the analysis. In this regard, the trial court stated categorically that “[t]here is no connection between failing to receive discovery and the failure of a defendant to assert his right to a speedy trial.”
Richardson contends that the trial court erred by not considering the State’s failure to timely provide him with certain discovery, namely, a copy of the crime scene photographs, the surveillance video, and the forensic interview of the victim. We agree. The trial court concluded, summarily and categorically, that discovery problems can have no connection to a constitutional speedy trial claim. But we have held that the State’s delay in responding to a defendant’s materially significant discovery requests can mitigate a defendant’s delay in asserting his speedy trial right. See Brown,
(d) Prejudice to the defendant.
The fourth Barker-Doggett factor requires courts to analyze “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.” (Punctuation and footnote omitted.) Weems v. State,
The trial court found that no oppressive pretrial incarceration, undue anxiety and concern, or impairment of Richardson’s defense had resulted from the delay. Accordingly, the court found no evidence of prejudice and weighed the fourth Barker-Doggett factor heavily against Richardson.
Richardson does not challenge the trial court’s finding that the pretrial delay caused no oppressive pretrial incarceration and no impairment of his defense. Rather, his sole argument is that the trial court should have found that he suffered heightened anxiety and concern because his career goals in law enforcement were “completely derailed by the allegations in this pending case.” In that regard, Richardson testified that he had been a police officer for 15 years, that he was working as a security guard and at a corrections facility when the alleged crimes occurred, that he had planned to continue with his law enforcement career, but that as a result of the pending criminal charges he has been completely “unable to get any law enforcement job.”
Contrary to the trial court’s finding, Richardson’s testimony that his law enforcement career has effectively been derailed by the pending charges is at least some evidence of anxiety and concern. See Lambert v. State,
[t]he Supreme Court of the United States in Doggett[,505 U. S. at 652 (II),] held that consideration of prejudice is not limited to the specifically demonstrable. The Court held that the presumption of prejudice that arises from the passage of time strengthens with the length of the delay and may tilt the prejudice factor in a defendant’s favor, although it may not alone carry a Sixth Amendment claim without regard to the other Barker criteria.
State v. Lattimore,
In the instant case, the delay has been lengthy — almost five years. Not only was the trial court required to take account of this lengthy pretrial delay in its threshold determination of presumptive prejudice, but it “was also required to consider the delay a second time by factoring it into the prejudice analysis with the presumption that pretrial delay has prejudiced the accused intensifying over time.” (Citation and punctuation omitted.) Goffaux v. State,
Having reviewed the trial court’s order, “we find no indication in the court’s order that it considered for a second time the presumptive prejudice arising from the pretrial delay of [four years and eight months] by factoring it into the prejudice analysis as part of the mix of relevant facts.” Goffaux,
(e) Balancing the Barker-Doggett factors.
Balancing all four Barker-Doggett factors, the trial court found that Richardson had not been denied his constitutional right to a speedy trial and thus denied his motion for discharge and acquittal.
In light of these significant errors, and aware that we cannot substitute our judgment for that of the trial court, we are unable to conclude that the trial court necessarily would have denied Richardson’s speedy trial claim if it had used the correct facts and legal analysis. See State v. Pickett,
Judgment vacated and case remanded with direction.
Notes
A defendant is entitled to directly appeal the pretrial denial of a constitutional speedy trial claim. See Johnson v. State,
In considering the State’s failure to timely provide certain discovery, the trial court ultimately may find that the failure should not serve as a mitigating factor under the particular facts of this case, as we recognized in Shirley,
Concurrence Opinion
concurring fully and specially.
I concur fully in the judgment to vacate and remand this case with direction, and I concur in all of the majority opinion, except for that part of the analysis set forth in Division 2 (d) concerning whether Richardson suffered undue anxiety and concern under the fourth Barker-Doggett factor.
The majority concludes that the trial court abused its discretion in finding that Richardson did not experience undue anxiety and concern because “Richardson’s testimony that his law enforcement career has effectively been derailed by the pending charges is at least some evidence of anxiety and concern.” The majority then directs the trial court upon remand to find that Richardson suffered “significant anxiety” and to reconsider the fourth Barker-Doggett factor of whether the pretrial delay prejudiced Richardson in light of his “significant anxiety” and the presumptive prejudice arising from the passage of time.
The majority’s analysis is inconsistent with our precedent in this area. The question is not whether there was “some evidence” of anxiety and concern experienced by Richardson; by framing the question in that manner, the majority turns the abuse-of-discretion standard on its head and ignores our repeated admonition that the defendant must suffer more than the usual anxiety and concern of one accused of a crime. The pertinent question instead is whether there is any support for the trial court’s finding that Richardson did not suffer significant anxiety and concern beyond that generally experienced by defendants in his situation. And the answer to that question is clearly ‘Tes.”
There is no evidence in the record that Richardson’s loss of law enforcement career opportunities caused him significant anxiety and concern beyond that generally experienced by defendants in his situation, i.e., defendants with pending criminal charges and bond restrictions. Furthermore, Richardson conceded that despite his concern over his law enforcement career, he was currently employed
Under these circumstances, particularly the record evidence that Richardson was in fact presently employed and had received a raise and a promotion in his current job, the trial court acted within its discretion in finding that Richardson had not suffered undue anxiety or concern resulting from lost job opportunities. See, e.g., Sechler v. State,
Division 2 (d) of the majority opinion thus decides only the issues in this case and may not be cited as binding precedent. Court of Appeals Rule 33 (a).