Lead Opinion
In thе second appearance of this case before this court, Jason Smith appeals from his conviction of driving with a blood alcohol level of 0.08 grams or more in violation of OCGA § 40-6-391 (a) (5) (DUI per se). Smith contends that we must once again remand this case to the trial court for entry of an order with adequately supported factual findings and the correct balancing of the four speedy trial factors outlined in Barker v. Wingo,
The record shows that on May 5, 2007, Smith was arrested for DUI less safe and DUI per se following an accident on an interstate highway He was convicted of DUI per se in a bench trial on June 1, 2012, five years and twenty-eight days later. Smith was not incarcerated during this time period as he was released on bond the day after this arrest.
Following his arrest, Smith was instructed to appear in the City of Atlanta Municipal Court on May 7, 2007. According to representations of the State during the hearing on the motion for discharge and acquittal, the case remained in municipal court through February 2008, at which time it was transferred to Fulton County State Court. The State asserted that some of the transfer delay was “for the defense to review the video; for the defense to consider the offer; not within the defense’s control, but I believe there was a family member that was ill.” We cannot determine from the record before us whether Smith was represented by counsel while the case was pending in municipal court.
On August 13, 2008, 15 months after Smith’s arrest, the State filed an accusation against him charging him with DUI less safe and DUI per se. On October 2, 2008, Smith’s counsel filed various motions seeking discovery from the State, including source code information for the Intoxilyzer 5000 machine that was used to test his breath on the day of his arrest.
The case appeared on a bench trial calendar published оn November 13, 2008, but there was no date for the trial specified.
On January 5, 2009, Smith’s counsel filed a request for leave of absence for a series of 12 dates from February through June 2009. The reason for one request was a seminar, and the remaining eleven were for unspеcified personal leave.
On March 4, 2009, the case was placed on jury trial calendar beginning Monday, May 4, 2009. We cannot determine from the record before us whether the leave of absence requests delayed the scheduling of trial between the previous November 2008 bench trial notice and the first jury trial date of May 4,2009. At the time the court scheduled the jury trial, however, it still had not ruled upon the motion filed by Smith five months earlier requesting an order determining the relevance and materiality of the source code.
On April 23, 2009, eleven days before the first scheduled jury trial date and over six months after Smith’s request, the State filed a response to Smith’s discovery requests and produced a witness list, a copy of the accusation аnd uniform traffic citations, a copy of the incident report concerning his arrest, and a copy of the intoxilyzer slip. According to the State, the case was not reached on the May jury trial calendar. There is no evidence that Smith sought a continuance of the case on that date for any reason.
Between May 2009 and August 31, 2011, the case was not scheduled for trial, and the
On August 31, 2011, the case was set on a trial calendar beginning Thursday, September 22, 2011. On September 9, 2011, defense counsel attempted to serve a subpoena upon CMI, Inc., in Kentucky seeking production of source code information at the trial scheduled for September 22, 2011. On the same day as the scheduled September trial, Smith filed a request for issuance of an out-of-state subpoena to CMI, Inc., along with a proffer of the need for source code evidence, which included a copy of an expert witness affidavit submitted in an unrelated criminal case. We cannot determine from the record why the case was not tried on this date, but the trial court had still not ruled upon Smith’s motion seeking a determination that the source codе was material and relevant.
On October 6, 2011, the trial court issued an order finding the source code evidence material and granted Smith’s request for a certificate of materiality under former OCGA § 24-10-94. This order was issued over three years after Smith had first sought such a determination from the trial court.
The record does not show when Smith first petitioned a Kentucky court to obtain a subpoena directing CMI to appear in Georgia. It does show, however, that on February 17, 2012, a Kentucky Circuit Court judge signed a consolidated protective order allowing source code access to criminal defendants and their attorneys and expert witnesses, as well as court personnel. Numerous petitioners were listed on the protective order, including Jason Smith. A few days later, the Kentucky trial court issued an order denying Smith’s request for a subpoena of source code information, concluding that the various
During the time that Smith attempted to obtain the source code in Kentucky after receiving a ruling from the trial court in October 2011, his case appeared on two trial calendars.
Smith was tried on June 1, 2012, while his Kentucky appeal was pending.
The trial court then issued the fоllowing order on January 13, 2015:
The above-styled action came before the Honorable Court for hearing on June 1, 2012 [the trial date] on Defendant’s MOTION FOR DISCHARGE AND ACQUITTAL. After hearing the evidence and arguments of counsel for both parties, and upon consideration and evaluation of Defendant’s constitutional speedy-trial claims according to the four-part test established in Barker v. Wingo, [supra], the Court deniedDefendant’s said motion. Consistent with Higgenbottom v. State, 288 Ga. 429 [(]704 SE2d 786 [)] (2011), the Court hereby sets forth its findings of fact and conclusions of law as follows:
1. Length of delay. The Defendant was arrested on May 5, 2007 and his instant Motion was heard by the Court on June 1,2012. The Court finds that a delay of five years in this case is presumptively prejudicial. Accordingly, the Court must analyze the other three Barker factors to determine if Defendant’s constitutional right to a speedy trial was denied.
2. Reason for delay. The сourt finds that the reason for the delay rests primarily with the Defendant. At the pretrial stage, Defendant had sought discovery of proprietary source code information from the maker of the Intoxilyzer 5000 machine used in this case, CMI, Inc., a Kentucky corporation. The delay resulted from Defendant’s efforts to compel production of such source code information via motions filed with and hearings held in this Court as well as in the Kentucky court to compel CMI, Inc.’s production of the requested information. Having been unsuccessful in his motions to compel the production, Defendant then sought appellate review which resulted in additional delay. The Court further finds that the State lacked access to the source code information and did not otherwise contribute to the delay.
3. Defendant’s assertion of his right to a speedy trial. The Court finds that Defendant did not demand a speedy trial or assert his right to a speedy trial during the period between his arrest and the hearing on the instant motion, at which time he finally asserted his constitutional right to a speedy trial. Accordingly, this delay in asserting his right to a speedy trial must be weighed against Defendant.
4. Prejudice to the Defendant. As to oppressive pre-trial incarceration, the Court finds that such factor is not at issue in this case as Defendant was released from jail soon after his arrest and had been free on bond since his release. As to minimizing anxiety and concern of the Defendant, the Court finds that “anxiety and concern ... is always present to some extent, and thus absent some unusual showing is not likely to bе determinative in defendant’s favor.” Weems v. State,310 Ga. App. 590 [(]714 SE2d 119 [)] (2011). Here, the Court finds that Defendant failed to present evidence that he suffered undue or unusual anxiety. Furthermore, the Court finds that the Defendant’s ability to defend the charges has not been impaired by the delay
Having weighed and considered the Barker factors as set forth above, the Court hereby DENIES Defendant’s Motion for Discharge and Acquittal.
1. We now determine whether Supreme Court precedent requires us to remand this case to the trial court to consider again whether Smith was denied his right to a speedy trial. See, e.g., State v. Johnson,
Both the Sixth Amendment of the United States Constitution and the Georgia Constitution provide that criminal defendants shall have the right to a speedy trial. See Brewington v. State,
(1) the length of the delay; (2) reasons for the delay; (3) defendant’s assertion of the right to speedy trial; and (4) the prejudice to the defendant. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.
(Citations and punctuation omitted.) Bowling v. State,
“In Georgia, the application of these principles to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one.” (Citations and footnote omitted.) State v. Buckner,
we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.
(Citation omitted.) Id.
(a) Length of Delay. While the trial court properly concluded that the five-year delay
(b) Reasons and Responsibility for the Delay. “The second factor in the Barker-Doggett analysis requires the court to examine both the reason for the delay and whether this is attributable to the defendant or the state.” (Citation and punctuation omitted.) Thomas v. State,
This factor, which examines whether the defendant or the State bears more responsibility for the delay, is “pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors.” Deliberate delay intended to hinder the defense must be weighed heavily against the Statе, whereas delay occasioned by more “neutral” causes, such as negligence or overcrowded dockets, weighs less heavily against the State. On the other hand, delay caused by the defense weighs against the defendant.
(Citations omitted.) Phan v. State,
In its order, the trial court concluded that “the reason for the delay rests primarily with the Defendant” based upon his efforts to obtain the source code. It also found that “the State lacked access to the source code information and did not otherwise contribute to the delay.” The trial court did not break down the overall pre-trial delay into relevant time periods and assign responsibility for delay to each time period. Nor did it conclude whether the delay should be weighed heavily, slightly, or neutrally against Smith. “Because of the procedural complexity of this case, the trial court could not have exercised its discretion properly under the Barker test without doing so.” Thomas, supra,
For example, the trial court did not consider the 15-month delay between Smith’s May 7, 2007 arrest and the filing of
(c) Defendant Assertion of the Right. Smith did not assert his constitutional right to a speedy trial until over five years after his arrest on the day he was actually tried. See Cawley, supra,
To assess whether the accused insisted “in due course” upon his right to a speedy trial “requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.” And because delay often works to the defendant’s advantage, the failure of the accused to assert his right in due course generally is accorded “strong eviden-tiary weight.”
(Citations omitted.) Id. at 397 (3) (c). A defendant’s late assertion of a right to speedy trial may be mitigated by a defendant’s insistence on his right to discovery Id. One of the factors that a trial court may consider in this context is whether, during the time that discovery was not forthcoming from the State, the defendant “was insisting in the meantime that the State comply with its obligations to furnish discovery” (Citations and punctuation omitted.) Id. Additionally, “a trial court has the discretion to mitigate thе weight given this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel. [Cit.]” State v. Pickett,
As the Supreme Court recently clarified:
Although the failure to promptly assert the right to a speedy trial ordinarily weighs heavily against a defendant, Pickett,288 Ga. at 677 (2) (c) (3), we have acknowledged in previous decisions that the weight to be attributed to this factor may be mitigated in some cases, and whether the circumstances of aparticular case warrant any mitigation is a question committed to the sound discretion of the trial court.
State v. Alexander,
(d) Prejudice to the Defendant. The remaining factor in the Barker analysis is prejudice to the defendant.
The types of prejudice associated with an unreasonable delay before trial include oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence. Of these forms of prejudice, the most serious is the last, because the inability of a dеfendant adequately to prepare his case skews the fairness of the entire system. A defendant need not show demonstrable prejudice to prevail on a speedy trial claim. Because of the difficulty of proving specific prejudice due to the passage of time, the United States Supreme Court has explained [that] excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.
(Citations and punctuation omitted.) Pickett, supra,
(i) In this case, Smith correctly asserts thаt the trial court erred by failing to take into account the presumption of prejudice arising from the five-year delay in this case when considering this phase of the balancing test. While the trial court made findings with regard to the other three types of prejudice, it was also required to consider the presumed prejudice a second time in this portion of the Barker analysis. See Wilkie v. State,
where the defendant has made no attempt at all to demonstrate (or even argue) that he has suffered any particular prejudice to his mental or physical condition or to his defense strategy, any prejudice that might be presumed by virtue only of the passage of time will carry very little weight in the Barker analysis. [Cits.]
Phan, supra,
(ii) Smith also claims that the trial court abused its discretion by failing to weigh the prejudice portion of the balancing test against the State because he demonstrated “tangible prejudice through the deprivation of evidence that the State admitted to destroying because ‘the city only keeps them so long.’ ”
According to Smith, the missing evidence “was essential to establishing a time line of events and [his] appearance and demeanor... while on the scene” and also “essential to
In his previous appeal to this court, Smith raised these eviden-tiary issues in the context of a claim that the State failed to present sufficient evidence to support his conviction, and we concluded:
Smith first argues that the evidence failed to show that he was the driver. But the first responding officer testified that “[p]aramedics came out. They checked out the driver,” and the officer smelled an odor of alcohol on “the driver,” whom he identified as Smith at trial. The record does not disclose whether this description was hearsay from the paramedics or from Smith himself, nor did Smith object on that ground, so Smith has not demonstrated that this characterization of him as thе driver was inadmissible. Furthermore, Teague testified that Smith volunteered to him that he was not at fault for the traffic accident because someone else had hit or sideswiped him. Smith also discussed with the officer the fact that even if he was not at fault he could be considered an impaired driver. Based on the record before us, we conclude that evidence authorized the trial court to find that no reasonable hypothesis existed other than he was the driver of the car.
Next, with respect to whether Smith was shown to have an unlawful blood alcohol concentration within three hours of driving, Teague testified on direct that the test was done within three hours of Smith’s driving. He further explained that this was based on the interval between the сomputer-recorded time that he was dispatched to the scene (10:45 p.m.) upon request by the initial investigating officer and the time recorded on the Intoxilyzer test (11:44 p.m.). Further, there was evidence that paramedic first responders were still treating Smith while the initial responding officer was on the scene, and that the initial officer smelled alcohol on Smith at that time, so this supports a finding that the accident scene was still “fresh” at the time Teague was dispatched, which preceded the Intoxilyzer test by only one hour. Finally, there was no evidence that Smith consumed alcohol after driving, so Smith’s test result, 0.126, following these events suggests that his blood alcohol concentration would have been even higher closer in time to his driving. Accordingly, the evidence authorized the trial court to find that the only reasonable hypothesis was that Smith’s blood alcohol concentration was above the statutory 0.08 threshold within three hours after he drove.
(Footnotes omitted.) Smith I, supra,
In its order denying Smith’s motion for discharge and acquittal, the trial court concluded “that the Defendant’s ability to defend the charges has not been impaired by the delay.” We agree with the State’s contention on appeal that the record before us contains some evidence supporting this factual finding by the trial court. A video from a dashboard camera on the arresting officer’s patrol vehicle depicting Smith’s appearance and demeanor was played at trial. With regard to the missing evidence, it is speculative as to whether it would have been favorable to the defense, and its absence allowed the defense to argue that the State had failed to meet its burden of proof. See Stewart, supra,
(e) Balancing of Factors. In recent years, the Supreme Court has emphasized “that it is not the job of an appellate court to weigh the Barker factors in the first instance, and so, when a trial court has abused its discretion in its consideration of these factors, we generally remand the case for the trial court to exercise its discretion again.” (Citations and punctuation omitted.) Johnson, supra,
We may only do this, however, when the trial court has actually considered and weighed all of the Barker factors. “The Supreme Court of Georgia has made clear that [the] trial court[ ] must consider and weigh all four factors under the circumstances of each case.” (Citation and punctuation omitted; emphasis in original.) Culbreath v. State,
In this case, the trial court did not consider and weigh all of the factors, and we may not do so in the first instance. As outlined above, the trial court did not consider the length of the delay a second time when conducting its balancing test, it did not weigh the length of delay, and it did not assign any weight when it attributed the primary reason for the delay to the defendant’s attempt to obtain the source code. We must therefore remand this case to the trial court to consider and weigh all four of the Barker factors. Culbreath, supra,
Accordingly, this is not a case in which it is appropriate for us to conclude that a remand is not necessary based upon an abuse of discretion by the trial court “in its consideration of these factors” because reasonable minds could not disagree about whether the right to a speedy trial has been denied. (Emphasis supplied.) Johnson, supra,
2. Smith’s remaining enumeration of error is rendered moot by our holding in Division 1.
Judgment vacated and case remanded with direction.
Notes
In the blank space on the form titled “Trial Date,” the words “Further Notice” were typed.
The specific dates follow: Thursday, February 5, 2009 — Friday, February 6, 2009; Thursday, February 12, 2009; Friday, February 27, 2009; Monday, March 2, 2009 — Tuesday, March 3, 2009; Monday, March 9, 2009 — Friday, March 13, 2009; Monday, March 16, 2009; Friday, March 20, 2009; Monday, April 13, 2009 — Friday, April 17, 2009; Monday, April 20, 2009; Monday, May 11, 2009 — Tuesday, May 12, 2009; Monday, May 18, 2009 — Friday, May 22, 2009; Monday, June 8, 2009 — Thursday, June 11, 2009.
A seminal case addressing the standard for determining the materiality and relevance of source code evidence was winding its way through our appellate courts during this time period. See Davenport v. State,
In June 2009, Smith filed another request for leave of absence for series of 13 dates for unspecified personal leave from July 2009 into January 2010. The specific dates are: Wednesday, July 8, 2009 — Friday, July 10, 2009; Monday, July 27, 2009 — Friday, July 31, 2009; Thursday, August 6, 2009 — Friday, August 7, 2009; Monday, August 10, 2009 — Friday, August 14, 2009; Monday, August 17, 2009; Monday, August 31, 2009 — Thursday, September 3, 2009; Monday, September 14, 2009 — Friday, September 18, 2009; Monday, October 12, 2009 — Friday, October 16, 2009; Monday, October 19, 2009; Monday, November 23, 2009 — Friday, November 27, 2009; Monday, November 30, 2009; Monday, December 28, 2009 — Thursday, December 31, 2009; Monday, January 4, 2010 — Wednesday, January 6, 2010.
In April 2010, his counsel filed a request for leave of absence for a series of ten dates from July 2010 through December 2010 for unspecified personal leave. The specific dates are: Monday, July 5, 2010 — Friday, July 9, 2010; Monday, July 12, 2010; Monday, August 9, 2010 — Friday, August 13, 2010; Monday, September 13, 20Í0 — Friday, September 17, 2010; Monday, October 11, 2010 — Wednesday, October 13, 2010; Friday, October 29, 2010; Monday, Novеmber 1, 2010; Monday, November 22, 2010 — Friday, November 26, 2010; Thursday, December 23, 2010 — Friday, December 24, 2010; Monday, December 27, 2010 — Friday, December 31, 2010.
On March 7, 2011, Smith’s counsel filed a request for leave of absence for unspecified personal leave from April 2011 into August 2011. The specific dates are: Monday, April 18, 2011 — Friday, April 22, 2011; Thursday, May 19, 2011 — Wednesday, May 25, 20li; Monday, June 13, 2011 — Monday, June 20, 2011; Monday, July 25, 2011 — Friday, August 5, 2011.
On June 27, 2011, Smith’s counsel filed a request for leave of absence for unspecified personal leave for a series of nine dates from June 2011 into November 2011. The specific dates follow: Thursday, June 2,2011 — Friday, June 3, 2011; Monday, June 13,2011 — Monday, June 20, 2011; Friday, June 24, 2011; Friday, July 15, 2011; Monday, July 18, 2011; Monday, August 1, 2011 — Monday, August 15, 2011; Monday, September 12, 2011 — Friday, September 16, 2011; Monday, October 10, 2011 — Friday, October 14, 2011; Monday, October 31, 2011 — Tuesday, November 1, 2011.
In a published and final opinion issued on June 13, 2014, a three-judge panel of the Kentucky Court of Appeals dismissed the consolidated appeals of the Georgia petitioners based upon a procedural defect in the appellants’ brief. Krugman v. CMI, Inc.,
On December 27, 2011, the case was placed on a trial calendar beginning on Friday, February 3, 2012. The case was not tried on this date, nor on a subsequent trial calendar beginning Friday, April 27, 2012.
On September 15,2011, Smith’s counsel filed a request for a leave of absence for a series of seven dates from October into February 2012. The specific datеs that are not duplicative of the previous leave request follow: Monday, November 7, 2011 — Friday, November 11, 2011 (preparation for vehicular homicide case); Monday, November 14, 2011 —Friday, November 18, 2011 (specially set vehicular homicide case); Monday, November 21, 2011 — Monday, November 28, 2011 (personal leave); Thursday, December 22, 2011 — Tuesday, January 3, 2012 (personal leave); Tuesday, January 31, 2012 — Monday, February 6, 2012 (personal leave).
On January 4, 2012, Smith’s counsel filed an additional leave of absence request for the following dates, citing personal leave as the reason for each: Monday, January 30, 2012 — Monday, February 6, 2012; Friday, February 17, 2012 — Thursday, February 23, 2012; Thursday, March 15, 2012 — Tuesday, April 3, 2012; Monday, April 16, 2012 — Monday, April 23, 2012; Wednesday, May 16, 2012 — Wednesday, May 23, 2012.
Defense counsel’s last leave of absence filed on May 8, 2012 did not result in a delay of the trial that took place 13 days later on June 1 because it requested leave for dates beginning on June 7,2012. Likewise, it is unknown whether the sole leave request that fell between the last scheduled trial date of April 27, 2012 and June 1, 2012 resulted in a delay.
At no time did Smith file a statutory demand for a speedy trial. See OCGA § 17-7-170 (a).
Smith incorrectly asserts that the trial court should consider the time period this case has been on appeal in calculating the delay. This time period is considered only in cases where the case has not yet been tried. See Cawley v. State,
In its order, the trial court noted that the delay was presumptively prejudicial, and then stated that it accordingly “must analyze the other three Barker factors to determine if Defendant’s constitutional right to a speedy trial was denied.” (Emphasis supplied.) But a finding of presumptive prejudice triggers a balancing and weighing of four factors under Barker. And at the end of its order, it stated that it had “weighed and considered the Barker factors as set forth above." (Emphasis supplied.)
See Stewart, supra,
Smith does not contest the trial court’s finding that he did not suffer oppressive pre-trial incarceration or undue anxiety and concern.
Concurrence Opinion
concurring fully and specially.
The record in this matter reveals leave requests totaling 231 days, years of litigation in the Kentucky trial and appellate courts, no assertion of a statutory right, the assertion of a constitutional right for the first time on the date of trial, and the seeking of a continuance immediately thereafter. If ever there were a case where a remand seemingly would not be required, this is it.
Nevertheless, I agree with the majority that precedent from our Supreme Court requires a remand. I write only to note that it would be much “speedier,” and much less frustrating to the trial courts, if the law authorized us to make a determination as to whether the trial court’s ultimate conclusion is supported by the appellate record, regardless of mistakes made in the Barker analysis. As it stands, we must remand cases such as this one until such time as the trial court successfully follows a formulaic incantation of the Barker factors.