*1 719 S01A1524. THE STATE v. BELL.
(559 SE2d Justice.
Carley, Henry arrested was for murder December but was not indicted until April 1996. In July he filed a pleading styled as a “Motion to Set Jury Trial.” In August 1999, he moved to dismiss the case pursuant and, OCGA 17-7-171 § November of that year, he also moved to dismiss based an alleged violation of his Sixth Amendment speedy trial. After a hearing, trial court granted both motions. The State brings appeal from the trial court’s dismissal orders.
1. The State contends that Bell’s 1996 motion satisfy the requirements of because it did § provide prosecution with adequate notice that he was seeking a speedy trial and not merely trial. Although the pleading does not expressly reference the statute or demand a “speedy” trial, such specifics are unnecessary. “No particular form is required ‘so long as the demand can reasonably be construed as a demand for trial under the provi- [the sions of State, [Cit.]” Baker v. statute].’ Ga. App. (442 815) (1994) SE2d (dealing with OCGA 17-7-170, § which applies cases). to non-capital The motion in this case was not misleadingly styled simply a demand for a jury trial. Compare State, (363 800) (1987). The caption identifies it as a request the State “set” Bell’s trial, case for a jury and correctly specifies number of the indictment which charged him with mur- der. the body motion, requested trial be held “in his capital case within the next two terms of court. . . .” This is a (a). demand that the prosecution with comply OCGA 17-7-171 § pleading, considered in entirety, its was clear as to its purpose and the right which it sought to enforce. A motion is sufficient the extreme sanction of OCGA 17-7-171 so to invoke as it long constitutes a demand to be tried within the next two succeeding terms of court. 530) (1982) Forbus v. (approving Appeals’ Court of construction of OCGA 17-7-170 in 149) (1982)).
The dissent correctly notes that a defendant who seeks a speedy
trial pursuant
to OCGA 17-7-171
comply strictly
must
applicable
requirements.
In determining what
those
are,
requirements
however, we must adhere to applicable legal prin-
ciples, one of which is that “there
no
mere
magic
nomenclature,
even in describing pleadings.
[Cit.] Under our rules of pleading!,]
substance, not mere nomenclature,
Marshall v.
[Cit.]”
controls.
12) (1972).
court. that Bell’s the trial of pleadings, struction 17-7-171. of OCGA requirements with the complied strictly motion ato his that Bell waived asserts 2. The State *2 in Sep- call of his case timely at the by failing appear however, Bell dismiss, the motion to hearing 1996. At tember and announced present testified that his trial counsel The State on that occasion. case was called when the “ready” contrary, presented was more credible. and his counsel testimony of Bell
found that is the final judge, case the fact, “The finder of witnesses.” credibility of the evidence and weight arbiter (1) (441 264 Ga. County, v. Cobb Hughes Bell waived his to show that had the burden The State (2) (511 App. v. 236 Ga. Sykes to a trial. right (1999). 566) the State did not finding The trial court’s not disturbed. will meet burden entitled to dismissal held that Bell is The trial court (b). The in accordance with OCGA to a right the denial of his constitutional regarding
additional issue moot and need not be addressed. trial is concur, Benham and except All the Justices Judgment affirmed. Hines, JJ., who dissent. Justice, dissenting.
Benham, of the trial affirmance majority’s respectfully motion for an absolute of the defendant’s grant court’s him. Given charges pending against of the murder it acquittal, of the sanction of absolute extreme nature compliance invoked when there has been strict can only prescribe the statutes which 17-7-170 and §§ right criminal defendant assert means which a 498, 499 App. trial after indictment. Patten 110) (2001); Hanson v. SE2d 510) (1990). the document which defendant
I do not believe with the min- compliance a demand for trial is in strict relies as to a asserting imum standard for acceptable to finish Furthermore, it is time for this Court trial. believe in State v. Ga. begun years ago the task 149) “discourage (1982), when Banke undertook Judge seek to use through attorneys draftmanship” th[e] for trial as valid demands demands and motions requests, OCGA 17-7-170 and 17-7-171. filed pursuant §§ a defendant to enter a “demand
1. OCGA bar, trial.” did demand-, defendant Bell not enter rather, he filed motion which he a trial by jury “A copy. ‘request’ next terms. attached not ‘demand.’ ‘request’ [Cit.] term ‘demand’ cannot ‘rea- sonably be construed’ to demand a trial. . . Bennett .” (2000) (a State, 244 document which the defendant “requests jury trial OCGA 17-7- minimum 170” failed to meet the acceptable standard for asserting trial). Furthermore, the defendant’s the use of the caption, Trial,” “Motion to Set on the document which defendant Bell purportedly demanded a not does set out exact nature of the pleading,” required Uniform Superior Court Rule 36.3. recipient
[T]he a document to Set captioned [“Motion necessarily Trial”] attribute “exact nature” as would be attributed to document captioned “DEMAND FOR A written [motion trial] TRIAL.” to set to a demand for trial analogous 17- OCGA § 7-170 [or 17-7-171]. . . . The “out set exact nature” of containing an additional *3 [Bell] demand for a trial to OCGA 17- 7-17[l]. 255-256
Consequently, the motion not serve demand for trial to OCGA 17-7-171. Id.1 In 1982, Judge Banke made a laudable in effort to an Adamczyk bring litigation end to the seemingly unending con cerning the a specificity of demand for trial in that result statu tory was, however, He discharge acquittal. and unable to close the door completely subject, evidenced the two decades of lit igation which have While compliance” ensued. “substantial authorizing either of the of a for filing statutes demand (Patten acquittal trial is insufficient trigger discharge and supra, 499), and law that appellate case in pleading which the demand for is caption speedy trial made contain exact nature of before pleading” (Kramer acquittal 254), occur supra, appel late courts have reluctant hard and rule adopt a fast as to what constitutes a demand trial sufficient dis- permit example why pleading’s requiring As an of the reason our trial a courts have rules pleading, to reflect the exact nature of I note that court clerk’s office Requesting by Jury. in describes the motion the index of the case record as “Letter Trial Filed June 26.1996.” not be honored. should the demand acquittal form, deeming require any particular
Adamczyk declined be demand reasonably “[could] if it construed pleading sufficient . . .” 162 Ga. at 290. [statutory] provisions. under the trial appellate determinations years, the last twenty Over for trial under reasonably be construed demand “[could] what has us back the confusion the [statutory] provisions” led is time we resort court faced. believe it Adamczyk Accordingly, trial couched partic- that a valid demand for be requiring be contained ular Such a would that demand require form. form matter, subject pleading no other that be pleading containing TO FOR SPEEDY TRIAL PURSUANT captioned DEMAND (whichever applicable), or number or indict- contain the of the case case pleading standards, these ment number which it is filed. being trial filing will make the a demand more of hoped, rather process requiring judicial administrative than one imprima- tur. sum, Bell’s to Set Trial” does not qualify “Motion current a valid demand for appellate
under law as so as to entitle the automatic pleader indicted, which and the trial court’s charge for should reversed. ruling contrary Accordingly, the majority’s affirmance of the trial court’s To avoid this ruling. future, the Court should hold that a litigation valid unless demand it is contained meets the standards set forth above.
I am to state Justice Hines joins authorized dissent. *4 February 4,
Decided 2002. Attorney, Jr., Howard, Wheeler, Paul L. District A. Advera Assis- Attorney, appellant. tant District appellee. Robert Joiner,
J.
S01A1643. v. THE LINDSEY STATE.
Fletcher, Chief Justice. A Lindsey convicted Shanard of malice murder the shoot- ing Christopher Lindsey appeals, contending death Warthen.1 failing juror acquainted the trial court erred to excuse a who was juror with the victim’s mother. Because was later excused hardship, we affirm. Lindsey, Kelly
The Warthen, evidence at showed that Rob- attending birthday party erson, and Willie James Roberson were Lindsey stealing Kelly Michael for Roberson fight Gates. accused Warthen of his car. prevent argument, up tried but ended Lindsey. party up fight, Gates, The broke after the grandmother’s Roberson, Willie James house. went to Warthen Gates’s Lindsey party by left the car Will driven Mohammed. Lindsey grandmother’s Later, Warthen, drove Gates’s when house yard. Lindsey parked Gates and were in Roberson the front his car approached street, foot, on a side the house on and shot Warthen killing multiple times, him. reviewing light
1. After in the most favorable to the guilt, jury’s determination of we conclude rational trier of fact Lindsey guilty charged.2 have of the crime sworn, 2. After the had but before trial court’s opening jurors one of instructions, notified court that 14,1996. January Lindsey 12,1996. grand July crime The occurred A indicted on Following jury 19,1997, May was convicted malice murder imprisonment. murder, Lindsey sentenced him to life addition to conviction for malice murder, assault, felony aggravated possession was also convicted of of a firearm probationer. recognized felony first offender murder conviction was by operation law, remaining vacated but then vacated the convictions because underlying 369, felony felonies for the murder count. But see Malcolm 479) (1993) (when murder, felony of malice convicted murder felony law, by operation underlying murder conviction vacated felonies do not neces 1997, sarily merge). Lindsey 2, filed motion for new trial on June which the trial court Lindsey appeal June denied on 2001. filed a notice of June 2001. case was dock September August eted in Court on and submitted decision on briefs on Virginia, U. S. Jackson SC 61 LE2d