*1 THE STATE v. LATTIMORE. S10A0172. 613)
(696 SE2d HINES, Justice. Shaquan on his indictment the
Lattimore’s motion to dismiss granted by ground trial was the that he was not afforded a (a) (1). § appeals. For the OCGA 5-7-1 court, and the State See trial follow, that we affirm. reasons August
Bryan Thompson 2004; that 27, and killed on was shot murdering day, suspicion him. On of Lattimore was arrested on same September hearing, 2004, the trial found that there 10, at a court charge probable support of malice murder cause to a charges support probable of cause Lattimore, involuntary there was but manslaughter bond, The court set and reckless conduct. custody September 12, on 2004. On released from and Lattimore was murder for the 30, 2006, he was indicted on one count of malice June killing. During management 27, a on case conference October prosecutor charge that of malice murder was 2006, the stated inappropriate and that State intended re-indict the case. On February 2008, between October 2006 and various several occasions prosecutors informed the State intended to Lattimore’s counsel that charge. Lattimore on a lesser The case was on the trial re-indict May 2007 but was not reached either calendar both again February 7, on 2008. On time, and was a calendar charges 5, 2008, the State re-indicted Lattimore on of felony aggravated of murder, malice murder while the commission aggravated during possession assault, assault, and a firearm of felony. July moved commission of a On right for violation of his constitutional a dismiss indictment citing the Constitutions the United States and Const, Georgia. XIV; I, U. S. & Const. Art. Sec. amends. VI Ga. (a). XI I, Par. A trial court’s on a motion to dismiss based on a violation found in the Federal and State Constitu- of the analysis tions is reviewed under the found in Barker U. S. Ruffin Supreme [...], of the In Barker v. Court United by a States identified determining factors to be considered court four right to a whether an accused’s constitutional (a) had of the been violated ... (b) (c) for the the defendant’s assertion reason (d) right, 407 U. S. at his to the defendant. regarded Supreme that it 530. The Court further stated necessary or sufficient none of the factors either finding deprivation condition ato of a trial but rather the factors should be considered together balancing prosecu- in a test of the conduct of the [Cit.] tion and the defendant. 831-832 “The
question is whether the trial court abused its discretion in rights [Lattimore’s] [Cit.]” that were violated. Id. at 832. length As to the first factor set forth in Barker v. the the the State concedes that the of the time between years, arrest and dismiss, the motion to almost five raises threshold (598 presumption prejudice. Carr, See State v. 278 Ga. 126 SE2d reviewing Wingo In the second Barker factor, v. the trial court delay negligence. found that the was attributable to the State’s At hearing staffing shortages the on motion, the State advanced as recognized a reason for the before the first indictment, but that staffing such a although issue is a factor to be State, weighed heavily delay deliberately
not so as a created the State. State v. Johnson, 274 Ga. SE2d (2001). To the extent that the State offered a reason for the repeated staffing before re-indictment, that issues caused the delay, coupled being assigned judge with the case from one another. The trial court found that the reason for the was negligence part on the State, of the and this was not an abuse of discretion.
Regarding Lattimore’s assertion of his Wingo third Barker v. factor, the State notes that he did not file a statutory speedy prior filing trial demand his motion to dismiss However, indictment. noted, as the trial court in October 2006 represented afterward, and the State to Lattimore that the case had incorrectly been indicted, and that the State would him, re-indict which the State failed to do until 2008. The trial court properly found that under these circumstances, the failure to de- weighed mand a trial was not to be Lattimore. See (2) (c) (680 182) Hayes App. State, 298 Ga. SE2d Finally, urges granting the State that the trial court erred in prejudice Lattimore’s motion because he failed to show sufficient arising delay, citing principle from the that evaluating
[i]n
the final Barker v.
factor,
the defendant, we consider three interests
which
designed
protect: preventing oppressive
is
pretrial
minimizing anxiety
incarceration,
and concern of
limiting
possibil-
importantly,
and,
defendant,
most
impaired. [Cit.]
ity
the defense
be
will
(549
381) (2001). The State
State,
SE2d
Nelloms v.
oppressive detention,
he
Lattimore has not suffered
asserts that
although
days
And,
Lattimore, who
after his arrest.
was released
Thompson
killed,
that he suffered
testified
old when
was
including
being
sleeplessness
anxiety
pending
from the
military,
employment
firefighting, and
in the
correc-
refused desired
unusual, and thus
that none of this is
fields,
tions
the State contends
Layman
anxiety
weighed
in Lattimore’s favor.
such
should
be
169) (2008).Further, the State notes
any impairment
Lattimore’s defense
that there is no evidence of
alleged
missing,
arising
are
to be
from the
that no witnesses
memory
Thomp-
of the
that Lattimore testified that
circumstances
Tripp v.
not limited to demonstrable.” The prejudice presumption held that the of that arises Court passage strengthens of from the time with the may delay tilt in and factor a defendant’s although carry may favor, alone Amendment a Sixth regard [Cits.] claim without to the other Barker criteria. proof supra Johnson, And, at 514 “affirmative particularized prejudice every speedy trial is not essential to claim.” (2) (b) (iv). supra at 65 Ruffin, years, lengthy,
Here the was almost five and Lattimore was years preventing appointed arrest, not timely investigation counsel until two after his “ [ex- noted, As the court the incident. reliability tendency compromise cessive has a trials ways party prove identify.” or, matter, neither for that can (2) (b) (i) (citation omitted). supra punctuation at 56 and Ruffin, case, Under the circumstances of this trial we cannot conclude that balancing its the Barker v. court abused discretion grant factors, and thus find no err in the of Lattimore’s motion to supra. dismiss the indictment. Carley, except Judgment concur, J., Justices P. All the affirmed. Nahmias, JJ.,
and and who dissent. Melton dissenting. MELTON, Justice, right speedy
Because Lattimore failed assert trial, his to a showing because there was an affirmative that Lattimore’s trial way impaired defense from the involved in this respectfully majority’s I must from the dissent erroneous conclusion properly right that the trial court found a violation of Lattimore’s speedy trial. 27, 2004, was arrested on and since that time right speedy he never asserted his constitutional to a trial. Instead of asserting right speedy July nearly 17, 2009, his arrest, to a on five after his he filed a motion to dismiss the indictment. Latti- right speedy by more’s failure to assert his to a trial not is excused fact that he was not re-indicted until as “invocation of right indictment, need not await information, or other charge[.] [T]he begin demanding right formal accused can that the (Punctua- trial be honored as soon as he or she is arrested.” omitted.) (2) (b) (iii) tion and footnote State, Ruffin any In event, even after Lattimore was nearly year filing re-indicted, he still waited another and a half before any his motion dismiss, and even then he still had not made demand Again, right for a trial. Lattimore’s failure to assert his cannot any be attributed to action but must be attributed to up “responsibility Lattimore’s own failure to live to his to invoke the right put government on notice , that he... many prefer unlike so other defendants, criminal would to be tried as (2) (b) (iii). possible.” soon as Id. at 62 Lattimore did not assert his (id.), legally required course,” trial “in due as is but instead chose not to assert his at all. Due failure, to this “the ” [Barker] strong evidentiary weight,’ third factor, which ‘isentitled to Perry must be Mitchell, him. 273) (1984), grounds, SE2d Ga. overruled on other Character v. 280) (2009).1 Furthermore,
[although greater pretrial delays simultaneously increase *4 degree prejudice presumed expecta- and decrease the right Even if Lattimore had asserted his to a trial in his motion to dismiss the indictment, not, which he did this factor would still have to be him. ready trial, appeared case April Lattimore’s 2008 simply and had on several trial calendars from through January 2009. Neither side moved to continue these trial dates. Lattimore’s case July 17, was not reached on each of the calendars. Lattimore filed his 2009 motion to just dismiss the indictment before the trial court released its calendar with Lattimore’s case set Where, here, for to assert his factor, 2009. as the record would reveal that Lattimore “waited several right trial, nearing trial, until [Barker] the case was the time for this given ‘strong evidentiary weight,’ weight which must be [would] ] [him].” (Citation omitted.) (c) (2) Marshall v. SE2d tangible prejudice the defendant can demonstrate
tion that [Lattimore] ability present defense, made or her to a to his impaired showing specific as a as to how his defense was delay. the . . . result of (Citation emphasis supplied.) punctuation Williams v. omitted; 32) (1) (d) (610 (2005) (analyzing 106, 110
State, 279 Ga. showing impairment defense, and made to whether defendant finding trial even after to no violation of defendant’s making showing six-year delay). contrary, that his To the far from any way, affirmatively impaired in has shown defense was by impaired in this case. As the that his defense was not majority correctly testified that his concedes, Lattimore himself relating alleged good memory happened murder is as of what Additionally, today at the time that the crime occurred. as was any missing there is no evidence that witnesses are or that their affirmatively Where, here, memories have faded. the record impaired by demonstrates that the accused’s defense has not been majority rely speculation to reach the cannot on mere opposite conclusion. See id.
In sum, bringing [Lattimore]
[h]ere, the record shows a presumptively prejudicial. standing trial, which is But alone, is insufficient to establish a trial violation. [Lattimore] And neither demonstrated nor claimed has Under these prejudice. circumstances, where the actual deliberately by [Lattimore] was not caused [did not] and he has failed assert his delay,. specific prejudice . the to show caused . scales weighted against [Lattimore’s] are State’s claim and favor of the
duty protect person property of its by prosecuting charges. Thus, citizens the criminal . .. the granting [Lattimore’s] trial court discretion in abused its motion dismiss the indictment.
(Punctuation omitted.) Stallworth, and footnotes App. Doggett 368, 370 See also v. United (III) (B) (112 States, 505 U S. (1992) (defendant preju- presumption of not entitled to relief where rebutted”); supra, “persuasively Williams, 279 Ga. at dice has been (1) (d). holding majority otherwise, and I must The has erred respectfully dissent. Presiding Carley joins in
I am authorized to state that Justice this dissent. *5 dissenting.
NAHMIAS, Justice,
It is true that
findings
weighing
“[a]
of fact and
court’s
generally
those facts in a
trial claim
are
under an
reviewed
598,
abuse of discretion standard.”
Williams
Ga.
848) (2004)
(561
(citing
79) (2002)). Maj. Op.
“However,
at
506.
where . .. the
clearly
findings
trial court has
misapplied
erred in some of its
of fact
has
and/or
degree,
some
law to
the deference owed the trial
court’s ultimate
Williams,
is diminished.”
Because both of these when would weigh significantly against the conclusion that Lattimore’s rights I violated, were believe that this Court should not affirm judgment, respectfully the trial court’s not confident that and so I dissent. But I also am
proper application
along
factors,
with the
requires
judgment
other facts in the
speedy
that Lattimore’s
rights
violated,
were not
as Justice Melton concludes.
Instead, I would reverse and remand the case with direction to the
again
re-weighing
trial court to exercise its discretion
after
using
legal
trial factors
the correct
Williams,
standards. See
(2) (remanding
part
Jennifer