Following a stipulated bench trial, Theodis Ward was found guilty of DUI, driving with a suspended license, driving without a license, and improper stopping. He now appeals, arguing that the trial court erred in denying his motion to dismiss based upon the denial of his constitutional right to a speedy trial. For the following reasons, we affirm.
The record reveals that Ward was arrested on February 8, 2006, and indicted on July 25, 2006. He entered a plea of not guilty on August 14,2006, and the case was set for a calendar call in September 2006. When Ward’s counsel requested time to file motions, the trial court reset the case for October 12. On October 23, the case was reset to December 13 by the consent of both parties. But on December 6, Ward’s counsel filed a conflict notice informing the trial court that Ward’s case conflicted with two other court matters on December 13. The trial court found that Ward did not appear on December 13.
On January 29, 2007, Ward’s jury trial was continued to March 6, with a notation that he was in custody in DeKalb County. On February 9, Ward’s counsel filed an application for a leave of absence for March 12-16 and March 30-April 4. And less than three weeks later, on February 26, counsel filed another conflict notice for the week of March 5, showing that Ward’s jury trial conflicted with an arraignment in another case. Nothing appears in the record to explain the status of the case from March 2007 until a December 16, 2011 notice of a February 16, 2012 calendar call. On February 16, 2012, however, the case was continued to March 8, 2012 by the consent of both parties. Ward filed his motion to dismiss on February 22, 2012, which the trial court denied on May 8, 2012.
At the hearing on the motion to dismiss, Ward’s counsel explained that Ward had been incarcerated on unrelated charges in two other counties between April 2006 and April 2010. The trial court found that Ward failed to appear for trial on March 6, 2007, that it was during that hearing that the State learned that Ward was incarcerated in another county, and that it informed the State that if it
In a single enumeration, Ward contends that the trial court erred in denying his motion to dismiss the charges against him based upon a violation of his constitutional right to a speedy trial.
The principles that guide a court in its consideration of whether a delay in bringing an accused to trial works a deprivation of the right to a speedy trial are set out in Barker v. Wingo,407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States,505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).
(Punctuation omitted.) State v. Brown,
1. Presumptive prejudice.
First, a court must determine whether the delay “has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, [the accused] cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett, [supra]. If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with “the presumption that pretrial delay has prejudiced the accused intensifying] over time.”
2. The Barker-Doggett Factors.
(a) Length of the delay. “The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation, whichever comes first, to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion.” (Citation and punctuation omitted.) State v. Curry,
(b) Reason for the delay. The trial court, in concluding that “this portion of the balancing test is neutral as to both parties,” found that “some of the delay was the fault of the State, some of the delay was the fault of Defendant and some of the delay is unexplained.” The record reveals that the case was delayed for a few months between September 2006 and March 2007 due to Ward’s counsel’s request for more time to file motions, her application for a leave of absence, and her notices of conflict. But the bulk of the delay is unexplained. The State offered no explanation for the reason for delay from March 2007 to February 2012. The prosecutor argued that Ward did not appear for the March 6, 2007 trial date, that he sent an e-mail to the trial judge in March 2007 “seeking information from the Judge, what to do with this case,” and that he sent another e-mail in October 2011 “seeking information about [Ward] .”
Based upon the record before us, the State’s failure is unexplained, or at most, a result of the State’s uncertainty in how to proceed. The State was aware as early as March 2007 that Ward was incarcerated in another county. “[W]here no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Citations, punctuation and footnote omitted.) Ruffin v. State,
(c) Assertion of the right.
The relevant question for purposes of the third speedy trial factor is whether the accused has asserted the right to a speedy trial in due course. This factor 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. Because delay often works to the defendant’s advantage, this factor is afforded strong evidentiary weight.
(Citations and punctuation omitted.) Phan, supra,
(d) Prejudice. “Whether the defendant has established prejudice as a result of the delay requires consideration of the oppressiveness of pre-trial incarceration, undue anxiety suffered by the defendant, and impairment of his ability to mount a defense.” (Citation omitted.) Phan, supra,
While counsel argued that Ward attempted to locate the witness at some point, there is no evidence that Ward had ever located or could locate this witness at any time during the six years his case was pending. Ward has simply not shown that this witness’s unavailability was due to the State’s delay in bringing his case to trial. See, e.g., Watkins v. State,
(e) Balancing the factors. The trial court concluded that its balancing of the four Barker factors required it to deny Ward’s motion to dismiss.
Atrial court exercises substantial judgment in applying the Barker balancing test; however, 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.
(Punctuation omitted.) State v. Gay,
Under these circumstances, we cannot say that the trial court abused its discretion in denying Ward’s motion to dismiss.
Judgment affirmed.
Notes
Neither the transcript of the March 6, 2007 hearing, nor the note from the State’s file appear in the record.
These e-mails were not included in the record on appeal.
Ward makes no argument on appeal with, regard to pretrial incarceration or undue anxiety. The State asserted at the hearing on the motion to dismiss that Ward was held “less than 72 hours” on the charges in this case.