State v. Alexander

295 Ga. 154

758 S.E.2d 289

The STATE

v.ALEXANDER.

No. S14A0439.

Supreme Court of Georgia.

May 5, 2014.

Alan Christopher Norton, Asst. Dist. Atty., Herbert E. Franklin Jr., Dist. Atty., Christopher Allen Arnt, Chief Asst. Dist. Atty., Lookout Mountain Judicial Circuit District Attorney's Office, Lafayette, for appellant.

David James Dunn Jr., Lookout Mountain Judicial, Lafayette, for appellee.

BLACKWELL, Justice.

Alfred Alexander was indicted in December 2004, and he was charged with malice murder, felony murder, and cruelty to a child in the first degree, all in connection with the death of his infant son, Elijah. In October 2005, a jury was impaneled in Catoosa County to try Alexander for these crimes, and the jury returned unanimous verdicts on the charges of malice murder and cruelty, finding Alexander guilty of the latter, but not guilty of the former. The jury was unable, however, to reach a unanimous verdict on the charge of felony murder, and so, that charge was mistried. The State could have insisted that Alexander promptly be retried for felony murder, but it did not. Instead, his case fell off the trial calendar—notwithstanding that the charge of felony murder still was pending—and it remained off the calendar for nearly eight years. In the meantime, Alexander was sentenced to a term of imprisonment for cruelty to a child, he sought and was denied a new trial on cruelty, he decided to forego an appeal of his conviction for cruelty, and in June 2009, he was released from prison on parole. Years later, the prosecuting attorney realized that Alexander never had been retried for felony murder, and the State asked the trial court to put the case back on the trial calendar, which the court did in September 2013. Alexander promptly moved to dismiss the charge of felony murder, asserting that the delay in retrying him had worked a denial of his constitutional right to a speedy trial. Following a hearing, the trial court granted his motion on September 23, 2013.

The State appeals, contending that the trial court misapplied the principles set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), which guide a court in its consideration of whether a delay in bringing an accused to trial amounts to a denial of his right to a speedy trial.¹ As this Court recently explained in State v. Buckner, 292 Ga. 390, 738 S.E.2d 65 (2013):

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. Under our precedents, 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.

292 Ga. at 391, 738 S.E.2d 65 (citations and footnote omitted). See also State v. Porter, 288 Ga. 524, 526(2)(a), 705 S.E.2d 636 (2011). In this case, the trial court entered a detailed order, in which it carefully and thoroughly explained its reasons for concluding that Alexander was denied his right to a speedy trial. Upon our review of the record, we cannot say that the trial court clearly erred in its assessment of the relevant facts, and we cannot say that its ultimate conclusion amounts to an abuse of discretion. Accordingly, we affirm the judgment of the trial court.

1. According to Barker and Doggett, when an accused moves to dismiss his case for a denial of his right to a speedy trial, a court first must consider whether the case has been delayed for long enough to raise a presumption of prejudice and to warrant a more searching judicial inquiry into the delay. See Doggett, 505 U.S. at 651–652(II), 112 S.Ct. 2686. See also Barker, 407 U.S. at 530–531(IV), 92 S.Ct. 2182;Buckner, 292 Ga. at 392(2), 738 S.E.2d 65;State v. Johnson, 291 Ga. 863, 864(1), 734 S.E.2d 12 (2012); State v. Pickett, 288 Ga. 674, 675(2)(a), 706 S.E.2d 561 (2011). In the usual case, the courts measure the delay from the time the accused is arrested or formally charged by accusation or indictment, whichever occurs first. Scandrett v. State, 279 Ga. 632, 633(1)(a), 619 S.E.2d 603 (2005). But in a case like this one—a case in which the accused does not complain of the delay in bringing his case initially to trial, but he complains instead of the delay of a retrial of his case following a mistrial—the courts measure the delay from the time of the mistrial. Brewington v. State, 288 Ga. 520, 521(2), 705 S.E.2d 660 (2011). A delay approaching one year is sufficient in most cases to raise a presumption of prejudice and to warrant a more searching inquiry. See Doggett, 505 U.S. at 652(II), n. 1, 112 S.Ct. 2686. But see also Barker, 407 U.S. at 530–531(IV), 92 S.Ct. 2182 (“[T]he length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.”). Here, following the mistrial in October 2005, nearly eight years passed before the case was restored to the trial calendar, Alexander moved to dismiss the case, and the trial court granted his motion, all in September 2013. The trial court properly found that this delay raises a presumption of prejudice and that a more searching inquiry is warranted. See Ruffin v. State, 284 Ga. 52, 55(2)(a), 663 S.E.2d 189 (2008).

2. When a delay raises a presumption of prejudice, a court then must consider “whether [the] delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result.” Doggett, 505 U.S. at 651(II), 112 S.Ct. 2686. See also Barker, 407 U.S. at 530–533(IV), 92 S.Ct. 2182;Buckner, 292 Ga. at 393(3), 738 S.E.2d 65;Johnson, 291 Ga. at 864(2), 734 S.E.2d 12;Pickett, 288 Ga. at 675(2), 706 S.E.2d 561(a). Of these factors, no one is dispositive. Instead, the court must weigh all four factors, along with any other relevant circumstances, in “a difficult and sensitive balancing process.” Barker, 407 U.S. at 533(IV), 92 S.Ct. 2182. See also Pickett, 288 Ga. at 675(2)(a), 706 S.E.2d 561. Weighing these factors, as we noted earlier, is committed to the substantial discretion of the trial court, and “its ultimate judgment is reviewed on appeal only for an abuse of that discretion.” Porter, 288 Ga. at 533, 705 S.E.2d 636.

(a) The First Factor: Length of the Delay. As to the length of the delay, a court must decide whether the case was prosecuted with “customary promptness,” Doggett, 505 U.S. at 651–652(II), 112 S.Ct. 2686, keeping in mind that “the delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges in that case.” Buckner, 292 Ga. at 393(3)(a), 738 S.E.2d 65. In this case, although felony murder is a very serious crime, the State does not dispute that the pertinent delay was uncommonly long. We agree, especially considering that the State already had tried Alexander in October 2005 and should have been ready to retry the case at any time thereafter. The trial court properly found that the delay in this case was uncommonly long, and weighing this factor against the State was no error. See Pickett, 288 Ga. at 676(2)(c)(1), 706 S.E.2d 561.

(b) The Second Factor: Reasons for the Delay. While “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government,” an unintentional delay, such as that caused by the prosecuting attorney's mere negligence or the trial court's overcrowded docket, “should be weighted less heavily.” Barker, 407 U.S. at 531(IV), 92 S.Ct. 2182. See also Vermont v. Brillon, 556 U.S. 81, 90(II), 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009); Buckner, 292 Ga. at 394(3)(b), 738 S.E.2d 65. In this case, the trial court found that more than six years of the delay—the delay that followed the denial in July 2007 of the motion for a new trial for cruelty—was attributable to the negligent inaction of the State. The record clearly supports this finding. Indeed, the record shows that the case was restored to the trial calendar only after the prosecuting attorney realized in 2013 that Alexander never had been retried for felony murder, a realization that apparently followed an inquiry about the case from a witness who had testified for the State at the October 2005 trial. Even if the State had good reason to put off a retrial until the motion for new trial was decided,² there was no good reason to continue to delay a retrial after the motion was denied and Alexander failed to appeal. Accordingly, the trial court did not err when it attributed the delay to the negligent inaction of the State, and it did not abuse its discretion when it weighed this factor against the State. See Ruffin, 284 Ga. at 61(2)(b)(ii), 663 S.E.2d 189 (negligence “falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun”) (citation omitted).

(c) The Third Factor: Assertion of the Right. Although the State bears the burden to ensure that an accused is brought to trial promptly, “the accused bears some responsibility to invoke the speedy trial right and put the government on notice that he ... would prefer to be tried as soon as possible.” Ruffin, 284 Ga. at 62(2), 663 S.E.2d 189(b)(iii). Once the right to a speedy trial attaches, the accused must assert it with reasonable promptness, and “delay in doing so normally will be weighed against him.” Pickett, 288 Ga. at 676(2), 706 S.E.2d 561(c)(3). That said, “[t]he accused is not required to demand a speedy trial at the first available opportunity,” Ruffin, 284 Ga....