State v. Curry

317 Ga.App. 611

732 S.E.2d 459

The STATE

v.CURRY.

Curry

v.The State.

Nos. A12A0944, A12A1101.

Court of Appeals of Georgia.

Sept. 13, 2012.

Paul L. Howard Jr., Dist. Atty., Lenny I. Krick, Asst. Dist. Atty., for Appellant.

Jennifer Sullivan Hanson, for Appellee.

BOGGS, Judge.

These cases were consolidated for purposes of appeal. In Case No. A12A1101, Terrance Curry appeals from the trial court's denial of his “ Motion to Dismiss Indictment for Pre-indictment Delay,” and in Case No. A12A0944, the State appeals from the grant of Curry's “Motion to Dismiss Indictment for Delay in Prosecution.” For the following reasons, we vacate and remand in both cases.

The record reveals that Curry was convicted of statutory rape in 2002 and was sentenced to nine years' probation. On November 30, 2006, Curry was arrested for aggravated assault stemming from a July 2006 incident, was granted bond, and then was released on February 5, 2007. In March 2007, Curry was incarcerated after his probation was revoked for the failure to register as a sex offender as required by his 2002 sentence for statutory rape. On November 21, 2008, nine days before he was to be released from custody on the statutory rape charge, the State indicted Curry for aggravated assault and other crimes stemming from the 2006 incident. He was taken into custody on November 29, 2008, the same day he was released on the statutory rape sentence.

On December 3, 2008, Curry moved to dismiss the indictment against him for pre-indictment delay. He was arraigned on December 15, 2008, and pled not guilty. Curry was granted bond and released on February 3, 2009. On August 11, 2011, Curry moved to dismiss the indictment against him for “delay in prosecution.” Following a hearing on both of Curry's motions to dismiss, the trial court, on September 21, 2011, denied Curry's motion to dismiss for pre-indictment delay, but granted his motion to dismiss for delay in prosecution. In Case No. A12A0944, the State appeals from the grant of Curry's motion to dismiss for delay in prosecution, and in Case No. A12A1101, Curry appeals from the denial of his motion to dismiss for pre-indictment delay.

Case No. A12A0944

The State argues that the trial court erred in concluding that Curry was denied his Sixth Amendment 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 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).” (Punctuation omitted.) State v. Brown, 315 Ga.App. 544, 544–545, 726 S.E.2d 500 (2012). “In determining whether the Sixth Amendment right to speedy trial has been violated, courts consider 1) the length of the delay, 2) the reason for the delay, 3) the defendant's assertion of the right to a speedy trial, and 4) whether the defendant was prejudiced by the delay.” (Citations omitted.) Wooten v. State, 262 Ga. 876, 878(2), 426 S.E.2d 852 (1993). With these four factors in mind, “the question is whether the trial court abused its discretion in ruling that the defendant's speedy trial rights were ... violated.” (Citation and punctuation omitted.) Lambert v. State, 302 Ga.App. 573, 575, 692 S.E.2d 15 (2010).

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 intensif(ying) over time.”

(Citations and punctuation omitted.) Wilkie v. State, 290 Ga. 450, 451, 721 S.E.2d 830 (2012). As the trial court ruled, the delay here of far more than one year raises a threshold presumption of prejudice requiring the application of the Barker–Doggett balancing test. See Stewart v. State, 310 Ga.App. 551, 553(1), 713 S.E.2d 708 (2011).

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.) Moore v. State, 314 Ga.App. 219, 220, 723 S.E.2d 508 (2012). Curry was first arrested for the July 2006 incident on November 30, 2006, and the ruling on the motion to dismiss was filed on September 2, 2011. Therefore, counting from Curry's November 2006 arrest, the total delay here is approximately 57 months, which is uncommonly long, and as such, is a factor to be weighed against the State. See Phan v. State, 290 Ga. 588, 593(1)(a), 723 S.E.2d 876 (2012) (more than four-year delay weighs against the State); see State v. Pickett, 288 Ga. 674(2)(c)(1), 706 S.E.2d 561 (2011) (uncommonly long five-and-a-half-year delay weighs against the State); Stewart v. State, supra, 310 Ga.App. at 554(2)(a), 713 S.E.2d 708 (pretrial delay of over five years uncommonly long and weighs against the State).

Under its analysis of the length of the delay, the trial court held that the 57–month delay should be weighed heavily against the State because the State waited two years to indict Curry and only did so after discovering that he would be released from custody the following week. The court therefore “conflated its consideration of the length of the delay factor with its consideration of the reason for the delay factor under Barker.” Goddard v. State, 315 Ga.App. 868, 871(2)(a), 729 S.E.2d 397 (2012). And in doing so, the court only considered 2 years of the 57–month delay. See id. (court neglected to consider entire time of pretrial delay).

(b) Reason for the delay. The parties agree that about four months of the delay was due to Curry's counsel's leaves of absence. But with regard to the remaining 53 months, the trial court found that the State “strategically delayed the prosecution of the case in order to obtain a tactical advantage over the defense ... The State indicted the case that date and sought a Grand Jury warrant for [Curry] in order to prevent him from being released from custody.” But even assuming the State deliberately indicted Curry days before his release from custody on other charges in order to keep him in custody, such action does not explain the State's delay in bringing the case to trial once Curry was indicted. The State offered no explanation concerning the delay in prosecuting the case, and there was no evidence of a deliberate attempt to delay prosecution in order to hamper Curry's defense or to gain a tactical advantage. Because the trial court only considered the pre-indictment portion of the delay in its analysis rather than the entire delay, it erred in its consideration of this factor. See Goddard, supra, 315 Ga.App. at 871(2)(a).

(c) Assertion of the right to a speedy trial. The record reveals that on December 3, 2008, 12 days after Curry was indicted and 4 days following his detention on the indictment, Curry filed a motion for pre-indictment delay in which he asserted his right to a speedy trial. See State v. Porter, 288 Ga. 524, 528(2)(c)(3), 705 S.E.2d 636 (2011) (defendant may assert constitutional speedy trial right through a motion to dismiss asserting a violation of that right). The trial court found that Curry “asserted his constitutional right to a speedy trial by filling his motion to dismiss for pre-indictment delay before arraignment and within a week of his arrest on the grand jury warrant.” The court concluded that Curry “asserted his right to a speedy trial in due course.”

The State argues that the trial court erred in concluding that Curry timely asserted his demand for a speedy trial because Curry did not assert the right after he was arrested in 2006 and failed to file a statutory demand for speedy trial after he was indicted. Although a statutory demand for speedy trial pursuant to OCGA § 17–7–170 is not required in order to prevail on a speedy trial claim on constitutional grounds, see State v. White, 282 Ga. 859, 862(2)(c), 655 S.E.2d 575 (2008), our courts have held that “[a] defendant's pre-indictment silence can weigh heavily against him.” (Citations and punctuation omitted.) State v. Auerswald, 198 Ga.App. 183, 185(3), 401 S.E.2d 27 (1990). While Curry asserted his right to a speedy trial within days of his indictment and second arrest, the trial court made no ruling with regard to Curry's 24–month pre-indictment silence. The trial court therefore erred in its consideration of this factor.¹ See, e.g., Porter, supra, 288 Ga. at 528–529(2)(c)(3), 705 S.E.2d 636 (trial court omitted from its analysis defendant's assertion of right more than eight years after his arrest and almost eight years after re-indictment).

(d) Prejudice. The trial court ruled that because the first three factors weigh against the State, “there is no need to inquire as to the fourth factor of prejudice.” ²The court nevertheless concluded that Curry suffered prejudice because he

was incarcerated twice on the charges contained in the indictment—the first time for 27 days and the second time for two months and six days after having been told he would be released from prison and being literally stopped at the gate. [Curry] was terminated from two jobs after finding employment because of the pending indictment. He suffered financial hardship beyond the level ordinarily suffered by persons accused of crimes, simply because the State failed to bring the case forward in a timely manner.

“The types of prejudice...