Taylor v. State

338 Ga.App. 804

792 S.E.2d 101

Taylor

v.The State.

A16A0880

Court of Appeals of Georgia.

October 11, 2016

Brody Law Firm, Bernard S. Brody, Atlanta, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Boggs, Judge.

In the third appearance of this case before this court,¹ Harry Taylor appeals from his convictions of six counts of aggravated child molestation, eleven counts of child molestation, eleven counts of sexual exploitation of children, one count each of aggravated sexual battery, sexual battery, and criminal attempt, involving fifteen minor victims. He contends that the trial court erred in (1) its balancing of the speedy trial factors required by 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) ; and (2) denying his motion to suppress based upon deficiencies in the search warrant issued for his home. For the reasons explained below, we affirm.

1. Taylor contends that the trial court abused its discretion in its second ruling on the speedy trial issue in: (a) weighing the length of the delay lightly against the State; (b) weighing the reason for the delay benignly against the State; (c) weighing the assertion of his right to a speedy trial heavily against him; (d) weighing the prejudice factor heavily against him; and (e) balancing of the four factors to conclude that no speedy trial violation occurred.

Application of the Barker– Doggett factors

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.

(Citations and punctuation omitted.) State v. Alexander , 295 Ga. 154, 155–156, 758 S.E.2d 289 (2014). Based upon this deferential standard of review, we find no merit in Taylor's argument that the trial court should have granted his plea in bar.

In Taylor v. State , 334 Ga. App. XXVIII (Case No. A15A1305) (November 2, 2015) (unpublished) ("Taylor II"), we summarized the relevant facts concerning Taylor's speedy trial claim as follows:

The record reflects that Taylor was [first] arrested on July 24, 2008. He was first indicted on October 15, 2008; however, due to what the State admitted were errors in the first indictment, Taylor was reindicted on January 7, 2009. And discovery in his case ensued from October 31, 2008, to August 2, 2010.

On January 30, 2009, Taylor filed, among numerous other motions, a motion to suppress, which he later amended and recast on August 12, 2010. The judge first assigned to handle Taylor's case held hearings on this motion on August 16, 18, and 30, 2010, but did not immediately issue a decision. Additionally, in October 2009, Taylor consented to a continuance due to the still ongoing discovery, and he alleged that the State's compliance was deficient as to 19 different items. Thereafter, Taylor consented to three more continuances.

In February 2010, Taylor consented to a continuance to allow for specially set motions proceedings and due to his divorce trial. Two months later, in April 2010, Taylor consented to a continuance again because both he and the State believed the case would require one to two days to hear all pretrial motions and that the trial itself would last longer than one week. And in February 2011, Taylor consented to a continuance due to the continued unavailability of a sufficiently long trial calendar and because he was still awaiting a ruling on his motion to suppress. Finally, on December 16, 2011, the first-assigned judge denied Taylor's [amended and recast] motion to suppress evidence.

When Taylor received, via e-mail, the court's order denying his motion to suppress, he learned the identity of the judge's staff attorney and recognized that she was a former assistant district attorney who had previously been employed with the Gwinnett County District Attorney's office and had some involvement in his case. Therefore, on December 20, 2011, Taylor filed a motion to recuse the judge. This motion was granted on February 17, 2012. Then, on February [22], 2012, the second-assigned judge voluntarily recused without explanation in accordance with Uniform Superior Court Rule 25.7, as did the third-assigned judge on February 27, 2012.

On February 27, 2012, Taylor filed a motion for a de novo hearing and review of his previously denied motion to suppress. And on March 12, 2012, the fourth-assigned judge voluntarily recused without explanation. On March 15, 2012, the fifth-assigned judge set a hearing on Taylor's February 27, 2012 motion for April 5, 2012. But then, after the hearing, on April 6, 2012, the [fifth]-assigned judge recused at the State's request after realizing a potential conflict of interest.

On April 18, 2012, the [sixth]-assigned judge set the case down for a May 29 status hearing and for trial on August 6, 2012. After denying a motion to recuse the [sixth]-assigned judge, on June 15, 2012, that judge granted Taylor's request for a de novo hearing on his amended and recast motion to suppress and scheduled same for July 10, 2012. Thereafter, on July 27, 2012, the [sixth]-assigned judge denied Taylor's recast and amended motion to suppress.

On July 26, 2012, Taylor for the first time asserted his right to a speedy trial when he filed a plea in bar and/or motion to dismiss, alleging that his Sixth Amendment right to a speedy trial had been violated. Following a hearing on September [6], 2012, Taylor's motion was denied on September 26, 2012 by [a seventh]-assigned judge. On October 16, 2012, Taylor filed a direct appeal to this denial, but in light of the Supreme Court of Georgia's decision in Sosniak v. State , [292 Ga. 35, 40, 734 S.E.2d 362 (2012),] his appeal was dismissed on February 14, 2013.

Following the case's return to the trial court, Taylor filed, on November 21, 2013, a second amended motion to suppress, raising new arguments as to why the evidence against him should be suppressed. This motion was denied on April 28, 2014. Thereafter, Taylor waived his right to a trial by jury and, following a ... bench trial [based upon stipulated facts and admitted photographs], was adjudicated guilty of the offenses set forth supra .

(Footnotes omitted.) Taylor II , supra 2–5. In Taylor II , this court issued a 26–page unpublished opinion in which we exhaustively considered the trial court's rulings on each of the Barker factors and remanded the case to the trial court "to exercise its discretion again using properly supported factual findings and the correct legal analysis." (Punctuation and footnote omitted.) Id. at 25. In a 14–page order, the trial court diligently and faithfully addressed each of the deficiencies outlined by this court in Taylor II .

Having outlined the procedural history of this case, we now examine the trial court's analysis of each of the Barker factors.

(a) Length of Delay . In Taylor II , we instructed the trial court to

assess whether the delay in Taylor's case was uncommonly long and/or excessive, keeping in mind that a delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. The court must then consider the weight of this factor.

(Punctuation and footnotes omitted.) Id. at 11. The trial court concluded "that the delay in this case was uncommonly long and weigh[ ] this factor against the state." It then exercised its discretion to "weigh[ ] this factor lightly against the state given the amount of information to be searched on Taylor's computers, the number of child victims, and the number of counts charged."

As the trial court recognized, the length of "delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges in that case." (Citations omitted.) State v. Buckner , 292 Ga. 390, 393 (3) (a), 738 S.E.2d 65 (2013). And there is no bright-line rule that all uncommonly long delays must be weighed heavily against the State.

Milner v. State , 329 Ga.App. 654, 658 (2)(a), 765 S.E.2d 790 (2014) (physical precedent only). See also Stewart v. State , 310 Ga.App. 551, 553–554 (2) (a), 713 S.E.2d 708 (2011) (trial court did not abuse discretion by declining to weigh five-year-long delay heavily against State). As this case involved a 32–count indictment with 15 child victims and voluminous computerized information, we cannot conclude that the trial court abused its discretion by weighing the length of the delay lightly against the State.

(b) Reason for Delay. Another reason for our remand of this case back to the trial court related to its analysis of the reason for the delay in trying Taylor. Taylor II , supra at 12–16. We stated:

Thus, although the trial court made some findings of fact as to the reasons for the delay, it ignored others. The court also failed to conclude whether this factor weighed against either the State or Taylor, or, in the alternative, was neutral as against both sides.

The trial court's analysis mentions the five months between Taylor's arrest and re-indictment, but it does not weigh this period against the State or Taylor. Then, the trial court purports to weigh the entire fifteen-and-one-half month delay to obtain a ruling on Taylor's motion to suppress against the State before vaguely stating that Taylor "is not blameless for the delay," apparently holding Taylor responsible for continuances and pretrial motions. The trial court then summarily weighs the fact that Taylor consented to continuances for approximately one year against him, but then fails

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