Wimberly v. State

¶1Appellant David Wimberly was arrested on March 26, 2001, in connection with the September 2000 murders of Robert Van Allen and John Lavelle Lynn, and an indictment charging him with the offenses was filed March 28, 2001. The State filed notice of its intent to seek the death penalty on September 7, 2001. On June 2, 2004, Wimberly filed a motion to dismiss for failure to grant a speedy trial/plea in bar to prosecution in which he contended his constitutional right to a speedy trial had been violated. In its order denying the motion, the trial court found appellant had not been prejudiced by the delay in trying him and there was no bad faith on the part of the State in the exercise of its statutory right to elect to try appellant’s co-indictee first.1 Appellant timely filed a notice of appeal to this Court pursuant to our decision in Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002).2 On appeal, appellant argues the trial court erred by failing to apply the four-factor test of Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101) (1972), and maintains that application of said factors requires reversal of the trial court’s denial of the motion to dismiss/plea in bar.

¶2“ ‘A speedy trial is guaranteed an accused by the Sixth Amendment ... to the Constitution of the United States, and also ... Art. I, Sec. I, Par. XI (a) of the 1983 Ga. Constitution.’ [Cit.] These rights attach at the time of arrest or when formal charges are brought, whichever is earlier. [Cit.]” Boseman v. State, 263 Ga. 730, 731 (1) *66(438 SE2d 626) (1994). In determining whether an accused’s constitutional right to a speedy trial has been violated, the trial court must “engage in a difficult and sensitive balancing process” (Barker v. Wingo, supra, 407 U. S. at 533) in which the court assesses the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant (id., 407 U. S. at 530), together with such other circumstances as may be relevant. Id.,407 U. S. at 533. Wooten v. State, 262 Ga. 876 (2) (426 SE2d 852) (1993).

¶3The trial court’s engagement in the balancing process is contingent upon the defendant having shown the delay since his arrest or indictment is “presumptively prejudicial.” “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, supra, 407 U. S. at 530.3 “[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation [or arrest] and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay [cit.], since, by definition, he cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett v. United States, 505 U. S. 647, 651-652 (112 SC 2686, 120 LE2d 520) (1992). The assumption that a delay is presumptively prejudicial is improper as it can result in unnecessary judicial constitutional analysis. Salandre v. State, 806 P2d 562, 565 (N.M. 1991).

¶4We read the trial court’s order in the case at bar as a determination that appellant did not successfully establish that the 38-month pre-trial delay was “presumptively prejudicial.” Appellant, citing Boseman v. State, supra, 263 Ga. 730 (1) (b), asserts the 38-month delay is deemed presumptively prejudicial. However, our statement in Bosemanthat the 27-month delay in that case met the threshold presumption of prejudice was not a holding that all pretrial delays of 27 months or more were “presumptively prejudicial.” Such a “bright-line” determination is inconsistent with the U. S. Supreme Court’s observation in Barker v. Wingo, 407 U. S. at 530-531, that “the length of delay that will provoke [the inquiry into the other factors] is necessarily dependent upon the peculiar circumstances of the case. . . . [T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” In the case at bar, appellant is a co-indictee in a multiple-murder case in which the State is seeking capital punishment, *67thereby triggering the use of the pre-trial Unified Appeal Procedure and the need for separate trials for each co-indictee, the latter requirement itself triggering the State’s statutory right to decide to try appellant’s co-indictee first. The “peculiar circumstances” of this case authorize a finding that appellant’s case is being prosecuted with the promptness customary for death penalty cases involving multiple defendants. See Doggett v. United States, supra, 505 U. S. at 652. See also King v. State, 273 Ga. 258 (539 SE2d 783) (2000) (47-month delay between indictment and trial of death penalty case); Morrow v. State, 272 Ga. 691 (532 SE2d 78) (2000) (51-month delay between indictment and trial of death penalty case); Nance v. State, 272 Ga. 217 (526 SE2d 560) (2000) (41-month delay between indictment and trial of death penalty case). Compare State v. Johnson, 274 Ga. 511 (1) (555 SE2d 710) (2001) (“extraordinary delay” of approximately seven years in non-capital murder trial is “more than sufficient” to cross the presumptively prejudicial threshold); Nelloms v. State, 274 Ga. 179 (549 SE2d 381) (2001) (51-month delay in non-capital murder trial constitutes “an extraordinary delay” which is presumptively prejudicial).

¶5Since appellant did not carry his burden of establishing that the 38-month delay since his indictment is “presumptively prejudicial,” the trial court did not err when it denied his motion to dismiss/plea in bar without balancing the factors set forth in Barker v. Wingo.

¶6Judgment affirmed.