State v. Logan Adam Bowman ( 2021 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 5, 2021
In the Court of Appeals of Georgia
A20A1873. STATE v. BOWMAN.
DILLARD, Presiding Judge.
Following a trial by jury, Logan Adam Bowman was convicted on one count
of child molestation and one count of incest,1 and he was ultimately sentenced to
serve fifty years with the first fifteen years in confinement. Nearly five years later,
Bowman’s then-appellate counsel filed an amended motion for new trial, alleging that
the petit jury was unsworn; and—with consent of the State—this motion was granted.
Shortly thereafter, Bowman filed a motion for discharge and acquittal on the grounds
that his statutory and constitutional rights to a speedy trial—which he properly
asserted prior to trial—were violated by the nullified verdict. The trial court granted
1
The jury acquitted Bowman on seven other counts of aggravated child
molestation (one count), child molestation (five counts), and incest (one count).
Bowman’s motion, and it is from this grant that the State now appeals. In doing so,
the State argues the trial court erred in concluding that Bowman was barred from
retrial on statutory and constitutional speedy trial grounds. And for the reasons noted
infra, we agree with the State and reverse.2
The record shows that Bowman was indicted on February 17, 2014, for the
above-referenced offenses. Then, on September 18, 2014, Bowman filed both an
assertion of his constitutional right to a speedy trial3 and a demand for a speedy trial
under OCGA § 17-7-170. He was ultimately tried and convicted by a jury on
December 5, 2014. On January 13, 2015, Bowman filed his initial motion for new
trial, but the record reflects no ruling on this motion or any other action until a
February 2019 order for production and rule nisi for a hearing on the still-pending
motion for new trial.
2
Oral argument was held in this case on October 7, 2020, and is currently
archived on the Court’s website for public viewing. See Court of Appeals of Georgia,
Oral Argument, Case No. A20A1873 (October 7, 2020), available at
https://www.gaappeals.us/oav/A20A1873.php.
3
See U.S. CONST. Amend. VI (providing that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy . . . trial”); GA. CONST. Art. I, Sec. I, Par.
XI (a) (“In criminal cases, the defendant shall have a public and speedy trial by an
impartial jury; and the jury shall be the judges of the law and the facts.”).
2
Thereafter, prior to any hearing, new post-conviction counsel entered an
appearance in May 2019 on Bowman’s behalf and eventually filed an amended
motion for new trial on September 27, 2019. In doing so, counsel asserted for the first
time that, inter alia, the trial court committed structural error by failing to swear the
petit jury prior to its deliberations. On November 1, 2019, the State consented to the
grant of Bowman’s motion for new trial, agreeing that the trial court failed to swear
the petit jury, which resulted in reversible error.4
On November 19, 2019, yet another attorney entered an appearance on
Bowman’s behalf. And on November 27, 2019, Bowman filed a motion for discharge
and acquittal, asserting that his right to a speedy trial was violated due to the trial
court’s failure to swear the petit jury. That same day, the State filed a motion for a
declaratory order, seeking clarification as to whether Bowman’s pre-trial motion for
speedy trial was still in effect. The trial court ruled in Bowman’s favor on March 30,
2020, concluding that the unsworn jury’s verdict was a nullity and, thus, discharge
was required on the statutory grounds. Additionally, the trial court determined that
4
It remains undisputed on appeal that the trial court failed to swear the petit
jury.
3
Bowman’s constitutional right to a speedy trial was violated by the nullified verdict.
This appeal by the State follows.5
1. For starters, the State argues the trial court erred by concluding that
Bowman’s statutory right to a speedy trial was violated by its failure to swear the petit
jury. We agree.
The denial of a speedy-trial demand “presents a question of law which this
Court reviews de novo.”6 And here, it is undisputed that Bowman filed a statutory
speedy trial demand in compliance with OCGA § 17-7-170 (a).7 What is disputed is
5
Upon being docketed, we conducted a jurisdictional review and decided to
transfer this appeal to the Supreme Court of Georgia because it possibly involved a
constitutional question over which we lacked jurisdiction. But the case was
eventually reinstated when our Supreme Court concluded that “this appeal does not
implicate this Court’s jurisdiction[.]”
6
Uribe v. State, 346 Ga. App. 264, 265 (1) (816 SE2d 113) (2018); accord
Rogers v. State, 340 Ga. App. 24, 24 (795 SE2d 328) (2016); see Glenn v. State, 310
Ga. 11, 30 (2) (849 SE2d 409) (2020) (explaining that appellate courts review
questions of law de novo).
7
See Rogers, 340 Ga. App. at 24-25 (“OCGA § 17-7-170 (a) pertinently sets
forth the required form of a statutory speedy trial demand: A demand for speedy trial
filed pursuant to this Code section shall be filed as a separate, distinct, and individual
document and shall not be a part of any other pleading or document. Such demand
shall clearly be titled ‘Demand for Speedy Trial’; reference this Code section within
the pleading; and identify the indictment number or accusation number for which
such demand is being made.” (punctuation omitted)).
4
whether Bowman was “tried” or put on “trial” for purposes of OCGA §§ 17-7-170 (b)
and (c).
OCGA § 17-7-170 (b) provides, in relevant part, that if the defendant “is not
tried when the demand for speedy trial is made or at the next succeeding regular court
term thereafter, provided that at both court terms there were juries impaneled and
qualified to try the defendant, the defendant shall be absolutely discharged and
acquitted of the offense charged in the indictment or accusation.”8 And OCGA § 17-
7-170 (c) provides that a statutory speedy trial demand expires “at the conclusion of
the trial or upon the defendant entering a plea of guilty or nolo contendere.”9 In this
regard, Bowman argued below—and now likewise contends on appeal—that because
the jury was not sworn as required by OCGA § 15-12-13910 when he was tried in
8
(Emphasis supplied).
9
(Emphasis supplied); see Works v. State, 301 Ga. App. 108, 111 (2) (686
SE2d 863) (2009) (“[I]t is well established that once the case was tried, [the convicted
defendant’s] demand for a speedy trial expired.”); Williams v. State, 296 Ga. App.
888, 888-89 (676 SE2d 303) (2009) (holding that defendant’s statutory demand for
a speedy trial expired at the conclusion of his original trial and was not still in force
and effect following the grant of his motion for new trial).
10
This Code section provides that, in all criminal cases, the judge or clerk must
administer the following oath to the jury: “You shall well and truly try the issue
formed upon this bill of indictment (or accusation) between the State of Georgia and
(name of accused), who is charged with (here state the crime or offense), and a true
5
2014, he was not “tried” or on “trial” for purposes of OCGA §§ 17-7-170 (b) or (c).
But the State disagrees, arguing, inter alia, that “pursuant to the plain language” of
these statutory provisions, Bowman’s “only speedy trial demand in this case” expired
after trial and sentencing.
Nevertheless, before reaching this claim of error, we must first address the
State’s suggestion that we are at liberty to disregard well-established, binding
precedent that the complete failure to swear a petit jury prior to deliberations demands
a new trial. Although the State goes to great lengths to provide citations from foreign
authorities holding otherwise, we are bound by the precedent established by the
Supreme Court of Georgia,11 which has long made clear that a complete failure by the
verdict give according to the evidence. So help you God.”
11
See GA. CONST., art. VI, § VI, ¶ VI (1983) (“The decisions of the Supreme
Court shall bind all other courts as precedents.”); State v. Jackson, 287 Ga. 646, 658
(5) (697 SE2d 757) (2010) (“Stare decisis is an important principle that promotes the
rule of law[.]”); McKibben v. State, 340 Ga. App. 89, 92 n.10 (796 SE2d 478) (2017)
(noting that decision of the Supreme Court of Georgia “remains binding authority
over this Court unless and until it is overturned by our Supreme Court”); Whorton v.
State, 321 Ga. App. 335, 339 (1) (741 SE2d 653) (2013) (“[V]ertical stare decisis
dictates that we faithfully adhere to the precedents established by the Supreme Court
of Georgia[.]”); see also Bryan A. Garner, et al., THE LAW OF JUDICIAL
PRECEDENT 155 (“When dealing with binding vertical precedent, a court has no
room to decide how much weight or value to give each case.”); Kurt T. Lash,
Originalism, Popular Sovereignty, and Reverse Stare Decisis, 93 VA. L. REV. 1437,
1454 (2007) (noting that “[v]ertical stare decisis refers to the binding effect of
6
trial court to swear the petit jury—as the State concedes occurred in this
case—requires retrial.12 And this cannot be waived by the defendant’s failure to
object at trial.13 Indeed, both this Court and the Supreme Court have previously
precedent on lower courts,” and that “[s]erious rule of law costs would follow if lower
courts were free to ignore precedent established by a higher court of appeal”).
12
See Hill v. State, 291 Ga. 160, 161 (2) (728 SE2d 225) (2012) (“The oath
provided in OCGA § 15-12-139 is mandatory and a trial court’s total failure to give
the oath to the jury is reversible error. In other words, [when] it appears affirmatively
that the jury was not sworn, a subsequent conviction must be set aside and the case
must be remanded for retrial.” (citations & punctuation omitted)); Adams v. State, 286
Ga. 496, 497 (2) (690 SE2d 171) (2010) (“The oath provided in OCGA § 15-12-139
is mandatory and a trial court’s total failure to give the oath to the jury is reversible
error.”); Spencer v. State, 281 Ga. 533, 533 (640 SE2d 267) (2007) (“This Court has
made plain that the petit jury oath provided in OCGA § 15-12-139 is mandatory;
consequently, the failure to administer this oath to the trial jury requires the setting
aside of any conviction based upon the decision of such an unsworn body and that
there be a subsequent retrial.”); Grant v. State, 272 Ga. 213, 213 (528 SE2d 512)
(2000) (“[T]he State now concedes that the jury oath which is mandated by OCGA
§ 15-12-139 was never administered in this case. It follows that [the defendant’s]
motion to set aside his conviction should have been granted and the case must be
remanded for retrial.” (footnote omitted)); see also Benton v. State, 286 Ga. App. 736,
736 (649 SE2d 793) (2007) (“[When] it appears affirmatively that the jury was not
sworn, a subsequent conviction must be set aside and the case must be remanded for
retrial.” (punctuation omitted)); Culpepper v. State, 132 Ga. App. 733, 733 (2) (209
SE2d 18) (1974) (“The failure to swear the jury to try the particular case . . .
constitutes reversible error.”).
13
See Phillips v. State, 275 Ga. 595, 596 (3) (571 SE2 361) (2002) (“A criminal
defendant may not waive the trial court’s complete failure to administer an oath to the
jury.”); Slaughter v. State, 100 Ga. 323, 323 (28 SE 159) (1897) (“Our conclusion in
the present case is that while administering the wrong oath to a jury in a criminal case
7
explained that the complete failure to swear a jury results in a conviction that is a
nullity,14 noting that “jeopardy does not attach in a jury trial until the jury is
impaneled and sworn[.]”15
may be regarded as a mere irregularity, of which the accused cannot avail himself
after deliberately maintaining silence until after verdict, a total failure to swear the
jury is a matter which cannot, in any manner or under any circumstances, be
waived[.]”); see also Colbert v. State, 178 Ga. App. 657, 657 (1) (344 SE2d 479)
(1986) (“In a criminal case, a total failure to swear the jury (to try the particular case)
is a matter which cannot, in any manner or under any circumstances, be waived.”
(punctuation omitted)); Culpepper,132 Ga. App. at 733 (2) (same).
14
See Slaughter, 100 Ga. at 323 (“[A] conviction by an unsworn jury is a mere
nullity, of which the accused could not, upon a subsequent arraignment, avail himself
by a plea of autre fois convict.”); see also Adams, 286 Ga. at 497 (2) (“Several state
courts have, like this Court, held that the complete absence of the petit jury oath
renders the conviction a nullity.”); Fedd v. State, 298 Ga. App. 508, 510 (1) (680
SE2d 453) (2009) (“[O]nly the verdict of a totally unsworn jury is a nullity.”
(punctuation omitted)); Keller v. State, 261 Ga. App. 769, 770 (2) (583 SE2d 591)
(2003) (“A conviction by an unsworn jury is a mere nullity.” (punctuation omitted));
Colbert, 178 Ga. App. at 658 (1) (“Only a totally unsworn jury is a nullity.”
(punctuation omitted)); Smith v. State, 122 Ga. App. 98, 98 (1) (176 SE2d 284)
(1970) (“Only a totally unsworn jury is a nullity.”).
15
Alexander v. State, 279 Ga. 683, 684 (2) (b) (620 SE2d 792) (2005)
(emphasis supplied); see Spencer, 281 Ga. at 533 (holding that jeopardy did not
attach in trial before unsworn jury, and defendant could be tried for all the same
charges in the new trial, including those for which he was acquitted by the unsworn
jury); Laster v. State, 268 Ga. 172, 173 (1) (486 SE2d 153) (1997) (“Once a jury is
impaneled and sworn, jeopardy attaches and an accused is entitled to have the trial
proceed to an acquittal or conviction by that jury.” (emphasis supplied)); see also
U.S. CONST. Amend. V (“ . . . nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb . . . .”); GA. CONST. Art. 1, § 1, ¶ XVIII (“No
8
But just because an unsworn jury renders a conviction a nullity such that it
requires a retrial,16 this does not mean the first trial is rendered a nullity such that a
defendant is entitled to a discharge and acquittal under OCGA § 17-7-170 (b). As the
Supreme Court of Georgia has explained, “OCGA § 17-7-170 was enacted to
implement the constitutional provision for a speedy trial,”17 and it does not provide
any substantive right but, rather, establishes a procedure for securing the existing
person shall be put in jeopardy of life or liberty more than once for the same offense
except when a new trial has been granted after conviction or in case of mistrial.”). See
generally Martinez v. Illinois, 572 U.S. 833, 839 (II) (A) (134 SCt 2070, 188 LE2d
1112) (2014) (“There are few if any rules of criminal procedure clearer than the rule
that jeopardy attaches when the jury is empaneled and sworn.” (punctuation
omitted)).
16
See supra notes 12, 14.
17
Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985); see State v.
Varner, 277 Ga. 433, 434 (589 SE2d 111) (2003) (“The demand for trial statutes,
OCGA §§ 17-7-170 and 17-7-171, are regarded as in aid and implementation of the
State constitutional right to a speedy trial.” (punctuation omitted)); Henry v. State,
263 Ga. 417, 418 (434 SE2d 469) (1993) (“Under Georgia law, OCGA § 17-7-171,
and its parallel section for non-capital cases, OCGA § 17-7-170, is a procedural
device by which a defendant may assert his constitutional right to a speedy trial.”);
Stripland v. State, 115 Ga. 578, 578 (41 SE 987) (1902) (“The provision which gives
to an accused person the right to demand a trial at a specified term of the court in
which he stands indicted, and declares that he shall be discharged and stand acquitted
unless the state shall bring him to trial at least at the second term after such demand,
was enacted to meet the constitutional provision which guaranties to all persons
charged with [a] crime the right of a speedy trial.”).
9
constitutional right.18 Indeed, our Supreme Court has compared the concerns shared
by defendants in terms of receiving a speedy trial or being twice placed in jeopardy,
as follows:
In the absence of a right to a speedy trial the accused might suffer
uncertainty, emotional stress, and the economic strain of a pending
prosecution indefinitely. These values are of a magnitude similar to the
values at stake in double jeopardy claims. The Supreme Court [of the
United States] has pointed out that, in addition to the concern of being
twice convicted, a double jeopardy claimant is concerned with
‘embarrassment, expense and ordeal and compelling him to lie in a
continuing state of anxiety and insecurity.’”19
Put another way, in double-jeopardy claims, “the accused is saying, ‘I may not now
be tried because I have previously been placed in jeopardy.’”20 And in a claim based
on OCGA § 17-7-170 the accused is saying, “I may not now be tried because the time
18
See Henry, 263 Ga. at 418 (noting that the capital and non-capital code
sections “[do] not provide any substantive right” and “merely establish the procedure
for securing that right”).
19
Hubbard, 254 Ga. at 695 (punctuation omitted) (quoting Green v. United
States, 355 U.S. 184, 187 (78 SCt 221, 2 LE2d 199) (1957)).
20
Id.10
during which I must have been placed on trial has passed.”21 But as also recognized
by our Supreme Court:
Unlike the protection afforded by the Double Jeopardy Clause, the
Speedy Trial Clause does not, either on its face or according to the
decisions of this Court, encompass a “right not to be tried” which must
be upheld prior to trial if it is to be enjoyed at all. It is the delay before
trial, not the trial itself, that offends against the constitutional guarantee
of a speedy trial.22
With this in mind, our Supreme Court has concluded that when a defendant makes a
statutory request for a speedy trial, “a mistrial resulting from other than inevitable
accident such as the death or sickness of the judge or one or more of the jury . . . does
not constitute a trial that satisfies the State’s obligation under the demand for trial
statutes.”23
21
Id.22
Sosniak v. State, 292 Ga. 35, 39 (2) (734 SE2d 362) (2012).
23
Varner, 277 Ga. at 435 (punctuation omitted) (emphasis supplied); accord
Geiger v. State, 25 Ga. 667, 668-69 (1858); see Orvis v. State, 237 Ga. 6, 6 (1) (226
SE2d 570) (1976) (“[A] mistrial based on the jury’s inability to reach a verdict does
not satisfy the speedy trial requirements of our Code, at least [when] the defendant
could have been retried before the expiration of the term[.]” (citations omitted)).
Under these circumstances, the State
meets its obligation under the demand statute when it re-tries the
defendant during the remainder of the term of mistrial, provided there
11
But this case does not involve a mistrial. Instead, the trial court failed to swear
the petit jury and that failure went entirely unnoticed by everyone
involved—including the trial court. So, as far as all involved were concerned,
Bowman was in fact tried (or had a trial) and then convicted of the crimes for which
he was indicted, resulting in his post-trial incarceration. And while the trial court’s
failure to swear the petit jury renders Bowman’s conviction a nullity, there is no
statutory or precedential basis for concluding that he was not tried within the meaning
of OCGA §§ 17-7-170 (b) or (c). To the contrary, the ordinary signification of “trial”
are jurors impaneled and qualified to hear the case and, if not, in the
next succeeding regular term of court, again provided there are juries
impaneled and qualified to hear the case.
Varner, 277 Ga. at 435; see OCGA § 17-7-170 (b) (“If the defendant is not tried when
the demand for speedy trial is made or at the next succeeding regular court term
thereafter, provided that at both court terms there were juries impaneled and qualified
to try the defendant, the defendant shall be absolutely discharged and acquitted of the
offense charged in the indictment or accusation.”); State v. Allen, 165 Ga. App. 86,
87-88 (299 SE2d 158) (1983) (“The fact that a mistrial was declared at the next term
after the defendant had made demand for trial is not a reason for refusing his
discharge. The court could have put the defendant on trial before another jury at the
same term of the court. So far as the record discloses, there was no obstacle in the
way of trying the defendant again at the [same] term, except the difficulty and
expense of obtaining another jury. Therefore, the trial court correctly granted
defendant’s motion for discharge and acquittal.” (citations & punctuation omitted)).
12
supports our determination that he was tried within the meaning of those statutes:
“[t]he examination and determination of a cause by a judicial tribunal; determination
of the guilt or innocence of an accused person by a court”24 or “[a] formal judicial
examination of evidence and determination of legal claims in an adversary
proceeding.”25
Unfortunately, until Bowman filed his amended motion for new trial nearly five
years later, the reversible error committed in his trial went undiscovered. To be sure,
the failure to swear a petit jury is no small matter, as the caselaw we have highlighted
supra reflects. And this is why Bowman’s motion for new trial was correctly granted
by the trial court. But until the error was noticed by the trial court, Bowman, or the
State, there was no way to rectify the situation. And as lamentable as the post-
conviction delay in discovering this error may be, it does not implicate or trigger the
protections of OCGA § 17-7-170 (b).26 Bowman was “tried” or placed on “trial”
24
Trial, THE OXFORD ENGLISH DICTIONARY (modified online Sept. 2021).
25
Trial, BLACK’S LAW DICTIONARY (8th ed. 2005).
26
We in no way wish to diminish either the error committed by the trial court
when it failed to swear the petit jury or Bowman’s assertion that he suffered great
emotional and physical distress during his incarceration after the initial trial.
13
within the plain meaning of OCGA §§ 17-7-170 (b) and (c),27 and the fact that his
conviction28 was subsequently (and rightly) declared a nullity29 is of no consequence
in determining whether his speedy trial demand was satisfied. Thus, although the
failure of the trial court to swear the petit jury unquestionably rendered Bowman’s
conviction a nullity (meaning that he may be retried for all of the charges he faced,
including those for which he was acquitted, without running afoul of the Double
Jeopardy Clause),30 this nullity does not entitle him to a discharge and acquittal under
27
See supra notes 24 & 25.
28
See Conviction, THE OXFORD ENGLISH DICTIONARY (3d ed. 2003) (modified
online June 2021) (defining conviction as “[t]he proving or finding a person guilty
of an offence with which he is charged before a legal tribunal; legal proof or
declaration of guilt; the fact or condition of being convicted: sometimes including the
passing of sentence”); Conviction, BLACKS LAW DICTIONARY (8th ed. 2005) (defining
conviction as “[t]he act or process of judicially finding someone guilty of a crime; the
state of having been proved guilty” and “[t]he judgment (as by a jury verdict) that a
person is guilty of a crime”).
29
See supra note 14; see also Nullity, THE OXFORD ENGLISH DICTIONARY (3d
ed. 2003) (modified online Sept. 2021) (defining nullity as “[t]he action of rendering
something null or of no effect” and “[a]n act, procedure, etc., which is null or
invalid”); Nullity, BLACKS LAW DICTIONARY (8th ed. 2005) (defining nullity as
“[s]omething that is legally void” or the “fact of being legally void”).
30
See Spencer, 281 Ga. at 533 (holding that jeopardy did not attach in trial
before unsworn jury, and defendant could be tried for all the same charges in the new
trial, including those for which he was acquitted by the unsworn jury).
14
OCGA § 17-7-170 (b). There is simply no legal basis supporting Bowman’s attempt
to extend the nullification of a conviction due to a violation of OCGA § 15-12-139
to the underlying trial31 itself for purposes of OCGA §§ 17-7-170 (b) and (c). Suffice
it to say, a trial and conviction are not synonymous, nor are they to be conflated.
In sum, Bowman had a complete trial, beginning with voir dire and ending with
a jury verdict and sentencing. To be sure, Bowman’s conviction was eventually
declared a nullity due to the trial court’s failure to swear the petit jury in violation of
OCGA § 15-12-139, but he was still tried within the meaning of OCGA §§ 17-7-170
(b) and (c). As a result, Bowman’s statutory request for a speedy trial in this case
expired when his initial trial concluded, notwithstanding the reversible error
committed by the trial court.32 Indeed, under OCGA § 17-7-170 (c), “[a]ny demand
31
See supra notes 24 & 25.
32
As a reminder to the Bench and Bar, cases prior to 2003 held that when a
defendant filed a statutory request for a speedy trial and was later granted a new trial,
the State had the remainder of that term in which the motion for new trial was granted
and one additional regular term of court in which to try the defendant under his
demand for trial, provided there were juries impaneled and qualified to try the
defendant. See Silvey v. State, 84 Ga. 44, 46 (10 SE 591) (1889) (holding that if
defendant was not tried by end of the term following term in which motion for new
trial was granted, “he was entitled to discharge under his demand”); see also Henry
v. James, 264 Ga. 527, 531 (1) (c) (449 SE2d 79) (1994) (“[U]pon the filing of the
remittitur from the appellate court by the clerk’s office of the trial court, the State
shall have the remainder of that term and one additional regular term of court in
15
for speedy trial filed pursuant to this Code section shall expire at the conclusion of
the trial or upon the defendant entering a plea of guilty or nolo contendere.”33 Thus,
Bowman’s demand expired at the conclusion of his trial in 2014. And because
which to try the defendant pursuant to his demand for trial, provided there are juries
impaneled and qualified to try the defendant.”). Likewise, when a verdict was
reversed on appeal, “upon the filing of the remittitur from [this Court] by the clerk’s
office of the trial court, the State [had] the remainder of that term and one additional
regular term of court in which to try [a defendant] pursuant to his [prior] demand for
trial, provided there are juries impaneled and qualified to try the defendant.” Henry,
264 Ga. at 531 (1) (c); see Varner, 277 Ga. at 435-36 (“[W]hen a conviction is
overturned on appeal [or] when a trial court grants a motion for new trial following
the return of a guilty verdict[,] . . . this Court [has] concluded that the demand for trial
was still in force and the State met its statutory burden to provide a timely trial when
it re-tried the defendant in the term in which the remittitur or grant of new trial was
filed, or in the next regular term of court.” (citation & footnote omitted)); see also
Dennis v. Grimes, 216 Ga. 671, 672 (1) (118 SE2d 923) (1961) (holding that a
defendant who is granted a new trial “is not required to again demand a trial [because]
the State is already on notice of the demand”), disapproved on other grounds by
Henry, 264 Ga. 529 (1) (b), cited with approval by Varner, 277 Ga. at 435 n.3. But
as we recognized in Williams v. State, the 2003 enactment of OCGA § 17-7-170 (c)
abrogated these cases. 296 Ga. App. 888 (676 SE2d 303) (2009) (“This case law was
abrogated by the legislature’s enactment of subsection (c), which provides that “[a]ny
demand for speedy trial filed pursuant to this Code section shall expire at the
conclusion of the trial . . . .”); see also Ga. L. 2003, p. 154, § 3 (enacting OCGA § 17-
7-170 (c)).
33
(Emphasis supplied). See Works, 301 Ga. App. at 111 (2) (“Regardless of the
actions prior to trial, it is well established that once the case was tried, [the
defendant’s] demand for a speedy trial expired.”); Williams, 296 Ga. App. at 889
(“[The defendant’s] demand for speedy trial, filed prior to his original trial, expired
once that trial was concluded. No demand for speedy trial remained in force and
effect at the time [the defendant] was granted a new trial.”).
16
Bowman’s statutory speedy trial demand was satisfied, the reversal of his conviction
and a retrial are the proper remedies for the trial court’s failure to swear the petit
jury,34 not discharge and acquittal.
2. The State next argues that the trial court erred in granting Bowman’s motion
for discharge and acquittal on the ground that his constitutional right to a speedy trial
was violated.35 And because Bowman was “tried” or placed on “trial” for purposes
of OCGA § 17-7-170 (b), there was no presumptively prejudicial delay from which
to trigger the two-tiered analysis relevant to constitutional speedy trial claims. So, we
agree with the State on this point as well.
The analysis for constitutional speedy trial claims under the Sixth Amendment
and the Georgia Constitution is “laid out in the 1972 case of Barker v. Wingo[36] and
34
See supra notes 12, 14.
35
See U.S. CONST. Amend. VI (providing that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy . . . trial”); GA. CONST. Art. I, Sec. I, Par.
XI (a) (“In criminal cases, the defendant shall have a public and speedy trial by an
impartial jury; and the jury shall be the judges of the law and the facts.”).
36
407 U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972).
17
the 1992 decision in Doggett v. United States,[37] which is to date the Supreme
Court’s last detailed discussion of the topic.”38 In this analysis,
[f]irst, the court must determine whether the interval from the accused’s
arrest, indictment, or other formal accusation to the trial is sufficiently
long to be considered presumptively prejudicial. If not, the speedy trial
claim fails at the threshold. If, however, the delay has passed the point
of presumptive prejudice, the court must proceed to the second step of
the . . . analysis, which requires the application of a delicate,
context-sensitive, four-factor balancing test to determine whether the
accused has been deprived of the right to a speedy trial.39
Here, Bowman’s only argument is that his right to a speedy trial was violated
because the period between his arrest and the grant of his motion for discharge and
acquittal was more than 78 months. But we have concluded the initial trial was a trial
for “speedy trial” purposes, notwithstanding the reversible error committed. Thus,
under these circumstances, the proper calculation for delay is the time between the
37
505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992).
38
Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008).
39
Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85
(663 SE2d 169) (2008) (“The court must first consider the length of delay when
conducting a Barker analysis. If the delay passes the threshold test of presumptively
prejudicial, then the delay is considered a second time by factoring it into the
prejudice prong of the Barker analysis.” (citations & punctuation omitted)).
18
trial court’s ruling upon Bowman’s amended motion for new trial and the grant of his
motion for discharge and acquittal.40 And because the trial court erred in its analysis
of this question, it improperly calculated the delay, which, at less than one year, was
40
See Jakupovic v. State, 287 Ga. 205, 206 (1) (a) (695 SE2d 247) (2010)
(“[When], as here, there is no contention that there was any inordinate delay in ruling
on the defendant’s motion for new trial, the length of the delay in retrying the
defendant is measured from the date that the trial court ruled upon the defendant’s
motion.”); see also Brewington v. State, 288 Ga. 520, 521 (2) (705 SE2d 660) (2011)
(“While typically the time for speedy trial attaches at the date of arrest (or date of
indictment/accusation if earlier), in this case appellants . . . were actually tried. . . .
Therefore, as to these two defendants, the relevant time frame for purposes of the
instant motion to dismiss on constitutional speedy trial grounds is from the date of the
mistrial . . . through the date the motion [to dismiss] was denied[.]”); Whatley v. State,
326 Ga. App. 81, 90 (2) (755 SE2d 885) (2014) (“[B]ecause the mistrial was not
caused by prosecutorial misconduct, we find no error in the trial court’s decision to
apply Brewington and calculate the relevant time period for [appellant’s] speedy trial
claim[.]”); McCree v. State, 313 Ga. App. 101, 102-03 (720 SE2d 208) (2011) (“In
this case, the relevant time frame for purposes of the motion to dismiss on
constitutional speedy trial grounds is from the date of the mistrial through the date the
motion was denied.” (punctuation omitted)); Wilson v. State, 311 Ga. App. 780, 782
(717 SE2d 300) (2011) (same).
19
not presumptively prejudicial.41 Bowman’s constitutional argument thus fails at the
threshold.42
Accordingly, for all these reasons, we reverse the trial court’s grant of
Bowman’s motion for discharge and acquittal.
Judgment reversed. Mercier and Pinson, JJ., concur.
41
See State v. Grayson, 332 Ga. App. 862, 866-67 (2) (775 SE2d 222) (2015)
(concluding that trial court erred by calculating length of delay from date defendant
was arrested until the date court granted his motion to dismiss, rather than calculating
based upon the date of mistrial until the date court ruled upon the motion to dismiss
on constitutional speedy trial grounds, which was less than one year and thus not
presumptively prejudicial); see also, e.g., Higgins v. State, 308 Ga. App. 257, 259 (1)
(707 SE2d 523) (2011) (“Georgia courts have held that a delay of more than one year
is presumptively prejudicial.”).
42
See, e.g., Ruffin, 284 Ga. at 55 (2) (explaining that if the delay is not
presumptively prejudicial, the claim fails at the threshold).
20