Treadwell v. State , 233 Ga. 468 ( 1975 )

Undercofler, Presiding Justice.

Harold Thomas Treadwell was arrested on March 11, 1972, and charged with the offense of armed robbery and another felony. He was tried and convicted of the other felony and sentenced to serve seven years in the penitentiary. He has never demanded trial on the armed robbery charge because he alleges that he was informed by his appointed attorney that the charge had been dropped and did not know otherwise until he was notified that he was to be brought to trial on July 8,1974. He filed a plea in bar in which he contended that his right to a speedy trial had been denied him under the Sixth and Fourteenth Amendments of the United States Constitution (Code §§ 1-806, 1-815) and prayed that the armed robbery indictment be dismissed. The plea in bar was overruled by the trial court. The defendant was subsequently convicted and sentenced to serve twelve years in the penitentiary to run consecutive to his previous sentence. He enumerates as error the overruling of the plea in bar.

The defendant admits that he has not demanded a trial under the provisions of Code Ann. § 27-1901.1 (Ga. L. 1952, pp. 299, 300) because he asserts that his appointed attorney had informed him that the charge of armed robbery had been "dropped.”

The defendant was arrested in March, 1972, and was notified that he would be tried on July 8,1974 (a period of about 27 months). A motion for continuance was made by him which was granted by the trial court. The defendant was tried on August 13, 1974.

In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101), the Supreme Court of the United States identified four factors which it stated the court should weigh in balancing the conduct of the prosecution and the defendant on the issue of the denial of the constitutional right to a speedy trial. These four factors are: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.

(1) No doubt but 27 months is a long period to delay the prosecution of a case.

(2) The record before us is silent on the reasons for the delay. It does not show that the state deliberately attempted to delay the trial in order to hamper the defense, nor does it show a more neutral reason for the delay such as negligence or overcrowded courts, nor a valid reason such as a missing witness. Barker v. Wingo, supra.

(3) The defendant admits that he did not assert his right to demand a speedy trial but seeks to excuse his failure to demand trial because his appointed attorney allegedly informed him that the charges had been dropped. In Barker v. Wingo, supra, the court rejected the rule that a defendant who fails to demand a speedy trial forever waives his right. There the court held that the trial court could exercise a judicial discretion based on the circumstances including due consideration of an applicable formal procedural rule. Barker held that although the primary burden is on the court and the prosecutors to assure that cases are brought to trial, a defendant has some responsibility to assert a speedy trial claim. In the Barker case the fact that Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety was considered to be overshadowed by the fact that Barker himself was not anxious to go to trial. The same situation exists here, the defendant was not anxious to go to trial and took his chances on the alleged "dropped” charge statement. It does not appear that his defense was prejudiced in any way. Underhill v. State, 129 Ga. App. 65 (198 SE2d 703).

(4) The fourth factor to be considered in the balance test under Barker is prejudice to the defendant. Prejudice should be assessed in the light of the interests of the defendant which the right to speedy trial was designed to protect. Three such interests identified by the court in Barker are: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.

The defendant in this case was incarcerated for another offense and therefore the oppressive pretrial incarceration interest did not apply to him. Since he alleges that his attorney informed him that the charges had been dropped, he did not suffer anxiety. Lastly, he does not contend that his defense was impaired in any way.

When the factors established in the Barker case are balanced here, we cannot hold that the judicial discretion of the trial court was abused.

The defendant argues, however, that this case is controlled by Strunk v. United States, 412 U. S. 434 (93 SC 2260, 37 LE2d 56); Moore v. Arizona, 414 U. S. 25 (94 SC 188, 38 LE2d 183); and Hall v. State, 131 Ga. App. 786 (206 SE2d 644). We do not agree. In the Strunk case the question of whether the defendant was denied a speedy trial was not before the court for review. The only question considered by the court in that case was the propriety of the remedy fashioned by the Court of Appeals for denial of a speedy trial. In the Moore and Hall cases, specific demands for trial were made.

Submitted November 15, 1974 — Decided January 9, 1975. Archie L. Gleason, for appellant. Richard E. Allen, District Attorney, Arthur K. Bolton, Attorney General, for appellee.

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ., who dissent. Hill, J., not participating.