STATE v. NAGBE

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Court of Appeals of Georgia.

The STATE v. NAGBE.

No. A09A2144.

Decided: March 8, 2010

Paul L. Howard Jr., Atlanta, Stephany Julissa Luttrell, for Appellant. Noah Howard Pines, Atlanta, for Appellee.

The State appeals the trial court's order granting Mai Nagbe's plea in bar for violation of her Sixth Amendment right to a speedy trial. Considering the length of the delay, the State's lack of an explanation for the delay, and the death of Nagbe's material exculpatory witness during the pendency of the case, we find no abuse of discretion and affirm.

The record shows that Nagbe was arrested and jailed on May 10, 2007, and subsequently indicted on May 18, 2007, on charges of false imprisonment, cruelty to a person 65 years of age or older, and battery. She was released on bond on May 25, 2007. Nagbe was arraigned in Fulton County Superior Court before Judge Manis on July 13, 2007, and appeared at a case management hearing on August 14, 2007, and a final plea calender on September 19, 2007. Nagbe pled not guilty, and her counsel asked Judge Manis to try the case before she retired and took senior status. Nagbe was subsequently ordered to appear before Judge Westmoreland and then Judge Arrington, who, on February 20, 2009, ordered that the case be transferred to Judge Baxter. On February 23, 2009, Nagbe filed a plea in bar and motion for absolute dissolution. Following a hearing on March 12, 2009, the trial court granted the motion.

At issue is whether the trial court abused its discretion in applying the factors set forth in Barker v. Wingo.1 This is a four-part test

which requires that we consider: (1) the length of the delay; (2) reasons for the delay; (3) defendant's assertion of the right; and (4) the prejudice to the defendant. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.2

“These factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.”3

1. Length of delay. The trial court is required to engage in the balancing process if the defendant shows that the delay following her arrest or indictment is “presumptively prejudicial.”4 There is no bright line test, as “the length of delay that will provoke the inquiry into the other factors is necessarily dependent upon the peculiar circumstances of the case.”5 However, “[d]epending on the nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”6 The State concedes that the approximately 22-month pre-trial delay in this case was sufficient to trigger Barker analysis. Accordingly, “the remaining Barker factors must be considered in conjunction with” the length of the delay.7

2. Reasons for the delay. The trial court found the reason for the pre-trial delay to be unexplained and not attributable to the defense, and this conclusion is supported by the record. Although the case passed through four different judges, this is not itself a valid explanation for the delay, such as a missing witness.8 “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.”9 On the other hand, “there is nothing evidencing that most serious abuse-a deliberate attempt to delay the trial in order to hamper the defense.”10 Accordingly, this factor weighed against the State, but not heavily.11

3. Assertion of right. “Because a defendant may benefit by delaying a trial, this Court has recognized that a defendant has a responsibility to assert [her] right to a speedy trial.”12 The trial court found that Nagbe's assertion of her right to a speedy trial was “sufficient” under the circumstances of the case because she asked for the case be set down for a trial in 2007 and consistently maintained her not guilty plea and readiness for trial.

The State argues that Nagbe's counsel's oral request for a trial was not an assertion of her right to a speedy trial and that Nagbe waived her right to a speedy trial by agreeing to a scheduling order and opting into discovery. We conclude that Nagbe did not sufficiently raise the issue of her right to a speedy trial until she asked that its prosecution be barred on that ground. A request for a jury trial is not the assertion of the right to a speedy trial.13 Further, no written motion for a speedy trial appears in the record. During the plea in bar hearing, defense counsel proffered that he had asked Judge Manis to try the case before she retired and stated in his place that “we did ask ․ that this case be tried back in 2007.” This oral request for accommodation by the trial court did not purport to include a specific invocation of Nagbe's constitutional or statutory right to a speedy trial.14 Although Nagbe need not have requested a speedy trial through an actual motion, the communication was not made “concretely enough for purposes of the third Barker-Doggett factor.”15 As Nagbe did not “formally raise either [her] statutory or constitutional right to a speedy trial until ․ [she] filed a [plea in bar],” the delay must be weighed against her.16 It follows that since Nagbe did not make an earlier request for a speedy trial she did not later waive that request as the State alleges.17 Further, “the filing of a speedy trial demand is not a prerequisite to a plea in bar for failure to have a speedy trial on constitutional grounds.”18

4. Prejudice to defendant. Whether the defendant has been prejudiced by the delay requires consideration of three interests: the prevention of oppressive pretrial incarceration, minimizing the defendant's anxiety and concern, and limiting impairment of the defense's case.19 “The most important component of the prejudice analysis is whether the defendant's ability to raise a defense was impaired by the delay.”20

The alleged victim died during the pendency of the case.21 An investigator interviewed the alleged victim before her death, and the defense introduced a videotape of that interview at the hearing to show that the victim denied being harmed by Nagbe. The trial court found that the defense case “is prejudiced by the fact that the alleged victim is no longer available to testify on the Defendant's behalf that the Defendant did not harm her as alleged in the indictment.” The State argues that Nagbe was not prejudiced by the death of the victim because the victim suffered from Alzheimer's disease and other illnesses and that she “probably” would have been incompetent to testify at trial, and because the State stipulated at the hearing that the videotape of the interview would be admissible at trial.

“If witnesses die or disappear during a delay, the prejudice is obvious.”22 The State's claim that the victim would “probably” have been incompetent to testify at trial is simply speculation.23 Nor was the trial court required to conclude that because the State stipulated that the videotape would be admissible at trial that the prejudice to the defense was significantly alleviated.24 Without the testimony of the alleged victim, the defense was left with an unsworn, three minute videotape secured by an investigator.25 The setting and scope of the videotape interview was not reasonably equivalent to trial testimony by a primary witness. Further, the videotape would not have the same “impact upon the jury of the testimony of the lost witness[, which] depended largely on that witness's credibility and demeanor while testifying.”26 We conclude that the trial court was not required to accept the State's stipulation as a sufficient substitute for the loss of the alleged victim's trial testimony.

5. Balancing the factors. Although we cannot agree with the trial court that Nagbe “sufficiently” asked for a speedy trial, Nagbe was not responsible for her case being assigned to four different judges, and her conduct in asking the case be set for trial before Judge Manis's retirement was inconsistent with a desire to delay the trial. We cannot conclude that Nagbe's failure to request a speedy trial, standing alone, weighed so heavily against Nagbe as to require the denial of her motion.27 Rather, considering the length of the delay, the lack of a reason for the delay, and the impairment to the defense caused by the death of a material exculpatory witness, we conclude that the trial court did not abuse its discretion in granting Nagbe's plea in bar for violation of her constitutional right to a speedy trial.28

Judgment affirmed.

DOYLE, Judge.

BLACKBURN, P.J., and ADAMS, J., concur.

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