Boseman v. State, 438 S.E.2d 626 (Ga. 1994). · Go Syfert
Boseman v. State, 438 S.E.2d 626 (Ga. 1994). Cases Citing This Book View Copy Cite
“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.”
470 citation events (426 in the last 25 years) across 4 distinct courts.
Strongest positive: Meder v. State (gactapp, 2010-08-27) · Strongest negative: Moceri v. State (gactapp, 2012-11-29)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 50 distinct citers.
discussed Overruled Moceri v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Callaway v. State, 275 Ga. 332 ( 567 SE2d 13 ) (2002), and Boseman v. State, 263 Ga. 730, n. 1 ( 438 SE2d 626 ) (1994), both expressly overruled by Sosniak .
discussed Overruled Dominic Moceri v. State (2×)
Ga. Ct. App. · 2012 · confidence high
See Melton v. State, 252 Ga. App. 29, 30 (2) ( 555 SE2d 488 ) (2001); Blalock v. State, 201 Ga. App. 461 ( 411 SE2d 914 ) (1991). 3 See Callaway v. State, 275 Ga. 332 ( 567 SE2d 13 ) (2002) and Boseman v. State, 263 Ga. 730 , n.1 ( 438 SE2d 626 ) (1994), both expressly overruled by Sosniak. 2 In considering a motion asserting the denial of the constitutional right to a speedy trial, courts must apply a balancing test, considering the following factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice t…
discussed Cited as authority (quoted) Meder v. State (2×) also: Cited "see"
Ga. Ct. App. · 2010 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
examined Cited as authority (rule) Nelson v. State (8×) also: Cited "see"
Ga. · 2025 · confidence medium
See id. at 418 (2) (citing Boseman v. State, 263 Ga. 730 ( 438 SE2d 626 ) (1994), for the proposition that “a 21-month delay is insufficient to raise an inference of actual prejudice”); Boseman, 263 Ga. at 733 (1) (d) (noting that, “[w]ith regard to . . . oppressive pretrial incarceration, . . . the 27 month delay, standing alone, was oppressive,” but “that pretrial detention alone [does not] permit[ ] an automatic inference of enough prejudice to balance that factor in a defendant’s favor without proof of sub-standard conditions or other oppressive factors beyond those that necess…
discussed Cited as authority (rule) Leslie v. State
Ga. · 2017 · confidence medium
Accordingly, the trial court’s finding that this lapse of time was not presumptively prejudicial was erroneous.2 See, e.g., Buckner, 292 Ga. at 393 (53-month delay was presumptively prejudicial); Phan, 290 Ga. at 593 (more than four-year delay crossed the threshold of presumptive prejudice); 2 Though the trial court concluded that Leslie had not met his burden for presuming prejudice, it did conduct a proper Doggett-Barker analysis. 7 Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994) (27-month delay in death penalty case presumptively prejudicial), overruled on other grounds…
discussed Cited as authority (rule) Leslie v. State
Ga. · 2017 · confidence medium
Accordingly, the trial court’s finding that this lapse of time was not presumptively prejudicial was erroneous. 2 See, e.g., Buckner, 292 Ga. at 393 (53-month delay was presumptively prejudicial); Phan, 290 Ga. at 593 (more than four-year delay crossed the threshold of presumptive prejudice); Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994) (27-month delay in death penalty case presumptively prejudicial), overruled on other grounds, Sosniak v. State, 292 Ga. 35 ( 734 SE2d 362 ) (2012).
discussed Cited as authority (rule) Taylor v. the State (2×)
Ga. Ct. App. · 2016 · confidence medium
And as recognized by our Supreme Court, oppressive pretrial detention, standing alone, does not require “an automatic inference of enough prejudice to balance that factor in a defendant’s favor without proof of sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.” (Citation and punctuation omitted.) Boseman v. State, 263 Ga. 730, 733 (1) (d) ( 438 SE2d 626 ) (1994), overruled on other grounds, Sosniak, supra, 292 Ga. at 40 (2).
discussed Cited as authority (rule) State v. Elizabeth Takyi
Ga. Ct. App. · 2013 · confidence medium
As to the second Barker-Doggett factor, courts must consider “both the reason for the delay and whether this is attributable to the defendant or the State.” Richardson, 318 Ga. App. at 159 ; Sechler v. State, 316 Ga. App. 675, 679 (2) (b) ( 730 SE2d 142 ) (2012).”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.” Boseman v. State, 263 Ga. 730, 733 (1) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) State v. Takyi
Ga. Ct. App. · 2013 · confidence medium
“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.” Boseman v. State, 263 Ga. 730, 733 (1) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) State v. Hartsfield
Ga. Ct. App. · 2012 · confidence medium
Boseman v. State, 263 Ga. 730, 733 (1) (d) ( 438 SE2d 626 ) (1994); Sweatman, 287 Ga. at 875 (6); Sechler v. State, 316 Ga. App. 675, 681 (2) (d) ( 730 SE2d 142 ) (2012).
cited Cited as authority (rule) State v. Eugene Hartsfield
Ga. Ct. App. · 2012 · confidence medium
Boseman v. State 263 Ga. 730, 733 (1) (d) ( 438 SE2d 626 ) (1994); Sweatman, 287 Ga. at 875 (6); Sechler v. State, 316 Ga. App. 675 (2) (d) ( 730 SE2d 142 ) (2012).
discussed Cited as authority (rule) Sosniak v. State
Ga. · 2012 · confidence medium
The Court of Appeals’ opinions in Callaway prior to our granting certiorari and on remand from our decision accurately trace this Court’s unfortunate journey from following the United States Supreme Court’s Abney decision and applying the collateral order doctrine to constitutional double jeopardy claims, see Patterson v. State, 248 Ga. 875, 876 ( 287 SE2d 7 ) (1982); to extending that ruling to statutory speedy trial claims based on decisions treating the violation of OCGA § 17-7-170 as an automatic acquittal subject to double jeopardy protection, see Hubbard v. State, 254 Ga. 694 ( 33…
examined Cited as authority (rule) Crosson v. State (3×)
Ga. Ct. App. · 2012 · confidence medium
As the trial court found, and we agree, although some of the delay could be attributed to Crosson, “more blame can be placed on the State.” We also agree with the trial court that nothing in the record supports an inference “that the State has deliberately attempted to delay the trial in order to hamper the defense, a serious abuse that would be weighted against the State.” Boseman v. State, 263 Ga. 730, 732 (1) (b) ( 438 SE2d 626 ) (1994).
examined Cited as authority (rule) Maureen Crosson v. State (3×)
Ga. Ct. App. · 2012 · confidence medium
As the trial court found, and we agree, although some of the delay could be attributed to Crosson, “more blame can be placed on the State.” We also agree with the trial court that nothing in the record supports an inference “that the State has deliberately attempted to delay the trial in order to hamper the defense, a serious abuse that would be weighted against the State.” Boseman v. State, 263 Ga. 730, 732 (1) (b) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) State v. Johnson
Ga. · 2012 · confidence medium
And while Johnson expressed some anxiety about the need to care for his family in Louisiana, anxiety and concern are “always present to some extent, and thus absent some unusual showing is not likely to be determinative in defendant’s favor.” Boseman v. State, 263 Ga. 730, 733 (1) (d) ( 438 SE2d 626 ) (1994) (citation and punctuation omitted).
discussed Cited as authority (rule) Steve Singleton v. State (2×)
Ga. Ct. App. · 2012 · confidence medium
See Wilkie v. State, 290 Ga. 450, 451 ( 721 SE2d 830 ) (2012) (calculating length of delay from arrest to the denial of the motion for discharge and acquittal); Scandrett, 279 Ga. at 633 (1) (a) (speedy trial right attaches “at the time of arrest or when formal charges are brought, whichever is earlier”); Williams, 277 Ga. at 599 (“The relevant time period in a speedy trial claim begins with the earlier of the date of indictment and the date of arrest”) (emphasis in original); Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994). 4 The delay in this case consists not of the 1…
discussed Cited as authority (rule) Singleton v. State (2×)
Ga. Ct. App. · 2012 · confidence medium
See Wilkie v. State, 290 Ga. 450, 451 ( 721 SE2d 830 ) (2012) (calculating length of delay from arrest to the denial of the motion for discharge and acquittal); Scandrett, 279 Ga. at 633 (1) (a) (speedy trial right attaches “ ‘at the time of arrest or when formal charges are brought, whichever is earlier’ ”); Williams, 277 Ga. at 599 (“The relevant time period in a speedy trial claim begins with the earlier of the date of indictment and the date of arrest”) (emphasis in original); Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Watkins v. State
Ga. Ct. App. · 2012 · confidence medium
Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Demonte Watkins v. State
Ga. Ct. App. · 2012 · confidence medium
Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) Harris v. State
Ga. Ct. App. · 2012 · confidence medium
Here, however, we are unable to conclude that the trial court effectively weighed the length of the delay against the state or in Harris’s favor. 13 State v. Johnson, 274 Ga. 511, 512 ( 555 SE2d 710 ) (2001) (citation and punctuation omitted). 14 Boseman v. State, 263 Ga. 730, 733 (1) (b) ( 438 SE2d 626 ) (1994) (citation omitted). 15 Fallen, supra at 248 (2). 16 Hayes v. State, 298 Ga. App. 338, 344 (2) (b) ( 680 SE2d 182 ) (2009) (citation omitted). 17 See Jones v. State, 283 Ga. App. 838, 840 (2) ( 642 SE2d 865 ) (2007). 18 See State v. Giddens, 280 Ga. App. 586, 588 ( 634 SE2d 526 ) (200…
examined Cited as authority (rule) Phan v. State (5×) also: Cited "see, e.g."
Ga. · 2012 · confidence medium
See Ruffin, supra, 284 Ga. at 61 (2) (b) (ii); Boseman, supra, 263 Ga. at 733 (1) (b).
cited Cited as authority (rule) Goffaux v. State
Ga. Ct. App. · 2011 · confidence medium
Boseman v. State, 263 Ga. 730, 732 ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Higgenbottom v. State
Ga. · 2011 · confidence medium
Boseman v. State, 263 Ga. 730, 733 (1) (b) ( 438 SE2d 626 ) (1994).
examined Cited as authority (rule) Ward v. State (3×)
Ga. Ct. App. · 2011 · confidence medium
Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) State v. Reimers
Ga. Ct. App. · 2011 · confidence medium
“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.” Boseman v. State, 263 Ga. 730, 733 (1) (b) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) Weems v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2011 · confidence medium
I, § 1, ¶ XI (a). 4 Disharoon v. State, 288 Ga. App. 1, 2 (1) ( 652 SE2d 902 ) (2007) (citation and punctuation omitted). 5 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). 6 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). 7 Ferguson v. State, 303 Ga. App. 341, 342 ( 693 SE2d 578 ) (2010) (citation and punctuation omitted). 8 Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994). 9 Ferguson, 303 Ga. App. at 342 . 10 West v. State, 295 Ga. App. 15, 16 ( 670 SE2d 833 ) (2008). 11 Teasley v. State, 307 Ga. App. 153, 157 (2) ( 704 SE2d 248 ) (2010) (citation and punctuation omitted). 1…
discussed Cited as authority (rule) Fallen v. State (2×)
Ga. · 2011 · confidence medium
Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) Davis v. State
Ga. Ct. App. · 2011 · confidence medium
Miller, P. J., and McFadden, J., concur. 1 Davis has asserted to both the trial court and this court that his legal first name is not “Antonio” but “Antoniel.” He was indicted under the name “Antonio Davis,” however, and the order from which he appeals reflects that name. 2 See State v. Pickett, 288 Ga. 674, 678 (2) (d) ( 706 SE2d 561 ) (2011). 3 Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994). 4 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). 5 State v. Lattimore, 287 Ga. 505 -506 ( 696 SE2d 613 ) (2010) (citations omitted). 6 Id. at 506 . 7 Williams v. State, 277 G…
discussed Cited as authority (rule) State v. Hartsfield
Ga. Ct. App. · 2011 · confidence medium
See Brannen v. State, 274 Ga. 454 ( 553 SE2d 813 ) (2001) (52-month delay is presumptively prejudicial); Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994) (as the delay approaches one year, it is generally presumptively prejudicial).
cited Cited as authority (rule) Zeger v. State
Ga. Ct. App. · 2010 · confidence medium
(Citations and punctuation omitted.) Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
examined Cited as authority (rule) Brown v. State (3×) also: Cited "see"
Ga. · 2010 · confidence medium
Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Jakupovic v. State
Ga. · 2010 · confidence medium
Boseman v. State, 263 Ga. 730, 733 (1) (d) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) Simmons v. State
Ga. Ct. App. · 2010 · confidence medium
Andrews, P. J., and Ellington, J., concur. 1 OCGA § 16-8-41 (a). 2 OCGA § 16-5-21 (a) (1). 3 OCGA § 16-5-41 (a). 4 OCGA § 16-11-106 (b) (1). 5 Simmons filed another pro se speedy trial motion in March 2009, after current counsel made an appearance. 6 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). 7 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). 8 (Punctuation and footnotes omitted.) Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 9 Hayes v. State, 298 Ga. App. 338, 339 (1) ( 680 SE2d 182 ) (2009). 10 See Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994) (a…
discussed Cited as authority (rule) McGowan v. State
Ga. Ct. App. · 2010 · confidence medium
(Citation and punctuation omitted.) Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994). [I]n a case implicating the defendant’s right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and applicable to the states by the Due Process Clause of the Fourteenth Amendment, it is essential for the trial court to enter findings of fact and conclusions of law consistent with the Barker v. Wingo factors outlined herein.
discussed Cited as authority (rule) Ferguson v. State
Ga. Ct. App. · 2010 · confidence medium
Robertson, Assistant District Attorney, for appellee. 1 OCGA § 16-6-4 (a) (1). 2 Barker v. Wingo, 407 U. S. 514, 530-533 (IV) (92 SC 2182, 33 LE2d 101) (1972). 3 Doggett v. United States, 505 U. S. 647, 651-654 (II) (112 SC 2686, 120 LE2d 520) (1992). 4 Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994). 5 West v. State, 295 Ga. App. 15, 16 ( 670 SE2d 833 ) (2008). 6 State v. White, 282 Ga. 859, 861 (2) ( 655 SE2d 575 ) (2008). 7 State v. Reid, 298 Ga. App. 235, 238 (2) (a) ( 679 SE2d 802 ) (2009). 8 Perry v. Mitchell, 253 Ga. 593, 594-595 ( 322 SE2d 273 ) (1984). 9 Grizzard v. St…
cited Cited as authority (rule) Weis v. State
Ga. · 2010 · confidence medium
Boseman v. State, 263 Ga. 730, 731 ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Gray v. State
Ga. Ct. App. · 2010 · confidence medium
Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Over v. State
Ga. Ct. App. · 2010 · confidence medium
Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) State v. Lessing
Ga. Ct. App. · 2010 · confidence medium
Smith, P. J., and Bernes, J., concur. 1 See Brown v. State, 264 Ga. 803, 805 (2) ( 450 SE2d 821 ) (1994) (order on motion to dismiss for violation of right to speedy trial reviewed under abuse of discretion standard). 2 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). 3 See Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994) (A speedy trial is guaranteed an accused by the Sixth Amendment to the United States Constitution and also Art.
discussed Cited as authority (rule) Davis v. State (2×)
Ga. Ct. App. · 2009 · confidence medium
See also Hayes, 298 Ga. App. at 339 . 6 Hayes, 298 Ga. App. at 340 (1). 7 See Johnson v. State, 268 Ga. 416, 417 (2) ( 490 SE2d 91 ) (1997) (holding that a *157 21-month delay raises the presumption of prejudice); Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994) (holding same with regard to 27-month delay). 8 (Punctuation omitted.) Hayes, 298 Ga. App. at 341 (2) (a). 9 See id. 10 See id. 11 See Ruffin v. State, 284 Ga. 52, 59 (2) (b) (ii) ( 663 SE2d 189 ) (2008). 12 Hayes, 298 Ga. App. at 345 (2) (b). 13 155 Ga. App. 402 ( 270 SE2d 812 ) (1980). 14 (Citations omitted; emphasi…
cited Cited as authority (rule) Williams v. State
Ga. Ct. App. · 2009 · confidence medium
Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Lynch v. State
Ga. Ct. App. · 2009 · confidence medium
(Citation and punctuation omitted.) Boseman v. State, 263 Ga. 730, 731 (1) ( 438 SE2d 626 ) (1994).
cited Cited as authority (rule) Falagian v. State
Ga. Ct. App. · 2009 · confidence medium
(Citation and punctuation omitted.) Boseman, supra, 263 Ga. at 732 (1) (a).
discussed Cited as authority (rule) Hayes v. State
Ga. Ct. App. · 2009 · confidence medium
Adams and Doyle, JJ., concur. 1 OCGA § 16-5-21. 2 OCGA § 16-5-24. 3 OCGA § 16-5-70. 4 Hester v. State, 268 Ga. App. 94, 96 ( 601 SE2d 456 ) (2004). 5 State v. Stallworth, 293 Ga. App. 368 (2) ( 667 SE2d 147 ) (2008). 6 “Dead-docketing has been characterized as a procedural device by which the prosecu *339 tion is postponed indefinitely [by the State] but may be reinstated any time at the pleasure of the court.” (Punctuation omitted.) Beam v. State, 265 Ga. 853, 855 (3), n. 3 ( 463 SE2d 347 ) (1995). 7 Barker v. Wingo, 407 U. S. 514, 530 (IV) (92 SC 2182, 33 LE2d 101) (1972). 8 Doggett v…
examined Cited as authority (rule) Wofford v. State (4×) also: Cited "see"
Ga. Ct. App. · 2009 · confidence medium
(Citation omitted.) Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d *131 626) (1994).
cited Cited as authority (rule) Thomas v. State
Ga. Ct. App. · 2009 · confidence medium
Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972); Boseman v. State, 263 Ga. 730, 731 ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) Bowling v. State
Ga. · 2009 · confidence medium
To the extent that Bowling contends that incarceration caused him to be subjected to more fear and anxiety than he would have been subjected to had he not been jailed, these anxieties are “always present to some extent, and thus absent some unusual showing [are] not likely to be determinative in defendant’s favor.” (Citations omitted.) Boseman v. State, 263 Ga. 730, 733 (1) (d) ( 438 SE2d 626 ) (1994).
discussed Cited as authority (rule) Hassel v. State
Ga. · 2009 · confidence medium
As to the prejudice factor, there are “three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.” [Cit.] Boseman, supra at 732 (1).
discussed Cited as authority (rule) Green v. State
Ga. Ct. App. · 2008 · confidence medium
J., and Phipps, J., concur. 1 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). 2 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). 3 Doggett, supra at 652, n. 1 ; Barker, supra at 530 . 4 Dogget, supra at 651 ; Barker, supra at 530 . 5 Barker, supra at 533 . 6 Jones v. State, 283 Ga. App. 838, 839 ( 642 SE2d 865 ) (2007). 7 See id. at 839 (1). 8 See id. (considering the length of delay factor in conjunction with the presumptively prejudicial analysis). 9 See Baseman v. State, 263 Ga. 730, 733 (1) (b) ( 438 SE2d 626 ) (1994). 10 Perry v. Mitchell, 253 Ga. 593, 595 ( 322 SE2d 273 ) (1984). 11 See…
discussed Cited as authority (rule) Moore v. State
Ga. Ct. App. · 2008 · confidence medium
Miller and Ellington, JJ., concur. 1 OCGA § 16-6-3 (a). 2 OCGA § 16-6-4 (b). 3 OCGA § 16-6-4 (a). 4 See generally Mayfield v. State, 264 Ga. App. 551, 552-555 ( 593 SE2d 851 ) (2003). 5 Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). 6 Boseman v. State, 263 Ga. 730, 731-732 (1) ( 438 SE2d 626 ) (1994). 7 Haisman v. State, 242 Ga. 896, 897 (2) ( 252 SE2d 397 ) (1979). 8 Doggett v. United States, 505 U. S. 647, 652 (II), n. 1 (112 SC 2686, 120 LE2d 520) (1992). 9 Ruffin v. State, 284 Ga. 52, 56 (2) (b) ( 663 SE2d 189 ) (2008). 10 Hester v. State, 268 Ga. App. 94, 97 (2) ( 601…
Boseman
v.
the State
S93A1336.
Supreme Court of Georgia.
Jan 24, 1994.
438 S.E.2d 626
David V. Weber, Clayton L. Jolly III, for appellant., Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.
Sears-Collins.
Cited by 143 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: #26,524 of 633,719
Citer courts: Court of Appeals of Georgia (1)
Sears-Coluns, Justice.

The appellant, Charles Boseman, has been indicted for murder and the state is seeking the death penalty. This appeal stems from the trial court’s denial of Boseman’s motion to dismiss for failure to provide him a speedy trial as guaranteed by Art. I, Sec. I, Par. XI (a) of the 1983 Georgia Constitution and by the Sixth Amendment of the Constitution of the United States. [1] We affirm.

Boseman was arrested on December 22, 1990. A preliminary hearing was held on January 7, 1991, and he was bound over to the superior court. He was indicted on March 12, 1991, and on March 13, 1991, the state notified Boseman of its intent to seek the death penalty. The first Unified Appeal hearing was held on May 9, 1991. On June 20, 1991, Boseman was arraigned and pled not guilty. On that[*731] same date, Boseman also filed various motions. On November 18, 1991, the court held a motions hearing. The court heard Boseman’s motion challenging the grand and petit juries but, at Boseman’s request, delayed hearing his motion to suppress. On December 18, 1991, the court denied Boseman’s motion challenging the grand and petit juries. The court heard Boseman’s motion to suppress on January 2 and February 19, 1992; Boseman and the State filed supplemental briefs regarding that motion on May 29, 1992, and June 1, 1992, respectively. The court denied Boseman’s motion to suppress on August 10, 1992.

The second and final Unified Appeal hearing was scheduled for December 16, 1992, but it had to be rescheduled due to a medical emergency in the family of the assistant district attorney assigned to the case. The trial court held the rescheduled hearing February 2, 1993.

On March 4, 1993, Boseman moved to dismiss his indictment on the ground he had been denied his constitutional right to a speedy trial. At the time he filed his motion to dismiss, Boseman had been in custody, awaiting trial, for 27 months. The trial court denied the motion and this appeal followed.

1. “A speedy trial is guaranteed an accused by the Sixth Amendment ... to the Constitution of the United States, and also Article I of the Constitution of this State [now Art. I, Sec. I, Par. XI (a) of the 1983 Ga. Constitution].” Powell v. State, 143 Ga. App. 684, 685 (1) (239 SE2d 560) (1977). These rights attach at the time of arrest or when formal charges are brought, whichever is earlier. Haisman v. State, 242 Ga. 896, 897 (252 SE2d 397) (1979). In this case, Boseman’s right to a speedy trial attached on the date of his arrest, December 22, 1990, and Boseman’s sole contention on appeal is that the State’s failure to try him in the 27 months between his arrest and the date he filed his motion to dismiss denied him his constitutional right to a speedy trial.

In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated. ... (a) [t]he length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. 407 U. S. at 530. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.

[*732] Washington v. State, 243 Ga. 329, 330 (1) (253 SE2d 719) (1979). As to the prejudice factor, there are

three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.

Id. at 331. We apply these criteria to the facts of this case.

(a) Length of delay. This factor actually figures into the speedy trial analysis in two respects. First, a court must determine whether the delay

has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, since, by definition, [the accused] 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, _ U. S. _ (112 SC 2686, 2690, 120 LE2d 520) (1992). If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with “the presumption that pretrial delay has prejudiced the accused intensifying] over time.” Doggett, 112 SC at 2691. Accord Hakeem v. Beyer, 990 F2d 750, 759-760 (3rd Cir. 1993). However, the presumptive prejudice arising from delay “cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.” Doggett, 112 SC at 2693. Instead, “it is part of the mix of relevant facts, and its importance increases with the length of delay.” Id.

In this case, 27 months unquestionably is a long period to delay the prosecution of a case and raises a threshold presumption of prejudice. See Doggett, 112 SC at 2691, n. 1 (as the delay approaches one year it generally is “presumptively prejudicial”). We therefore must analyze the other Barker factors to determine if Boseman was denied his constitutional right to a speedy trial.

(b) Reason for delay. At the outset, we note that nowhere in the record does it show that the State has deliberately attempted to delay the trial in order to hamper the defense, a serious abuse that would be weighted against the State. See Barker, 407 U. S. at 531.

Moreover, the record shows that one minor delay was attributable to a medical emergency in the family of the assistant district attorney assigned to the case, and that another minor delay was attributable to Boseman’s request to delay the hearing on his motion to[*733] suppress.

The State asserts that part of the first 18 months of the delay was attributable to its desire to wait for several significant appellate court decisions on victim impact evidence before trying this case. See Payne v. Tennessee, _ U. S. __ (111 SC 2597, 115 LE2d 720) (1991), and Sermons v. State, 262 Ga. 286 (417 SE2d 144) (1992).

Finally, there is no explanation in the record for some of the delay, as, for instance, with regard to the several months of delay between the summer of 1992 and the hearing scheduled for December 1992. 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. See LaFave and Israel, Criminal Procedure, Vol. 2, p. 407, § 18.2 (1984).

In summary, the delay in some part must be attributed to the negligence of the State in bringing the case to trial, and this reason for delay weighs against the State. Barker, 407 U. S. at 531.

(c) Defendant’s Assertion of His Right to Speedy Trial. Boseman admits that he did not assert either his statutory, see OCGA § 17-7-171, or constitutional right to a speedy trial for the 27 months between his arrest and the filing of his motion to dismiss, in which he finally asserted his constitutional right to a speedy trial. This delay in asserting his right to a speedy trial must be weighted against Boseman. See Perry v. Mitchell, 253 Ga. 593, 595 (322 SE2d 273) (1984); Haisman v. State, 242 Ga. at 897; Barker, 407 U. S. at 535.

(d) Prejudice to defendant. With regard to the first prejudice factor, oppressive pretrial incarceration, we will assume that the 27-month delay, standing alone, was oppressive, Washington, 243 Ga. at 331-332, although other courts have declined to hold that pretrial detention alone

permits an automatic inference of enough prejudice to balance that factor in a [defendant’s] favor without proof of sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.

Hakeem, 990 F2d at 761.

As for the second prejudice factor, anxiety and concern of the accused, “it is always present to some extent, and thus absent some unusual showing is not likely to be determinative in defendant’s favor.” LaFave and Israel, Criminal Procedure, Vol. 2, p. 410, § 18.2 (1984). Accord Hakeem, 990 F2d at 762. This Court has required some showing of anxiety or concern. For instance, in Redd v. State, 261 Ga. 300 (404 SE2d 264) (1991), we held that “[t]here is no evidence in the record of Redd’s anxiety or concern due to his lengthy incarceration.” Similarly, in this case, Boseman has not demonstrated any anxiety or concern that would balance this factor in his favor.

[*734] Decided January 24, 1994. David V. Weber, Clayton L. Jolly III, for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.

Furthermore, as to the possibility that the delay has impaired Boseman’s ability to defend himself, Boseman has offered no specific evidence of any prejudice resulting from the delay.

However, the Supreme Court in Doggett held that “consideration of prejudice is not limited to the specifically demonstrable.” Doggett, 112 SC at 2692. The Court held that the presumption of prejudice that arises from the passage of time strengthens with the length of the delay and may tilt the prejudice factor in a defendant’s favor, although it may not alone carry a Sixth Amendment claim without regard to the other Barker criteria. Id. at 2692-2694. In Doggett, the Court concluded that a delay of eight and one-half years raised an inference of prejudice. We conclude, however, that the 27-month delay in this case is insufficient by itself to raise an inference of prejudice.

2. Balancing the foregoing factors, we conclude that the fact that Boseman suffered no impairment to his defense, the most important prejudice component of the speedy trial equation, and the fact that Boseman waited 27 months before asserting his right to a speedy trial lead to the conclusion that the trial court properly ruled that Boseman could not prevail on his claim that he was denied his constitutional right to a speedy trial.

Judgment affirmed.

All the Justices concur.
1

Although interlocutory, the order denying Boseman’s motion to dismiss was directly appealable. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985).