Rights under U.S. Const., amend. 6 are not limited to cases involving capital offenses.

- Rights to assistance of counsel, compulsory process for obtaining witnesses and trial by jury are not limited to cases where the accused is charged with a capital offense. Bridwell v. Aderhold, 13 F. Supp. 253 (N.D. Ga. 1935), aff'd sub nom. Johnson v. Zerbst, 92 F.2d 748 (5th Cir. 1937), rev'd on other grounds, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938), overruled on other grounds, Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998).

No federal question raised by dismissed federal employee's Bivens theory claim.

- Where plaintiff, a dismissed federal employee, asserted various fourth, fifth, and Sixth Amendment claims against the plaintiff's superiors under the Bivens theory (see Bivens v. 6 Unknown Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)), the court found no federal question because Congress had established elaborate remedial scheme for dismissed federal employees. Metz v. McKinley, 583 F. Supp. 683 (S.D. Ga.), aff'd, 747 F.2d 709 (11th Cir. 1984).

Rights guaranteed under U.S. Const., amend. 6 and U.S. Const., amend. 5 are personal. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983).

Determination of harm based on United States Supreme Court standards.

- The determination of harm caused by a violation of a federal constitutional right has to be made based on United States Supreme Court standards and not state standards. Alexander v. State, 236 Ga. App. 142, 511 S.E.2d 249 (1999).

Duty of appellate courts to protect constitutional rights.

- U.S. Const., amend. 6 combines with Ga. Const. 1976, Art. I, Sec. I, Para. XI (see Ga. Const. 1983, Art. I, Sec. I, Para. XI) to assure that every person charged with offending the laws of this state shall have a public and speedy trial by an impartial jury and appellate courts must independently review the relevant trial court record in each case to ensure compliance with these constitutional dictates. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Violation of U.S. Const., amend. 6 stands as a jurisdictional bar to a valid conviction and sentence. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, Calley v. Hoffmann, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Remedies should be tailored to the injury suffered from the constitutional violation alleged and should not unnecessarily result in dismissal of the indictment where the criminal proceeding can proceed with full recognition of defendant's right to a fair trial. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981).

Requirements of jury trial generally.

- Trial by jury in a criminal case requires, at the very least, that the evidence developed against a defendant comes from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Right of accused to be present at trial.

- On a trial for a capital offense, it is the right of the accused to be present at all stages of the proceeding, and it is the duty of the court to see that the accused is present when any charge is delivered to the jury. If the defendant is absent without knowledge of a charge or recharge to the jury, and without any consent or waiver with reference thereto, such procedure requires a new trial. The presence of the counsel is no substitute for that of the accused on trial. Rider v. State, 195 Ga. 656, 25 S.E.2d 304 (1943).

The general right of one accused of a felony to be present during the course of the trial does not extend to postverdict procedures such as a motion for new trial, at which only questions of law, not questions of fact, are determined. Dobbs v. State, 245 Ga. 208, 264 S.E.2d 18, cert. denied, 446 U.S. 913, 100 S. Ct. 1845, 64 L. Ed. 2d 267 (1980).

Physical restraints on prisoner during trial.

- When physical restraints are necessary and are observed by the jury in a criminal case, the trial court must instruct the jury that the use of physical restraints on the defendant has no bearing on the defendant's guilt or innocence and should not be considered by them during their deliberations. Allen v. State, 248 Ga. App. 79, 545 S.E.2d 629 (2001).

Determination of waiver generally.

- In the context of U.S. Const., amend. 6 waiver must be determined by applying federal constitutional law. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49 (1981).

Determination of voluntariness of waiver.

- While the Constitution requires that the record indicate the voluntariness of any waiver of the rights of jury trial, confrontation, and against self-incrimination, it does not require that a district judge go beyond these constitutional minima to ask the specific questions that F.R.Cr.P. 11(c)(3) imposes as a prophylactic procedure. United States v. Caston, 615 F.2d 1111 (5th Cir.), cert. denied, 449 U.S. 831, 101 S. Ct. 99, 66 L. Ed. 2d 36 (1980).

Intoxication affecting voluntariness of waiver of Miranda rights.

- Defendant's claim that defendant's waiver of Miranda rights was involuntary because defendant was intoxicated was rejected; an officer testified that defendant did not appear to be intoxicated, that defendant seemed to understand the officer's questions, and that defendant's answers were responsive to the officer's questions, and the trial court was entitled to believe this testimony. Smith v. State, 269 Ga. App. 17, 602 S.E.2d 921 (2004).

Mental disability affecting voluntariness of waiver of Miranda rights.

- Defendant's claim that defendant's waiver of defendant's Miranda rights was involuntary because defendant had a mental disability and had only an eighth grade education was rejected, as an officer testified that defendant said defendant understood defendant's rights, that defendant seemed to understand the officer's questions, and that defendant answered the questions appropriately. Smith v. State, 269 Ga. App. 17, 602 S.E.2d 921 (2004).

Court required to make findings on Mandarin Chinese speaker's competency to stand trial without interpreter.

- Trial court erred in denying a defendant's motion for new trial based on the defendant's contention that the defendant did not understand the proceedings because an interpreter was not provided to the defendant without making findings; there was sufficient evidence to raise a question as to whether the defendant, whose native language was Mandarin Chinese, was competent to be tried without an interpreter, and the trial court was required to make findings as to the defendant's competency on the record. Ling v. State, 288 Ga. 299, 702 S.E.2d 881 (2010).

Factors bearing on waiver of constitutional rights.

- Mental deficiency, age, and lack of familiarity with the criminal process are important factors to be considered in determining whether there has been a waiver of constitutional rights. Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972).

Limits on investigative powers of Congress.

- While the power of Congress to investigate for legislative purposes is inherent, it is not unlimited, and is always subject to the limitations imposed by the individual guarantees of the Bill of Rights. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Judge is not a mere moderator, and the judge has an obligation and duty to question witnesses and comment on the evidence when necessary. United States v. Bartlett, 633 F.2d 1184 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91 (1981).

A trial judge may elicit facts not yet adduced or clarify those previously presented and the judge may maintain the pace of the trial by interrupting and curtailing counsel's examinations as a matter of discretion. United States v. Bartlett, 633 F.2d 1184 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91 (1981).

Only when a judge's conduct strays from neutrality is a defendant thereby denied a fair trial as required by the Constitution. United States v. Bartlett, 633 F.2d 1184 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91 (1981).

Duty of judge and prosecutor to provide fair trial.

- Trial judges and prosecutors have the responsibility to see that the defendant receives a fair trial. Dean v. State, 247 Ga. 724, 279 S.E.2d 217 (1981).

A judge's comments must be studied in the context of the entire proceeding and only if, taken as a whole, those comments are so prejudicial as to amount to a denial of a fair trial will the Constitution require a new trial. Allen v. Montgomery, 728 F.2d 1409 (11th Cir. 1984).

Substitution of judges.

- Holding that midtrial substitution of judges is an error subject to harmless error analysis and not a structural defect is not contrary to clearly established federal law as determined by the U.S. Supreme Court. McIntyre v. Williams, 216 F.3d 1254 (11th Cir. 2000).

Miranda warnings need not be given in advance of general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process in order for answers to those questions to be admissible as evidence. Brown v. State, 140 Ga. App. 160, 230 S.E.2d 128 (1976), cert. denied, 434 U.S. 819, 98 S. Ct. 58, 54 L. Ed. 2d 75 (1977).

Card from which rights read.

- There is no requirement that the state introduce the card from which Miranda rights are read by the officers to the defendant. James v. State, 230 Ga. 29, 195 S.E.2d 448 (1973).

Waiver of Miranda rights.

- Where there was evidence which could have authorized the exclusion of defendant's statement based on lack of a knowing and understanding waiver of defendant's Miranda rights, and where the trial court failed to make specific findings on issue, a remand was necessary for the entry of findings on this issue. Livingston v. State, 267 Ga. App. 875, 600 S.E.2d 817 (2004).

Obtaining sample of defendant's handwriting.

- Use of personal history forms which defendant is instructed to complete following arrest as handwriting exemplars violates none of the defendant's rights under U.S. Const., amend. 6 or U.S. Const., amend. 5. United States v. Walker, 453 F.2d 1205 (5th Cir.), cert. denied, 407 U.S. 910, 92 S. Ct. 2432, 32 L. Ed. 2d 683 (1972).

While defense needs for independent analysis of drugs used as evidence and expert testimony about the accuracy of tests made on such drugs may be a constitutionally protected right in other jurisdictions, there is no authority in this state or under the federal Constitution for such a rule. Butler v. State, 134 Ga. App. 131, 213 S.E.2d 490 (1975).

Habeas corpus case is not a criminal prosecution and, thus, does not fit under U.S. Const., amend. 6. Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787 (1969).

Military jurisdiction narrowly limited.

- Although trial by a military tribunal deprives one of trial by jury and other constitutional rights, it is not unconstitutional. However, military jurisdiction is restricted to the narrowest limits consistent with the power granted Congress in U.S. Const., Art. I, Sec. 8, Cl. 14. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).

Burden of showing constitutional error harmless upon state.

- Regarding constitutional errors, the burden of showing that the error was harmless beyond a reasonable doubt is upon the state. Henderson v. State, 251 Ga. 398, 306 S.E.2d 645 (1983).

Defense counsel cannot invoke defendant's rights without consulting defendant.

- Defense counsel, acting on counsel's own and without having consulted the defendant, is not empowered to invoke the defendant's personal rights under the fifth and Sixth Amendments. Edwards v. State, 167 Ga. App. 681, 307 S.E.2d 264 (1983).

Requirement that a warrant be issued by an impartial magistrate was not violated when a search warrant, otherwise proper, was issued by a magistrate who was of feeble mind and memory. Daitch v. State, 168 Ga. App. 830, 310 S.E.2d 703 (1983).

U.S. Const., amend. 6 does not require preliminary showing of relevance or need before enforcement of grand jury subpoena to testify. In re Grand Jury Investigation, 769 F.2d 1485 (11th Cir. 1985).

Right of accused to be present at trial.

- Because the defendant's own conduct made the progress of the trial practically impossible in the defendant's continued presence, it was not an abuse of the court's discretion to remove the defendant from the courtroom. Simmons v. State, 161 Ga. App. 527, 288 S.E.2d 868 (1982).

Because the basis of the right to be present at trial is the constitutional mandate to provide an opportunity to defend oneself, due process requires that the defendant be personally present to the extent that a fair and just hearing would be thwarted by the defendant's absence, and to that extent only. Finney v. Zant, 709 F.2d 643 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

A criminal defendant's constitutional right to be present at trial does not include a concomitant right of absence. Tilley v. State, 201 Ga. App. 360, 411 S.E.2d 100 (1991).

Where the defendant voluntarily is absent from trial, the trial court may direct that a plea of not guilty be entered and proceed with the trial. Croy v. State, 168 Ga. App. 241, 308 S.E.2d 568 (1983).

Defendant's absence from courtroom during discussions about juror.

- Defendant's constitutional rights were not violated when the defendant was allegedly absent from the courtroom when the attorneys were having a discussion with the trial judge about the possibility of replacing a juror because the trial court conducted the trial properly by making sure the defendant was present when necessary; the record did not mention the exact moment the defendant entered the courtroom between the time the trial court ordered the defendant to be brought into the courtroom and the time the recess was concluded, but the absence of that information did not prove that the defendant was not in the court room at the time discussions were had about the missing juror. Milinavicius v. State, 290 Ga. 374, 721 S.E.2d 843 (2012).

Trial court is empowered to order a criminal defendant's personal appearance when it is necessary to properly conduct the trial. This is especially true where identification of the defendant by a witness is contemplated by the prosecution. Tilley v. State, 201 Ga. App. 360, 411 S.E.2d 100 (1991).

Alibi defense notice.

- Defendant, whose evidence was the sole evidence in support of an alibi defense, was required to file an intention to offer said defense under O.C.G.A. § 17-16-5(a), even when the state was aware that the defendant claimed to be elsewhere on the day of the crime, and such did not affect the defendant's right to testify under the Sixth Amendment; moreover, any prejudice to the state was irrelevant, because the statute provided no exception for such prior knowledge, and because common sense dictated that the mere claim to be elsewhere when confronted by authorities was a far cry from intending to present the legal defense of alibi. State v. Charbonneau, 281 Ga. 46, 635 S.E.2d 759 (2006).

Preference for resolving cases on nonconstitutional grounds.

- Courts should not decide a case on constitutional grounds when it can be resolved on statutory and general law grounds. United States v. Northside Realty Assocs., 510 F. Supp. 668 (N.D. Ga.), rev'd on other grounds, United States v. Bearden, 659 F.2d 590 (5th Cir. 1981), cert. denied, 456 U.S. 936, 102 S. Ct. 1993, 72 L. Ed. 2d 456 (1982).

Form of waiver of trial unimportant.

- Defendant's consent to waive the right to trial need not be in a particular, ritualistic form, since form is unimportant. Griggs v. State, 159 Ga. App. 219, 283 S.E.2d 77 (1981).

Failure to voice objection.

- The refusal to grant a mistrial, on the grounds that the state's cross-examination of a witness was improper, is not an abuse of discretion where the defendant failed to voice an objection during the questioning. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984).

An arrest scene identification was justified where the police were in "hot pursuit" of suspects and needed to quickly ascertain if the persons apprehended were the actual perpetrators. McGhee v. State, 253 Ga. 278, 319 S.E.2d 836 (1984).

Requiring defendant to testify as to sound of the defendant's name.

- Defendant's fifth and Sixth Amendment rights were not violated by requiring the defendant to testify about the sound of the defendant's name. Werts v. State, 196 Ga. App. 452, 395 S.E.2d 922 (1990).

Refusal to allow evidence of defendant's mental faculties.

- Where a defendant had suffered organic brain damage as a result of an auto accident, the defendant was not deprived of the defendant's Sixth Amendment right to defend oneself and develop substantive evidence at trial by the court's refusal to allow the defense to present evidence pertaining to the defendant's mental faculties, relevant to the issue of intent and the defenses of entrapment and coercion, and by a charge to the jury on guilty but mentally ill. Holder v. State, 194 Ga. App. 790, 391 S.E.2d 808 (1990).

Conspiracy indictment.

- In a prosecution for conspiracy to possess with intent to distribute cocaine, defendant's Sixth Amendment right was not violated by holding the defendant accountable for the overall measure of drugs, not simply the quantity submitted into evidence. United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).

Indictments generally.

- There is no right to a speedy indictment. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36 (2007), overruled on other grounds, Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).

Statements made after arrest.

- State death row inmate's federal habeas petition was denied because the inmate's right against self-incrimination was not abridged during custodial interrogation by police; under the federal constitutional standards applicable at the time of trial, the state courts properly found that the inmate had reinitiated the inmate's in-custody conversation with police after equivocally requesting an attorney. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd 546 F.3d 1326 (11th Cir. Ga. 2008).

Waiver of right to be present at trial.

- Defendant waived the constitutional right to be present during portion of voir dire and on the second day of the trial where the defendant was free on bail and failed to make sufficient arrangements to attend. Winfield v. State, 210 Ga. App. 849, 437 S.E.2d 849 (1993).

Prosecutor's conduct.

- Defendant was not denied defendant's Sixth Amendment right to a fair trial because of prosecutorial misconduct where an investigator testified that the investigator found a shotgun in defendant's apartment, the prosecutor produced the shotgun and asked the deputy to secure it; defense counsel requested no further relief and never raised the issue of prosecutorial misconduct in the trial court. Fairclough v. State, 276 Ga. 602, 581 S.E.2d 3 (2003).

Improper restrictive pretrial publicity order.

- Ga. St. Bar R. 4-102(d):3.6 required a finding that extrajudicial statements to media members would have had a substantial likelihood of materially prejudicing the trial; where, in restricting the extrajudicial statements to the media members by the non-lawyers, the parties, experts, witnesses, and investigators involved in a criminal trial, a trial court failed to find, based on evidence in the record, that the extrajudicial statements would have had a substantial likelihood of materially prejudicing the trial, and to the extent the order contravened Ga. St. Bar R. 4-102(d):3.6, it was overbroad, and was reversed. Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 596 S.E.2d 694 (2004).

Defense counsel was not ineffective in stipulating to negative scientific test results because the test results were not inconsistent with the defendant's defense. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012).

Deportation consequence.

- Judgment finding that the defendant was rendered ineffective assistance of counsel for counsel's alleged failure to advise of deportation consequences for a destruction of property offense was reversed because the defendant's date of admission was not within five years of the date of the commission of the crime in 2002; thus, the defendant failed to prove that the defendant was deportable by virtue of having committed a crime of moral turpitude. State v. Addaquay, 302 Ga. 412, 807 S.E.2d 413 (2017).

Cited in Reynolds v. Brosnan, 170 Ga. 773, 154 S.E. 264 (1930); Waugh v. Aderhold, 52 F.2d 702 (N.D. Ga. 1931); King v. State, 174 Ga. 432, 163 S.E. 168 (1932); Hurt v. Zerbst, 97 F.2d 519 (5th Cir. 1938); Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir. 1938); Saylor v. Sanford, 99 F.2d 605 (5th Cir. 1938); Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940); Morton v. Henderson, 123 F.2d 48 (5th Cir. 1941); Walker v. State, 194 Ga. 727, 22 S.E.2d 462 (1942); Williams v. State, 199 Ga. 504, 34 S.E.2d 854 (1945); Morris v. Peacock, 202 Ga. 524, 43 S.E.2d 531 (1947); Boyett v. State, 205 Ga. 370, 53 S.E.2d 919 (1949); Sweeney v. Hiatt, 89 F. Supp. 416 (N.D. Ga. 1949); Wallace v. Foster, 206 Ga. 561, 57 S.E.2d 920 (1950); McLendon v. Balkcom, 207 Ga. 100, 60 S.E.2d 753 (1950); Harris v. State, 84 Ga. App. 1, 65 S.E.2d 267 (1951); Gordon v. United States, 216 F.2d 495 (5th Cir. 1954); Abbott v. State, 91 Ga. App. 380, 85 S.E.2d 615 (1955); Bibb County v. Hancock, 211 Ga. 429, 86 S.E.2d 511 (1955); Krull v. United States, 240 F.2d 122 (5th Cir. 1957); Rushing v. Wilkinson, 272 F.2d 633 (5th Cir. 1959); Ledford v. State, 215 Ga. 799, 113 S.E.2d 628 (1960); Atlanta Newspapers, Inc. v. State, 101 Ga. App. 105, 113 S.E.2d 148 (1960); Cadle v. State, 101 Ga. App. 175, 113 S.E.2d 180 (1960); Josey v. State, 102 Ga. App. 707, 117 S.E.2d 641 (1960); Backer v. Commissioner, 275 F.2d 141 (5th Cir. 1960); Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961); Ferguson v. State, 219 Ga. 33, 131 S.E.2d 538 (1963); Roberts v. United States, 325 F.2d 290 (5th Cir. 1963); Hunsucker v. Balkcom, 220 Ga. 73, 137 S.E.2d 43 (1964); Brandeis v. Broome, 220 Ga. 190, 137 S.E.2d 628 (1964); Temple v. United States, 330 F.2d 724 (5th Cir. 1964); Shelton v. State, 220 Ga. 610, 140 S.E.2d 839 (1965); Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726 (1965); Gibbs v. Blackwell, 354 F.2d 469 (5th Cir. 1965); Blevins v. State, 113 Ga. App. 413, 148 S.E.2d 192 (1966); Moore v. State, 113 Ga. App. 738, 149 S.E.2d 492 (1966); Woods v. State, 222 Ga. 321, 149 S.E.2d 674 (1966); Givens v. Dutton, 222 Ga. 756, 152 S.E.2d 358 (1966); Sullivan v. State, 222 Ga. 691, 152 S.E.2d 382 (1966); Moore v. State, 222 Ga. 748, 152 S.E.2d 570 (1966); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966); White v. McHan, 223 Ga. 136, 153 S.E.2d 705 (1967); Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967); Berta v. State, 223 Ga. 267, 154 S.E.2d 594 (1967); Gunter v. State, 223 Ga. 290, 154 S.E.2d 608 (1967); Arkwright v. State, 223 Ga. 768, 158 S.E.2d 370 (1967); Hurst v. United States, 370 F.2d 161 (5th Cir. 1967); Franklin v. United States, 384 F.2d 377 (5th Cir. 1967); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1 (1968); Mayes v. State Bd. of Cors., 224 Ga. 454, 162 S.E.2d 344 (1968); Miller v. State, 224 Ga. 627, 163 S.E.2d 730 (1968); Holmes v. State, 224 Ga. 553, 163 S.E.2d 803 (1968); Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968); Wilson v. United States, 398 F.2d 331 (5th Cir. 1968); Robinson v. State, 225 Ga. 167, 167 S.E.2d 158 (1969); Hakala v. State, 225 Ga. 629, 170 S.E.2d 406 (1969); Cato v. Georgia, 302 F. Supp. 1143 (N.D. Ga. 1969); Sellers v. Smith, 412 F.2d 1002 (5th Cir. 1969); Kemp v. United States, 415 F.2d 1185 (5th Cir. 1969); Washington v. Smith, 417 F.2d 301 (5th Cir. 1969); Robinson v. State, 226 Ga. 461, 175 S.E.2d 505 (1970); Little v. State, 121 Ga. App. 792, 175 S.E.2d 922 (1970); Blackmon v. Smith, 226 Ga. 849, 178 S.E.2d 176 (1970); Campbell v. Smith, 308 F. Supp. 796 (S.D. Ga. 1970); United States v. Adkins, 426 F.2d 298 (5th Cir. 1970); Robinson v. State, 123 Ga. App. 243, 180 S.E.2d 258 (1971); Willis v. Smith, 227 Ga. 589, 182 S.E.2d 94 (1971); Morris v. State, 228 Ga. 39, 184 S.E.2d 82 (1971); United States v. Reese, 331 F. Supp. 1088 (N.D. Ga. 1971); Cooley v. Endictor, 340 F. Supp. 15 (N.D. Ga. 1971); United States v. Sinclair, 438 F.2d 50 (5th Cir. 1971); United States v. Bullock, 441 F.2d 59 (5th Cir. 1971); Wynn v. Smith, 446 F.2d 341 (5th Cir. 1971); Poole v. Stewart, 228 Ga. 548, 186 S.E.2d 864 (1972); Fryer v. Stynchcombe, 228 Ga. 576, 186 S.E.2d 885 (1972); Yeomans v. State, 229 Ga. 488, 192 S.E.2d 362 (1972); Wallace v. Ault, 229 Ga. 717, 194 S.E.2d 88 (1972); Starr v. State, 229 Ga. 181, 190 S.E.2d 58 (1972); United States v. Doolittle, 341 F. Supp. 163 (M.D. Ga. 1972); United States v. Jones, 352 F. Supp. 369 (S.D. Ga. 1972); Pollard v. State, 128 Ga. App. 470, 197 S.E.2d 158 (1973); McKenzie v. State, 231 Ga. 513, 202 S.E.2d 417 (1973); Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); United States v. Clark, 480 F.2d 1249 (5th Cir. 1973); Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974); Marshall v. State, 130 Ga. App. 572, 203 S.E.2d 885 (1974); Payne v. State, 231 Ga. 755, 204 S.E.2d 128 (1974); Freeman v. State, 130 Ga. App. 718, 204 S.E.2d 445 (1974); Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974); Spaulding v. State, 232 Ga. 411, 207 S.E.2d 43 (1974); Haralson County Economic Dev. Corp. v. Hammock, 233 Ga. 381, 211 S.E.2d 278 (1974); Hall v. United States, 489 F.2d 427 (5th Cir. 1974); United States v. Strickland, 493 F.2d 182 (5th Cir. 1974); Treadwell v. State, 233 Ga. 468, 211 S.E.2d 760 (1975); Copeland v. State, 133 Ga. App. 713, 213 S.E.2d 17 (1975); Gilstrap v. Wilder, 233 Ga. 968, 213 S.E.2d 895 (1975); Carney v. State, 134 Ga. App. 816, 216 S.E.2d 617 (1975); State v. King, 137 Ga. App. 26, 222 S.E.2d 859 (1975); Long v. Powell, 388 F. Supp. 422 (N.D. Ga. 1975); Clark v. Hendrix, 397 F. Supp. 966 (N.D. Ga. 1975); Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975); United States v. Pollard, 509 F.2d 601 (5th Cir. 1975); United States v. Crockett, 514 F.2d 64 (5th Cir. 1975); Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 518 F.2d 990 (5th Cir. 1975); Casey v. United States, 522 F.2d 206 (5th Cir. 1975); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976); Johnston v. State, 236 Ga. 370, 223 S.E.2d 808 (1976); Wallis v. State, 137 Ga. App. 457, 224 S.E.2d 91 (1976); Porterfield v. State, 137 Ga. App. 449, 224 S.E.2d 94 (1976); Dodd v. State, 236 Ga. 572, 224 S.E.2d 408 (1976); Hightower v. State, 137 Ga. App. 790, 224 S.E.2d 842 (1976); Reid v. State, 237 Ga. 106, 227 S.E.2d 24 (1976); Ballew v. State, 138 Ga. App. 530, 227 S.E.2d 65 (1976); Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976); Garrett v. Department of Pub. Safety, 237 Ga. 413, 228 S.E.2d 812 (1976); State v. Cox, 140 Ga. App. 30, 230 S.E.2d 87 (1976); Brown v. State, 238 Ga. 98, 231 S.E.2d 65 (1976); Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464 (1977); Bell v. State, 239 Ga. 146, 236 S.E.2d 47 (1977); Fouts v. State, 240 Ga. 39, 239 S.E.2d 366 (1977); Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977); Bailey v. State, 240 Ga. 112, 239 S.E.2d 521 (1977); Brown v. State, 240 Ga. 274, 240 S.E.2d 63 (1977); Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977); Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977); United States v. Wyers, 546 F.2d 599 (5th Cir. 1977); Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977); United States v. Hegwood, 562 F.2d 946 (5th Cir. 1977); United States v. Morgan, 562 F.2d 1001 (5th Cir. 1977); Ervin v. State, 144 Ga. App. 504, 241 S.E.2d 650 (1978); Simpson v. State, 144 Ga. App. 657, 242 S.E.2d 265 (1978); Hannah v. State, 144 Ga. App. 677, 242 S.E.2d 334 (1978); Aguilar v. State, 240 Ga. 830, 242 S.E.2d 620 (1978); Tyson v. State, 145 Ga. App. 21, 243 S.E.2d 314 (1978); Kelly v. State, 241 Ga. 190, 243 S.E.2d 857 (1978); Thornton v. State, 145 Ga. App. 793, 245 S.E.2d 22 (1978); Raymond v. State, 146 Ga. App. 452, 246 S.E.2d 461 (1978); Amoson v. State, 146 Ga. App. 510, 246 S.E.2d 502 (1978); Davis v. State, 241 Ga. 376, 247 S.E.2d 45 (1978); Tanner v. State, 242 Ga. 437, 249 S.E.2d 238 (1978); Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978); Elkins v. State, 147 Ga. App. 837, 250 S.E.2d 535 (1978)

United States v. Davis, 571 F.2d 1354 (5th Cir. 1978); United States v. Swanson, 572 F.2d 523 (5th Cir. 1978); Gibson v. Jackson, 578 F.2d 1045 (5th Cir. 1978); Anderson v. State, 148 Ga. App. 683, 252 S.E.2d 187 (1979); Andrews v. State, 148 Ga. App. 709, 252 S.E.2d 210 (1979); Spain v. State, 243 Ga. 15, 252 S.E.2d 436 (1979); Corn v. Hopper, 244 Ga. 28, 257 S.E.2d 533 (1979); United States v. Thevis, 474 F. Supp. 117 (N.D. Ga. 1979); United States v. Brown, 587 F.2d 187 (5th Cir. 1979); United States v. Weiss, 599 F.2d 730 (5th Cir. 1979); Odom v. State, 156 Ga. App. 119, 274 S.E.2d 117 (1980); Smith v. State, 156 Ga. App. 563, 275 S.E.2d 140 (1980); United States v. Luttrell, 609 F.2d 1190 (5th Cir. 1980); Gantt v. First Ala. Bank, 7 Bankr. 13 (Bankr. N.D. Ga. 1980); ITT Indus. Credit Corp. v. Scarboro, 7 Bankr. 609 (Bankr. M.D. Ga. 1980); Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981); Walker v. State, 247 Ga. 484, 277 S.E.2d 242 (1981); Covington v. State, 157 Ga. App. 371, 277 S.E.2d 744 (1981); Hamrick v. State, 158 Ga. App. 444, 280 S.E.2d 868 (1981); Harkness v. State, 158 Ga. App. 515, 281 S.E.2d 281 (1981); McMeans v. State, 160 Ga. App. 286, 287 S.E.2d 280 (1981); Foster v. State, 160 Ga. App. 326, 287 S.E.2d 323 (1981); United States v. Bartlett, 633 F.2d 1184 (5th Cir. 1981); Shaw v. Stone, 506 F. Supp. 571 (M.D. Ga. 1981); Smith v. State, 161 Ga. App. 512, 288 S.E.2d 754 (1982); Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982); Brown v. State, 164 Ga. App. 505, 296 S.E.2d 215 (1982); Jones v. Kemp, 678 F.2d 929 (11th Cir. 1982); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982); State v. King, 165 Ga. App. 81, 298 S.E.2d 586 (1982); Strickland v. State, 250 Ga. 624, 300 S.E.2d 156 (1983); High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983); Glass v. State, 250 Ga. 736, 300 S.E.2d 812 (1983); Newberry v. State, 250 Ga. 819, 301 S.E.2d 282 (1983); Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983); Williams v. State, 251 Ga. 749, 312 S.E.2d 40 (1983); Hagen v. State, 169 Ga. App. 259, 312 S.E.2d 357 (1983); Shaw v. Boney, 695 F.2d 528 (11th Cir. 1983); Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983); Sellers v. United States, 709 F.2d 1469 (11th Cir. 1983); In re Bizzard, 559 F. Supp. 507 (S.D. Ga. 1983); Dodd v. Williams, 560 F. Supp. 372 (N.D. Ga. 1983); Villafranco v. State, 252 Ga. 188, 313 S.E.2d 469 (1984); Birt v. Montgomery, 725 F.2d 587 (11th Cir. 1984); Code v. Montgomery, 725 F.2d 1316 (11th Cir. 1984); Collins v. Francis, 728 F.2d 1322 (11th Cir. 1984); United States v. DiJames, 731 F.2d 758 (11th Cir. 1984); United States v. Burke, 738 F.2d 1225 (11th Cir. 1984); United States v. Perry, 740 F.2d 854 (11th Cir. 1984); United States v. Lewis, 743 F.2d 859 (11th Cir. 1984); Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984); Greene v. United States, 589 F. Supp. 834 (N.D. Ga. 1984); Hall v. State, 255 Ga. 267, 336 S.E.2d 812 (1985); United States v. Suggs, 755 F.2d 1538 (11th Cir. 1985); Bowen v. Kemp, 769 F.2d 672 (11th Cir. 1985); Stevenson v. Newsome, 774 F.2d 1558 (11th Cir. 1985); Tucker v. Kemp, 776 F.2d 1487 (11th Cir. 1985); Moore v. State, 176 Ga. App. 882, 339 S.E.2d 271 (1985); Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986); Johnson v. State, 255 Ga. 552, 341 S.E.2d 220 (1986); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Short v. State, 256 Ga. 172, 345 S.E.2d 344 (1986); Wright v. State, 179 Ga. App. 325, 346 S.E.2d 361 (1986); Hood v. State, 179 Ga. App. 387, 346 S.E.2d 867 (1986); Tutton v. State, 179 Ga. App. 462, 346 S.E.2d 898 (1986); Oldham v. State, 179 Ga. App. 730, 347 S.E.2d 698 (1986); LeGallienne v. State, 180 Ga. App. 108, 348 S.E.2d 471 (1986); Parker v. Mooneyham, 256 Ga. 334, 349 S.E.2d 182 (1986); Graves v. State, 180 Ga. App. 446, 349 S.E.2d 519 (1986); Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986); Collins v. Kemp, 792 F.2d 987 (11th Cir. 1986); United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986); Edwards v. United States, 795 F.2d 958 (11th Cir. 1986); Fleming v. Kemp, 637 F. Supp. 1547 (M.D. Ga. 1986); Anglin v. Green, 639 F. Supp. 490 (S.D. Ga. 1986); Wilson v. State, 181 Ga. App. 435, 352 S.E.2d 618 (1987); Henderson v. State, 182 Ga. App. 513, 356 S.E.2d 241 (1987); Tucker v. Kemp, 818 F.2d 749 (11th Cir. 1987); Mitchell v. Kemp, 827 F.2d 1433 (11th Cir. 1987); Brand v. State, 258 Ga. 378, 369 S.E.2d 896 (1988); Seymore v. Alabama, 846 F.2d 1355 (11th Cir. 1988); United States v. Elliott, 849 F.2d 554 (11th Cir. 1988); Hanson v. State, 258 Ga. 564, 372 S.E.2d 436 (1988); Williams v. State, 188 Ga. App. 332, 373 S.E.2d 40 (1988); Burroughs v. State, 190 Ga. App. 467, 379 S.E.2d 175 (1989); Holmes v. United States, 876 F.2d 1545 (11th Cir. 1989); United States v. Henry, 883 F.2d 1010 (11th Cir. 1989); Frost v. State, 200 Ga. App. 267, 407 S.E.2d 765 (1991); Stevens v. Zant, 968 F.2d 1076 (11th Cir. 1992); Ledbetter v. State, 262 Ga. 370, 418 S.E.2d 57 (1992); McBride v. Gaither, 203 Ga. App. 885, 418 S.E.2d 67 (1992); Walton v. State, 203 Ga. App. 888, 418 S.E.2d 148 (1992); Greenwood v. State, 203 Ga. App. 901, 418 S.E.2d 160 (1992); United States v. Martin, 824 F. Supp. 208 (M.D. Ga. 1993); Griggs v. State, 262 Ga. 766, 425 S.E.2d 644 (1993); Hayes v. State, 262 Ga. 881, 426 S.E.2d 886 (1993); Thurman v. State, 207 Ga. App. 96, 427 S.E.2d 69 (1993); Parrott v. State, 206 Ga. App. 829, 427 S.E.2d 276 (1993); Williams v. State, 207 Ga. App. 418, 427 S.E.2d 787 (1993); Allen v. State, 263 Ga. 60, 428 S.E.2d 73 (1993); Pittman v. State, 208 Ga. App. 211, 430 S.E.2d 141 (1993); Lajara v. State, 263 Ga. 438, 435 S.E.2d 600 (1993); Gentry v. State, 235 Ga. App. 328, 508 S.E.2d 671 (1998); Copeland v. State, 248 Ga. App. 346, 546 S.E.2d 351 (2001); Farrier v. State, 273 Ga. 302, 540 S.E.2d 596 (2001); Hung v. State, 282 Ga. 684, 653 S.E.2d 48 (2007); Stinski v. State, 286 Ga. 839, 691 S.E.2d 854 (2010); Lewis v. State, 291 Ga. 273, 731 S.E.2d 51 (2012).

Speedy trial standards are the same under federal and state constitutions.

- The same standards for deciding claims of denial of a speedy trial are used whether the claim is based on U.S. Const., amend. 6 or Ga. Const. 1976, Art. I, Sec. I, Para. XI (see Ga. Const. 1983, Art I, Sec. I, Para. XI). Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977).

All defendants are entitled to the fundamental right to a speedy trial. United States v. Dyson, 469 F.2d 735 (5th Cir. 1972).

Speedy trial is a fundamental constitutional right, not a privilege. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423 (1966); Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

Right to speedy trial is a fundamental right that applies to the states through U.S. Const., amend. 14. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976).

Essential ingredient of the right to speedy trial is orderly expedition and not mere speed. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

Right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423 (1966).

Right to a speedy trial secures rights to a defendant, but does not preclude the rights of public justice. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

It is a unique right endemic to both the government and the accused. United States v. Dyson, 469 F.2d 735 (5th Cir. 1972).

Unlike other constitutional rights, both society and the defendant have a potential interest in either having a speedy trial or delaying any trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Accused's interests in speedy trial.

- The interests of an accused protected by the right to speedy trial are: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423 (1966); Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967); Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974); State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980).

Defendant's speedy trial interests do not per se outweigh those of society.

- Under the analysis made by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), it cannot be said that the ultimate responsibility of the state to provide a speedy trial is such that the state's unexcused failure to provide it creates a presumption of deprivation of the right or a burden on the state to prove otherwise. To the contrary, the plain tenor of Barker seems to be that society's interest in bringing the criminal defendant to trial is not per se out-weighed by the individual's right to speedy trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Dead-docketing a case.

- Placing a case upon the dead docket constitutes neither a dismissal nor a termination of the prosecution in the accused's favor. Consequently, the fact that a case is placed on the dead docket does not affect the constitutional right to a speedy trial. Hayes v. State, 298 Ga. App. 338, 680 S.E.2d 182 (2009).

Factors to be considered in speedy trial determinations.

- In determining whether the right to speedy trial has been violated, a court is required to consider four factors: length of the delay, the reasons for the delay, the accused's assertion of the accused's right, and prejudice to the accused. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969); Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101 (1971); Hughes v. State, 228 Ga. 593, 187 S.E.2d 135 (1972); Mays v. State, 229 Ga. 609, 193 S.E.2d 825 (1972); United States v. Dyson, 469 F.2d 735 (5th Cir. 1972); Hall v. State, 131 Ga. App. 786, 206 S.E.2d 644 (1974); Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974); Boyd v. State, 133 Ga. App. 395, 211 S.E.2d 22 (1974); United States v. Smith, 65 F.R.D. 464 (N.D. Ga. 1974); State v. King, 137 Ga. App. 26, 222 S.E.2d 859 (1975); Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976); State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976); United States v. Duke, 527 F.2d 386 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190 (1976); United States v. Campbell, 531 F.2d 1333 (5th Cir. 1976), cert. denied, 434 U.S. 851, 98 S. Ct. 164, 54 L. Ed. 2d 121 (1977); United States v. Palmer, 537 F.2d 1287 (5th Cir. 1976), cert. denied, 434 U.S. 1018, 98 S. Ct. 738, 54 L. Ed. 2d 764 (1978); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560 (1977); Arnold v. State, 239 Ga. 752, 238 S.E.2d 876 (1977); Cravey v. State, 147 Ga. App. 29, 248 S.E.2d 13 (1978); Natson v. State, 242 Ga. 618, 250 S.E.2d 420 (1978), cert. denied, 441 U.S. 925, 99 S. Ct. 2036, 60 L. Ed. 2d 399 (1979); United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427 (1978); Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979); Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808 (1980); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980); State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980); United States v. Hill, 622 F.2d 900 (5th Cir. 1980); Nelson v. State, 247 Ga. 172, 274 S.E.2d 317, cert. denied, 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981); Glidewell v. Burden, 822 F.2d 1027 (11th Cir. 1987), cert. denied, 484 U.S. 1018, 108 S. Ct. 727, 98 L. Ed. 2d 676 (1988); United States v. Burke, 673 F. Supp. 1574 (N.D. Ga. 1986), aff'd, 856 F.2d 1492 (11th Cir. 1988), cert. denied, 492 U.S. 908, 109 S. Ct. 3222, 106 L. Ed. 2d 571 (1989); McClanahan v. State, 196 Ga. App. 737, 397 S.E.2d 24 (1990), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003); Redd v. State, 261 Ga. 300, 404 S.E.2d 264 (1991), cert. denied, 505 U.S. 1218, 112 S. Ct. 3025, 120 L. Ed. 2d 897 (1992); Hall v. State, 201 Ga. App. 133, 410 S.E.2d 448 (1991); United States v. Hayes, 40 F.3d 362 (11th Cir. 1994), cert. denied, 516 U.S. 812, 116 S. Ct. 62, 133 L. Ed. 2d 24 (1995).

The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. Ayers v. State, 181 Ga. App. 244, 351 S.E.2d 692 (1986); McClanahan v. State, 196 Ga. App. 737, 397 S.E.2d 24 (1990), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Dismissal of an indictment on speedy trial grounds was in error, and remand was appropriate because the trial court erred in the court's key factual findings regarding the defendant's anxiety and concern and actual impairment to the defense and, additionally, the trial court attributed only eight months of delay to the State of Georgia, without addressing the reasons for the nearly eight additional years of delay, including a year of delay caused, apparently deliberately, when the defendant became a fugitive. Moreover, the trial court did not properly balance the factors so that the intermediate appellate court could not properly affirm the judgment. State v. Porter, 288 Ga. 524, 705 S.E.2d 636 (2011).

Order denying the defendant's speedy trial claim noted that the 14-month delay was presumptively prejudicial, but failed to address any of the other Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) factors; further, there was no evidence that a hearing was held. Therefore, remand was required for the trial court's entry of findings of fact and conclusions. McDougler v. State, 323 Ga. App. 828, 748 S.E.2d 475 (2013).

It is necessary for the trial court to consider and weigh each of these factors in determining the speedy trial issue. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976).

Defendant's conduct must be balanced against prosecution's.

- Whether a defendant has been denied the right to a speedy trial is determined by a balancing test, weighing the conduct of the prosecution with that of the defendant. Boyd v. State, 133 Ga. App. 395, 211 S.E.2d 22 (1974); United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427 (1978).

Court did not err in denying motion to dismiss on speedy trial grounds because, although the initial delay was attributable to the state, after the indictment was filed the state moved with reasonable promptness, and defendant filed a defense motion only weeks before the trial date. Chappell v. State, 272 Ga. App. 1, 611 S.E.2d 157 (2005).

Balancing test is a delicate, sensitive process, and each case must rely upon its own circumstances. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Premature demand for speedy trial.

- Although defendant filed a speedy trial demand prematurely, defendant nonetheless placed all parties on notice that a speedy trial was wanted and, in considering defendant's motion for discharge and acquittal on constitutional grounds, the trial court weighed this factor in defendant's favor. State v. Bazemore, 249 Ga. App. 584, 549 S.E.2d 426 (2001).

Given defendant's premature speedy trial demand, made after defendant's arrest, but before the grand jury indictment was filed, the trial court properly denied defendant's motion for discharge and acquittal. Roberts v. State, 263 Ga. App. 472, 588 S.E.2d 242 (2003).

Relevant time period for measuring delay.

- The relevant period of time in determining the right to a speedy trial is that between the indictment, or institution of prosecution, and the trial. United States v. Durham, 413 F.2d 1003 (5th Cir.), cert. denied, 396 U.S. 839, 90 S. Ct. 100, 24 L. Ed. 2d 89 (1969).

Unless the defendant has been held in custody by the state, the relevant period of time in measuring the length of delay as a denial of the right to a speedy trial is that between the indictment or institution of prosecution by information, etc., and the trial, not the preindictment delay. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974).

Delay in trying a case is to be determined from the date of arrest or of indictment, whichever comes first. Cravey v. State, 147 Ga. App. 29, 248 S.E.2d 13 (1978).

Delay measured from time of arrest.

- For purposes of speedy trial the Supreme Court begins to count from the date of arrest, if that precedes indictment. The time from arrest to indictment is added to time from indictment to trial. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976).

As a defendant's motion for discharge and acquittal complained of a 15-month delay that occurred after the date that the defendant was arrested, a speedy trial analysis had to be conducted based on standards pursuant to U.S. Const., amend. VI. State v. Thaxton, 311 Ga. App. 260, 715 S.E.2d 480 (2011).

Delay measured from date of indictment if no prior arrest.

- Under U.S. Const., amend. 6, the clock begins to tick upon indictment, when no prior arrest on the alleged offense is involved. In particular, the date of the indictment is the crucial date for a prisoner already incarcerated on a prior offense. United States v. Hill, 622 F.2d 900 (5th Cir. 1980).

Effect of state delay on federal prosecution.

- The fifth, sixth, and fourteenth amendments did not bar a federal prosecution because any arguably improper or unconstitutional delay in the prosecution was occasioned solely by Georgia authorities; there was no basis here for imputing Georgia's dilatory conduct to the United States or to the federal prosecution. United States v. Boone, 959 F.2d 1550 (11th Cir. 1992).

Right to speedy trial applies to a person who is at large on bail, since, in addition to protecting an accused against prolonged incarceration, the right also serves other purposes which are applicable whether the defendant is on bail or not. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423 (1966).

Right to a speedy trial has no application to delays resulting from a finding of incompetency. Gibbs v. State, 235 Ga. 480, 220 S.E.2d 254 (1975), cert. denied, 424 U.S. 924, 96 S. Ct. 1134, 47 L. Ed. 2d 333 (1976).

Delay in ruling on new trial motion.

- Trial judge's delay in ruling on the new trial motion after conviction of the accused is not a denial of the constitutional right to a speedy trial where the delay does not deprive the accused of the opportunity to serve the sentence concurrently with another sentence imposed in a separate trial. Herring v. Ault, 230 Ga. 398, 197 S.E.2d 354 (1973).

Delay in sentencing may violate speedy trial protections.

- Unreasonable delay in sentencing may constitute a violation of a defendant's right under U.S. Const., amend. 6 to a speedy trial. United States v. Campbell, 531 F.2d 1333 (5th Cir. 1976), cert. denied, 434 U.S. 851, 98 S. Ct. 164, 54 L. Ed. 2d 121 (1977).

Accused entitled to speedy sentence where formal trial waived.

- The accused who wishes to waive a formal trial is entitled also to secure, if the accused desires, a speedy sentence, in which situation the Federal Rules of Criminal Procedure will implement or augment U.S. Const., amend. 6 in providing for a speedy trial to an accused who seeks, by way of a trial, nothing more than the prompt imposition of such sentence as the court deems appropriate to the offense. Barkman v. Sanford, 162 F.2d 592 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393 (1947).

Right to a speedy trial does not apply in probation revocation proceedings, since they are not criminal proceedings. United States v. Jackson, 590 F.2d 121 (5th Cir.), cert. denied, 441 U.S. 912, 99 S. Ct. 2012, 60 L. Ed. 2d 385 (1979).

Right to a speedy trial does not apply to parole revocation.

- The right to a speedy trial is not applicable to parole revocation proceedings. Moultrie v. Georgia, 464 F.2d 551 (5th Cir. 1972).

Delay of parole revocation hearing pending incarceration in another state.

- Although Georgia law requires a parole revocation hearing (see O.C.G.A. § 42-9-5), where a person has committed a crime in another state, has been convicted, and is incarcerated in that state, it is not unconstitutional to delay the parole revocation hearing until expiration of that later sentence. Moultrie v. Georgia, 464 F.2d 551 (5th Cir. 1972).

Speedy trial rights not forfeited by incarceration for another offense.

- Merely because an individual charged with a criminal offense is serving a prison term for another offense does not mean that the individual forfeits the right to a speedy trial for the pending charge. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967); United States v. Duke, 527 F.2d 386 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190 (1976).

Incarceration for a separate offense pending trial does not, ipso facto, show that the delay is unoppressive but it may where no anxiety or prejudice is shown. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976).

Trial court has no power to consider a claim of denial of speedy trial as to warrants issued in other judicial circuits. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808, cert. denied, 446 U.S. 968, 100 S. Ct. 2948, 64 L. Ed. 2d 828 (1980).

Differing terms of court.

- O.C.G.A. §§ 15-6-3(15.1) and17-7-171 did not combine to deprive a criminal defendant of equal protection of the law by permitting the county of the defendant's adjudication to operate with only two terms of court, while other similar-sized counties operate with more terms of court. Although the defendant may have had to wait months longer for the trial than similarly situated defendants in other counties, the presumptive validity of the statutes stood. Henry v. State, 263 Ga. 417, 434 S.E.2d 469 (1993).

Same considerations which require a speedy trial for an unincarcerated person apply to one imprisoned by another sovereign. Lawrence v. Blackwell, 298 F. Supp. 708 (N.D. Ga. 1969).

That a defendant is confined in another jurisdiction, or another state, is not dispositive of a speedy trial issue. Sassoon v. State, 138 Ga. App. 172, 225 S.E.2d 732 (1976).

Claim by incarcerated defendant of denial of speedy trial by another jurisdiction.

- A defendant who is being held by one jurisdiction cannot force the officials of another judicial circuit in which the defendant is wanted to travel to the jurisdiction in which the defendant is incarcerated to test the continuing validity of their charges against the defendant by raising the claim that the defendant is being denied a speedy trial. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808, cert. denied, 446 U.S. 968, 100 S. Ct. 2948, 64 L. Ed. 2d 828 (1980).

Speedy indictment claim waived by entry of guilty plea.

- A speedy indictment claim, like other nonjurisdictional defects in pretrial proceedings, is waived by the entry of a voluntary and intelligent guilty plea. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976).

Guilty plea waives speedy trial defense.

- Having fully and voluntarily entered a plea of guilty, a criminal defendant cannot raise as a defense the right to a speedy and public trial because in the case of a plea of guilty, a guilty plea waives any defense known and unknown. Mason v. Banks, 242 Ga. 292, 248 S.E.2d 664 (1978).

Appeal from denial of motion for speedy trial.

- The refusal by a superior court to grant to a defendant in a criminal case not affecting the defendant's life a written motion for a speedy trial pursuant to the defendant's constitutional right thereto is a judgment appealable to the Court of Appeals under former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34). Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

Defendant may not raise the issue of speedy trial on appeal, unless such issue was first raised at trial. Moore v. State, 141 Ga. App. 245, 233 S.E.2d 236 (1977).

Remedy for violations of right.

- In light of the policies which underlie the right to a speedy trial, dismissal must remain the only possible remedy. Hall v. State, 131 Ga. App. 786, 206 S.E.2d 644 (1974); R.A.S. v. State, 156 Ga. App. 366, 274 S.E.2d 752 (1980), overruled on other grounds, In re R.D.F., 66 Ga. 294, 466 S.E.2d 572 (1996).

Constitutional speedy trial questions involve issues of fact that should be resolved by a court having jurisdiction of the criminal prosecution. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808, cert. denied, 446 U.S. 968, 100 S. Ct. 2948, 64 L. Ed. 2d 828 (1980).

Right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

Each case involving the right to a speedy trial must be analyzed on an ad hoc basis, upon its own particular facts and circumstances. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Delay due to mental health issues.

- Trial court abused its discretion in granting defendant's motion to dismiss as there was no evidence that the state caused any delay and defendant's speedy trial right was not violated where defendant was indicted more than one year after the incident, but was not arrested until a year after the incident, defendant was out on bond, so defendant's indictment four months after defendant's arrest was timely, defendant had legal counsel two months after the indictment, defendant's protestations of innocence were not a basis for finding a speedy trial violation, and the state's acquiescence in defendant's attempt for a mental health placement and the resultant delay did not constitute a speedy trial violation. State v. Byrd, 266 Ga. App. 121, 596 S.E.2d 426 (2004).

The trial court did not abuse its discretion in granting the defendants' motions to dismiss the charges filed against them because the court was authorized to find that, as the result of the state's negligence, both of the defendants were subjected to an extraordinarily long delay in being brought to trial, that they were not dilatory in asserting their right to a speedy trial, and that, as a result of the delay, their ability to defend against the belated murder charge was prejudiced. State v. White, 282 Ga. 859, 655 S.E.2d 575 (2008).

Defendant's right to speedy trial was not violated under the following facts: (1) The length in delay in the case, from the time of arrest, was only six weeks, due to a crime lab analysis of the substance seized, which eventually produced exculpatory evidence; and (2) the defendant did not assert the defendant's rights, and the defendant was clearly not prejudiced, since the net effect of the delay was dismissal of the charges. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

Defendant's right to a speedy trial was not violated by a 21-month delay between the defendant's indictment and trial because: (1) the defendant was convicted on other indictments during this period and was being held under those convictions pending the defendant's appeals; and (2) a period of only eight days elapsed between the defendant's assertion of the defendant's right and the trial. Mincey v. State, 257 Ga. 500, 360 S.E.2d 578 (1987).

A two-year delay between commission of the crime and the beginning of trial is not unconstitutional where some of the delay was due to separate trials of codefendants, the defendant did not assert the defendant's speedy trial right until just before trial, and the only prejudice due to the delay was to the state. Harrison v. State, 257 Ga. 528, 361 S.E.2d 149 (1987), cert. denied, 485 U.S. 982, 108 S. Ct. 1281, 99 L. Ed. 2d 492 (1988).

Notwithstanding the fact that there was a delay of 22 months and that defense counsel attempted to have the defendant brought to the county for purposes of entering a guilty plea, because the defendant and the defendant's competent counsel did not assert a right to a speedy trial, especially in the time period from the defendant's release from incarceration until the case was on the trial calendar, and further because the defendant was not prejudiced by the failure to bring the case to trial, the defendant's motion to acquit was denied. Coggins v. State, 188 Ga. App. 455, 373 S.E.2d 269 (1988).

A delay of nearly one year between remittitur of defendant's case to the trial court and defendant's trial did not violate speedy trial rights. Chambers v. State, 213 Ga. App. 414, 444 S.E.2d 820 (1994).

Even though a five-year delay in defendant's trial was partially attributable to the state, the complex nature of the crime and the defendant's own failure to assert the defendant's rights also contributed significantly to the delay; thus, the delay did not impair the defendant's ability to defend against the charges. Daughenbaugh v. State, 225 Ga. App. 7, 482 S.E.2d 517 (1997).

A one year delay in trial following filing of demand for speedy trial did not violate defendant's rights. Boone v. State, 229 Ga. App. 379, 494 S.E.2d 100 (1997).

A 22-month delay in the defendant's trial did not violate the defendant's rights based on the absence of the state's primary witness for several months, the defendant's refusal to cooperate with counsel, the defendant's request for a continuance, and the defendant's failure to show that the defendant was prejudiced. Jackson v. State, 231 Ga. App. 187, 498 S.E.2d 780 (1998).

Defendant's right to speedy trial was not violated notwithstanding that the defendant was arrested in April 1992 and not tried until September 1996, and the defendant was incarcerated while awaiting trial, because (1) the record revealed that much of the delay was attributable to the defense in that the defendant repeatedly announced that the defendant's experts were not ready for scheduled hearings or trial, and the defendant asked for a delay in the proceedings so that plea negotiations could be conducted; (2) the defendant did not assert the defendant's constitutional right to a speedy trial until May 1996, and the defendant never asserted the defendant's statutory right to a speedy trial; and (3) the defendant did not bring forth evidence that the delay impaired the defendant's defense. Pruitt v. State, 270 Ga. 745, 514 S.E.2d 639 (1999), cert. denied, 528 U.S. 1006, 120 S. Ct. 502, 145 L. Ed. 2d 388 (1999).

Defendant's right to a speedy trial was not violated because defendant did not file a statutory demand for speedy trial under O.C.G.A. § 17-7-170 and the delay was partially attributable to defendant. Manning v. State, 250 Ga. App. 187, 550 S.E.2d 762 (2001).

Trial court did not abuse its discretion in denying defendant's motion for discharge and acquittal based on defendant's claim that the state violated defendant's Sixth Amendment speedy trial right because any prejudice that defendant suffered from the 14 years it took to bring defendant to trial was caused by defendant; indeed, the sole reason for the lengthy delay was that defendant failed to appear for the trial set for a few weeks after defendant's arrest, even though defendant had notice about when that trial was to take place. Smith v. State, 260 Ga. App. 403, 579 S.E.2d 829 (2003).

Defendant's speedy trial right under the Sixth Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) were not violated when the defendant was arrested in 1998, indicted in 1999, and tried in 2004. Part of the delay was caused by the defendant's mistaken release; defense counsel shared responsibility for the delay; the defendant had not asserted the right to a speedy trial until the day before the commencement of the defendant's first trial; there was no oppressive pretrial incarceration because the defendant had been incarcerated for only four or five months; and the death of a witness was not prejudicial because the witness's identification of a person fleeing the crime scene as someone other than the defendant did not preclude the possibility that the defendant was the other person seen running from the scene and because counsel evidently regarded the deceased witness's observations as harmful to the defense. Smith v. State, 284 Ga. 17, 663 S.E.2d 142 (2008).

Four-year delay in bringing a defendant to trial did not violate the defendant's Sixth Amendment right to a speedy trial since: (1) the delay was due in part to both sides' interlocutory appeals; (2) the state did not deliberately delay the trial to hamper the defense; (3) the defendant waited until less than three weeks before trial to assert the speedy trial claims; and (4) the testimony of two witnesses who died before the trial would have been more favorable to the state than to the defendant, and the state agreed to stipulate to the witnesses' testimony. Layman v. State, 284 Ga. 83, 663 S.E.2d 169 (2008).

There was no violation of the defendant's constitutional speedy trial rights under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), as a delay in bringing defendant to trial due to a backlog in the court system was not shown to have caused any prejudice to the defendant, and the defendant failed to timely assert the right to a speedy trial. Thomas v. State, 296 Ga. App. 231, 674 S.E.2d 96 (2009).

Defendant's constitutional speedy trial right was not violated by delays ranging from two to five years. The primary reason for the delay was the defendant's cooperation in another inmate's case, to which the defendant agreed; the defendant waited several years to assert the speedy trial right; and there was no prejudice to the defendant, who was already serving a lengthy federal prison sentence. Marshall v. State, 286 Ga. 446, 689 S.E.2d 283 (2010).

Three and a half year delay in bringing a capital case to trial was not caused solely by the state. Although funding ran out to pay the defendant's preferred attorneys, there were experienced public defenders available; the defendant's refusal to cooperate with the public defenders impeded the case, as did the defendant's preferred counsel's attempts to be reassigned to the case when they knew there was no money to pay them. Weis v. State, 287 Ga. 46, 694 S.E.2d 350, cert. denied, 131 S. Ct. 100, 178 L. Ed. 2d 63 (2010).

Although there was a presumption of prejudice due to the four-year delay with respect to a defendant's speedy trial rights under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), there was no violation thereof upon analysis of the four factors; the reason for the delay was due to the defendant's counsel, the defendant did not file a timely demand for a speedy trial, and the defendant did not show prejudice. Brewington v. State, 288 Ga. 520, 705 S.E.2d 660 (2011).

As two defendants' speedy trial time from the date of the defendants' mistrial through to the date the defendants' second dismissal motion was denied was only a little over three months, there was no presumption of prejudice and the defendants' speedy trial rights were not violated under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. 1, Para. XI(a). Brewington v. State, 288 Ga. 520, 705 S.E.2d 660 (2011).

There was no abuse of the superior court's discretion in denying the defendant's motion to dismiss based on alleged violations of the defendant's constitutional rights to a speedy trial because the superior court expressly found that there was no evidence that the delay was the result of any intentional or deliberate action by the state to hamper the defense and that once the case appeared on a trial calendar, the defendant lengthened the delay by seeking and obtaining a continuance; even if the state's failure to explain with specificity the state's role in the delay so as to result in a finding of negligence, when a delay was caused by the mere negligence of the state, that was relatively benign, and therefore, that factor had to be weighed only slightly against the state. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482 (2011).

Defendant's right to a speedy trial was not violated because at most the delay could be attributed to negligence on the part of the state, which was generally considered to be relatively benign; the state did not deliberately attempt to delay trial in order to hamper the defendant's defense or to gain a tactical advantage. Williams v. State, 290 Ga. 24, 717 S.E.2d 640 (2011).

A delay of six months only, where there is no showing of improper behavior by the state and no comprehensible claim of prejudice to the defendant from the delay, does not constitute a violation of the defendant's constitutional right to a speedy trial. Lumpkin v. State, 255 Ga. 363, 338 S.E.2d 431 (1986), overruled on other grounds, Woodard v. State, 269 Ga. 317, 496 S.E.2d 896 (1998).

An eight-month delay between accusation and arrest and trial is insufficient to merit a Sixth Amendment speedy trial violation inquiry. A preaccusation delay approaching one year is the point at which courts deem the delay presumptively prejudicial and unreasonable enough to trigger the Sixth Amendment inquiry. United States v. Derose, 74 F.3d 1177 (11th Cir. 1996).

Nine-month delay.

- The Supreme Court determined that defendant was not prejudiced by a seven-year trial delay and the subsequent nine month delay in bringing defendant to trial and the consequential inability to locate witnesses did not justify granting defendant's motion to dismiss since defendant lacked diligence in finding the witnesses and no prejudice resulted. Brannen v. State, 262 Ga. App. 719, 586 S.E.2d 383 (2003).

11-month delay.

- Defendant's plea in bar, wherein the defendant claimed that the defendant was denied the defendant's constitutional right to a speedy trial, pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6, was properly denied since the trial court found that the delay of 11 months from the time that the accusation was filed until the parties were ready for trial was not excessive, some of the delay was attributable to the defendant, and the state had provided adequate explanations for its delay, and further, there was no prejudice shown. The court noted that although the state nol prossed the charges by accusation just hours before the defendant filed a demand for a speedy trial, such put the state on notice and therefore, it was not significant that the defendant did not file another demand for a speedy trial after charges were filed by grand jury indictment against the defendant. Shuler v. State, 263 Ga. App. 124, 587 S.E.2d 269 (2003).

13-month delay.

- Trial court properly denied a murder defendant's motion to dismiss an indictment on speedy trial grounds. Although the court found that the 13-month delay was caused by the state's negligence, the court also found that the defendant had not timely asserted the defendant's speedy trial right and that the defendant had not shown that the delay impaired the defense. Hassel v. State, 284 Ga. 861, 672 S.E.2d 627 (2009).

17-month delay.

- Trial court did not err in refusing to dismiss defendant's case for a speedy trial violation as: (1) five to six months of the 17-month delay was due to defendant's motion for a continuance; (2) the state gave reasons for the remaining 11 or 12 months of the delay and reasons for the decision to reindict defendant; (3) there was no proof that the state intentionally delayed prosecution to impair the defense; (4) defendant did not file a speedy trial demand until 14 months after defendant's arrest; and (5) defendant did not present any evidence that defendant's defense was impaired due to the delay, nor did defendant show that defendant had to endure some burden beyond those that necessarily attended imprisonment. Lopez v. State, 267 Ga. App. 178, 598 S.E.2d 898 (2004).

Seventeen-month delay in the defendant's trial did not violate the defendant's constitutional rights because the defendant failed to assert either the defendant's statutory or constitutional right to a speedy trial and there was no evidence of a lengthy pretrial incarceration. Jernigan v. State, 239 Ga. App. 65, 517 S.E.2d 370 (1999).

No undue prejudice shown from 20-month delay.

- Defendant's Sixth Amendment speedy trial rights were not violated as the 20-month delay between defendant's arrest and the assertion of defendant's speedy trial right was not presumptively prejudicial because the case was a multi-defendant prosecution for the murder of a police officer 24 years earlier involving vigorous litigation of a broad range of defense motions, which was less than a complex conspiracy charge, but more than an ordinary street crime further, the reasons for the delay were essentially neutral, the timeliness of the assertion of the right to a speedy trial weighed against defendant, and no undue prejudice associated with the delay was shown. Jackson v. State, 279 Ga. 449, 614 S.E.2d 781 (2005).

23-month delay presumptively prejudicial.

- Pursuant to U.S. Const., amend. VI, a delay from the defendant's arrest until the grant of the defendant's speedy trial motion was approximately 23 and a half months, such that it was presumptively prejudicial, which triggered the application of the Barker balancing test. State v. Thaxton, 311 Ga. App. 260, 715 S.E.2d 480 (2011).

A 27-month delay did not violate defendant's right to a speedy trial because of defendant's own delay in asserting the right and defendant's failure to show prejudice to the defense. McKinney v. State, 250 Ga. App. 22, 549 S.E.2d 164 (2001).

28-month delay.

- Defendant's late assertion of defendant's constitutional right to a speedy trial weighed heavily against the defendant as did the defendant's failure to show prejudice from the 28-month delay, which was not attributable to any improper motive by the state as an investigator died and the prosecutor had 10 weeks' maternity leave; thus, defendant's motion to dismiss was properly denied. Ferguson v. State, 303 Ga. App. 341, 693 S.E.2d 578 (2010).

A thirty-month delay in the trial of the defendant's case did not violate the defendant's constitutional right where, even though the delay was partly attributable to the state's negligence, defendant did not assert the defendant's rights until trial was imminent, and failed to show prejudice. Thomas v. State, 233 Ga. App. 224, 504 S.E.2d 59 (1998).

32-month delay.

- With regard to charges of aggravated child molestation, child molestation, and rape, a trial court did not err in denying a defendant's motion for discharge and acquittal since although the 32 month passage of time between the defendant's arrest and the filing of the motion for discharge was presumed prejudicial and more than half of the delay was attributable to the state, the defendant waited 32 months to file the motion and failed to show any prejudice arising from the delay. The defendant failed to explain what physical evidence was affected by the passage of time and merely made a generalized statement that memories fade over time. Wofford v. State, 299 Ga. App. 129, 682 S.E.2d 125 (2009).

Forty-one-month delay.

- Denial of defendant's motion to dismiss the indictment against defendant was not an abuse of discretion since defendant suffered no impairment to defendant's defense and defendant waited 41 months before asserting defendant's federal and state constitutional rights to a speedy trial. Coney v. State, 259 Ga. App. 525, 578 S.E.2d 193 (2003).

45-month delay presumptively prejudicial.

- For purposes of U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), a delay of three years and nine months from the date of the defendant's arrest and the date of the defendant's scheduled trial was presumptively prejudicial. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802 (2009).

54-month delay.

- Trial court erred by denying a defendant's motion to dismiss the indictment on speedy trial grounds, which charged the defendant with the crimes of aggravated assault, aggravated battery, and cruelty to children, as the 54-month delay at issue was substantial and longer than delays that the Georgia Supreme Court has described as egregious and deplorable; the evidence showed that the delay resulted from a deliberate, strategic decision by the state since the state chose to dead-docket the case; and the defendant asserted the right to a speedy trial in due course. The trial court erred in several respects in the court's legal analysis of the defendant's constitutional speedy trial claim, namely: by failing to weigh the length of the delay as part of the court's balancing analysis and by failing to adequately address the reasons for that delay; by abusing the court's discretion in finding that the defendant's three-to-four month delay in asserting the right to a speedy trial should be weighed against the defendant; and by finding that the defendant was required to present additional evidence of actual prejudice caused by the state's conduct. Hayes v. State, 298 Ga. App. 338, 680 S.E.2d 182 (2009).

Six-year delay.

- While the nearly six year delay in bringing the defendant to trial was presumptively prejudicial, the defendant's speedy trial rights were not violated because the defendant waited over four years to assert the right and failed to show prejudice due to the delay. Gray v. State, Ga. App. , S.E.2d (Aug. 8, 2018).

Seven-year delay.

- Defendant's speedy trial right was violated by the seven-year delay between arrest and the time the case was called for a final hearing, even though defendant was released on bond at the preliminary hearing and did not assert a speedy trial right until after the case was called for a final plea hearing. State v. Sutton, 273 Ga. App. 84, 614 S.E.2d 206 (2005).

Eight year delay.

- Trial court did not err in determining that the defendant's right to a speedy trial was violated as the eight-year passage of time before the case was restored to the trial calendar raised a presumption of prejudice, most of the delay was attributable to the state, the defendant's delay in asserting the right was mitigated by the fact that the defendant had no counsel and a limited education, and the delay impaired the ability to put on a defense. State v. Alexander, 295 Ga. 154, 758 S.E.2d 289 (2014).

Nine-year delay.

- Trial court did not abuse the court's discretion when the court denied the defendant's claim that the defendant's constitutional right to a speedy trial was violated because neither the defendant nor the defendant's initial attorney made themselves aware of the actual status of the case between 1998 and 2005, and the defendant failed to keep the defendant's address up to date with the trial court such that the court was unable to send the notice for the arraignment to the defendant's home address; the defendant never made a speedy trial demand during the nine years that passed between the arrest and trial, the defendant was not subjected to oppressive pre-trial incarceration and did not suffer any unusual anxiety or concern because the defendant was not actually incarcerated for most of the nine years in question, and the defendant also was not prejudiced by lost evidence. Rafi v. State, 289 Ga. 716, 715 S.E.2d 113 (2011).

Failure to consider entire time of delay.

- Trial court abused the court's discretion in denying the defendant's plea in bar because the trial court considered only 19 of the 55 months of delay between the defendant's arrest and the denial of the defendant's plea in bar, with the result that the court could not properly exercise the court's discretion as to whether the defendant's constitutional right to a speedy trial was violated. Singleton v. State, 317 Ga. App. 637, 732 S.E.2d 312 (2012).

Prosecutions following dismissal of original complaint.

- Speedy trial guarantees focus only on pending criminal prosecutions and not on prosecutions following the dismissal of the original complaint. United States v. Puett, 735 F.2d 1331 (11th Cir. 1984).

Delay in transmitting the record of appeal after the defendant's conviction was not a violation of the defendant's federal and state constitutional rights to a speedy trial. Crosby v. State, 188 Ga. App. 191, 372 S.E.2d 471 (1988).

Right to public trial is subject to other considerations.

- The right to a public trial has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice. Lowe v. State, 141 Ga. App. 433, 233 S.E.2d 807 (1977).

Partial closure of courtroom.

- Trial court did not abuse the court's discretion by partially closing the courtroom during the victims' testimonies because the trial court limited the closure by allowing the defendant, the attorneys for the defense and the state, immediate families or guardians of the victims, immediate families or guardians of the defendant, the attorneys' employees, officers of the court, sheriff's deputies, and any members of the press to remain in the courtroom, which was acceptable pursuant to the Sixth Amendment. Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691 (2012), cert. denied, No. S12C1308, 2012 Ga. LEXIS 1027 (Ga. 2012).

Exclusion of certain persons from courtroom.

- Where defendant was charged with, inter alia, child molestation, and the trial court, pursuant to O.C.G.A. § 17-8-54, excluded certain individuals from the courtroom when the victims testified, this was distinguished from a total closure of the courtroom and did not require as rigorous a level of constitutional scrutiny, and defendant's right to a public trial was not violated. Hunt v. State, 268 Ga. App. 568, 602 S.E.2d 312 (2004).

When a defendant claimed that the defendant's Sixth Amendment right to a public trial had been violated by the exclusion of the defendant's family from the courtroom during voir dire, the trial court was authorized to weigh the credibility of witnesses and to find as fact that bailiffs and court officials did not bar the defendant's family from the courtroom at that time. Moreover, the defendant had waived the issue by not bringing the matter to the trial court's attention when the defendant learned of it, which was before the jury was struck, thereby foreclosing the trial court's ability to rectify the matter with a new jury pool or in any other way. Craven v. State, 292 Ga. App. 592, 664 S.E.2d 921 (2008), cert. denied, 2008 Ga. LEXIS 935 (Ga. 2008).

Right to public trial denied when trial held in county jail.

- Defendant was denied the right to a public trial under the Sixth Amendment of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) when the defendant's trial was held in a county jail because the produced unrebutted evidence that jail authorities excluded from the jail courtroom the defendant's brother, a member of the public who wanted to attend the trial; the closure of the courtroom to the brother was neither brief nor trivial as the brother was kept out of the courtroom during the entire trial, which involved criminal charges brought against the defendant in regard to a family member, and the trial court, by deciding to hold the defendant's trial in a facility where the public's access was governed exclusively by the jail authorities, failed in the court's obligation to take reasonable measures to accommodate public attendance at the trial. Purvis v. State, 288 Ga. 865, 708 S.E.2d 283 (2011).

Exclusion of spectators because of witness's fear of harm.

- There is no abuse of discretion of the court in the exclusion of spectators during the testimony of a witness who is in fear of possible harm because of testimony to be given. Lowe v. State, 141 Ga. App. 433, 233 S.E.2d 807 (1977).

Right to fair trial versus rights of public to gain access to hearings in criminal cases. See R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982).

Right to fair trial denied.

- The evidence below supported the habeas court's findings that (1) in failing to seek a continuance the defendant's counsel rendered ineffective assistance at the defendant's trial; and (2) counsel's ineffectiveness so prejudiced the defendant's case that the defendant was effectively denied the right to a fair trial as guaranteed by the sixth and fourteenth amendments to the United States Constitution. Turpin v. Bennett, 272 Ga. 57, 525 S.E.2d 354 (2000).

Right to public trial not denied by temporary closing of courtroom for child victim's testimony.

- In a child molestation case, the trial court did not deny the defendant the Sixth Amendment right to a public trial when the court cleared the courtroom for the testimony of the 17-year-old victim in light of the victim's fragile emotional and psychological history and the fact that the courtroom was immediately reopened after the victim testified. Mullis v. State, 292 Ga. App. 218, 664 S.E.2d 271 (2008).

By failing to challenge the constitutionality of O.C.G.A. § 17-8-54 until after the child victim testified, the defendant waived the right to argue on appeal that the statute violated the defendant's constitutional right to a public trial. Craven v. State, 292 Ga. App. 592, 664 S.E.2d 921 (2008), cert. denied, 2008 Ga. LEXIS 935 (Ga. 2008).

Closed hearing on motion to suppress.

- Sixth amendment right to a public trial was violated where trial court closed entire hearing on motion to suppress and failed both to consider reasonable alternatives to closing the proceedings and to make findings adequate to support the closure. Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).

Effect of court order on resentencing.

- The state was not barred from subjecting the defendant to a second capital sentencing trial approximately one year and eight months after the last judicial activity by the federal district court's 1988 order that "petitioner within 180 days after this order becomes final by failure to appeal or by mandate of the circuit Court of Appeals shall be afforded a new sentencing phase trial, failing which upon motion a writ of habeas corpus discharging [the defendant] from custody shall issue." Moore v. Zant, 972 F.2d 318 (11th Cir. 1992), cert. denied, 507 U.S. 1006, 113 S. Ct. 1650, 123 L. Ed. 2d 271 (1993).

Ineffective assistance based on unforeseen damaging testimony.

- Trial counsel was not ineffective for failing to challenge the decision of the codefendant's to call a witness because trial counsel made a strategic decision, based on a pre-trial investigation, not to challenge the codefendant's decision to call the witness; the fact that the witness gave unforeseen damaging testimony did not justify an after the fact adjudication of deficient performance. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012).

United States Const., amend. 5 applies before arrest or indictment, but U.S. Const., amend. 6 applies afterwards.

- Delay that occurs between commission of an offense and arrest or indictment may violate the right to due process under U.S. Const., amend. 5. If, however, the delay occurs between arrest or indictment and trial the controlling constitutional provision is U.S. Const., amend. 6's guarantee of the right to a speedy trial. United States v. Smith, 65 F.R.D. 464 (N.D. Ga. 1974).

Due process considerations under U.S. Const., amend. 5 apply to oppressive prearrest and preindictment delay, but the more specific guarantees of U.S. Const., amend. 6 apply to postarrest delay. United States v. Traylor, 578 F.2d 108 (5th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 848, 59 L. Ed. 2d 41 (1979).

Where the delay in bringing a defendant to trial occurs in the investigative stage before either arrest or indictment, due process, not Sixth Amendment, standards apply. Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985).

Constitutional right attaches upon arrest, while statutory rights attach upon indictment.

- Although O.C.G.A. §§ 17-7-170 and17-7-171 prescribe a means of asserting one's right to a speedy trial after indictment, there is a right to a speedy trial under U.S. Const., amend. 6, which attaches at arrest and can be asserted thereafter. Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979); Glidewell v. State, 169 Ga. App. 858, 314 S.E.2d 924 (1984).

Over and above the provisions of O.C.G.A. § 17-7-170, the Sixth Amendment rights to speedy trial attach upon arrest. Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985).

Unlike the statutory protections conferred by O.C.G.A. §§ 17-7-170 and17-7-171 that attach with formal indictment or accusation, the Sixth Amendment provides constitutional protection over and above the statutory provisions and under that amendment, the right to a speedy trial attaches upon arrest and can be asserted thereafter; a trial court properly denied defendant's statutory speedy trial demand where no indictment was filed, but improperly overlooked or failed to consider defendant's constitutional speedy trial demand, and thus, the trial court's judgment was vacated and the case was remanded with direction to the trial court to address defendant's constitutional claims. Smith v. State, 266 Ga. App. 529, 597 S.E.2d 414 (2004).

Former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) is not regarded as affording guidelines in relation to the federal constitutional provisions guaranteeing the right to a speedy trial, being limited to and in a proper case applicable only to the state right. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

Question of speedy indictment is an aspect of the right to speedy trial. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976).

Applicability of speedy trial provision.

- Speedy trial provision of U.S. Const., amend. 6 has no application until the putative defendant in some ways becomes an accused. United States v. Duke, 527 F.2d 386 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190 (1976); Gaylor v. State, 139 Ga. App. 370, 228 S.E.2d 390 (1976).

Defendant's Fifth Amendment due process rights and Sixth Amendment right to a speedy trial were not violated through the bringing of an indictment against the defendant in 1992 for criminal conduct that occurred in 1987. United States v. Lockett, 867 F. Supp. 1044 (M.D. Ga. 1994), aff'd, 70 F.3d 126 (11th Cir. 1995).

Defendant's claim of a preindictment and prearrest delay does not invoke the protections of U.S. Const., amend. 6. Gaylor v. State, 139 Ga. App. 370, 228 S.E.2d 390 (1976).

Confinement in administrative segregation is not an arrest or an accusal for purposes of U.S. Const., amend. 6. United States v. Blevins, 593 F.2d 646 (5th Cir. 1979).

Speedy trial provisions do not require the government to discover, investigate, and accuse any person within any particular period of time. Gaylor v. State, 139 Ga. App. 370, 228 S.E.2d 390 (1976).

Preindictment or prearrest delay not a denial of speedy trial.

- If the delay to which complaint is made occurred prior to indictment or arrest, there is no denial of the right to a speedy trial. Armour v. State, 140 Ga. App. 196, 230 S.E.2d 346 (1976).

Due process standards apply to preindictment delay.

- Where a postarrest, preindictment delay occurs in the investigative stage before either arrest or indictment, due process, not U.S. Const., amend. 6, standards apply. Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980).

Statute of limitations is primary protection against preaccusation delay.

- The primary guarantee against prosecutorial delay in seeking an indictment being the applicable statute of limitations, the government has no duty to discover, investigate, and accuse any person within any particular period of time. A case can be dismissed for preaccusation delay, but only if the defense shows actual prejudice and demonstrates that the delay was an intentional device by the prosecution to gain a tactical advantage. United States v. Duke, 527 F.2d 386 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190 (1976).

When speedy trial protections are engaged.

- It is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage particular protections of the speedy trial provisions of U.S. Const., amend. 6. Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975); Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975); Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976); Armour v. State, 140 Ga. App. 196, 230 S.E.2d 346 (1976); United States v. Duke, 527 F.2d 386 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190 (1976); United States v. Byrum, 540 F.2d 833 (5th Cir. 1976), cert. denied, 429 U.S. 1076, 97 S. Ct. 819, 50 L. Ed. 2d 796 (1977); United States v. Pitts, 569 F.2d 343 (5th Cir.), cert. denied, 436 U.S. 959, 98 S. Ct. 3076, 57 L. Ed. 2d 1125 (1978); Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979); United States v. Blevins, 593 F.2d 646 (5th Cir. 1979); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980); United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).

For purposes of determining when the right to speedy trial attaches the basis for the arrest is critical. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).

Time is not to be measured from the time of initial arrest but from the time the petitioner is accused of the crime he is challenging. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).

The speedy trial clause does not attach at the time of an earlier arrest simply because the indictment for the present offense arises from the same activities that formed the basis of the earlier arrest. United States v. Derose, 74 F.3d 1177 (11th Cir. 1996).

But if crimes for which a defendant is ultimately prosecuted really only gild the charge underlying the defendant's initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision's applicability as to prosecution for all the interrelated offenses. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).

Dismissal of indictment as tolling speedy trial requirements.

- Dismissing an indictment does not toll the speedy trial calendar when the next indictment is for precisely the same offense and the same transaction. United States v. Nixon, 634 F.2d 306 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981).

Assertion of right is a consideration in determining violation of right to speedy trial.

- U.S. Const., amend. 6 is an independent guaranty of the right to a speedy trial, and the defendant's assertion or failure to assert the defendant's statutory right under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) is simply one of the factors to be considered in determining whether the right under U.S. Const., amend. 6 has been impinged. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974).

Former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) may prescribe a means of asserting one's right to a speedy trial after indictment, the accused has a right under U.S. Const., amend. 6 to a speedy trial, which right attaches at arrest and can be asserted thereafter. Defendant's preindictment failure to assert this right will be weighed against the defendant. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980).

Although a pretrial delay of over five years in a child molestation case was uncommonly long and was mostly attributable to the negligence of the state, the defendant's failure to file a statutory demand for speedy trial and the delay of five years, and 21 calendar calls, in asserting the defendant's right weighed heavily against the defendant. Denial of the defendant's motion to dismiss the indictment was proper. Stewart v. State, 310 Ga. App. 551, 713 S.E.2d 708 (2011).

While an accused has no responsibility to assert the right to a speedy trial, the assertion of or failure to assert that right is a factor to be considered in an inquiry into the deprivation of the right. The defendant's assertion of that right would be entitled to strong evidentiary weight in determining whether the defendant has been deprived of the right. The failure to assert the right to a speedy trial would make it difficult to prove that the defendant was denied that right. Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560 (1977).

Although defendant has no duty to bring the case to trial, failure to assert the right will make it difficult for a defendant to prove that the defendant was denied a speedy trial. United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427 (1978).

Regardless of the procedures mandated for a statutory demand for speedy trial, under O.C.G.A. § 17-7-170(a), a defendant has the right to assert a constitutional speedy trial demand any time after arrest. Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456 (2004).

Trial court erred in declining to find a defendant's failure to assert the speedy trial right weighed against the defendant as the defendant was represented by counsel. State v. Thaxton, 311 Ga. App. 260, 715 S.E.2d 480 (2011).

Accused has some duty to alleviate stress of waiting for trial.

- Although it is true that an accused who suffers emotional stress while awaiting the disposition of the charges against the accused is inherently prejudiced, the accused has some obligation to attempt to alleviate this stress by requesting a speedy trial or filing a statutory demand for trial pursuant to § 17-7-170. Cravey v. State, 147 Ga. App. 29, 248 S.E.2d 13 (1978).

In a capital case, where a pro se defendant filed what was claimed to be a statutory speedy trial demand but that actually invoked the Sixth Amendment speedy trial provisions, the statutory right to a speedy trial under O.C.G.A. § 17-10-170 was not properly asserted. Bonakies v. State, 263 Ga. App. 812, 589 S.E.2d 573 (2003).

It is the state's responsibility, not the defendant's, to assure a case is promptly brought to trial. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976).

Where no reason appears for a delay in bringing an accused to trial, a court must treat the delay as caused by the negligence of the state in bringing the case to trial. Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456 (2004).

Duty to provide a speedy trial does not impose a paramount legal burden on the state, but is simply the logical syntactical reconciliation of the two rights: since society has the right to try the defendant and the defendant has the right to be tried quickly, if society tries the defendant, it must do so quickly, particularly if the defendant has asserted the right; but since both parties do stand alike at the beginning, when both parties stand alike in their respective failures to provide and assert the right to speedy trial, then because of the peculiar nature of the individual's right to speedy trial as one whose deprivation can definitely work to the defendant's advantage, the weight of the equities generally lies naturally with society and its right to try the criminal defendant. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Constitutional right of defendant charged with vehicular homicide and hit and run to a speedy trial was violated when defendant was not indicted for three years, without explanation, and two additional years of delay between defendant's indictment and a possible trial were attributable to the state, despite defendant's five-year delay in demanding a speedy trial because defendant's delay was mitigated by the delay in indicting the defendant and by the delay in appointing counsel for the defendant until the statutory time for demanding a speedy trial, under O.C.G.A. § 17-7-170(a). Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456 (2004).

Defendant is held to have some responsibility to assert a speedy trial claim even though it is the state's duty to bring the defendant to trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Weighing the state's negligent delay in bringing defendant to trial against defendant's failure to timely assert a Sixth Amendment right to a speedy trial and defendant's failure to show that the delay impaired the defense, the trial court did not err in denying defendant's motion to dismiss the indictment. Smith v. State, 275 Ga. 261, 564 S.E.2d 441 (2002).

Defendant's rights to a speedy trial may be implemented by a written demand for trial under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170). Underhill v. State, 129 Ga. App. 65, 198 S.E.2d 703 (1973).

Noncompliance with statutory procedures for demanding speedy trial.

- Where the defendant is not within the purview of the provisions relating to demand for trial by persons serving a term of imprisonment in a Georgia penal institution (see O.C.G.A. § 42-6-3), nor does the record show compliance with former Code 1933, §§ 27-1901, 27-2001, or 27-2002 (see O.C.G.A. §§ 17-7-170,17-8-21, or17-8-33), the defendant is not denied the right to a speedy trial within the meaning of Ga. Const. 1945, Art. I, Sec. I, Para. V (see Ga. Const. 1983, Art. I, Sec. I, Para. XI, XIV) or U.S. Const., amend. 6 when the trial is delayed after the defendant withdraws the guilty plea. Butler v. State, 126 Ga. App. 22, 189 S.E.2d 870 (1972).

While the burden is on defendant to protect the defendant's statutory rights for a speedy trial, by making a timely demand for trial under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170), his failure in doing so does not, of itself, work a waiver of rights under U.S. Const., amend. 6. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974).

Defendant's direct appeal from the denial of a speedy trial motion to dismiss lay given the state of Georgia law; however, the motion was properly denied because defendant, who had been incarcerated in the interim period, was equally responsible for the pretrial delay, never asserted the right to trial, never requested disposition of the subject offenses, suffered no prejudice, and did not suffer oppressive pretrial incarceration. Lamar v. State, 262 Ga. App. 735, 586 S.E.2d 416 (2003).

Motion to dismiss or quash indictment is not assertion of right to speedy trial.

- Motion to dismiss or quash indictment for denial of speedy trial, which did not request an immediate trial, is not a demand for trial and is not an assertion of the right to speedy trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

State's duty upon assertion of speedy trial right.

- There is a duty on the state to make a diligent, good-faith effort to bring the accused before the appropriate state court for trial, provided the accused has made a sufficient demand for a trial, in order not to violate the speedy trial requirement of U.S. Const., amend. 6. May v. Georgia, 409 F.2d 203 (5th Cir. 1969).

The state has a duty, under the Sixth Amendment as made applicable by the fourteenth amendment, to make a diligent, good-faith effort to bring defendants to trial in Georgia notwithstanding trial and incarceration for a federal offense in another state; where the state timely initiated a request for the appellant's release, especially after the date when the appellant filed a demand to dismiss or for immediate trial, the state satisfied its duty. Obiozor v. State, 213 Ga. App. 523, 445 S.E.2d 553 (1994).

Error in applying the speedy trial test.

- Trial court erred in granting defendant's motion to dismiss the indictment on speedy trial grounds as the trial court miscalculated the length of the delay; improperly considered the state's pre-indictment, pre-arrest inaction for purposes of evaluating the reasons for the delay; failed to weigh the defendant's assertions of the right to speedy trial; and erred in finding that the defense was substantially impaired by the death of the defendant's sister. State v. Gay, 321 Ga. App. 92, 741 S.E.2d 217 (2013).

Length of delay was at least two years but less than three years.

- There was no violation of the defendant's speedy trial rights under U.S. Const., amend. 6, where there was a 26-month delay between the defendant's arrest and the defendant's motion to dismiss; the delay was mostly attributable to the defendant; the defendant did not assert the defendant's right to a speedy trial until 26 months after the defendant was arrested, and the defendant failed to make a specific showing that the defense was prejudiced by the delay. Williams v. State, 260 Ga. App. 290, 581 S.E.2d 326 (2003).

Insufficient evidence to show denial of speedy trial.

- Constitutional right to a speedy trial did not require granting of defendant's motion for discharge and acquittal where, inter alia, all but a couple of months of the time defendant was incarcerated before trial was attributable to service of other sentences, there was no evidence of defendant's anxiety and concern, and there was no evidence that defendant's defense was impaired as none of the witnesses who testified at the first trial were allegedly unavailable. Weldon v. State, 262 Ga. App. 782, 586 S.E.2d 452 (2003).

Defendant's motion for a new trial was denied as defendant failed to obtain defendant's lawyer's testimony as to why defendant failed to tender the police report to impeach a detective's testimony; defendant failed to carry the burden of establishing that the purported deficiency in trial counsel's representation was indicative of ineffectiveness and was not an example of a conscious and deliberate trial strategy. McPetrie v. State, 263 Ga. App. 85, 587 S.E.2d 233 (2003).

Superior court abused its discretion in dismissing an indictment on speedy trial grounds, despite a five-year delay in bringing the defendant to trial, which was held to be excessively long and not to be excused; however, because the delay was caused by the state's negligence or other court-related circumstances which were not to be weighed heavily against the state, given the defendant's failure to assert a speedy trial violation or show prejudice from the same, dismissal of the indictment was reversed. State v. Giddens, 280 Ga. App. 586, 634 S.E.2d 526 (2006).

That a defendant never asserted a statutory right to a speedy trial, agreed to some continuances, never objected to others, and never acted on the trial court's invitation to file an out-of-time speedy trial demand, established that the defendant did not timely and vigilantly assert the defendant's constitutional right to a speedy trial. Therefore, the defendant's motion to dismiss on speedy trial grounds was properly denied. Bowling v. State, 285 Ga. 43, 673 S.E.2d 194 (2009).

There was no abuse of the superior court's discretion in denying the defendant's motion to dismiss based on alleged violations of the defendant's constitutional rights to a speedy trial because the defendant did not make an unusual showing of anxiety and concern, which were always present to some extent during the pendency of a criminal prosecution. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482 (2011).

Where no trial demand, only question presented is whether pretrial delay constitutional.

- Where the defendant files no demand for trial pursuant to O.C.G.A. § 17-7-170, the only question presented is whether the delay between the defendant's arrest and the commencement of the defendant's trial is a violation of the defendant's Sixth Amendment right to a speedy trial. Mullins v. State, 167 Ga. App. 670, 307 S.E.2d 61 (1983).

Length of the delay is the threshold triggering mechanism.

- No inquiry into the other factors is required unless there has been a delay of such length as to be presumptively prejudicial. United States v. Hill, 622 F.2d 900 (5th Cir. 1980).

Absence of prejudice does not by itself preclude a finding of a speedy trial violation, but balanced against factors that themselves only weakly support a speedy trial violation, the absence of prejudice is dispositive. Glidewell v. Burden, 822 F.2d 1027 (11th Cir. 1987), cert. denied, 484 U.S. 1018, 108 S. Ct. 727, 98 L. Ed. 2d 676 (1988).

Mere passage of time is not enough, without more, to constitute a denial of speedy trial due process. Hughes v. State, 228 Ga. 593, 187 S.E.2d 135 (1972); Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974); State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Effect of delay depends on circumstances.

- Whether a delay between indictment and trial violates the constitutional right to a speedy trial depends on the circumstances. Hughes v. State, 228 Ga. 593, 187 S.E.2d 135 (1972).

Defendant is required to show more than a mere claim of prejudice in the right to a speedy trial. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Denial of speedy trial may work to a defendant's advantage, and therefore there is no per se prejudice to a defendant from delay. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976); Natson v. State, 242 Ga. 618, 250 S.E.2d 420 (1978), cert. denied, 441 U.S. 925, 99 S. Ct. 2036, 60 L. Ed. 2d 399 (1979); State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

There is no specific number of days or months within which a defendant must be tried. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976); Natson v. State, 242 Ga. 618, 250 S.E.2d 420 (1978), cert. denied, 441 U.S. 925, 99 S. Ct. 2036, 60 L. Ed. 2d 399 (1979); State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Kinds of prejudice which may result from delay.

- A defendant might be prejudiced by a delay in being brought to trial by lengthy pretrial incarceration, by a substantial impairment of the defendant's defense, and by being subjected to public scorn and personal anxiety. United States v. Dyson, 469 F.2d 735 (5th Cir. 1972); United States v. Hill, 622 F.2d 900 (5th Cir. 1980).

Constitutional right of defendant charged with vehicular homicide and hit and run to a speedy trial was violated when defendant was not indicted for three years, without explanation, and two additional years of delay between defendant's indictment and a possible trial were attributable to the state, as defendant showed actual prejudice due to the intervening death of an exculpatory witness, and the trial court's ruling that the preservation of this witness's statement in writing eliminated any prejudice ignored the dry impact of such written testimony as compared to a live witness. Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456 (2004).

Death of a witness impacting speedy trial rights.

- There was no abuse of the superior court's discretion in denying the defendant's motion to dismiss based on alleged violations of the defendant's constitutional right to a speedy trial because the defendant failed to show that the superior court was in error in finding that the defendant made no showing of actual prejudice to the defense due to the death of the doctor who performed the autopsy on the victim; any impact on the case by the doctor's death existed prior to the attachment of the defendant's constitutional rights to a speedy trial, and the state was willing to stipulate to the admission of the doctor's autopsy report. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482 (2011).

Substantial actual prejudice must be shown as to postarrest, preindictment delay.

- While postarrest, preindictment delay is within the scope of the speedy trial guarantee, a substantial showing of actual prejudice is required to establish a violation of U.S. Const., amend. 6. United States v. Zane, 489 F.2d 269 (5th Cir. 1973), cert. denied, 416 U.S. 959, 94 S. Ct. 1975, 40 L. Ed. 2d 310 (1974); United States v. Traylor, 578 F.2d 108 (5th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 848, 59 L. Ed. 2d 41 (1979).

Delay must be shown to be purposeful, oppressive, or prejudicial.

- To sustain a prisoner's contention that there was a violation of the constitutional right to a speedy trial, not only must delay be shown, but that such delay was purposeful, oppressive, or prejudicial. Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101 (1971); Hughes v. State, 228 Ga. 593, 187 S.E.2d 135 (1972); Crapse v. State, 180 Ga. App. 321, 349 S.E.2d 190 (1986).

Incarceration during the delay was oppressive and produced debilitating anxiety.

- Dismissal of malice murder and arson case for a constitutional speedy trial violation was affirmed because, in the four-year delay in bringing the case to trial after earlier convictions were reversed on appeal, the defendant's eight-month incarceration during the delay was oppressive and produced debilitating anxiety, because two defense witnesses had died during the delay, because another defense witness, the defendant's parent, had developed dementia and other ailments related to age, because the burned house had been destroyed, and where the defendant's failure to assert the defendant's speedy trial right earlier was due to the representations of the state concerning a new arson expert. State v. Carr, 278 Ga. 124, 598 S.E.2d 468 (2004).

Unexcused denial of assertion of speedy trial right is prejudice per se.

- Upon defendant's bona fide assertion of the right to a speedy trial, the unexcused denial of it by the state is generally prejudice per se. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Prejudice must be shown.

- Since mere delay, even if unexcused, does not alone prejudice the defendant's ability to defend, and since the defendant may be only too delighted to have the trial delayed, before the defendant is held deprived of the right to a speedy trial and there ensues the unsatisfactorily severe remedy of dismissal of the indictment with the serious consequence that a defendant who may be guilty of a serious crime will go free, without having been tried, the defendant must show some actual substantial prejudice to the defendant. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Claim that defense counsel was ineffective for failing to prevent a letter written by a jailhouse informant from going into the jury room during deliberations failed because the defendant failed to show that there was a reasonable probability that the outcome of the trial would have been different since the contents of the letter were not particularly harmful to the defendant. Young v. State, 292 Ga. 443, 738 S.E.2d 575 (2013).

Even assuming counsel's failure to object to testimony that a photo lineup made up of photos of persons who had been arrested constituted deficient performance, the defendant failed to show prejudice because there was other testimony of the defendant's bad character admitted without objection. Thornton v. State, 292 Ga. 796, 741 S.E.2d 641 (2013).

Pretermitting whether trial counsel was deficient for failing to object to a question propounded by the prosecutor in which the defendant contended the prosecutor stated the prosecutor's opinion of the defendant's guilt, because an objection to the prosecutor's question as posed would not have changed the outcome of the case given the substantial evidence of the defendant's guilt, the defendant's ineffective assistance of counsel claim was without merit. Thompson v. State, 294 Ga. 693, 755 S.E.2d 713 (2014).

Unexcused delay is prima facie prejudicial.

- Where the delay in bringing a defendant to trial is not only excessive, but the result of unexcused inaction or misconduct by the government, it is prima facie prejudicial, and the burden then shifts to the government to demonstrate that defendant has not been prejudiced by the delay. United States v. Dyson, 469 F.2d 735 (5th Cir. 1972).

To constitute prejudice, faded memory must affect material fact in issue.

- Although faded memory may result in prejudice, in order to prejudice the defense to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue. United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427 (1978).

For one already in custody, the event triggering scrutiny is the indictment. The defendant demonstrates a violation of the right to a speedy trial only if the defendant can show that the delay prior to accusal caused substantial prejudice to the right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. United States v. Manetta, 551 F.2d 1352 (5th Cir. 1977).

Extraordinary delay, without reason shown by the record, is overcome when no prejudice is shown and the petitioner did not want a speedy trial. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).

Where delay primarily caused by defendant, speedy trial rights not violated.

- There is no violation of due process in respect to a speedy trial when substantially all of the delay in bringing the defendant to trial appears to be directly or indirectly attributable to the conduct of the defendant. Mays v. State, 229 Ga. 609, 193 S.E.2d 825 (1972).

Delay caused by negligence or overcrowding of courts.

- Under U.S. Const., amend. 6, reasons for delay, such as negligence or overcrowded courts, should be weighed less heavily against the government than deliberate delay for the purpose of hampering the defense. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976).

While a deliberate attempt by the prosecution to delay the trial in order to hamper the defense is weighed heavily against the government, an overcrowded docket is considered to be a more neutral reason although it cannot be overlooked. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Dead docket device may not be used to delay the trial over the defendant's objection. Where mere lapse of time, less than that set out in the statute of limitations, is involved, and the defendant has not objected to the case being dead docketed, and has made no demand for early trial, it will take a showing of prejudice to the defendant's interests or oppressive and harassing tactics by the government to justify a finding of encroachment on the constitutional right to a speedy trial. Three such interests have been identified: prevention oppressive pretrial incarceration; minimizing anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. Underhill v. State, 129 Ga. App. 65, 198 S.E.2d 703 (1973).

Right to a speedy trial has not been abridged where the delay is not excessive, the delay was not deliberate so as to hamper the defense, defendant did not assert right to a speedy trial during the delay, and where defendant's interest has not been prejudiced. State v. Weeks, 136 Ga. App. 637, 222 S.E.2d 117 (1975).

Delay of twelve months and ten days.

- Trial court did not err when the court denied the defendant's motion to dismiss based on a purported violation of defendant's constitutional right to a speedy trial because the circumstances of the case warranted a finding that the twelve-month, ten-day delay between the defendant's indictment and the filing of defendant's motion to dismiss was not presumptively prejudicial. The defendant was serving a sentence on an unrelated charge in Mississippi when the indictment was returned, a requisition warrant had to be obtained from the Mississippi governor, which process was initiated within a month of the defendant's indictment and took three months before the warrant was issued, and the defendant was brought to Georgia two months after the warrant issued and was arraigned approximately two months later. Rogers v. State, 286 Ga. 387, 688 S.E.2d 344 (2010).

Where the delay is 27 months since arrest and 24 months since indictment, this is too long to amount to a speedy trial. State v. King, 137 Ga. App. 26, 222 S.E.2d 859 (1975).

Passage of 16 months after indictment before trial does not represent a denial of speedy trial, absent evidence of prejudice to defendant from delay, and absent any purposeful or oppressive delay on the part of the prosecution, particularly, in the absence of a demand for trial. Sassoon v. State, 138 Ga. App. 172, 225 S.E.2d 732 (1976).

Three year delay.

- There was no speedy trial violation under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a). Although the delay of over three years was presumptively prejudicial, it was primarily attributable to the defendant; the defendant delayed in asserting the constitutional right to a speedy trial; and the defendant's generalized statements, along with the fact that the record did not show that trial counsel attempted to locate the physician who examined the victim, did not suffice to show prejudice. Robinson v. State, 298 Ga. App. 164, 679 S.E.2d 383 (2009).

40-month delay was not prejudicial.

- In a defendant's motion for acquittal based upon a speedy trial violation under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), although the delay of 40 months raised a presumption of prejudice, no evidence supported defendant's claim of anxiety and concern over the charges nor the defendant's claims that the defendant was unable to produce two witnesses who would have provided information material to the defendant's defense. In the absence of prejudice, the defendant's motion for acquittal was properly denied. Lynch v. State, 300 Ga. App. 723, 686 S.E.2d 268 (2009).

45-month delay.

- While a majority of the delay in bringing defendant to trial was attributable to the state, and defendant did not assert any right to a speedy trial until approximately 45 months after the date of arrest, after balancing all four factors set out in Barker v. Wingo, any delay in bringing defendant to trial did not violate the right to a speedy trial, no actual anxiety or concern on defendant's part was shown, and the testimony that two alleged material defense witnesses would have presented would have either been cumulative or not material. Ingram v. State, 280 Ga. App. 467, 634 S.E.2d 430 (2006), cert. denied, 2007 Ga. LEXIS 868 (Ga. 2007).

Four year delay.

- State's four-year delay in bringing a cocaine trafficking case against the defendant violated a defendant's constitutional speedy trial right. The state's investigation was complete at the time of the indictment, and the trial court found that the state delayed the trial to gain a tactical advantage and to harass the defendant. State v. Shirley, 311 Ga. App. 141, 714 S.E.2d 636 (2011).

Five year delay.

- Court of appeals erred in determining, apparently from the court's own review of the record, that the speedy trial factor of whether, in due course, the defendant asserted his or her right to a speedy trial would be weighed against the defendant based on the more than five year delay from the defendant's arrest to the defendant's assertion of the right; a delay of over five years typically would warrant the speedy trial factor of whether, in due course, the defendant asserted his or her right to a speedy trial being weighed heavily against the defendant, and if the factor is to be weighed differently based on the particular circumstances of the case, that exercise of discretion is committed to the trial court, not the appellate courts. State v. Pickett, 288 Ga. 674, 706 S.E.2d 561 (2011).

Where reason for five and one-half year delay in trial is simple prosecutorial neglect, but the only prejudice shown by the defendant is that one of two alibi witnesses, whose testimony would be merely cumulative, has died, and the defendant, although the defendant has filed a motion to dismiss the indictment, never asked for a trial, the defendant is not denied the constitutional right to a speedy trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812 (1980).

Presumptive prejudice that arose from a delay of over five years in a defendant's trial was insufficient for the defendant to prevail on a Sixth Amendment speedy trial claim, and the denial of the defendant's motion to dismiss was proper because there was no demonstrable prejudice to the defense and the defendant was dilatory in asserting the right to a speedy trial. Harris v. State, 284 Ga. 455, 667 S.E.2d 361 (2008).

Ten year delay between trial and appeal.

- Defendant's due process rights were not violated by the ten-year delay between trial and appeal because the errors the defendant allegedly would have raised on appeal were without merit. Whitaker v. State, 291 Ga. 139, 728 S.E.2d 209 (2012).

Where the defendant is not in confinement, does not demand trial, has shown no actual prejudice, and the record does not demonstrate the delay is deliberate or taken for purpose of tactical advantage over the defendant, a delay of approximately 23 months between arrest and indictment did not violate defendant's right to a speedy trial. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980).

Nine-month delay between arrest and trial cannot be dismissed as trivial, but this length of delay cannot alone constitute a speedy trial violation. Glidewell v. Burden, 822 F.2d 1027 (11th Cir. 1987), cert. denied, 484 U.S. 1018, 108 S. Ct. 727, 98 L. Ed. 2d 676 (1988).

The passage of nine months between the date a speeding charge was made and the date of trial was not alone sufficient to establish a violation of the right to a speedy trial where there was no evidence that the state delayed the trial to gain a tactical advantage, five months passed between the charge and the defendant's assertion of the right to a speedy trial, and, since the defendant was not incarcerated, there was no prejudice to the defendant. Nairon v. State, 215 Ga. App. 76, 449 S.E.2d 634 (1994).

Ten-month delay between arrest and dismissal of charges.

- Ten-month delay between the defendant's arrest for child molestation and the dismissal of the charges, did not violate the defendant's right to a speedy indictment, because the defendant had not filed a demand for a speedy indictment, and did not claim or demonstrate that the defense was impaired by the delay. State v. Auerswald, 198 Ga. App. 183, 401 S.E.2d 27 (1990).

Two year delay not prejudicial.

- Trial court did not abuse the court's discretion when the court denied the second defendant's motion to dismiss on constitutional speedy trial grounds because although the two-year delay was presumptively prejudicial, the majority of the delay was due to the circumstances of the case, the second defendant's two-year delay in asserting the defendant's right to a speedy trial weighed heavily against the defendant, and the defendant offered no specific evidence of any prejudice to the defendant's defense resulting from the delay. Brown v. State, 287 Ga. 892, 700 S.E.2d 407 (2010).

A 25-month delay from arrest to trial.

- was troubling; however, the prejudice to defendant was not of constitutional magnitude where the defendant failed to show that undue anxiety or concern was suffered attendant to defendant's incarceration and offered no evidence as to the specific manner in which defendant's defense was impaired. Mullinax v. State, 273 Ga. 756, 545 S.E.2d 891 (2001).

Delay of more than two years.

- With regard to a defendant being indicted for malice murder and other crimes, the trial court did not abuse the court's discretion by denying the defendant's motion to dismiss the indictment on speedy trial grounds as, although the delay of two years, two months, and 23 days in bringing the defendant to trial was presumptively prejudicial, the record supported the trial court's factual conclusion that the defendant failed to establish oppressive pretrial incarceration or anxiety and concern beyond that which necessarily attended confinement in a penal institution, and the defendant failed to present any specific evidence that the defendant's ability to defend had been impaired. Ruffin v. State, 284 Ga. 52, 663 S.E.2d 189 (2008), cert. denied, 555 U.S. 1181, 129 S. Ct. 1330, 173 L. Ed. 2d 603 (2009).

A 27-month delay between the defendant's arrest and the date the defendant filed a motion to dismiss did not violate the right to a speedy trial where the state's primary reason for delay was to wait for several significant appellate court decisions, the defendant did not assert the defendant's statutory or constitutional right during the period of the delay, the defendant did not demonstrate any isolated or distinct oppressiveness, anxiety, or concern the defendant suffered due to incarceration, and the sole example of impairment of evidence, the memory lapses of police officers, worked to the defendant's advantage. Howard v. State, 215 Ga. App. 343, 450 S.E.2d 824 (1994).

Three year and nine month delay.

- Defendant's indictment for armed robbery was properly dismissed on speedy trial grounds after a delay of three years and nine months because the defendant's ability to prepare defendant's defense was impaired by lost hospital records, missing9-1-1 calls, and other missing evidence. State v. Ivory, 304 Ga. App. 859, 698 S.E.2d 340 (2010).

A nearly 5 1/2 year delay between indictment and trial was presumptively prejudicial and warranted inquiry into the other factors that go into determining whether a criminal defendant has been deprived of the defendant's right to a speedy trial. Crapse v. State, 180 Ga. App. 321, 349 S.E.2d 190 (1986).

Five year delay not prejudicial.

- Trial court did not abuse its discretion in finding that a defendant failed to show a constitutional violation of the defendant's right to a speedy trial and by denying the defendant's motion for discharge and acquittal with regard to the defendant's convictions for sexual assault as the defendant never filed a speedy trial demand; there was no evidence nor finding by the trial court that the state intentionally delayed the trial to impair the defendant's defense; the defendant's failure to assert either a statutory or constitutional right to a speedy trial was entitled to strong evidentiary weight against the defendant; and the fact that the defendant never filed a speedy trial demand suggested that the defendant was not suffering anxiety or stress from the delay. The reviewing court noted that the five year delay in bringing the defendant to trial was solely based on requests from defense counsel due to illness, death in the family, or death of an expert witness. Disharoon v. State, 288 Ga. App. 1, 652 S.E.2d 902 (2007).

Speedy trial right was not violated by seven-year delay between defendant's indictment and trial, after the court weighed a number of factors, including the fact that the defendant had left for India at the time of the indictment and the government did not know of the defendant's location but made reasonable efforts to find the defendant. United States v. Bagga, 782 F.2d 1541 (11th Cir. 1986).

Two-year undeliberate delay constitutional where defendant did not assert right and defense unimpaired.

- There is no denial of the Sixth Amendment right to a speedy trial where the length of delay between arrest and trial is almost two years, but the defendant has not shown that the prosecution deliberately delayed the trial for tactical advantage, that the defendant asserted the defendant's statutory right prior to trial, that the defendant asserted the defendant's constitutional right prior to appeal, or that the defendant's defense was impaired by the delay. Getz v. State, 251 Ga. 462, 306 S.E.2d 918 (1983).

Delay attributable to hiring four different counsel.

- Defendant's right to a speedy trial was not violated, where although the delay was approximately 22 months, much of that was attributable to the defendant's hiring and discharging four different counsel prior to the final appointment, the defendant did not assert the defendant's demand for trial until almost a year after indictment, and trial commenced ten months thereafter. Lynott v. State, 198 Ga. App. 688, 402 S.E.2d 747, cert. denied, 198 Ga. App. 898, 402 S.E.2d 747 (1991).

Trial court did not abuse the court's discretion in denying the defendant's motion to dismiss an indictment on constitutional speedy trial grounds because the court applied the proper framework for analyzing the speedy trial issue, and the evidence supported the trial court's findings that the two years prior to indictment were used for investigation and that the defendant did not experience any unusual anxiety and concern beyond that which necessarily accompanied serious pending charges; the trial court's finding of no oppressive pretrial incarceration was correct because the defendant was released on bond less than three weeks after the defendant's arrest, and the delay, though long, was reasonable under the circumstances and in light of the scientific evidence involved. Sweatman v. State, 287 Ga. 872, 700 S.E.2d 579 (2010).

Indictment sealed beyond limitations period not automatically prejudicial.

- The court improperly dismissed the indictment, which was returned against the defendant in October, 1982, but which remained sealed beyond the limitations period, until February 1984, when the defendant was taken into custody. Although the government did not seriously attempt to find the defendant, the defendant was not impaired in asserting the right to a speedy trial and, consequently, had to show actual prejudice. That the indictment was sealed beyond the limitation period could be figured into the prejudice decision, but that fact alone did not dictate a finding of prejudice. United States v. Mitchell, 769 F.2d 1544 (11th Cir. 1985), cert. denied, 474 U.S. 1066, 106 S. Ct. 819, 88 L. Ed. 2d 792; 475 U.S. 1028, 106 S. Ct. 1230, 89 L. Ed. 2d 339 (1986).

Fourteen-year delay between arrest and trial for murder did not violate the defendant's right to a speedy trial where the defendant's liberty had not been restrained nor was the defendant's life disrupted, and where case was decided on superseding due process grounds. Wooten v. State, 262 Ga. 876, 426 S.E.2d 852, cert. denied, 510 U.S. 853, 114 S. Ct. 156, 126 L. Ed. 2d 117 (1993).

Dismissal of indictment for preindictment delay.

- Since an applicable statute of limitations does not fully define accused's rights with respect to the events occurring prior to indictment, due process would require dismissal of the indictment if it were shown at trial that preindictment delay caused substantial prejudice to accused's rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638 (1980).

Dismissal is required for prearrest or preindictment delay under the due process clause when it is shown that the delay caused actual substantial prejudice to defendant's right to a fair trial and that the delay was an intentional device to gain a tactical advantage. Hammond v. State, 157 Ga. App. 647, 278 S.E.2d 188 (1981).

Reason for delay.

- Because of extreme delay (seven years) in bringing case to trial, state's lack of any apparent, articulable reason for delay, and consequent impairment of appellant's case, appellant's Sixth Amendment due process right was violated by deprivation of a speedy trial. Lett v. State, 164 Ga. App. 584, 298 S.E.2d 541 (1982).

Defendant was denied the right to counsel of defendant's own choosing and obtained a reversal of defendant's conviction for aggravated assault, aggravated battery, and possession of a firearm, as a result of the trial court judge denying defendant's motion for a continuance, which was grounded on the fact that defendant's retained counsel was hospitalized the trial court failed to make an inquiry as to whether the absence of defense counsel was attributable to defendant and merely stated that because appointed counsel was in the courtroom, defendant was adequately represented. Turman v. State, 272 Ga. App. 570, 613 S.E.2d 126 (2005).

When defendant was one of the people indicted in a multiple-murder case in which the state sought capital punishment, defendant did not show that a 38-month delay between defendant's indictment and trial was "presumptively prejudicial," because it was necessary for each co-indictee to be tried separately, and this triggered the state's statutory right, under O.C.G.A. § 17-8-4, to elect which defendant to try first; therefore, when the state elected to try defendant co-indictee first, defendant's case was prosecuted with the promptness customary for death penalty cases involving multiple defendants, and the trial court did not have to balance the factors considered in deciding whether defendant's right to a speedy trial was violated, given the lack of presumptive prejudice. Wimberly v. State, 279 Ga. 65, 608 S.E.2d 625 (2005).

When defendant, who was initially indicted for the burglary of victims who died when their house burned down, later admitted involvement in their deaths, resulting in a new indictment for murder, arson, and other offenses, as well as the original burglary, while a 62-month delay after the new indictment was presumptively prejudicial, as was the delay of another year after the original indictment, the lack of the state's deliberate act causing the delay, defendant's withdrawal of defendant's speedy trial demand, and the lack of a showing that defendant's defense was impaired by the delay indicated that it was not error to deny defendant's motion to dismiss the indictments. Williams v. State, 279 Ga. 106, 610 S.E.2d 32 (2005).

Trial court properly denied defendant's motion to dismiss the indictment against him because defendant never filed an effective statutory demand for a speedy trial and, as to defendant's constitutional right to a speedy trial, the 68-month delay was presumed prejudicial, but defendant prolonged the proceedings due to defendant's own issues with retaining counsel, including defendant's original counsel obtaining various leaves of absences due to illness and defendant's unsuccessful efforts to retain other private counsel. Henderson v. State, 290 Ga. App. 427, 662 S.E.2d 652 (2008).

Prejudice not shown.

- Defendant's constitutional right to a speedy trial was not violated even though delay was for two years, three months, and ten days, of which the defendant was incarcerated, where there was no evidence that a deliberate attempt to delay the trial in order to hamper the defense was shown, to a considerable extent the delay was attributable to the defense, the defendant did not assert in the criminal case the constitutional right to a speedy trial, and the defendant's only assertion of prejudice was the death of a character witness. Perry v. Mitchell, 253 Ga. 593, 322 S.E.2d 273 (1984).

Vague assertions of faded memory and lost witnesses without connecting the loss to any material fact in issue will not satisfy the requirement that actual prejudice be demonstrated to establish a violation of the right to a speedy trial. United States v. Burke, 673 F. Supp. 1574 (N.D. Ga. 1986), aff'd, 856 F.2d 1492 (11th Cir. 1988), cert. denied, 492 U.S. 908, 109 S. Ct. 3222, 106 L. Ed. 2d 571 (1989).

Denial of defendant's motion to dismiss for an alleged violation of defendant's speedy trial right based on a more than three-year delay after defendant's initial arrest was proper where there was no deliberate attempt to delay the trial to hamper the defense, where defendant was incarcerated for a few days and then released on bond, where defendant's burdens of mental anguish and defendant's claim that the case hurt defendant economically fell short of establishing an unusual showing that balanced this factor significantly in defendant's favor, where, since, in criminal cases, a child was automatically competent to testify as to molestation, defendant showed no prejudice by defendant's assertion that the child victims were more vulnerable to a competency challenge when they were younger, where defendant's speculation that the people who had moved out of state might have been alibi witnesses fell short of "specific evidence" to weight this factor in defendant's favor, and where defendant failed to assert timely speedy trial rights and failed to show that defendant's defense was impaired. Watkins v. State, 267 Ga. App. 684, 600 S.E.2d 747 (2004).

Presumption of prejudice raised by the state's 25-month delay in bringing defendant's case to trial was sufficiently rebutted as the loss of a witness did not prevent defendant from asserting an alibi defense and defendant was partially responsible for the loss of the witness as defendant waited 15 months after the indictment to assert defendant's speedy trial rights. Salahuddin v. State, 277 Ga. 561, 592 S.E.2d 410 (2004).

Trial court's denial of defendant's motion for discharge and acquittal on constitutional speedy trial grounds was proper because, while the first two Barker factors weighed in favor of defendant, defendant did not assert constitutional rights until trial was imminent, despite ample time to do so, defendant did not show that the defense was impaired by the 29-month delay between arrest and trial, defendant did not show any prejudice from the delay, there was no evidence that the delay was the result of a deliberate attempt by the state to hamper the defense, and defendant had been released on bond on the same day as the arrest. Nusser v. State, 275 Ga. App. 896, 622 S.E.2d 105 (2005).

Because the short delay attributable to the state did not have any demonstrable harmful effect on the defense against two murder charges and because defendant was dilatory in formally asserting the right to a speedy trial under the Sixth Amendment and the Georgia Constitution, the trial court correctly denied defendant's motion to dismiss the indictments. Scandrett v. State, 279 Ga. 632, 619 S.E.2d 603 (2005).

Trial court did not err by denying a defendant's motion to dismiss based on an alleged violation of the defendant's constitutional right to a speedy trial because the various appeals by the defendant and the state constituted valid reasons for significant periods of delay in the trial, part of the delay was inherent since the case involved a death penalty prosecution, there was no evidence of a deliberate attempt by the state to delay the trial in order to hamper the defense, and the trial court was authorized to conclude that there had not been any impairment to the defense. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36 (2007), overruled on other grounds, Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).

Three defendants failed to carry the burden of establishing that a 14-month delay in bringing defendants to trial was presumptively prejudicial and, therefore, violated defendants' right to a speedy trial, because the peculiar circumstances of the case authorized a finding that the case was being prosecuted with the promptness customary for a complex drug trafficking case involving multiple defendants. Defendants failed to show that such a delay was presumptively prejudicial under the circumstances of the case: (1) the case was more akin to a complex conspiracy charge, as opposed to an ordinary street crime, since the indictment charged 11 people with the serious offense of trafficking in cocaine; (2) defendants acknowledged in the trial court and in appellate briefs that there was a massive amount of evidence for discovery, including thousands of documents, thousands of telephone records, and hundreds of hours of taped conversations; and (3) there was a also a federal investigation of the drug operation going on at the same time as the state investigation. Lawrence v. State, 289 Ga. App. 698, 658 S.E.2d 144 (2008), cert. denied, No. S08C1086, No. S08C1084, 2008 Ga. LEXIS 467, 486, 512 (Ga. 2008).

With regard to defendant's convictions for theft by taking and on two counts of violation of oath by a public officer, the trial court properly denied defendant's motion to dismiss based on a violation of defendant's constitutional right to a speedy trial as no violation was established since some delay was attributable to defendant and defendant never filed a statutory demand for a speedy trial; defendant did not show any evidence that the state deliberately delayed the trial in order to hamper the defense; and defendant did not show that the delay impaired the defense. Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. 2008).

Nine-month delay between a defendant's indictment for murder and the defendant's filing of a motion to dismiss the indictment on constitutional grounds was not a speedy trial violation under the Sixth Amendment as the defendant filed no demand for a speedy trial under O.C.G.A. § 17-7-171; did not raise the speedy trial issue for nine months; was imprisoned on other charges during those nine months; and showed no prejudice from the delay. Jones v. State, 284 Ga. 320, 667 S.E.2d 49 (2008).

Defendant's motion to dismiss an indictment based on a violation of the defendant's constitutional right to a speedy trial was properly denied as the defendant failed to show prejudice. There was no evidence that the defendant was subjected to substandard conditions in jail before release on bond, and the defendant failed to make any real showing of harm to the defense due to alleged changes in a defense witness's testimony and the destruction of certain physical evidence. Bowling v. State, 285 Ga. 43, 673 S.E.2d 194 (2009).

A defendant's constitutional right to a speedy trial was not violated despite a 26-month delay between the defendant's arrest and the filing of a motion to dismiss the indictment for aggravated battery and aggravated assault, because the defendant did not assert the speedy trial right for 26 months, was free on bond the whole time, and showed no prejudice from the delay, despite the razing of the crime scene. Williams v. State, 300 Ga. App. 797, 686 S.E.2d 407 (2009).

Trial court did not abuse the court's discretion by concluding that the presumption of prejudice arising from any delay in bringing the defendant to trial was insufficient for the defendant to prevail on the defendant's speedy trial claim because the defendant never filed a statutory speedy trial demand and only raised the speedy trial issue in defendant's October 24, 2008 motion to dismiss the indictment, and the defendant did not show anything oppressive relating to the defendant's pretrial incarceration or release on bond; there is no abuse of discretion in the trial court's determination that there was no prejudice caused by the unavailability of witnesses after the trial court specifically found that the witnesses' recorded sworn testimony from the first trial is still available, and there was a thorough and sifting cross-examination done at the first trial. Jakupovic v. State, 287 Ga. 205, 695 S.E.2d 247 (2010).

Trial court did not abuse the court's discretion when the court denied the first defendant's motion to dismiss the indictment on speedy trial grounds when although the delay in the instant case triggered a threshold finding of presumptive prejudice, while the final few weeks of delay could have been avoided had the state alerted the court to the fact that the victim was subject to a federal subpoena in Florida, the state did not deliberately attempt to hamper the defense in that regard. Moreover, the first defendant waited more than three years after the defendant's arrest to assert the defendant's demand, and the first defendant's alibi defense was not impaired as a result of the delay because defendant's alleged alibi witness was still available and capable of giving testimony. Brown v. State, 287 Ga. 892, 700 S.E.2d 407 (2010).

Although defendant contended the trial court should have dismissed the charges against the defendant because the defendant was denied the defendant's constitutional right to a speedy trial under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI, the record revealed no basis for granting such a motion because the record showed that any delay in bringing the case to trial was primarily attributable to defendant and that any resulting prejudice worked to the defendant's benefit, factors which weighed against defendant and defeated any contention that the defendant was deprived of the defendant's constitutional right to a speedy trial. Zeger v. State, 306 Ga. App. 474, 702 S.E.2d 474 (2010).

Prejudice shown.

- Trial court erred in denying defendant's motion to dismiss which alleged a speedy trial violation, as the delay in bringing defendant to trial was prejudicial, especially when, after an assertion of the right, a trial did not immediately ensue, but an additional seven months had passed before a ruling on the claim, and in the interim, an alleged material defense witness died. Hardeman v. State, 280 Ga. App. 168, 633 S.E.2d 595 (2006).

Renewed motion for discharge and acquittal by the defendant was properly granted upon a determination that the defendant's constitutional speedy trial rights were violated under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI, as the delay of almost four years in bringing the defendant to trial was presumptively prejudicial, and the remaining Barker-Doggett factors weighed in the defendant's favor; only a small portion of the delay was attributable to the defendant and the defendant timely asserted the right to a speedy trial. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802 (2009).

Defendant was denied defendant's constitutional right to a speedy trial and to due process based on the state's intentional act of trading discovery responses for a speedy trial right, and the resulting prejudice from the disappearance of a material witness. The trial court therefore abused the court's discretion in denying the defendant's motion for discharge and acquittal. Ditman v. State, 301 Ga. App. 187, 687 S.E.2d 155 (2009), cert. denied, No. S10C0539, 2010 Ga. LEXIS 243 (Ga. 2010).

Trial court abused the court's discretion by concluding that the defendant did not show sufficient prejudice from the delay to support a constitutional speedy trial claim because 33 months of a 35-month delay in trial was attributable to the state, and because the defendant established that during the delay witnesses with material testimony had become unavailable by leaving the country. Davis v. State, 301 Ga. App. 155, 687 S.E.2d 180 (2009).

Speedy trial rights were violated when the defendant was brought to trial more than 53 months after being indicted, an uncommonly long delay that weighed against the state. The delay occasioned by the prosecuting attorney's announcement that the state intended to seek the death penalty, made on the day the case was set for trial for the tenth time, weighed more heavily against the state; while the defendant did not assert the right to a speedy trial until almost four years after the indictment, the defendant's late assertion was somewhat mitigated by the defendant's repeated insistence that the state comply with the state's discovery obligations; and the defendant suffered actual prejudice as a result of the defendant's inability to show the extent to which evidence tampering occurred, due to an officer's inability to recall important details of the investigation. State v. Buckner, 292 Ga. 390, 738 S.E.2d 65 (2013).

Sentencing compliant with Sentencing Guidelines.

- A defendant's due process rights are violated only when a judge-decided fact actually increases a defendant's sentence beyond the prescribed statutory maximum penalty for the convicted crime and has no application to, or effect on, cases where a defendant's sentence falls at or below that maximum penalty; thus, there can be no due process violation in connection with either mandatory minimum sentences or Sentencing Guidelines calculations, when in either case the ultimate sentence imposed does not exceed the prescribed statutory maximum penalty. United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001), cert. denied, 535 U.S. 942, 122 S. Ct. 1327, 152 L. Ed. 2d 234 (2002).

Where right to jury trial attaches.

- Right to jury trial attaches where the maximum penalty for an offense exceeds six months imprisonment. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

Right to jury trial attaches in both felony and misdemeanor cases.

- Only in cases concerning truly petty crimes, where the deprivation of liberty is minimal, does the defendant have no constitutional right to trial by jury. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

Cumulation of multiple petty offenses for purpose of gaining right to jury trial.

- That the cumulative punishment which can be inflicted upon a defendant is in excess of six months imprisonment and that the defendant is tried at one time on multiple charges does not operate to convert the multiple offenses with which the defendant is charged from multiple petty offenses to one serious offense, thus placing the trial within the constitutional guarantee of the right to a jury trial. Key v. Stewart, 228 Ga. 516, 186 S.E.2d 739 (1972).

No right to jury trial exists for a contempt proceeding brought for violation of a restraining order. Sumbry v. Land, 127 Ga. App. 786, 195 S.E.2d 228 (1972), cert. denied, 414 U.S. 1079, 94 S. Ct. 598, 38 L. Ed. 2d 486 (1973).

Absence of mental retardation is not the functional equivalent of an offense such that determining its absence or presence in a criminal matter requires a jury trial under Ring v. Arizona, 536 U.S. 584 (2002), based on constitutional principles under Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003).

Defendant cannot compel court to try the defendant without a jury.

- A defendant who is charged with a felony and who waives the right for a jury trial and demands trial by the court without a jury, cannot compel the court to so try the defendant. It is not error for the court to overrule such demand. Palmer v. State, 195 Ga. 661, 25 S.E.2d 295 (1943).

Before a defendant could effectively waive the right to a jury trial and demand a bench trial, the state's consent had to be obtained, in addition to the trial court's agreement to conduct a bench trial pursuant to the defendant's demand. Zigan v. State, 281 Ga. 415, 638 S.E.2d 322 (2006).

Purposes which govern size of jury.

- U.S. Const., amend. 6 mandates a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross section of the community. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

Jury of fewer than six persons deprives a defendant of the right to trial by jury. Ballew v. State, 145 Ga. App. 829, 245 S.E.2d 169, cert. denied, 436 U.S. 962, 98 S. Ct. 3083, 57 L. Ed. 2d 1129 (1978).

Requiring only nine votes of a 12-member jury to convict in a felony trial does not violate due process guarantee by diluting the reasonable doubt standard. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

Nothing in the federal Constitution requires states to provide a jury of 12 in the trial of criminal cases, though it does require federal courts to have that number. Trial by jury in a federal court means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted. Among those elements was a jury composed of 12 persons, neither more nor less. Coates v. Lawrence, 46 F. Supp. 414 (S.D. Ga. 1942), aff'd, 131 F.2d 110 (5th Cir. 1942), cert. denied, 318 U.S. 759, 63 S. Ct. 532, 87 L. Ed. 1132 (1943).

States have wide leeway in dividing responsibility between judge and jury in criminal cases.

- If a state concludes that jury sentencing is preferable, nothing in the due process clause of U.S. Const., amend. 14 intrudes upon that choice. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973).

Sentencing by court after conviction by jury.

- If the jury finds the appellant was guilty of the offense charged, the fact that the trial court fixed the sentence does not deprive the appellant of the right to trial by jury. Bowman v. State, 231 Ga. 220, 200 S.E.2d 880 (1973).

Jury is permitted to increase sentence on retrial, although this may force the defendant either to waive a jury trial in the second trial or to plead guilty so that the trial judge could not increase the sentence without violating the right under U.S. Const., amend. 6 to a jury trial. Chaffin v. Stynchcombe, 455 F.2d 640 (5th Cir. 1972), aff'd, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973).

Trial by jury in a criminal case may be waived. Brown v. Zerbst, 99 F.2d 745 (5th Cir. 1938), cert. denied, 305 U.S. 661, 59 S. Ct. 365, 83 L. Ed. 429 (1939).

Constitutional right to a jury trial may be waived by proceeding to trial without demanding a jury. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782 (1943).

Defendant in a misdemeanor case can waive trial by jury.

- There is no reason why a prisoner in a case of this kind should not have the right to be tried by a conscientious and intelligent judge, if he prefers it, as well as the right to be tried by a jury. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782 (1943).

Trial of misdemeanor traffic offenses in municipal court.

- The power of municipal courts to try and dispose of misdemeanor traffic offenses is conditioned upon the defendant's waiver of the right to a jury trial. Kolker v. State, 260 Ga. 240, 391 S.E.2d 391 (1990).

Defendant's waiver need not be in a particular, ritualistic form. Little v. Smith, 347 F. Supp. 427 (N.D. Ga. 1971).

Personal waiver of jury trial.

- It is not necessary for the preservation of due process that a defendant personally waive the right to a jury trial. Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971).

Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. Griggs v. State, 159 Ga. App. 219, 283 S.E.2d 77 (1981) (but see Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971).

Defendant's waiver of the right to trial by jury was knowingly made by the defendant and with the defendant's personal and intelligent participation, where it could be inferred from the joint participation in the waiver by both the defendant and the defendant's counsel that this was a matter that they had discussed. White v. State, 197 Ga. App. 162, 398 S.E.2d 35 (1990).

Defendant waived the right to a jury trial, where the defendant consulted with the defendant's attorney and made an intelligent and knowing decision to waive the right and made no objection to the proceeding until after the defendant received an unfavorable verdict. McCollum v. State, 201 Ga. App. 493, 411 S.E.2d 328, cert. denied, 1991 LEXIS 1015 (1991), 507 U.S. 916, 113 S. Ct. 1271, 122 L. Ed. 2d 666 (1993); overruled on other grounds, 282 Ga. App. 482, 654 S.E.2d 628 (2007).

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. Payne v. State, 217 Ga. App. 386, 460 S.E.2d 297 (1995).

A trial court did not err by finding that defendant made a personal, knowing, and intelligent waiver of the right to a jury trial with regard to defendant's convictions for aggravated child molestation and two counts of child molestation after a bench trial because, before trial began, defense counsel stated that defendant wished to waive the jury trial right and proceed with a bench trial, and the trial court questioned defendant, who confirmed that defendant wanted a bench trial and that defendant understood the choice. Further, at the hearing on defendant's motion for a new trial, defendant testified that defendant discussed the matter at length with defense counsel before trial and stated that defendant wanted the judge, not a jury, to decide defendant's fate. Brumbelow v. State, 289 Ga. App. 520, 657 S.E.2d 603 (2008).

Absence of written assent signed by the defendant and of categorical oral assent will not invalidate waiver. Little v. Smith, 347 F. Supp. 427 (N.D. Ga. 1971).

Waiver must be deliberately and understandingly made with the consent of the prosecution and the court. Irvin v. Zerbst, 97 F.2d 257 (5th Cir.), cert. denied, 303 U.S. 657, 56 S. Ct. 527, 82 L. Ed. 1098, cert. denied, 305 U.S. 597, 59 S. Ct. 97, 83 L. Ed. 379 (1938).

Court must decide whether the defendant intelligently agreed to a trial without jury in determining validity of waiver. Little v. Smith, 347 F. Supp. 427 (N.D. Ga. 1971).

When the purported waiver of the right is questioned, the state bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. Pahnke v. State, 203 Ga. App. 88, 416 S.E.2d 324 (1992), cert. denied, 203 Ga. App. 907, 416 S.E.2d 324, 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201 (1992).

Defendant's waiver was knowing and intelligent.

- Because the record affirmatively showed that the defendant was aware of the right to a jury trial because the defendant personally filed a written pro se demand for trial by jury reciting that right and the trial judge reminded the defendant that the defendant was entitled to a trial by jury and asked the defendant if the defendant wanted a jury or nonjury trial and the defendant elected to have a nonjury trial, the defendant personally made a knowing and intelligent waiver of the right to a jury trial. Pahnke v. State, 203 Ga. App. 88, 416 S.E.2d 324 (1992), cert. denied, 203 Ga. App. 907, 416 S.E.2d 324, 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201 (1992).

Evidence supported a trial court's finding that a defendant knowingly and voluntarily waived the defendant's right to a jury trial as the defense counsel testified that: (1) the defense counsel explained to the defendant on several occasions the defendant's right to a jury trial and the ramifications of that right; (2) the counsel explained the difference between a jury trial and a bench trial and recommended that the defendant waive that right in favor of a bench trial and take the defendant's chances with an appeal of the denial of a motion to suppress; and (3) the defendant indicated to the counsel that the defendant understood the defendant's rights and the strategy and affirmatively agreed to go forward with a bench trial. Fleming v. State, 282 Ga. App. 373, 638 S.E.2d 769 (2006).

Defendant did not knowingly, intelligently, and voluntarily waive jury trial.

- Upon a withdrawal of opposition by the state, because an inmate was not advised of the constitutional right to a jury trial, and the court could find no extrinsic evidence in the record to conclude that the inmate knowingly, intelligently, and voluntarily waived the right to a jury trial on the state drug charges at issue, an order denying habeas relief was reversed, and the case was remanded. Sutton v. Sanders, 283 Ga. 28, 656 S.E.2d 796 (2008).

There is no requirement of an "in court" waiver of right of jury trial. Wooten v. State, 162 Ga. App. 719, 293 S.E.2d 11 (1982), aff'd, 166 Ga. App. 168, 303 S.E.2d 507 (1983).

Defendant's right to risk greater sentence in jury trial.

- Where the government has not voluntarily reduced the charges, it is unfair to the defendant, who prefers to risk a potentially greater sentence in order to be tried by a jury of peers, to deny the defendant the right to a jury trial. United States v. O'Connor, 660 F. Supp. 955 (N.D. Ga. 1987).

Effect of possibility of consecutive sentences.

- Where defendant has been charged with "driving under the influence" and "reckless driving," each of which is a "petty" offense as that term is defined in 18 U.S.C. § 1(3), but, because a magistrate is authorized to impose consecutive sentences pursuant to 18 U.S.C. § 3584(a), the defendant is exposed to a potential penalty of one year's imprisonment, a $1,000.00 fine, and two $25.00 assessments, as the defendant faces a potential sentence of over six months' imprisonment and over a $500.00 fine under these circumstances, the defendant has a constitutional right to a jury trial. United States v. O'Connor, 660 F. Supp. 955 (N.D. Ga. 1987).

No right to jury trial in equal employment opportunity cases.

- There is no right to a jury trial in cases arising under the equal employment opportunity provisions of the Civil Rights Act of 1964. Mitchell v. Alex Foods, Inc., 572 F. Supp. 825 (N.D. Ga. 1983).

No right to jury trial on issues of back pay and lost benefits.

- There is no right to a jury trial on the issue of back pay under 42 U.S.C. § 1981 or for the recovery of "lost pension, social security, experience and training opportunities and other lost benefits"; such relief is equitable in nature. Mitchell v. Alex Foods, Inc., 572 F. Supp. 825 (N.D. Ga. 1983).

Probate court.

- Probate court did not err by failing to conduct a jury trial on the construction of a decedent's will as the decedent's will was unambiguous and no issues of fact remained; further, the corporation challenging the construction was not authorized under Georgia law to serve as a corporate trustee. Chattowah Open Land Trust, Inc. v. Jones, 281 Ga. 97, 636 S.E.2d 523 (2006).

Test for fair trial.

- To support a finding that the petitioner did not receive a fair trial, the petitioner must show: (1) that setting of trial was inherently prejudicial; or (2) that jury selection process showed actual prejudice to degree that rendered fair trial impossible. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497 (1982).

Impanelling of fair and impartial jurors, when demonstrated on voir dire, makes it particularly difficult to show that setting of trial was inherently prejudicial. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497 (1982).

Trial court did not deprive the defendant of a fair and impartial jury pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6 in refusing to transfer venue of the murder case due to pretrial publicity; many of the prospective jurors were unaware of the publicity surrounding the crimes due to the 14-year gap between the crimes and trial, and no remaining venire persons expressed a fixed opinion regarding the defendant's guilt based upon exposure to media coverage. Denny v. State, 281 Ga. 114, 636 S.E.2d 500 (2006).

Shock sleeve use did not impact fair trial.

- Defendant's Sixth Amendment right to a fair trial was not violated by the trial court's order that the defendant appear at trial wearing an electronic shock device as a security measure because there was no evidence that the shock sleeve was apparent to the jury; the defendant failed to show that the defendant suffered any harm arising from adverse jury partiality created by the shock sleeve or that the trial court abused the court's discretion in finding a necessity for the sleeve to be worn; and at no time during the course of the trial did the defendant claim that the defendant feared that the defendant would be shocked by accident and that the defendant's fear interfered with the defendant's ability to focus on the trial. Weldon v. State, 297 Ga. 537, 775 S.E.2d 522 (2015).

Remand to trial court.

- Where record indicated that valid waiver of the right to jury trial may have occurred but did not reflect whether defendant personally, knowingly, voluntarily, and intelligently participated in such waiver, case was remanded to trial court for hearing on that issue. Wooten v. State, 162 Ga. App. 719, 293 S.E.2d 11 (1982), aff'd, 166 Ga. App. 168, 303 S.E.2d 507 (1983).

Right not violated in death penalty case.

- O.C.G.A. § 17-10-30, enumerating the statutory aggravating factors in a death penalty case, was not unconstitutional under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI as applied in defendant's case; the jury found beyond a reasonable doubt the existence of the statutory aggravating circumstances, there was no requirement that the jury find non-statutory aggravating factors beyond a reasonable doubt, and the non-statutory aggravating evidence presented by the state was reliable and admissible. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

No violation found.

- On appeal, the defendant failed to show an entitlement to a new trial based on the actions of a dismissed juror, as the juror did not participate in the verdicts, and the ever-watchful trial judge, by conducting individual voir dire of the jurors who did return the guilty verdicts, properly determined that the dismissed juror had no effect on the jury's deliberations. Inman v. State, 281 Ga. 67, 635 S.E.2d 125 (2006), cert. denied, 552 U.S. 828, 128 S. Ct. 42, 169 L. Ed. 2d 40 (2007).

Unanimous verdict required.

- Under U.S. Const., amend. 6 a criminal defendant has a right to a unanimous jury verdict, but there can be a waiver by the defendant of this right. Glass v. State, 250 Ga. 736, 300 S.E.2d 812 (1983).

Improper excusal of lone juror holding out for acquittal.

- The trial judge's failure to make a reliable determination of whether, in the final moments of jury deliberations, the lone juror to reserve a reasonable doubt as to the defendant's guilt, who was reported by the jury foreman to be "extremely nervous," was actually incapacitated, the judge's failure to ensure that the juror understood the juror's right to adhere to the juror's view that the defendant should be acquitted, and the juror's failure, upon excusing that juror and replacing the juror with an alternate juror, to instruct the reconstituted jury to begin anew deprived the defendant of the constitutional right to a trial by a fair and impartial jury and deprived the defendant of the due process right to a fair trial. Peek v. Kemp, 746 F.2d 672 (11th Cir. 1984), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986).

Improper judicial determination in prosecution for failure to file tax return.

- In a prosecution for willful failure to file income tax returns, trial court erred in directing the jury that, as a matter of law, the documents filed by the defendant were not returns. United States v. Goetz, 746 F.2d 705 (11th Cir. 1984).

Juror may impeach verdict based on juror misconduct.

- One recognized exception to the rule that a juror may not impeach the verdict is juror misconduct where the jurors, in effect, become unsworn witnesses against the defendant in violation of U.S. Const., amend. 6. Moore v. State, 179 Ga. App. 125, 345 S.E.2d 631 (1986).

Statutory aggravating circumstances.

- Georgia death penalty statutes were not unconstitutional under the Sixth Amendment, as the jury had to find beyond a reasonable doubt the statutory aggravating circumstances necessary to make a defendant eligible for the death penalty, pursuant to O.C.G.A. § 17-10-30; there was no requirement that non-statutory aggravating evidence be proven beyond a reasonable doubt. Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005).

Grand jury must be drawn from fair cross section.

- The right to trial by an impartial jury includes the right to be indicted by a grand jury composed of members drawn from a source representing a fair cross section of the community. United States v. Cross, 516 F. Supp. 700 (M.D. Ga. 1981), rev'd on other grounds, 708 F.2d 631 (11th Cir. 1983), aff'd, 742 F.2d 1279 (11th Cir. 1984), cert. denied, 498 U.S. 849, 111 S. Ct. 138, 112 L. Ed. 2d 105 (1990).

There is no requirement that the jury list include the name of every citizen of the county eligible for jury service. This list must include a fair cross-section of the eligible members of the community, not every eligible member of the community. Lipham v. State, 257 Ga. 808, 364 S.E.2d 840, cert. denied, 488 U.S. 873, 109 S. Ct. 191, 102 L. Ed. 2d 160 (1988).

U.S. Const., amend. 6 guarantees a defendant's right to a jury selected from a representative cross-section of the community. This requirement does not, however, extend to petit juries. United States v. Rodriquez-Cardenas, 866 F.2d 390 (11th Cir. 1989), cert. denied, 493 U.S. 1069, 110 S. Ct. 1110, 107 L. Ed. 2d 1017 (1990).

Fair cross-section representation requirement not applicable to grand jury foreperson.

- Although the composition of a grand jury or petit jury venire may be challenged under the Sixth Amendment's guarantee of a right to be tried by a group drawn from a source representing a fair cross-section of the community, this requirement does not extend to the office of grand jury foreperson because one person alone cannot represent the divergent views, experience, and ideas of the distinct groups which form a community. United States v. Sneed, 729 F.2d 1333 (11th Cir. 1984).

Right to have a jury venire represent a fair cross section of the community is protected by U.S. Const., amend. 6's guarantee of trial by an impartial jury. Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983); Davis v. Zant, 721 F.2d 1478 (11th Cir. 1983), cert. denied, 471 U.S. 1143, 105 S. Ct. 2689, 86 L. Ed. 2d 706 (1985).

No constitutional guarantee of representative cross-section in particular case.

- The fact that the jury panel in a particular case actually contained a lower percentage of black persons is not especially significant. There is no constitutional guarantee that the grand or petit juries impanelled in a particular case will constitute a representative cross-section of the entire community. Truitt v. State, 212 Ga. App. 286, 441 S.E.2d 800 (1994).

Unified Appeal Procedure ensuring fair cross section.

- Unified Appeal Procedure provides a statewide procedure for creating and evaluating jury source lists, and that method was designed to promote adequate representation of cognizable groups through the use of a comprehensive and objective standard. Although in some instances, that procedure may create temporary, self-rectifying anomalies as Decennial Census reports grow old, the ill done by those temporary anomalies is outweighed by the other benefits of the procedure. Thus, a continued adherence to the requirements of the Unified Appeal Procedure regarding the balancing of cognizable groups to match the most-recent Decennial Census is justified by a sufficiently-significant state interest. Finally, a fair cross-section is also guaranteed by O.C.G.A. § 15-12-40 under standards "comparable if not identical" to Sixth Amendment standards. Williams v. State, 287 Ga. 735, 699 S.E.2d 25 (2010).

Motion to dismiss a murder indictment on the ground that the grand jury was drawn from a grand jury pool that systematically underrepresented blacks and overrepresented whites, in violation of the Sixth and Fourteenth Amendments, based on the selection process known as "forced balancing" the grand jury pool to the most recent decennial census for the county, was properly denied under the law in effect as of November 2010, before the Jury Composition Reform Act of 2011 took effect. Franklin v. State, 303 Ga. 165, 810 S.E.2d 118 (2018).

Failure to show actual under-representation of a claimed cognizable group.

- Supreme Court of Georgia found no need to address the trial court's finding regarding whether Hispanic persons were a cognizable group in Cobb County in order to decide the defendant's jury composition claim, because: (1) the defendant failed to show any actual under-representation of Hispanic persons; (2) a slight over-representation of Hispanic persons who were citizens, in comparison to the total county population, was shown by the evidence; and (3) the defendant's own expert belied the defendant's claim of under-representation. Rice v. State, 281 Ga. 149, 635 S.E.2d 707 (2006).

Defendant's argument that Hispanic persons were misrepresented in the composition of the grand and traverse jury pools in violation of the Sixth and Fourteenth Amendments and O.C.G.A. § 15-12-40 was rejected because the defendant failed to show any actual misrepresentation of this group: defendant's own expert witness testified that when using 2000 Census data, absolute disparity figures for Hispanics were under the five percent threshold, although when adjusted to account for the citizenship rate of Hispanic persons, the absolute disparity figure showed over-representation by 6.12 percent for the grand jury list. Thus, the absolute disparity figures were well within constitutional requirements of 10 percent. Foster v. State, 288 Ga. 98, 701 S.E.2d 189 (2010).

Due process limits apply even where jury not constitutionally required.

- If a state chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Whether class is identifiable and distinct is threshold question.

- A threshold question that must be answered by the defendant is whether the particular class constitutes an identifiable and distinct class for purposes of a jury challenge based on the U.S. Const., amend. 14. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

State precluded from deliberate and systematic exclusion.

- Constitution requires that the state not deliberately and systematically exclude identifiable and distinct groups from its jury lists. Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977); 439 U.S. 882, 99 S. Ct. 218, 58 L. Ed. 2d 194 (1978).

Violation requires systematic exclusion or discrimination opportunity.

- The defendant's allegations that the venire from which the grand and petit juries were drawn was unconstitutionally composed because both women and African-Americans were underrepresented did not establish a prima facie violation of either the Sixth Amendment or the fourteenth amendment, because there was no showing that the underrepresentation was due to systematic exclusion of the groups in the jury-selection process or that the venire was selected under a practice providing an opportunity for discrimination. Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991).

Selection procedures, not actual composition, determine constitutionality.

- In determining whether there has been a denial of the defendant's right under U.S. Const., amend. 6 to have jury venires selected from fairly representative cross sections of the community, and in determining whether the defendant's rights under the equal protection clause of U.S. Const., amend. 14 have been violated because members of the defendant's race have been deliberately excluded from the jury lists, the inquiry concerns the procedures for compiling the jury lists and not the actual composition of the grand or traverse jury in a particular case. Patterson v. Balkcom, 245 Ga. 563, 266 S.E.2d 179 (1980).

It is the pool of jurors from which the jury sent to be voir dired is drawn that must be representative of the community, not the individual panel sent to a courtroom for voir dire purposes. Prine v. State, 237 Ga. App. 679, 515 S.E.2d 425 (1999).

State's challenge of defense counsel's use of peremptory challenges was proper since the trial court was authorized to disbelieve the facially race-neutral reasons for striking certain jurors, or to conclude that the stated grounds, some being whimsical or fanciful, were not neutrally applied. McKibbons v. State, 216 Ga. App. 389, 455 S.E.2d 293 (1995).

Mere geographical imbalance, absent evidence that an identifiable and cognizable segment of the community has been systematically excluded or underrepresented by reason of such imbalance, does not violate the statutory and constitutional requirements that the jury panel represent a fair cross section of the community. United States v. Rosenthal, 482 F. Supp. 867 (M.D. Ga. 1979).

Imprecision of jury selection process and other inoffensive factors.

- In determining whether a particular discrepancy is substantial or significant, some allowance may be made for the imprecision of the jury selection process and the operation of constitutionally inoffensive factors such as exemptions from jury duty based on occupation. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

Defendant entitled to panel of qualified jurors, not panel of preferred jurors. Smith v. State, 245 Ga. 205, 264 S.E.2d 15 (1980).

Defendant not constitutionally entitled to venire or jury roll of any particular composition. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975); Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977), cert. denied, 439 U.S. 882, 99 S. Ct. 218, 58 L. Ed. 2d 194 (1978); Mann v. Cox, 487 F. Supp. 147 (S.D. Ga. 1979).

Deliberate and systematic exclusion not permitted.

- Equal protection and due process clauses of U.S. Const., amend. 14 and U.S. Const., amend. 6 require that the state not deliberately and systematically exclude identifiable and distinct groups from their jury lists. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

Representative cross section in a particular case not guaranteed.

- There is no constitutional guarantee that grand or petit juries, impaneled in a particular case, will constitute a representative cross section of the entire community. Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977), cert. denied, 439 U.S. 882, 99 S. Ct. 218, 58 L. Ed. 2d 194 (1978); Smith v. State, 151 Ga. App. 697, 261 S.E.2d 439 (1979).

Representation of defendant's race or other groups not guaranteed.

- The proposition that a defendant in a criminal case is entitled to a proportionate number of the defendant's race on the jury that tries the defendant, or that the venire or jury lists accurately reflect the proportionate strength of every identifiable group is not law, since the challenger must establish by satisfactory evidence purposeful racial discrimination, even if the figures are not proportionate. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444 (1969).

Defendant in a criminal case is not constitutionally entitled to demand a proportionate number of the defendant's race on the jury that tries the defendant nor on the venire or jury roll from which petit jurors are drawn, and neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. United States v. Rosenthal, 482 F. Supp. 867 (M.D. Ga. 1979).

Gross and unexplained disparity may alone be sufficient to demonstrate discrimination. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444 (1969).

Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. Julian v. State, 134 Ga. App. 592, 215 S.E.2d 496 (1975).

State may exclude certain occupational categories from jury service on the bona fide ground that it is for the good of the community that their regular work should not be interrupted. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Use of voter registration lists for jury selection.

- Voter registration lists may be used as the sole source of names for jury duty unless it results in the systematic exclusion of a cognizable group or class of qualified citizens. However, those who do not choose to register, such as Jehovah's Witnesses, cannot be considered a cognizable group. United States v. Dangler, 422 F.2d 344 (5th Cir. 1970).

Defendant may complain of the exclusion from the jury of a distinct class to which the defendant does not belong. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

Exclusion of discernible class from jury service injures not only those defendants who belong to excluded class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section of the community. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Exclusion of blacks from jury service injures not only defendants, but also other members of the excluded class. It denies the class of potential jurors the privilege of participating equally in the administration of justice, and it stigmatizes the whole class, even those who do not wish to participate. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

Whatever a criminal defendant's race, the defendant has standing to challenge the system used to select the grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies the defendant due process of law. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

White person has standing to attack the systematic exclusion of black persons from grand and petit jury service. Gibbs v. State, 235 Ga. 480, 220 S.E.2d 254 (1975), cert. denied, 424 U.S. 924, 96 S. Ct. 1134, 47 L. Ed. 2d 333 (1976).

Exclusion of women as a class.

- It is not tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. Zirkle v. State, 235 Ga. 289, 219 S.E.2d 389 (1975).

Exclusion of women.

- In county where by tradition the grand jurors had selected their forepersons, fact that no woman had served as a foreperson of a county grand jury during the preceding ten years did not prove discrimination in selection of grand jurors and forepersons. Moss v. State, 250 Ga. 368, 297 S.E.2d 459 (1982).

Trial court did not abuse the court's discretion in ruling that the defendant failed to establish a prima facie case of discriminatory purpose based on gender by the prosecution using seven of the prosecution's eight peremptory strikes against women. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655 (2011).

Underrepresentation of women.

- Petitioner established a violation of the Sixth Amendment's fair-cross-section requirement, notwithstanding jury commissioners' good faith belief that 39.36 percent representation of women on the master jury list "was in the ballpark guidelines that the Supreme Court would allow." Berryhill v. Zant, 858 F.2d 633 (11th Cir. 1988).

Underrepresentation of whites.

- Because defense counsel put forward no evidence of the racial composition of the population of the county in which the defendant was tried, other than to state, "my client, being white, and we only have one white female juror out of the entire panel, I think it's just not a good cross section and it's not representative," the defendant failed to meet the defendant's burden to establish prima facie that a distinct and identifiable group in the community was substantially under represented on the jury venire being challenged. Prine v. State, 237 Ga. App. 679, 515 S.E.2d 425 (1999).

Defendant's use of peremptory strikes to exclude Caucasians.

- Trial court's finding that defense counsel's explanation for a prima facie racially discriminatory peremptory strike was pretextual was not clear error based on defense counsel's demeanor while explaining the strike, counsel's misstating what the juror's response was during voir dire, counsel's failure to excuse similarly situated jurors, and counsel's exercise of 11 of 12 strikes against Caucasians. Nelson v. State, 271 Ga. App. 870, 611 S.E.2d 147 (2005).

Right to challenge improperly composed jury.

- Criminal defendants in state courts have the right to challenge, under U.S. Const., amend. 6, petit juries not selected from a fair cross section of the community. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983).

Test for an attack on a traverse jury is two-fold: first, the defendant must prove that the group is a cognizable group; and, second, the defendant must show that the group has been consistently under-represented. Potts v. State, 259 Ga. 812, 388 S.E.2d 678 (1990).

Reindictment not required for certain grand juries declared unconstitutional.

- States do not have to reconstitute grand juries and reindict prisoners who have been indicted by a grand jury drawn prior to Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975), which declared that Georgia's "opt-out" law for women rendered its juries unconstitutional. Young v. Zant, 727 F.2d 1489 (11th Cir. 1984), cert. denied, 470 U.S. 1009, 105 S. Ct. 1371, 84 L. Ed. 2d 390 (1985).

Exclusion of homemakers with children 14 years of age or under.

- Former Code 1933, § 59-112 (see O.C.G.A. § 15-12-1), which authorizes the trial judge to excuse a juror who is a homemaker with children 14 years of age or under does not violate U.S. Const., amend. 6 or U.S. Const., amend. 14, since a state may have an important interest in assuring that those members of the family responsible for the care of children are available to do so. Willis v. State, 243 Ga. 185, 253 S.E.2d 70, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Eighteen-to-21-year-olds not distinct group.

- Assuming that 18-to-21-year-olds were excluded from the jury pool in a criminal case, this does not establish even a prima facie violation of the fair-cross-section requirement, because persons falling into this age range do not constitute a "distinctive" or cognizable group. House v. Balkcom, 562 F. Supp. 1111 (N.D. Ga. 1983), rev'd on other grounds, 725 F.2d 608 (11th Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984).

18-to-23-year-olds not distinct group.

- Defendant failed to demonstrate that persons between ages of 18 and 23 constituted "distinct and identifiable group in the community" for purposes of challenge to composition of jury. See Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983).

Young persons age 18 to 24 were not a cognizable group which had to be represented on defendant's jury for Sixth Amendment purposes. Potts v. State, 259 Ga. 812, 388 S.E.2d 678 (1990).

The defendant was not entitled to have the indictment quashed because the list of potential grand jurors was drawn from the 1980 census instead of the 1990 census, notwithstanding defendant's assertion that the use of the 1980 census resulted in the underrepresentation of the 18 to 24 age group in the grand jury pool, since such group was not cognizable for purposes of grand jury selection. Swanson v. State, 248 Ga. App. 551, 545 S.E.2d 713 (2001).

Eighteen-to-29-year-olds not cognizable group.

- Petitioner failed to establish that young adults aged 18 to 29 constituted a cognizable group in the petitioner's attempt to show underrepresentation of young adults in the jury pool, because the group was not defined and the petitioner did not prove that the views held by adults aged 18 to 29 could not be represented by other members of the community. Willis v. Kemp, 838 F.2d 1510 (11th Cir. 1988), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596 (1989).

Overrepresentation of persons under 25.

- Defendant's challenge of the jury array based on overrepresentation of persons under 25 years of age failed to establish the significant underrepresentation of persons 25 and over and failed to show that the underrepresented group was cognizable. Anthony v. State, 213 Ga. App. 303, 444 S.E.2d 393 (1994).

Underrepresentation of young persons on grand jury list did not violate the requirement that the grand jury be drawn from a fair cross section of the community; the underrepresentation was explained by the jury commissioner's compliance with the legal requirement that only a limited number of the most experienced persons on the traverse jury list be selected for inclusion on the grand jury list. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985).

Eighteen-to-30-year-old persons are not a cognizable class for the purpose of a challenge to the array of the traverse jury. Davis v. State, 241 Ga. 376, 247 S.E.2d 45, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 338 (1978).

Lowering of minimum jury service age to 18 not constitutionally required.

- Jury list which excludes all people 18 to 21 years of age does not deny defendant the right to a public trial and due process of law, despite the lowering of the minimum age for federal jurors to 18 by 26 U.S.C. § 1865. United States v. Dukes, 479 F.2d 324 (5th Cir. 1973).

Jurors who appeared in panel for previous trial of defendant.

- The fact that a panel of jurors may have included the names of certain jurors who had appeared in a panel presented in a previous trial of the defendant and who had been peremptorily challenged by the defendant does not constitute a good ground of challenge to the array. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, appeal dismissed and cert. denied, 323 U.S. 676, 65 S. Ct. 190, 89 L. Ed. 549 (1944).

If a juror is impaneled to try a defendant for a criminal offense and is peremptorily challenged by the defendant, the juror is not so disqualified that the juror can not again be impanelled at a subsequent trial for the same offense under the same indictment, on the grounds that the defendant would thereby be deprived of the defendant's full 20 strikes, or because it would deny the defendant's constitutional right of a fair and impartial trial and equal protection of the laws. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, appeal dismissed and cert. denied, 323 U.S. 676, 65 S. Ct. 190, 89 L. Ed. 549 (1944).

Reinstatement of improperly challenged jurors.

- When a Batson challenge results in a finding that jury selection was not racially neutral and when the jurors remain unaware of the party who struck them, reinstating improperly challenged jurors does not abridge the defendant's right to a fair and impartial jury. Brown v. State, 218 Ga. App. 469, 462 S.E.2d 420 (1995).

Right to conduct private voir dire on sensitive issues.

- Defendant's right to a public trial was not violated by the trial court's conduct of certain portions of voir dire in a private jury room rather than in open court because the defendant's counsel agreed that jurors should have a private opportunity to answer questions of a sensitive nature, including jurors' attitudes toward homosexuality and jurors' prior arrests, and the right to a public trial gave way to the right for a fair trial. State v. Abernathy, 289 Ga. 603, 715 S.E.2d 48 (2011).

"Death-qualified" jury procedure does not violate the constitutional right to a jury trial. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978).

When the defendant received a sentence of life without parole, not a death sentence, the defendant could not complain of the death-penalty qualification of the jurors; moreover, the death penalty qualification of prospective jurors was clearly authorized. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007).

Exclusion of death penalty opponents does not violate due process clause of U.S. Const., amend. 14. - Questioning of jurors and exclusion of those opposed to the death penalty does not violate the due process clause of U.S. Const., amend. 14. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).

Standard for disqualifying a prospective juror in a capital punishment case is whether the juror's views on capital punishment would prevent or substantially impair the performance of the juror's duties as a juror in accordance with the juror's instructions and the juror's oath. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, cert. denied, 474 U.S. 911, 106 S. Ct. 282, 88 L. Ed. 2d 245 (1985).

Death-scrupled jurors do not constitute a recognizable class, representation of which is necessary on the guilt phase to grant a valid cross section of the community. Porter v. State, 237 Ga. 580, 229 S.E.2d 384 (1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1603, 51 L. Ed. 2d 806 (1977).

Defendant has no right to have capital punishment objectors serve in the guilt determination phase of trial as part of the cross section of the community to which the defendant is entitled. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978).

Exclusion of capital punishment objectors does not deprive defendant of fair cross section.

- Exclusion of jurors opposed to capital punishment from the guilt-innocence phase of the trial does not deprive the defendant of a trial by a jury reflecting a fairly representative cross section of the community. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977).

The exclusion of jurors who indicated that they would not under any circumstances impose the death penalty did not violate the defendant's right to an impartial, community-representative jury. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).

Excusing jurors who profess inability to impose death penalty under any circumstances.

- Where an interrogation of venire persons revealed that each candidate could not have, under any circumstances conceivable at that time, imposed the death penalty upon the defendant, they were permissibly dismissed from the venire. Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984), aff'd in part, rev'd in part on other grounds, 759 F.2d 1503 (11th Cir. 1985).

Jurors properly excused.

- Trial court did not err by refusing to excuse jurors who indicated that they were conscientiously opposed to the death penalty for various reasons or had difficulty hearing or understanding the proceedings. Rice v. State, 292 Ga. 191, 733 S.E.2d 755 (2012).

No error in failure to dismiss juror not irrevocably committed to death penalty.

- It is not error for the court to fail to dismiss a juror where the juror is not so biased or irrevocably committed to the death penalty that the juror would ignore the court's instructions pertaining to the jury's sentence recommendation and impose the death penalty under all circumstances in which a murder conviction would be returned. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

Jury improperly selected where persons not irrevocably committed to death penalty systematically excluded.

- A jury is improperly selected where persons who do not make it unmistakably clear that they will automatically vote against capital punishment are systematically excluded from the jury, in violation of the sixth, eighth and fourteenth amendments. Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, judgment vacated, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986), (remanded for further consideration in light of Rose v. Clark, 478 U.S. 570 (1986)), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).

Juror may not be excused for mere general scruples or opposition to the death penalty.

- The venireman who is excused must make it unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 75 L. Ed. 2d 487 (1983).

Inquiry on voir dire as to opposition to death penalty not unconstitutional.

- Allowing prospective jurors to be asked on voir dire whether they are conscientiously opposed to capital punishment does not deny a defendant an impartial jury in violation of U.S. Const., amend. 6 and U.S. Const., amend. 14. Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Failure to determine juror's beliefs as to death penalty.

- A trial judge's failure, during voir dire, to determine whether a prospective juror harbors not only an abstract belief against capital punishment, but also beliefs that would preclude the juror from voting the death penalty under any circumstances does not violate U.S. Const., amend. 6 and U.S. Const., amend. 14, where the juror is an alternate who never participates in any phase of the trial. Smith v. Whisman, 431 F.2d 1051 (5th Cir. 1970).

Excuse of death-scrupled jurors from murder and rape proceedings.

- The right of an accused to a trial by an impartial jury, guaranteed by the state and federal Constitutions, means the right to a jury impartial as between the state and the accused on the question of the guilt or innocence of the accused. The crime of rape in this state may be punished by death, and a person accused of such crime has no constitutional right to have jurors trying the case who have conscientious scruples against the infliction of a punishment prescribed by the law. Massey v. State, 222 Ga. 143, 149 S.E.2d 118, appeal dismissed, 385 U.S. 36, 87 S. Ct. 241, 17 L. Ed. 2d 36 (1966).

Where jurors are disqualified in a murder and rape proceeding because of their reservations about capital punishment, they are properly excused for cause, and the defendant is not deprived of the right to a jury selected from a representative cross section of the community. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980).

Necessity of prejudice from unconstitutionally composed jury pool.

- If challenged prior to trial, a movant is not required to demonstrate prejudice flowing from an unconstitutionally composed jury pool because prejudice is presumed. Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983), cert. denied, 469 U.S. 874, 105 S. Ct. 232, 83 L. Ed. 2d 161 (1984).

On collateral attack in federal court, when the challenge has been waived under state law, the burden of demonstrating prejudice resulting from underrepresentation is much greater than the presumption accorded the violation when raised prior to trial. Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983), cert. denied, 469 U.S. 874, 105 S. Ct. 232, 83 L. Ed. 2d 161 (1984).

Juror's inability fairly to consider a life sentence is just as disqualifying as an inability fairly to consider a death sentence. Skipper v. State, 257 Ga. 802, 364 S.E.2d 835 (1988).

Burden is on defendant to prove discrimination.

- The burden is upon the defendant to demonstrate that a particular class was the subject of discrimination in the jury selection procedures. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

Disparity between representation in population and juries insufficient where bias in selection not shown.

- Absent proof that selection procedures are biased, proof of disparity between racial percentages in the population and on the juries is not sufficient to shift the burden of explanation to the state. Wright v. Smith, 474 F.2d 349 (5th Cir.), cert. denied, 414 U.S. 853, 94 S. Ct. 149, 38 L. Ed. 2d 102 (1973).

The trial court did not err by ruling that the composition of the grand and traverse jury pools did not violate the Constitution, O.C.G.A. § 15-12-40, and the Unified Appeal Procedure where, in a comparison of the 1990 Census numbers for Hispanics in the county with the percentage of Hispanics on the jury lists, it was shown that the absolute disparities were within the legal limit. Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1408, 149 L. Ed. 2d 350 (2001).

To establish a prima facie case of jury discrimination the complainant must show that an opportunity for discrimination existed from the source of the jury list and that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the grand and traverse jury panels. Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977); 439 U.S. 882, 99 S. Ct. 218, 58 L. Ed. 2d 194 (1978).

In order to establish a prima facie violation of the fair cross section requirement, the defendant must show that the group alleged to be excluded is a distinctive group in the community; that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and that this underrepresentation is due to systematic exclusion of the group in the jury selection process. United States v. Rosenthal, 482 F. Supp. 867 (M.D. Ga. 1979); United States v. Butler, 611 F.2d 1066 (5th Cir. 1980), cert. denied, 449 U.S. 830, 101 S. Ct. 97, 66 L. Ed. 2d 35 (1980).

Defendant must establish the following elements to demonstrate a prima facie violation of the fair cross-section requirement: (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. United States v. Tuttle, 729 F.2d 1325 (11th Cir. 1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 968, 83 L. Ed. 2d 972 (1985).

Factors for determining discrimination in jury selection.

- There is a progression of legal exercises leading to the conclusion of discrimination in jury selection: The first is the right to rely on the fact that peremptory strikes offer the prosecution a potential tool for discrimination. Second, the defendant must show membership in a racially cognizable group and that the prosecution used peremptory strikes to remove persons of the defendant's race from the jury. Then the defendant is burdened with showing that these facts and other relevant circumstances raise an inference of the prosecution's racial motive in the use of peremptory strikes. Aldridge v. State, 258 Ga. 75, 365 S.E.2d 111 (1988).

In order to make a prima facie showing of systematic exclusion of blacks from juries, a defendant has the burden of proving, first, that the opportunity for racial discrimination existed by reason of the use of a racially biased source of potential jurors, and, second, that the use of such an infected source produced a significant disparity between the percentages of blacks in the source and the percentage on the grand jury and petit jury panels. Wright v. Smith, 474 F.2d 349 (5th Cir.), cert. denied, 414 U.S. 853, 94 S. Ct. 149, 38 L. Ed. 2d 102 (1973).

In order to establish a prima facie case of discrimination, the defendant must demonstrate that there exists a substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population, and that the selection procedures themselves are not racially neutral. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

Statistical evidence establishing that blacks are underrepresented, together with evidence that the jury selection procedures are not racially neutral, establishes a prima facie case of invidious racial discrimination thus shifting the burden of proof to the state. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

Random selection producing no black jurors.

- The fact that no blacks were on the grand jury that indicted the defendant did not raise a prima-facie case of discrimination where only two percent of the residents of the county were black and the county clerk testified that 15 of the 727 (2%) names placed in the grand jury box were black, but that none of those 15 names were randomly drawn by the Superior Court in open court. Wigfall v. State, 257 Ga. 585, 361 S.E.2d 376 (1987).

Both black persons and women constitute recognizable, distinct classes for purposes of challenges based on allegations of discriminatory selection of juries and that jury venires do not represent a fair cross section of the community. Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983).

Use of peremptory strikes to exclude blacks.

- The defendant was not denied due process of the law on the ground that the state used all of its peremptory strikes to exclude blacks from a petit jury. Avery v. State, 174 Ga. App. 116, 329 S.E.2d 276 (1985).

Where all of the juries relied on by defendant show a systematic exclusion of blacks from petit juries were composed of at least 25 percent black jurors with the exception of one jury which had only one black juror, the state used all of its peremptory challenges in only four of the ten cases, and there were no cases involving all-white juries, defendant failed to establish a constitutional denial of due process and the right to a fair trial through the discriminatory use of peremptory challenges. Patterson v. State, 176 Ga. App. 784, 338 S.E.2d 283 (1985).

When a prosecutor uses peremptory challenges to strike all black veniremen from a jury, the defendant is deprived of equal protection; and, unless the prosecutor can present a racially neutral explanation for the elimination of racially discrete jurors through peremptory challenges, a "guilty" verdict arrived at by the jury is subject to reversal and remand. Hamilton v. State, 181 Ga. App. 279, 351 S.E.2d 705 (1986).

Trial court did not abuse the court's discretion in ruling that the defendant failed to establish a case of unconstitutional race-based discrimination by the prosecution using three of the prosecution's eight peremptory strikes against African-Americans. The reasons offered for the three strikes were race neutral and not pretextual. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655 (2011).

Use of "comparative disparity" standard to show underrepresentation of blacks and women.

- The defendant, who relied on the "comparative disparity" standard to show unconstitutional underrepresentation of blacks and women, as opposed to white males, on the grand and traverse juries, and not on the "absolute disparity" produced by the jury selection process, in relation to the number of such persons in the community, failed to carry this burden of proof. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff'd, 836 F.2d 1557 (11th Cir.), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

Disparities insufficient to support inference of purposeful discrimination.

- An absolute disparity of less than 5 percent between the black percentage of the jury pools and the black percentage of the community and a comparative disparity (absolute disparity divided by the black percentage of the community) of 28 percent was insufficient to support an inference of purposeful discrimination, where the jurors were randomly selected from the list of registered voters. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986).

Where the testimony was that blacks were underrepresented by 1.9 percent absolute and 47.9 percent comparative on the grand jury list, and by 1.2 percent absolute and 30.9 percent comparative on the traverse jury list, the comparative disparities shown, although not irrelevant, were insufficient to establish any constitutional violation. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994).

Recent and long-time registered voters not distinct and identifiable groups.

- Defendant failed to establish prima facie that those who were more recently registered voters and those who had been registered for a longer period were distinct and identifiable groups in the community. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587 (1986).

Fact that jurors' names were in alphabetical order or their residences were on the same street did not cause substantial underrepresentation of any distinct and identifiable group in the community. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587 (1986).

Fact that the names on the master jury list were originally obtained from geographical voting districts would not result in a nonrandom geographical pattern. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587 (1986).

It would be desirable if jury lists contained no alphabetical, geographical, or numerical patterns.

- Therefore, it is strongly suggested that trial courts take steps to totally randomize the juror selection process. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587 (1986).

Where there was no challenge to the initial programmed randomness of selecting jurors from a scan of the entire list of registered voters, defendant was not entitled to an additional final computer printout comprised of another entirely random arrangement of the previously randomly selected individuals. Larmon v. State, 177 Ga. App. 763, 341 S.E.2d 237, aff'd, 256 Ga. 228, 345 S.E.2d 587 (1986).

Systematic exclusion of blacks and women indicated.

- For purposes of U.S. Const., amend. 6's right to a jury composed of a representative segment of the community, the disparities of blacks and women on county traverse jury lists over a period of time indicates a systematic exclusion of these two groups. Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983), cert. denied, 469 U.S. 874, 105 S. Ct. 232, 83 L. Ed. 2d 161 (1984).

To assert a trial jury composition challenge collaterally in federal court when such right has been waived under state law, requires the petitioner to demonstrate both cause for the failure to challenge and actual prejudice. Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983), cert. denied, 469 U.S. 874, 105 S. Ct. 232, 83 L. Ed. 2d 161 (1984).

Replacement of ill juror not unconstitutional.

- Although the erroneous replacement of a juror may under some circumstances deprive a defendant of the right to have the trial completed by a particular tribunal, the Sixth Amendment right to a fair, impartial and representative jury, and the due process rights grounded in the entitlement to procedures mandated by state law, the defendant was not denied any such rights as a result of the replacement of a juror who, the record showed, was too ill to continue in the deliberations. Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986).

Ill defendant during voir defendant and subsequent waiver of rights.

- Trial court did not abuse the court's discretion by denying a defendant's motion for a new trial based on the defendant vomiting in front of the jury during voir dire when the trial was commenced after a two day delay that was granted to the defendant after indicating an illness prevented the defendant's presence at trial. The trial court properly found that the alleged ill defendant waived the right to be present by repeatedly delaying the start of trial with the malingering conduct and by failing to object when defense counsel, in the defendant's presence, specifically requested that the trial court remove the defendant from the courtroom before bringing the jury panel back. Smith v. State, 284 Ga. 599, 669 S.E.2d 98 (2008).

Presence of defendant during voir dire of jury.

- Defendant's absence during the voir dire of prospective jurors did not violate defendant's Sixth Amendment right to confront and cross-examine witnesses. Goodroe v. State, 224 Ga. App. 378, 480 S.E.2d 378 (1997).

Disruptive outbursts affecting defendant's right to be present.

- Since defendant continued with disruptive, vocal outbursts after twice being removed from the trial court during jury selection, the third and final removal of defendant for the remainder of the jury selection process was not error because defendant failed to heed the trial court's warnings to control oneself and, thereby, waived defendant's right to be present during jury selection. Lovelace v. State, 262 Ga. App. 690, 586 S.E.2d 386 (2003).

Right to public trial not denied when jurors questioned in chambers in presence of defendant and counsel.

- Defendant's Sixth Amendment right to a public trial was not violated when a number of potential jurors were questioned privately in chambers during voir dire because the potential jurors were questioned in the presence of the defendant and defense counsel. Johnson v. State, 293 Ga. 641, 748 S.E.2d 896 (2013).

Improper voir dire examination restricted.

- The trial court did not violate Uniform Superior Court Rule 10.1, O.C.G.A. § 15-12-133, the sixth and fourteenth amendments, or Ga. Const. 1983, Art. I, Sec. I, Para. I and XI, by restricting improper voir dire examination of prospective jurors concerning racial bias, pretrial publicity, and self-defense. Walker v. State, 258 Ga. 443, 370 S.E.2d 149 (1988).

Batson challenge not preserved.

- Defendant failed to preserve defendant's Batson claim for review where, following the initial Batson challenge, defendant and the state agreed to the seating on the jury of a woman and an African-American, and defendant did not object when the African-American was later removed due to the African-American's failure to disclose a recent arrest. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

Race-neutral explanation for peremptory strikes.

- Appeals court rejected the defendant's claim that the state committed a Batson violation in peremptorily striking two jurors, as: (1) the state's reasons in striking the first juror appeared concrete and race-neutral and any question of doubt was decided in favor of the state, given the great deference to the determination that the state's reason was not so wholly fantastic as to be pretextual; and (2) a second juror was properly stricken based on evidence that the juror worked nights, appeared to be extremely fatigued, and actually slept through portions of the voir dire. Woolfolk v. State, 282 Ga. 139, 644 S.E.2d 828 (2007).

Standard of review of trial courts' rulings.

- Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) is not controlling authority as to the standard of review to be applied by state appellate courts reviewing trial courts' rulings on jury selection. Greene v. Georgia, 117 S. Ct. 578 (1996).

Although defendant contended that defendant's Sixth Amendment right to trial by an impartial jury was violated, to establish a denial of the defendant's right to an impartial jury, a defendant had to show either actual juror partiality or circumstances inherently prejudicial to that right. Such a showing could not be made by speculation, and the record reflected that voir dire was not transcribed because there were no objections and no motions; therefore, defendant waived the right to complain on appeal about any purported irregularity during voir dire. Bynum v. State, 300 Ga. App. 163, 684 S.E.2d 330 (2009), cert. denied, No. S10C0225, 2010 Ga. LEXIS 300 (Ga. 2010).

Trial counsel did not render ineffective assistance by failing to raise a Batson challenge because the defendant failed to show that a Batson challenge would have been successful since the defendant neither called the state's prosecutors to testify at the motion for new trial hearing nor sought out or attempted to introduce their notes regarding the striking of jurors prior to trial; only the state attempted to elicit that information during the state's cross-examination of trial counsel, and the resulting testimony indicated that the state did have race-neutral reasons for using the state's peremptory strikes. Stokes v. State, 289 Ga. 702, 715 S.E.2d 81 (2011).

Unlike U.S. Const., amend. 6, U.S. Const., amend. 5 does not expressly require impartiality.

- U.S. Const., amend. 6 expressly provides that the trial jury in a criminal case must be impartial. No such requirement in respect to grand juries is found in U.S. Const., amend. 5, which contains the guaranty against prosecutions for infamous crimes unless on a presentment or indictment of a grand jury. Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212 (1979).

Conclusions reached by the fact-finder should be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. A conviction secured, in whole or in part, by use of information secured from nonjudicial sources obviously constitutes a denial of due process of law in its most rudimentary conception. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Juror's conversation with a state's witness did not prejudice defendant's right to a fair trial such that the jury's verdict should be set aside where the witness asked the juror what time the trial was to resume, and the juror testified that the juror did not form an opinion as to defendant's guilt or innocence due to the conversation. Terrell v. State, 268 Ga. App. 173, 601 S.E.2d 500 (2004).

After one prospective juror made a comment that the defendant killed redheads and that juror was later excused, the trial court did not violate the defendant's right to an impartial jury under Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6 in refusing to excuse other prospective jurors. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

Jury free of external influences especially important in capital cases.

- In capital cases, the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate unbiased judgment. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Accused has right to expect protection from massive and prejudicial publicity.

- While the government has no authority to restrain the reporting of the press, nor to dictate what it does or does not report, a person accused of crime has the right to expect the government and its judicial officers to protect the defendant from massive and prejudicial publicity surrounding the case. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Government has burden of providing protection.

- Although the right of a free press embodied in U.S. Const., amend. 1 is guaranteed, the individual's right to a fair trial guaranteed by the due process clause of U.S. Const., amend. 5 and in the other individual provisions of the Bill of Rights is absolute, and if prejudicial news coverage is present, the burden is on the government to protect the rights of the defendant. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Doctrine of inherent prejudice.

- The doctrine of inherent prejudice, in regard to the accused's right to a fair trial applies if, because of the circumstances, there is such a high probability that prejudice will result so that the procedure is deemed inherently lacking in due process, and in such cases, no showing of identifiable prejudice is necessary. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Extrajudicial knowledge is measured in terms of totality of circumstances.

- Juror's extrajudicial knowledge regarding an appellant's present crime represents a serious potential for prejudice to that appellant's right to an impartial jury, but such potential can be discounted under U.S. Const., amend. 6 if review of the pretrial publicity and total voir dire fails to demonstrate that the totality of the circumstances were inherently prejudicial. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Extrajudicial knowledge impeached verdict.

- Defendant's right to confrontation was violated when a juror gathered extra-judicial information on a key issue in the case and relayed it to the other jurors; since the verdict became unanimous only after the introduction of the improper evidence, there was a reasonable possibility that the juror's misconduct contributed to defendant's conviction. Hammock v. State, 277 Ga. 612, 592 S.E.2d 415 (2004).

Qualified jurors need not be totally ignorant of facts and issues involved in order to guarantee that a defendant has a panel of impartial, indifferent jurors. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

The sixth and fourteenth amendment right to an impartial jury does not require that jurors be wholly ignorant of the case before the trial begins. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

Preconceived notion as to guilt or innocence, without more, does not rebut presumption of impartiality.

- The mere existence of a preconceived notion as to the guilt or innocence of an accused, without more, is not sufficient to rebut the presumption of a prospective juror's impartiality. Rather, a juror's impartiality is sufficient if the juror can lay aside this impression or opinion and render a verdict based on the evidence presented in court. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

No evidence prospective juror prejudged case.

- When a prospective juror indicated that the prospective juror would expect a defendant to testify and would do the juror's best to follow the law if the court instructed the jury that no inference was to be drawn from the fact that the defendant chose not to testify, there was no error in the trial court's refusal to strike the prospective juror for cause, because nothing showed that the prospective juror had prejudged any issue in the case. Johnson v. State, 291 Ga. 621, 732 S.E.2d 266 (2012).

General rule regarding presumption of impartiality does not foreclose inquiry as to whether, in a given case, the application of the rule works as a deprivation of liberty without due process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Constitutional test of impartiality does not turn on subjective declarations of individual jurors. Hutcheson v. State, 246 Ga. 13, 268 S.E.2d 643 (1980).

Circumstances inherently prejudicial to right to impartial jury can impeach a juror's declaration of impartiality. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979).

Juror's assertion of impartiality does not close inquiry.

- The rule that it is sufficient for the juror to state that the juror can lay aside the juror's impressions and render a verdict based only on the evidence does not close inquiry to determine whether, in a given case, the application of the rule deprives a defendant of due process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Juror's assurances that the juror is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

Excuse of jurors for partiality as measure of prejudice from pretrial publicity.

- Corroboration for a court's belief that pretrial publicity has not been inherently prejudicial can be found in the percentage of prospective jurors excused for partiality regarding the accused's guilt. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Where only 4 percent of prospective jurors are excused for partiality regarding the defendant's guilt, pretrial publicity surrounding the defendant's case has not created a community bias inherently prejudicial to the appellant's right to an impartial jury. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Precautions taken to minimize effect of pretrial publicity.

- Where in a publicized murder case, in light of the possibility of prejudice, the trial court grants extensive individual voir dire of prospective jurors outside the presence of the others, and grants each of defendant's motions to strike jurors for cause, leaving a panel of 50 prospective jurors, some of whom admitted to a vague knowledge of the crimes, but none could recall details and each specifically stated an ability to weigh the evidence impartially, there is no prejudicial pretrial publicity which would outweigh the stated impartiality of the prospective jurors. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980).

Statement in indictment as to previous convictions.

- Defendant is not denied a fair trial by an impartial jury by listing in the indictment a number of previous convictions of burglary and other crimes. Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787 (1969).

Presence of a bereaved parent at the prosecutor's table during trial of one accused of murdering the parent's child surely must have an impact on a jury and cannot be said to be harmless with regard to the defendant's right to have a fair trial. Walker v. State, 132 Ga. App. 476, 208 S.E.2d 350 (1974).

Jurors exposed to anti-drunk driving poster during DUI trial.

- Defendant, charged with driving under the influence, was not deprived of a fair trial, where the six empaneled jurors who were exposed to an anti-drunk driving poster responded affirmatively when they were asked by defense counsel, "can you dismiss that poster from your minds and say to me with absolute certainty that it has no bearing on your minds and would have no bearing on this case?" Bryant v. State, 201 Ga. App. 305, 410 S.E.2d 778 (1991).

Reseating jurors who are aware of striking party.

- Since the jurors who were reseated had previously been struck in their presence, and there had been no waiver of the right to object to the reseating of such jurors, it was improper to reseat these jurors who were aware of the party who struck them. As such, the convictions of the defendants must be reversed and a new trial ordered. Gaines v. State, 258 Ga. App. 902, 575 S.E.2d 704 (2002).

Replacing one juror with an alternate after out-of-court contact between the juror and defense counsel did not violate a murder defendant's constitutional rights to due process and trial by an impartial jury, where the trial court had a sound basis for exercising its discretion to discharge the juror. Miller v. State, 261 Ga. 679, 410 S.E.2d 101 (1991).

Juror communication with witnesses.

- Where a juror in the course of a criminal trial improperly communicates to a witness that the defendant is going to be acquitted unless the state shores up its case in a certain manner, and this information is relayed to the prosecution, the defendant has been denied the fundamental right to a fair trial. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86 (1981).

"Chit chat" between jurors, but not pre-determination of decision, allowed.

- A jury instruction at the beginning of the trial concerning the deliberation process, which stated that "there's nothing wrong with chit chat" between the jurors, coupled with a lengthy admonition by the court that the jurors should refrain from reaching a decision until all the evidence was submitted, closing arguments concluded, and after the charge of the court, did not constitute plain error requiring a reversal of the conviction. United States v. Meester, 762 F.2d 867 (11th Cir.), cert. denied, 474 U.S. 1024, 106 S. Ct. 579, 88 L. Ed. 2d 562 (1985).

Examination of jurors on actions of one juror.

- Defendant's claim that the defendant's trial counsel rendered ineffective assistance by failing to request that the trial court examine the remaining jurors whether the jurors had been affected by a juror after the juror had been removed was unsupported, and the defendant could not show prejudice or harm because there was no error on which to premise the claim of ineffective assistance; the defendant did not request that the trial court question the remaining jurors, and the juror's responses clearly indicated that the juror's statement to the other jurors about the juror's conflict was exceedingly minimal and that the others had no reaction to the statement. Sharpe v. State, 288 Ga. 565, 707 S.E.2d 338 (2011).

Fact that two or more jurors visited the crime scene and related information about their observations to the rest of the jurors during their deliberations did not constitute reversible error where there was nothing to indicate that any of the jurors changed their minds because of the extra-record information. Moore v. State, 179 Ga. App. 125, 345 S.E.2d 631 (1986).

Right to impartial jury violated where significant possibility of juror prejudice.

- The trial court's failure to conduct a voir dire (or to allow defense counsel to make relevant inquiries to the panel members) after the events of the weekend preceding the trial, involving a protest march against the death penalty, prison conditions and the indictment of six black inmates for mutiny and murder, counter protests, and extensive publicity, all of which raised a significant possibility of juror prejudice, violated the defendant's right to an impartial jury. Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985).

Because an average person in a juror's position as the spouse of a volunteer worker at the district attorney's office would have been partial to the prosecutor's case, although the spouse was replaced by an alternate juror after only three state witnesses had testified, the possibility of a taint already created in the jury panel was not cured; the petition for writ of habeas corpus was granted. Nichols v. Thomas, 788 F. Supp. 570 (N.D. Ga. 1992).

Where bias appears low despite publicity and defendant's confession admitted, prejudice may be discounted.

- In a murder trial, a two and one-half month period between the publicity and the trial, a low level of community bias as reflected in the total voir dire, and the admission into evidence of the defendant's confessions permit a court to discount the potential for prejudice admittedly present in the extrajudicial knowledge of the selected jurors in the case, and to find that the totality of circumstances surrounding the defendant's trial are not inherently prejudicial to the defendant's right to an impartial jury. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

No bias shown.

- Trial court did not err by refusing to excuse certain jurors, since the subject jurors indicated that the jurors would be able to base the jurors' decision on the evidence presented, would keep an open mind, and could consider all three sentencing options that would be available. Rice v. State, 292 Ga. 191, 733 S.E.2d 755 (2012).

Actual or inherent prejudice must be shown.

- Under U.S. Const., amend. 6, in order for an appellant to establish the denial of the right to an impartial jury, the appellant must show either actual juror partiality or circumstances inherently prejudicial to that right. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated in part on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980); Jones v. State, 157 Ga. App. 163, 276 S.E.2d 674, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86 (1981).

Elements of proof of pretrial publicity.

- Under the decisions of the Supreme Court of the United States, where pretrial publicity is at issue, to find that the defendant did not receive a fair trial, the defendant must show that the setting of the trial was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), sentence vacated, 243 Ga. 244, 253 S.E.2d 707 (1979); Young v. State, 237 Ga. 852, 230 S.E.2d 287 (1976); Taft v. State, 154 Ga. App. 566, 269 S.E.2d 69 (1980).

Burden of proof of prejudice.

- The general rule is that a defendant has the burden on appeal of proving actual jury prejudice if a conviction is to be reversed on grounds of prejudicial publicity. The requirement of showing actual prejudice may not be necessary in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 47 L. Ed. 2d 760, 96 S. Ct. 1505 (1976).

One who challenges the fairness of the trial based on prejudicial publicity carries the burden of showing that prejudice resulted from the publicity. This is especially true in a federal habeas proceeding. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

To find the existence of actual prejudice from pretrial publicity, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Second, these jurors, it must be determined, could not have laid aside these performed opinions and rendered a verdict based on the evidence presented in court. Coleman v. Zant, 708 F.2d 541 (11th Cir. 1983), rev'd on other grounds, 778 F.2d 1487 (11th Cir. 1985).

Prejudice is presumed from pretrial publicity when: (1) pretrial publicity is sufficiently prejudicial and inflammatory; and (2) the prejudicial pretrial publicity saturated the community where the trials were held. Coleman v. Zant, 708 F.2d 541 (11th Cir. 1983), rev'd on other grounds, 778 F.2d 1487 (11th Cir. 1985).

Media access to evidence.

- Until the appeal process is completed, the media may not have access to the electronically produced evidence that the police acquired during their investigation and trial of the case, such as a videotaped statement by the defendant, as this may prejudice defendant's future rights to a fair trial. In re Pac. & S. Co., 257 Ga. 484, 361 S.E.2d 159 (1987).

Prejudicial pretrial publicity requires change of venue.

- When prejudicial pretrial publicity or an inflamed community atmosphere precludes seating an impartial jury, due process requires the trial court to grant a defendant's motion for a change of venue. Coleman v. Zant, 708 F.2d 541 (11th Cir. 1983), rev'd on other grounds, 778 F.2d 1487 (11th Cir. 1985).

Pretrial publicity did not require change of venue.

- Trial counsel's failure to seek a change of venue on the ground of pretrial publicity as ineffective assistance of counsel failed since the only pretrial publicity shown in the record was a single newspaper article published the week before trial since there was no evidence that the trial's setting was inherently prejudicial or that the jury selection process showed actual prejudice. Williams v. State, 277 Ga. 853, 596 S.E.2d 597 (2004).

Defendant may ask jurors whether family members worked for law enforcement agencies.

- The trial court errs in limiting voir dire of the jurors by refusing to allow the defendant to ask the panel whether members of the jurors' immediate families had ever worked for law enforcement agencies. Henderson v. State, 251 Ga. 398, 306 S.E.2d 645 (1983).

Habeas petitioner must show actual prejudice, community prejudice, or pervasive, inflammatory pretrial publicity.

- A habeas petitioner must show an actual or identifiable prejudice on the part of the jury resulting from publicity, community prejudice actually infecting the jury box, or pretrial publicity so inflammatory and prejudicial and so pervasive or saturating the community as to render virtually impossible a fair trial by an impartial jury, thus raising a presumption of prejudice. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

Presence of guards at trial.

- Although a defendant is entitled to trial free of the partiality which the presence of an excessive number of guards may create, special circumstances may make the presence of a number of guards necessary. Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219, cert. denied, 454 U.S. 1037, 102 S. Ct. 579, 70 L. Ed. 2d 483 (1981).

Employee of jail as juror.

- An employee of the jail where the defendant was housed pending trial should have been stricken as a juror for cause because of the employee's special knowledge. Therefore, defendant's conviction was reversed because the defendant had to use a peremptory strike on the juror. Kier v. State, 263 Ga. App. 347, 587 S.E.2d 841 (2003).

Court's threat to remove unruly defendant.

- No rights under the fifth and Sixth Amendments to the Constitution of the United States were violated where after several outbursts on the defendant's part, the trial court informed the defendant, outside the jury's presence, that the defendant would be removed from the courtroom if the defendant again engaged in such unseemly behavior. Russell v. State, 181 Ga. App. 665, 353 S.E.2d 565 (1987).

Admonition of counsel did not deprive of fair trial.

- Because there was no evidence that the jury heard the trial court's comment to trial counsel during a bench conference or was influenced by the comment, the defendant failed to prove that the admonition deprived the defendant of a fair trial. Newkirk v. State, 290 Ga. 581, 722 S.E.2d 760 (2012).

As matter of public policy, juror cannot be heard to impeach the verdict, either by way of disclosing the incompetency or misconduct of fellow jurors, or by showing the juror's own misconduct or disqualification from any cause. The only exception to the firm application of this rule is if protections provided a criminal defendant by the Sixth Amendment are applicable. Lozynsky v. Hairston, 168 Ga. App. 276, 308 S.E.2d 605 (1983).

Failure to discredit inmate witness.

- Defendant's trial counsel was not ineffective for failing to discredit the veracity of an inmate witness who testified to the defendant's jailhouse confession because at trial, the inmate witness appeared in prison clothes, and the state elicited testimony from the inmate that the inmate was a convicted felon; since the evidence was properly before the jury, it could not be shown that the omission was an unreasonable tactical move that no competent attorney in the same situation would have made. Brown v. State, 289 Ga. 259, 710 S.E.2d 751 (2011), cert. denied, 132 S. Ct. 524, 181 L. Ed. 2d 368 (2011).

Trial court's finding as to juror's impartiality not set aside unless error "manifest".

- A trial court's finding as to a prospective juror's ability to lay aside an opinion about the case arising from pretrial publicity should not be set aside unless the error is "manifest." Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

Juror excused because of capital punishment views.

- Where defendant argues that the exclusion of certain venire-persons from the jury panel for cause violated the Sixth Amendment right to be tried before an impartial jury, the appropriate standard is that a juror can be excluded for cause because of his or her views on capital punishment if the juror's views would prevent or substantially impair the performance of the juror's duties as a juror in accordance with the juror's instructions and the juror's oath. Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988).

Trial court's disqualification of a juror for cause based upon the juror's opposition to the imposition of the death penalty was not an abuse of discretion as: (1) the juror initially indicated that the juror was open to considering the death penalty as a sentencing option, but almost immediately into voir dire the juror vacillated and repeatedly stated that the juror did not know whether the juror could vote for the death penalty; (2) after extensive questioning by the trial court, the juror stated that the death penalty was against the juror's nature and indicated that the juror did not think the juror could vote for it, regardless of the circumstances; and (3) in finding the juror unqualified, the trial court relied in large part on the juror's demeanor, noting the juror's "body language" and the fact that, although the juror had indicated a couple of times that the juror might consider the death penalty, the juror "seemed to struggle with it." Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Appellate court obligated to make independent evaluation of evidence regarding juror impartiality.

- In determining whether an unbiased jury was empaneled, an appellate court is obligated to make an independent evaluation of the circumstances involved in the case. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

Outside research shared with fellow jurors.

- Defendant's rights to be present and to trial by a fair and impartial jury were violated when, during deliberations, a juror shared with fellow jurors legal definitions, which the juror found by using the Internet search engine Google®, and at least one such definition was incompatible with an affirmative defense the defendant pursued at trial, the defense of habitation, as it pertained to motor vehicles. Chambers v. State, 321 Ga. App. 512, 739 S.E.2d 513 (2013).

No evidentiary hearing as to likelihood of nondeath-qualified juries to convict.

- A defendant is not entitled to an evidentiary hearing with regard to the contention that death-qualified juries are more likely to convict than nondeath-qualified juries. Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983).

Rebuttal of prejudice presumed from publicity.

- Prejudice presumed by evidence of inflammatory pretrial publicity was rebutted by an examination of the voir dire which showed that the jury actually empaneled was not so infected by the publicity that the jurors could not lay aside any preconceived opinions about the case and render a verdict solely upon the evidence. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).

When jury's verdict may be impeached.

- The rule that jurors cannot impeach their own verdict is inapplicable where jurors intentionally gather extra-judicial evidence that is highly prejudicial to the accused, and then communicate that information to other jurors in a closed jury room, since, under these circumstances, the juror making such statements essentially becomes an unsworn witness against the defendant in violation of the Sixth Amendment. Satterwhite v. State, 235 Ga. App. 687, 509 S.E.2d 97 (1998).

Counsel was not ineffective for not attempting to strike for cause a juror who worked as a security officer and who had twice been a robbery victim. As the juror stated that the juror could be fair and impartial, the circumstances did not require the trial court to strike the prospective juror for cause, and the defendant did not demonstrate that the trial court would have struck the prospective juror had counsel so moved. Crane v. State, 294 Ga. App. 321, 670 S.E.2d 123 (2008).

Statutes should sufficiently warn of proscribed conduct.

- So as not to be vague, indefinite and uncertain so that U.S. Const., amend. 6 is violated, the language of a statute should convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. United States v. Fabro, Inc., 206 F. Supp. 523 (M.D. Ga. 1962).

U.S. Const., amend. 6 provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation. Sutton v. United States, 157 F.2d 661 (5th Cir. 1946); United States v. Contris, 592 F.2d 893 (5th Cir. 1979).

Validity of an indictment to be determined by reading it as a whole. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).

Trial court did not err by denying a defendant's motion to quash an indictment, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), because the face of the indictment did not contain the statutory aggravators for the death penalty; the state was not required to list the statutory aggravators in the indictment. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

Whether an indictment sufficiently charges a crime is question of law, not of fact. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).

Where the language of the indictment did not track the exact language of the assault statute, but did allege that the defendant "maliciously" struck the victim, it properly alleged the necessary element of intent since, given the circumstances of the case whereby the victim did not see the defendant strike the victim, it would have been difficult to conclude that the victim was placed in reasonable apprehension of being injured violently. Gamble v. State, 235 Ga. App. 777, 510 S.E.2d 69 (1998).

Indictments are read for their clear meaning, and convictions will not be reversed because of minor deficiencies which do not prejudice the accused. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).

Sufficiency of an indictment is to be tested by practical rather than technical considerations, and the test of sufficiency is not whether the indictment could have been more artfully or precisely drawn, but whether it states the elements of the offense intended to be charged and adequately apprises the defendant of that which the defendant must be prepared to meet. United States v. Contris, 592 F.2d 893 (5th Cir. 1979).

Criteria for testing sufficiency of indictment.

- The two criteria by which the sufficiency of an indictment is to be tested are whether the facts stated show the essential elements of the offense and whether the facts alleged are sufficient to permit the defendant to plead former jeopardy in a subsequent prosecution. Sutton v. United States, 157 F.2d 661 (5th Cir. 1946); Marshall v. State, 127 Ga. App. 805, 195 S.E.2d 469 (1972); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 47 L. Ed. 2d 760, 96 S. Ct. 1505 (1976); United States v. Contris, 592 F.2d 893 (5th Cir. 1979).

Introduction of a nontestifying joint offender's confession to show the defendant's involvement in the crimes violates the defendant's constitutional right to confrontation. Brooks v. State, 271 Ga. 698, 523 S.E.2d 866 (1999).

Use in indictment of trade name which does not designate individual nor import a corporation.

- An indictment containing a trade name which does not designate an individual nor import a corporation is not void where it satisfies the requisites of informing the defendant with reasonable certainty of the nature of the accusation for defense purposes and does not subject defendant to possibility of double jeopardy, particularly where the trade name is unique to the area and the accused's dealings have been in such trade name. Marshall v. State, 127 Ga. App. 805, 195 S.E.2d 469 (1972).

Effect of error in indictment as to date of offense.

- A defendant is not deprived of any constitutional right by reason of the fact that the indictment charged one date, whereas the crime actually occurred shortly before midnight on the date before, where no alibi evidence is offered, nor any continuance requested on the ground of surprise that the evidence showed the commission of the crime on a date different from that shown in the indictment, and that additional time would be needed to procure alibi testimony to account for the appellant's whereabouts on that date. Carmichael v. State, 228 Ga. 834, 188 S.E.2d 495 (1972).

Omission of the word "criminal" in a notice of contempt proceeding is not fatal where the notice fully describes the conduct charged, where there is no showing that the contemnor is prejudiced by the failure to clearly denominate the nature of the contempt proceeding, and where the contemnor is accorded all rights due a defendant in a criminal contempt proceeding. Schiselman v. Trust Co. Bank, 246 Ga. 274, 271 S.E.2d 183 (1980).

Contempt motion seeking other sanctions and relief "as may be appropriate".

- Where a person is on notice that the person is being tried for contempt and the movant seeks such other sanctions as are appropriate to ensure the enforcement and the observance of the court's order or seeks such other relief as may be appropriate, the contemnor is on notice that the proceeding is both civil and criminal in nature and that criminal sanctions may be imposed in an appropriate case. Schiselman v. Trust Co. Bank, 246 Ga. 274, 271 S.E.2d 183 (1980).

Purpose of commitment hearing.

- The purpose of a commitment hearing is simply to determine whether there is probable cause to believe the accused guilty of the crime charged, and if so, to bind the accused over for indictment by the grand jury. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

Hearing unnecessary once indictment returned.

- Once an indictment has been returned, the necessity for a commitment hearing has been eliminated. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

Holding of a commitment hearing is not a requisite to a trial for commission of a felony. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

When failure to hold hearing harmless.

- Since the purpose of the commitment hearing is to determine whether there is probable cause to hold the accused for trial, the subsequent indictment, trial and conviction of the accused render the omission of the hearing harmless. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).

Alleged loss of discovery occasioned by the failure to conduct a commitment hearing is not a legally recognizable basis for reversal. Williams v. State, 157 Ga. App. 168, 276 S.E.2d 852 (1981).

Criminal Procedure Discovery Act constitutional.

- Pretrial discovery provisions of the Criminal Procedure Discovery Act (O.C.G.A. § 17-16-1 et seq.) do not implicate or infringe upon the confrontation clause that guarantees only the right to confront and cross-examine those individuals called to testify against a defendant at trial. State v. Lucious, 271 Ga. 361, 518 S.E.2d 677 (1999).

Rights guaranteed to defendant.

- The confrontation clause of U.S. Const., amend. 6, as applicable to the states through the due process clause of U.S. Const., amend. 14, guarantees the defendant in a criminal trial both the general right to cross-examine witnesses against the defendant and the more specific right to cross-examine a key state's witness concerning pending criminal charges against the witness. Hines v. State, 249 Ga. 257, 290 S.E.2d 911 (1982); Byrd v. State, 262 Ga. 426, 420 S.E.2d 748 (1992); Beam v. State, 265 Ga. 853, 463 S.E.2d 347 (1995).

The state has no right to ask leading questions of a co-indictee who has refused to testify, since such questioning is tantamount to the state testifying on behalf of a recalcitrant witness and serves to abrogate a defendant's fundamental right to confront, question and secure answers from the defendant's accusers. Alexander v. State, 236 Ga. App. 142, 511 S.E.2d 249 (1999).

Where deceased murder victim's hearsay statements were not remotely similar to prior testimony at a preliminary hearing or police interrogation, because they were made in a conversation with a friend, before the commission of any crime, and without any reasonable expectation that they would be used at a later trial, the hearsay statements were not "testimonial," and indicia of reliability other than the opportunity for cross-examination were constitutionally permissible considerations in applying the necessity exception to Georgia's hearsay rule. Demons v. State, 277 Ga. 724, 595 S.E.2d 76 (2004).

Confrontation in a criminal trial really means the right to ask questions and secure answers from the witness confronted. Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 (1975).

No confrontation violation when statements not testimonial.

- Admission of statements that the victim made to a police investigator regarding the victim's fear of the defendant on the day that the victim was murdered did not violate the defendant's right to confrontation because the statements were not testimonial when the victim was not reporting a crime to the police officer or building a case against the defendant, the victim was merely seeking advice from a knowledgeable friend, who happened to be a police officer. Breedlove v. State, 291 Ga. 249, 728 S.E.2d 643 (2012).

Statement by a deceased accomplice to a witness regarding the accomplice's cell phone service was properly admitted into evidence because the statement was not testimonial in nature and, thus, not barred by the Confrontation Clause. Marchman v. State, 299 Ga. 534, 787 S.E.2d 734 (2016).

Right is to confront witnesses, not accusor.

- The defendant's constitutional right under U.S. Const., amend. 6 is the right to be confronted with the witnesses testifying against the defendant, not by the accusor, which in criminal cases, is the state or the people. Brown v. State, 147 Ga. App. 638, 249 S.E.2d 689 (1978).

Applicability of confrontation of witnesses provision.

- When a buyer claiming that the buyer was fraudulently sold real estate argued, on appeal, that the trial court's summary dismissal of the buyer's complaint under O.C.G.A. §§ 9-11-12(b)(6) and9-11-56 deprived the buyer of the right to confront witnesses, this claim had no merit because the right to confront witnesses only applied to criminal proceedings. Crane v. Samples, 267 Ga. App. 895, 600 S.E.2d 624 (2004), cert. denied, 544 U.S. 927, 125 S. Ct. 1650, 161 L. Ed. 2d 488 (2005).

Admission of witness's prior statements to police identifying defendant as the shooter of a victim did not violate defendant's right to confront the witnesses under the Sixth Amendment; despite the fact that the witnesses claimed at trial that they did not recall many of the facts surrounding the incident and did not identify defendant as the shooter at trial, defendant was not precluded from cross-examining them. Robinson v. State, 271 Ga. App. 584, 610 S.E.2d 194 (2005).

Because a life estate claimant filed a civil action which resulted in summary judgment against the claimant, the argument on appeal that the claimant's Sixth Amendment confrontation rights were violated lacked merit, as the Sixth Amendment only applied to criminal actions. Crane v. Poteat, 275 Ga. App. 669, 621 S.E.2d 501 (2005), cert. denied, 127 S. Ct. 52, 2006 U.S. LEXIS 5965, 166 L. Ed. 2d 51 (2006).

Because a hearsay statement made by the defendant's late sibling to the defendant's spouse about the defendant's conduct and statements made immediately after the shooting at issue was not testimonial in nature, it did not implicate the confrontation clause of the federal and state constitution. Holton v. State, 280 Ga. 843, 632 S.E.2d 90 (2006).

Because a preliminary hearing was ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function was the more limited one of determining whether probable cause exists to hold the accused for trial, an accused did not have a constitutional right to confrontation, as said right applied only to trials. Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122 (2007).

O.C.G.A.

§ 16-5-9 violated confrontation right. - O.C.G.A. § 16-15-9 was declared unconstitutional on the statute's face under the Sixth Amendment's confrontation clause to the extent that the statute authorized the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang; the exclusion of other alleged gang members' convictions in the defendant's trial was upheld. State v. Jefferson, 302 Ga. 435, 807 S.E.2d 387 (2017).

No right to confront co-defendants during their plea hearings.

- Defendant's constitutional right to confront and cross-examine the co-defendants was not violated because the co-defendants were giving testimony in their own plea colloquies; the defendant did not have the right to confront the co-defendants during their plea hearings; and the defendant was advised that the defendant would have the right to confront and cross-examine the co-defendants during the defendant's trial. Houston v. State, 302 Ga. 35, 805 S.E.2d 34 (2017).

Limited scope to relevant evidence.

- The confrontation clause does not confer upon criminal defendants a right to impeach a witness for an out-of-court statement never introduced into evidence. Jones v. Goodwin, 982 F.2d 464 (11th Cir. 1993).

The Sixth Amendment's confrontation clause allows for appropriate limitations on defendant's right to inquire into an adverse witness's potential bias. Trial courts have considerable latitude to reasonably limit such cross-examination out of concerns about harassment, prejudice, confusion of the issues, witness safety, or questioning that is repetitive or only marginally relevant. Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722 (2003).

With regard to a defendant's trial and ultimate conviction on charges of malice murder, armed robbery, and possession of a firearm during the commission of a felony, the trial court did not abuse its discretion in limiting the scope of the defendant's cross-examination of the testifying victims regarding the immigration status of the victims; the immigration status of the victims was not an issue relevant to the matter being tried, namely whether the defendant committed the crimes charged. Junior v. State, 282 Ga. 689, 653 S.E.2d 481 (2007).

Purpose.

- The mission of the confrontation clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truth of a statement. Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).

The accused's right to confront the witnesses against the accused is essential for three basic reasons: (1) it ensures that the witness will give statements under oath, thus impressing the witness with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) it forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; and (3) it permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making the statement, thus aiding the jury in assessing the witness's credibility. Harrell v. State, 241 Ga. 181, 243 S.E.2d 890 (1978).

The exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Hines v. State, 249 Ga. 257, 290 S.E.2d 911 (1982).

Main and essential purpose of confrontation is to provide the opportunity for cross-examination. Hawkins v. State, 175 Ga. App. 606, 333 S.E.2d 870 (1985).

Confrontation rights are personal to the accused. State v. Phillips, 247 Ga. 246, 275 S.E.2d 323 (1981).

Right is fundamental and obligatory on the states.

- Right of an accused under U.S. Const., amend. 6 to confront the witnesses against the defendant is a fundamental right made obligatory on the states by U.S. Const., amend. 14. Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 (1975); Park v. Huff, 506 F.2d 849 (5th Cir.), cert. denied, 423 U.S. 824, 96 S. Ct. 38, 46 L. Ed. 2d 40 (1975).

Government need not immunize witnesses for defense.

- The government has no duty under the Sixth Amendment or otherwise to immunize witnesses for the benefit of the defense. Rather, the government's power to grant immunity is a discretionary matter which a defendant has no right to subject to judicial review. United States v. Georgia Waste Sys., 731 F.2d 1580 (11th Cir. 1984).

Appearance of immunized witness.

- Defendants were not deprived of their right to effective cross-examination on the basis of the state's creation of an "unfavorable inference" through the appearance on the witness stand of a witness who had been granted immunity pursuant to O.C.G.A. § 24-9-28(a) and who refused to testify. Willard v. State, 244 Ga. App. 469, 535 S.E.2d 820 (2000).

Although a trial court erred in allowing the prosecution, in the presence of the jury, to propound a series of leading questions to a murder and armed robbery co-indictee who remained mute even though the co-indictee was granted immunity, the error was harmless in light of the testimony from three eyewitnesses and other direct and circumstantial evidence; in light of the evidence and the fact that the prosecutor's questioning itself was not evidence and the fact that it added nothing of material value to the evidence properly presented, the state carried its burden of showing beyond a reasonable doubt that the error did not contribute to the verdict against the defendant. Horne v. State, 281 Ga. 799, 642 S.E.2d 659 (2007).

Defendant must see witnesses testify.

- When a defendant complained that the trial court did not allow defendant to sit where defendant could view witnesses against defendant as they were testifying, it was error to hold that defendant's right to confrontation did not require that defendant be able to see witnesses as they testified. Richardson v. State, 276 Ga. 639, 581 S.E.2d 528 (2003).

Defendant has no right to appear before grand jury.

- A court does not err in refusing to allow the defendant or defense counsel to appear before the grand jury to present evidence and to cross-examine witnesses. The defendant is not on trial at this stage of the proceedings and therefore this refusal denies the defendant neither the right of confrontation, nor equal protection of the laws. Jackson v. State, 225 Ga. 790, 171 S.E.2d 501, rev'd on other grounds, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1969).

Exclusion of defendant from evidentiary hearing.

- Defendant's exclusion from an evidentiary hearing on a motion for new trial did not violate defendant's right to confrontation or due process. United States v. Boyd, 131 F.3d 951 (11th Cir. 1997).

The right to confrontation at a parole revocation hearing is less stringent than the Sixth Amendment's confrontation guarantee in a criminal trial. Evidence that would violate the Sixth Amendment or would be inadmissible hearsay if presented at a criminal trial may, in proper circumstances, be considered at a parole or probation revocation hearing without violating the due process right to confrontation. Williams v. Lawrence, 273 Ga. 295, 540 S.E.2d 599 (2001).

Privilege against self-incrimination may not be overridden by the right of confrontation. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).

Remedy where confrontation right must yield to privilege against self-incrimination.

- If a witness validly claims the privilege against self-incrimination, the defendant's only relief is a motion to strike that portion of the direct testimony with regard to which the confrontation right is lost. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).

No right to pretrial disclosure.

- The confrontation clause only protects a defendant's trial rights, and does not compel the pretrial production of information that might be useful in preparing for trial. Aguilar v. State, 202 Ga. App. 62, 413 S.E.2d 245 (1991).

State's witness not required to submit to a pre-trial interview.

- The state may not deny defendant access to a witness material to the defense, but a witness cannot be compelled to submit to a pre-trial interview. Sosebee v. State, 190 Ga. App. 746, 380 S.E.2d 464, cert. denied, 493 U.S. 933, 110 S. Ct. 323, 107 L. Ed. 2d 313 (1989).

When the witness is a child, it is permissible for the legal custodian to decide whether the child will be made available to defense counsel for a pre-trial interview. Kelly v. State, 197 Ga. App. 811, 399 S.E.2d 568 (1990).

Right of cross-examination is included in the right of a criminal defendant to confront the witnesses against the defendant. Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 (1975).

Harmless error in admission of codefendant's statement.

- Although the trial court erred by admitting a codefendant's statement to police, that error was harmless because the statement was cumulative of other properly admitted evidence; the defendant's own taped statement established the same set of facts set forth in the codefendant's statement, and the defendant admitted to exchanging angry words with the victim and to shooting the victim. Jackson v. State, 291 Ga. 22, 727 S.E.2d 106 (2012).

Codefendant's trial should have been severed.

- Trial court erred in denying a codefendant's motion to sever the trial from the defendant's trial because the codefendant was not allowed to introduce the exculpatory portions of the statements that explained the excerpted admissions introduced by the state, which supported the codefendant's antagonistic defense that the codefendant was present at the robberies due to coercion by the defendant. To avoid potential Bruton issues, the state introduced only those portions of the codefendant's9-1-1 calls or custodial statements made establishing that the codefendant was at the scene of two robberies, that the codefendant's vehicles were used, and that the codefendant sent police to a motel room to investigate the robberies, but refused the additional portions of the statements that tended to support the codefendant's defense that the codefendant was coerced into participating in the crimes. Bowe v. State, 288 Ga. App. 376, 654 S.E.2d 196 (2007), cert. dismissed, sub. nom., State v. Baker, No. S08C0548, 2008 Ga. LEXIS 318 (Ga. 2008).

Although the admission of a victim's statements to a deputy violated the defendant's Sixth Amendment rights as the defendant was not able to cross-examine the victim, the error was harmless as to the defendant's aggravated assault and battery convictions in light of the photographs of the victim's injuries and the defendant's admission that the defendant grabbed the victim around the neck and that the defendant might have hit the victim in the face. Miller v. State, 273 Ga. App. 761, 615 S.E.2d 843 (2005).

Admission of a victim's statements to a deputy violated the defendant's Sixth Amendment rights as the defendant was not able to cross-examine the victim; as the victim's statements were the only real evidence supporting the terroristic threats and obstructing a person making an emergency call convictions, those convictions were reversed. Miller v. State, 273 Ga. App. 761, 615 S.E.2d 843 (2005).

Right of cross-examination inherent in right of confrontation.

- Inherent in the right of confrontation, and in the compulsory process concomitant therewith, is the right to cross-examine the witnesses against the accused. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

Defendant should have been allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias in favor of the state resulting from the witness's probationary status as a juvenile delinquent, notwithstanding that such impeachment would conflict with the state's asserted interest in preserving the confidentiality of juvenile delinquency proceedings. Since defendant was denied the Sixth Amendment right of confrontation, defendant was entitled to a new trial. Mangum v. State, 274 Ga. 573, 555 S.E.2d 451 (2001).

Former jurors as witnesses.

- Testimony, in the defendant's second murder trial, given by two witnesses who had been jurors in the defendant's first murder trial, that the jurors heard the defendant make an admission of guilt while exiting the courtroom during the first trial, did not offend the confrontation clause; the trial court did not limit or restrict the defendant in cross-examination of the witnesses in any way, and the testimony did not suggest that there was a prior trial on the merits or that the witnesses had participated in such a trial. Slakman v. State, 280 Ga. 837, 632 S.E.2d 378 (2006), cert. denied, 549 U.S. 1218, 127 S. Ct. 1273, 167 L. Ed. 2d 95 (2007).

Restriction of cross-examination.

- The trial court did not impermissibly restrict cross-examination of a witness where the jury heard counsel's direct question on whether the witness's testimony at trial was related to the pending charges against the witness and barring inquiry into the nature of the pending charges did not impair the defense from providing the jury with sufficient information on the witness's motives and biases. Watkins v. State, 276 Ga. 578, 581 S.E.2d 23 (2003).

Because a witness had no specific bias and the witness's history of past speeding tickets was irrelevant, the trial court did not abuse its discretion by restricting defendant's cross-examination of the witness. Brittian v. State, 274 Ga. App. 863, 619 S.E.2d 376 (2005).

Trial court did not abuse the court's discretion by refusing to allow any cross-examination of an investigator as to that part of the defendant's custodial statement in which the defendant identified a codefendant as the individual to whom the defendant rented a panel van used as a methamphetamine lab. Inasmuch as the defendant did not testify, the admission of the defendant's custodial statement implicating the codefendant was barred by Bruton. Boone v. State, 293 Ga. App. 654, 667 S.E.2d 880 (2008).

Restriction of cross-examination was not harmless error.

- Witness who was under commitment to the Department of Juvenile Justice was subject to the allegation that the witness was shading testimony in favor of the state; the trial court's restriction of defendant's cross-examination of two state's witnesses was not a harmless error where the state's case relied primarily on these witnesses. Wright v. State, 279 Ga. 498, 614 S.E.2d 56 (2005).

Cross examination of surrogate medical examiner adequate.

- Trial court did not err in allowing a surrogate medical examiner to testify about the post-mortem examination of the victim because under a plain error standard of review there was no Confrontation Clause violation since the complaining defendant was permitted to cross-examine the medical examiner. Kemp v. State, 303 Ga. 385, 810 S.E.2d 515 (2018).

Counsel adequately prepared defendant for cross examination.

- Defendant failed to support the claim that trial counsel did not adequately prepare the defendant to be cross-examined at trial because counsel testified that counsel met with the defendant in jail and discussed what the defendant was going to say on the stand and how to deal with "troublesome areas"; the defendant admitted that counsel told the defendant that the defendant would be cross-examined by the district attorney. Funes v. State, 289 Ga. 793, 716 S.E.2d 183 (2011).

To deny the accused the right to impugn a witness's testimony is to deny the accused cross-examination, and the denial of the right to cross-examine denies the accused due process. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976).

It is reversible error to preclude cross-examination of an accomplice regarding the deal the accomplice has reached with the state, including the disparity between the sentence the state will recommend in exchange for the accomplice's cooperation and the sentence the accomplice would have received without that cooperation. Vogleson v. State, 250 Ga. App. 555, 552 S.E.2d 513 (2001).

Cross-examination as to general propensity for truthfulness.

- U.S. Const., amend. 6 does not guarantee the defendant a right to inquire on cross-examination into incidents that would impeach the witness's general propensity for truthfulness. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).

Right to confrontation not violated by limiting cross-examination on former charges.

- In a case in which defendant was on trial for, inter alia, an aggravated assault against the girlfriend of defendant's friend and the malice murder of another resident of the friend's home, the trial court did not err or violate defendant's Sixth Amendment right of confrontation by preventing defendant from cross-examining the victim about a warrant for the victim's arrest, which, although outstanding at the time of the murder, was no longer pending at the time of trial, as the charge was no longer relevant to show the victim's possible bias. George v. State, 276 Ga. 564, 580 S.E.2d 238 (2003).

Indictment not competent method for impeaching a witness.

- The trial court did not err when it refused to allow an indictment against the victim for a crime allegedly committed subsequent to the crime at issue to go to the jury room with the rest of the exhibits since an indictment generally is not a competent method for impeaching a witness. Medina v. State, 247 Ga. App. 821, 545 S.E.2d 366 (2001).

"Forgetful witness."

- The Sixth Amendment is satisfied if a defendant is given the opportunity to cross-examine a forgetful witness about the witness's bias, the witness's lack of care and attentiveness, and even the very fact that the witness has a bad memory. Brown v. State, 266 Ga. 723, 470 S.E.2d 652 (1996).

Prior thorough cross-examination of a witness unavailable at a trial adequately satisfies the confrontation requirement of U.S. Const., amend. 6. United States v. Mobley, 421 F.2d 345 (5th Cir. 1970).

Defendant's right to cross-examine a witness at trial was not abridged where the witness testified at the defendant's preliminary hearing, but was subsequently killed and unavailable to testify at the defendant's trial. The record showed that the defense counsel extensively cross-examined the witness at the preliminary hearing with regard to the issue of identification. Hosick v. State, 262 Ga. 432, 421 S.E.2d 65 (1992).

Although the defendant's opportunity to cross-examine a witness who later died was not ideal, given that the defendant had only six days' notice of the hearing, sufficient opportunity to cross-examine the witness was afforded, and any lack of cross-examination was the result of a waiver of that opportunity; thus, the witness's deposition was properly admitted at trial. Rice v. State, 281 Ga. 149, 635 S.E.2d 707 (2006).

Waiver by earlier guilty plea.

- Officers who interviewed the defendant's earlier victims within hours after they had been raped, properly testified from reports from these initial interviews, since the defendant, by pleading guilty to the earlier crimes, waived the earlier opportunity to cross-examine those victims. Moore v. State, 207 Ga. App. 412, 427 S.E.2d 779 (1993).

Where defendant in a prosecution for rape and aggravated sodomy pled guilty to a prior charge of aggravated sexual assault, it was not error to admit evidence of the prior victim's testimony and the testimony of a witness who arrived shortly after that assault. McBee v. State, 228 Ga. App. 16, 491 S.E.2d 97 (1997).

Because the defendant admitted the commission of armed robbery of a witness as described in the indictment, the defendant waived the right to challenge the witness's statements regarding the incident; therefore, the admission of the evidence did not violate the right of confrontation, and there was no error in admitting the statements under the necessity exception of O.C.G.A. § 24-3-1(b). Johnson v. State, 247 Ga. App. 157, 543 S.E.2d 439 (2000).

Confrontation claim waived.

- Defendant waived any claim that the state's explanation of the absence of an expected witness infringed the defendant's Sixth Amendment right to confront the witnesses against the defendant as the defendant failed to raise the issue either at trial or on appeal. Clemons v. State, 265 Ga. App. 825, 595 S.E.2d 530 (2004).

Because defendant objected to the introduction of the codefendant's statement to police on relevance and impermissible character evidence grounds but not based on a Sixth Amendment violation, defendant waived the argument that introduction of the statement deprived defendant of the Sixth Amendment confrontation right. Vincent v. State, 276 Ga. App. 415, 623 S.E.2d 255 (2005).

Defendant failed to make a contemporaneous objection on confrontation grounds to a state forensic biologist's testimony regarding the biologist's comparison of DNA profiles prepared by another lab to conclude that defendant's blood matched blood found at the scene of a murder and robbery; therefore, the error was not preserved for review. Moore v. State, 294 Ga. 682, 755 S.E.2d 703 (2014).

Rationale for exception.

- An exception to the confrontation requirement is where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant, which witness was subject to cross-examination by that defendant. This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. United States v. Mobley, 421 F.2d 345 (5th Cir. 1970).

Where testimony of now-deceased witness from another trial is introduced, the rights of the accused to confrontation and the opportunity to have a jury assess the demeanor and credibility of a witness are satisfied where in a former trial, the witness was under oath and thoroughly examined on both direct and cross-examination. United States v. Mobley, 421 F.2d 345 (5th Cir. 1970).

Because defendant had no opportunity to confront a deceased witness at an accomplice's trial, the trial court erred in admitting the witness's statements at defendant's trial pursuant to O.C.G.A. § 24-3-10; in addition, the statements were testimonial and violated defendant's confrontation rights. Willingham v. State, 279 Ga. 886, 622 S.E.2d 343 (2005).

Victim's non-testimonial statement.

- Admission of a hearsay statement made by a murder victim before the victim's death, in which, upon seeing the defendant at the victim's home, the victim said to the victim's friend, "What is he doing here? He's not supposed to know where we live," did not violate the defendant's right to confront the absent declarant because the statement in question was not a "testimonial" statement. Griffin v. State, 280 Ga. 683, 631 S.E.2d 671 (2006).

In a malice murder prosecution, the victim's statement to a friend that the defendant said that the defendant was going to kill the victim was admissible under the necessity exception to the hearsay rule as the victim was unavailable and the statements had sufficient indicia of reliability. As the statements were not testimonial, there was no Confrontation Clause violation. Smith v. State, 284 Ga. 304, 667 S.E.2d 65 (2008).

Trial court properly admitted hearsay statements made by a murder victim to the victim's mother and to the victim's friend regarding prior physical abuse by the defendant in defendant's murder trial because none of the out-of-court statements by the victim recounted at trial were even arguably testimonial as the United States Supreme Court had used that term in the court's recent Confrontation Clause jurisprudence. Brown v. State, 288 Ga. 364, 703 S.E.2d 609 (2010), cert. denied, 131 S. Ct. 2454, 179 L. Ed. 2d 1221, 2011 U.S. LEXIS 3708 (U.S. 2011).

Defendant's right to confrontation was not violated because an officer responded to the prior victim's9-1-1 call within a few minutes and found the prior victim to still be "shaken up" from the prior victim's confrontation with the burglar, and the burglar, who had just left the scene armed with a knife, was still in the immediate vicinity. Thus, while the prior victim was no longer being immediately threatened, the armed perpetrator was still on the loose, and thus continued to pose a serious potential threat to the prior victim and the neighbors. When a court must determine whether the Confrontation Clause bars the admission of a statement at trial, the court should seek to ascertain, if possible, the primary purpose of the interrogation by objectively evaluating the statements and actions of the parties to the encounter in light of the circumstances in which the interrogation occurs. Philpot v. State, 309 Ga. App. 196, 709 S.E.2d 831 (2011).

Similar transaction hearing was sufficient even though, instead of calling a witness to testify, the state merely proffered a summary of a witness's testimony; the state introduced no hearsay evidence during trial, and the defendant had ample opportunity to cross-examine the similar transaction witness then. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007).

Use of transcript from preliminary hearing where witness at hearing unavailable.

- Where witness from preliminary hearing was not available at time of trial, having had escaped from prison, defendant's right of confrontation is not violated by admission of transcript of witness's testimony at defendant's preliminary hearing, at which defendant was represented by counsel and witness was cross-examined. Stidem v. State, 246 Ga. 637, 272 S.E.2d 338 (1980).

Admission of videotape of unavailable witness permitted.

- Trial court's admission of part of a videotape involving the defendant's interview with a detective who was unavailable at trial, which the trial court earlier had said it would exclude, was not an abuse of discretion and did not violate the defendant's right to confrontation; the trial court admitted it because defense counsel "opened the door" to its admission by asking about it on direct examination, and any error in admitting it was harmless because the detective's comments about a theory that the spouse might have committed suicide were favorable to the defendant and any inference that the defendant shot the defendant's spouse was supported by other evidence. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119 (2003).

Admission of a victim's videotaped statement did not violate the Confrontation Clause as defense counsel posed no questions after the victim testified about the video, only questioning the victim about other topics. Pierce v. State, 302 Ga. 389, 807 S.E.2d 425 (2017).

Admission of videotape harmless error.

- Trial court's admission of the videotaped testimony of a witness who could not be located for defendant's criminal trial was a violation of the rights under the confrontation clause because it constituted impermissible testimonial evidence; however, the error was harmless because there was no reasonable probability that it contributed to the verdict, as the testimony was cumulative of other properly admitted evidence. Copprue v. State, 279 Ga. 771, 621 S.E.2d 457 (2005).

Admission of 9-1-1 call.

- Defendant's motion in limine to exclude evidence of a9-1-1 call and the defendant's motion for a directed verdict were properly denied as the9-1-1 call was not testimonial since it was not premeditated and was made to prevent or stop a crime; under Georgia law, 9-1-1 statements were admissible as part of the res gestae or as an excited utterance and the confrontation clause and Crawford v. Washington, 541 U.S. 36 (2004), were inapplicable. Kimbrell v. State, 280 Ga. App. 867, 635 S.E.2d 237 (2006).

In defendant's convictions on one count of simple assault and two counts of battery, trial court properly determined that audiotape of9-1-1 call made by the victim was nontestimonial in nature as the caller advised that the caller had been hit, had a swollen face, was experiencing serious bleeding and the call was made with such immediacy after the attack that, upon the officer's arrival, the caller was scared and crying, and blood was running down the caller's chin, shirt, and pants; thus, trial court properly found that the call was nontestimonial in nature in that it was made to seek assistance in a situation involving immediate danger. Thompson v. State, 291 Ga. App. 355, 662 S.E.2d 135 (2008).

Allowing a jury to hear an audiotape of two9-1-1 calls made by bystanders to report a shooting was proper because, inter alia, as the calls were made while the incident was ongoing, the perpetrator was at large, and the nature of the operator's questions were to assist the police in meeting an ongoing emergency, the statements were nontestimonial, and the confrontation clause was not implicated. Glover v. State, 285 Ga. 461, 678 S.E.2d 476 (2009).

Admission of hearsay.

- Because hearsay testimony was cumulative of other properly admitted evidence, its admission, even if erroneous, was harmless; thus, defendant's contention of a Crawford violation lacked merit. Buttram v. State, 280 Ga. 595, 631 S.E.2d 642 (2006).

The admission of an informant's testimony regarding knowledge of the defendant's participation in the victim's murder did not amount to inadmissible hearsay and did not violate the Confrontation Clause, as the hearsay was cumulative of admissible evidence adduced at trial and, in light of the overwhelming evidence of the defendant's guilt, there was no reasonable possibility that the confrontation violation contributed to the guilty verdict. Warren v. State, 283 Ga. 42, 656 S.E.2d 803 (2008).

Admission of testimonial statements.

- Statements of the victim and the victim's friend were testimonial under Crawford and thus were inadmissible hearsay because the defendant had not had the prior opportunity to cross-examine the victim or the friend, who did not testify at trial. The primary purpose of the victim's identification of the defendant at the crime scene was to establish past facts with a view to future prosecution, and the friend was effectively being a witness against the defendant when the friend said that a knife was in the yard and that the defendant was the one who stabbed the victim. Cuyuch v. State, 284 Ga. 290, 667 S.E.2d 85 (2008).

Supreme court cautioned the trial court regarding hearsay statements of an alleged victim because the statements the alleged victim made to a police officer complaining of an alleged attack by the defendant were inadmissible if the defendant objected to them, and the affidavit testimony the alleged victim gave in connection with the victim's judicial complaint of domestic abuse was also hearsay, was testimonial in nature, and was inadmissible if objected to by the defendant; statements alleging that a criminal act has been committed that are made in response to a police officer's questions during a time when there is no longer an ongoing emergency are testimonial in nature, and it is a violation of the confrontation clause of the Sixth Amendment to admit hearsay accounts of them over a defendant's objection where the defendant has had no previous opportunity for cross-examination. Pope v. State, 286 Ga. 1, 685 S.E.2d 272 (2009).

Sixth Amendment rights of the defendants to confront the witnesses against the defendants were violated when the trial court allowed a Florida judge to testify as to the contents of three petitions for temporary protective injunctions that were filed in the judge's court when two of the petitions were filed by the decedent before the decedent's death and one of the petitions was filed by one of the defendants. This constituted reversible error as to the defendant who was implicated in the petitions, but constituted harmless error as to the other defendant who was not mentioned in the petitions. Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011).

Trial court erred in admitting testimony relating to the codefendant's initial, non-custodial statement to police on the day of the murder because the statement was testimonial in nature and the defendant had no opportunity to examine the codefendant. Colton v. State, 292 Ga. 509, 739 S.E.2d 380 (2013).

Questioning of witness about similar transactions allegedly involving defendant.

- It violated the Sixth Amendment's confrontation clause to ask a witness about a statement that the witness had made that implicated the defendant in two similar-transaction robberies. Despite the fact that limiting instructions were given, the procedure placed before the jury the content of the witness's statement, allowing the jury to infer that since the defendant committed the other robberies with the witness, the defendant committed the one at issue; furthermore, the error was not harmless because the witness was the only person who could connect the defendant to the two previous armed robberies. Deloatch v. State, 296 Ga. App. 65, 673 S.E.2d 576 (2009).

Control of the cross-examination of a witness is to a great degree within the discretion of the trial court and will not be controlled unless abused. Eades v. State, 232 Ga. 735, 208 S.E.2d 791 (1974).

Trial court did not err when it limited the cross-examination of one detective concerning the other detective's interview with the defendant about how the other detective formed opinions and impressions regarding the other detective's theory regarding how defendant's spouse was killed, as the defendant's Sixth Amendment right to cross-examine the detective was not abridged by the limitation since the defendant was trying to ask about matters that were beyond the detective's knowledge. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119 (2003).

Defendant's cross-examination of an arresting officer was not unduly restricted when defendant was not allowed to ask the officer at trial if the officer's testimony at a suppression hearing satisfied the requirements for establishing the admissibility of the fruits of a pat-down search, as that legal determination was the province of the court, had previously been addressed by the court, and was not an issue for the jury. Mohamed v. State, 276 Ga. 706, 583 S.E.2d 9 (2003).

Because the trial court did not abuse the court's discretion in regulating cross-examination by instructing defense counsel to be clear with counsel's question, the defendant's constitutional right of confrontation was not violated. Baker v. State, 293 Ga. 811, 750 S.E.2d 137 (2013).

Although it is better that cross-examination should be too free than too restricted, this right to a thorough and sifting cross-examination must be tempered and restricted so as not to infringe on privileged areas or wander into the realm of irrelevant testimony. Eades v. State, 232 Ga. 735, 208 S.E.2d 791 (1974).

While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy U.S. Const., amend. 6. United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978).

Abuse of discretion in preventing all inquiry on subject.

- While the extent of cross-examination is within the sound discretion of the trial court, cutting off all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination is an abuse of discretion. Byrd v. State, 262 Ga. 426, 420 S.E.2d 748 (1992).

Limitation of cross-examination must not prejudice right to test truthfulness.

- A defendant's right under U.S. Const., amend. 6 to confront the witnesses against the defendant is not violated in all cases in which cross-examination is limited. The question in each case must finally be whether the defendant's inability to make the inquiry creates a substantial danger of prejudice by depriving the defendant of the ability to test the truth of the witness's direct testimony. If the defendant has, so much of the direct testimony as cannot be subjected to sufficient inquiry must be struck. United States v. Brown, 634 F.2d 819 (5th Cir. 1981).

Confrontation clause is not offended when the defendant at trial waives objection to the use of prior sworn testimony of an inaccessible state witness and therefore cannot claim the waiver was error for the first time on appeal. Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976).

In a criminal trial with regard to a defendant's contention on appeal that a Crawford violation occurred as a result of the trial court refusing to sever the defendant's trial from the codefendant's trial, no reversible error was shown as the out-of-court statement at issue, namely that the codefendant called and said that the codefendant's vehicle had been used in an armed robbery, did not implicate the defendant as the state offered that evidence to show that the codefendant was involved, but that statement did not implicate the defendant's guilt. Further, on cross examination, the defendant's attorney asked the officer if that phone call directed police to the motel room where the defendant was found and arrested, which the officer answered in the affirmative, therefore, the defendant elicited the testimony and, likewise, two other complained of statements were either elicited by the defendant or never objected to at trial. Bowe v. State, 288 Ga. App. 376, 654 S.E.2d 196 (2007), cert. dismissed, sub. nom., State v. Baker, No. S08C0548, 2008 Ga. LEXIS 318 (Ga. 2008).

Where a co-indictee's confession implicating the defendant in armed robberies was corroborated by a number of witnesses who positively identified the defendant as the perpetrator of each armed robbery, the defendant had the opportunity to challenge the reliability of the co-indictee's effort to implicate the defendant in the crimes through leading questions posed by defense counsel's cross-examination, and thus to the extent that the co-indictee's refusal to respond to questioning deprived the defendant of the constitutional right to confront the co-indictee, the constitutional violation was harmless beyond a reasonable doubt. Alexander v. State, 236 Ga. App. 142, 511 S.E.2d 249 (1999).

Note-passing inmate was properly permitted to relate to the jury statements made by other inmates when they were discussing what to do about the possibility the victim was going to tell the authorities about their effort to escape as the co-conspiratorial statements were made during the pendency of the conspiracy and they were presumed to be sufficiently reliable to satisfy the confrontation clause's requirement of trustworthiness; the admission of the statements was not at odds with Crawford v. Washington, 541 U.S. 36 (2004), because statements admissible pursuant to the hearsay exception permitting the use of statements made in furtherance of a conspiracy were not testimonial. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006).

Murder victim's statements to neighbors, paramedics, and an officer identifying the defendant as the shooter were nontestimonial as the statements were made while the incident was still ongoing and the perpetrator was at large. Thus, the confrontation clause was not implicated, and the admission of the statements under former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803), the res gestae exception to the hearsay rule, did not violate the defendant's Sixth Amendment rights. Thomas v. State, 284 Ga. 540, 668 S.E.2d 711 (2008).

Trial court did not err by admitting incriminating statements a codefendant made to witnesses because the codefendant's statements were made during the pendency of the conspiracy and were admissible against the defendant under the coconspirator exception to the hearsay rule, former O.C.G.A. § 24-3-5 (see now O.C.G.A. § 24-8-801); the admission of the codefendant's statements to lay witnesses during the concealment phase of the conspiracy did not violate the confrontation clause because the codefendant's statements were not testimonial. Allen v. State, 288 Ga. 263, 702 S.E.2d 869 (2010).

Right to cross-examine witness as to recent arrest.

- Even though the trial court erred in refusing to allow defendant to pursue the topic of the witness's recent arrest, the error was harmless where the witness otherwise was subjected to a thorough and sifting cross-examination. Garcia v. State, 267 Ga. 257, 477 S.E.2d 112 (1996).

Trial court did not abuse its discretion or deny the defendant the right of confrontation guaranteed by U.S. Const., amend. 6 by precluding the defendant from cross-examining a witness offered by the state regarding the facts underlying criminal charges that were pending against the witness, as there was no indication in the record that those underlying facts were relevant or would have exposed any bias or motive of the witness; even if the limitation on such cross-examination were erroneous, any error was harmless, as the witness did not implicate the defendant or otherwise show bias for the state, and the evidence of the defendant's guilt was overwhelming. Brown v. State, 276 Ga. 192, 576 S.E.2d 870 (2003).

Cross-examination with over-age convictions.

- Based on the slight probative value of over-age convictions, the fact that former O.C.G.A. § 24-9-84.1(b) (see now O.C.G.A. § 24-6-609) permits use of such convictions on a showing of specific facts and circumstances establishing the probative value of the particular conviction, and the fact that former § 24-9-84.1 (see now O.C.G.A. § 24-6-609) does not preclude all inquiry on a subject with respect to which a defendant is entitled to a reasonable cross examination, that section is not unconstitutional as a violation of the confrontation clause. Hinton v. State, 280 Ga. 811, 631 S.E.2d 365 (2006).

Cross-examination as to agreement between witness and state.

- There was no denial of due process or confrontation rights where the trial court ruled improper a question by defense counsel on cross-examination that presumed the existence of an unprovable "deal" between the state and the witness; the court did not preclude all inquiry on a subject with respect to which the defendant was entitled to reasonable cross-examination. Watkins v. State, 264 Ga. 657, 449 S.E.2d 834 (1994).

Where defendant failed to prove either that there had been a deal or that the witness had any expectation of a deal, the trial court did not impermissibly abridge defendant's Sixth Amendment rights by limiting defendant's cross-examination concerning charges against the witness. Wright v. State, 266 Ga. 887, 471 S.E.2d 883 (1996).

Defendant was denied the constitutional right to confrontation when a case agent was allowed to state that no deal had been reached with a confidential informant without being cross-examined; however, the error was not reversible because no prejudice was shown where the confidential informant testified at trial and was thoroughly cross-examined concerning the motives for testifying against defendant and where no evidence was presented regarding a deal with the confidential informant. Garrison v. State, 260 Ga. App. 788, 581 S.E.2d 357 (2003).

A defendant's right to cross-examine an accomplice witness regarding parole was irrelevant on the question of the witness's potential bias in testifying favorably for the state because there was no evidence of any deal between the witness and the state regarding parole. In addition, the authority to grant parole rested with the State Board of Pardons and Paroles, and not the office of the district attorney. Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722 (2003).

Trial court violated the defendant's Sixth Amendment right of confrontation because it granted the state's motion in limine and restricted the defendant's cross-examination of the defendant's accomplice as to the accomplice motivation in testifying for the state, including the accomplice's recommended sentence if the accomplice cooperated with the state and the accomplice's sentence without that cooperation. The error was harmless beyond a reasonable doubt, however, in light of the overwhelming evidence of the defendant's guilt, even without the accomplice's testimony, including a victim's identification of the defendant as the person who robbed and abducted the victim, personal papers at the apartment where the victim was held belonged to the defendant and a first victim, and the recovery of the first victim's jacket from the defendant's friend's home, in the location disclosed by the defendant. Thompson v. State, 266 Ga. App. 29, 596 S.E.2d 205 (2004).

Trial court did not abuse its discretion in precluding the defendant from asking the defendant's cousin, who was jointly indicted with the defendant and testified against the defendant, about the specific sentences the cousin would face if convicted because the cousin had no deal regarding the cousin's charges or sentences with the state in exchange for testimony; the trial court permitted a sweeping cross-examination, limiting only questions about the specific sentences that the cousin could face, and the defendant was allowed to elicit that the cousin was charged with the same murder, the same aggravated assault, and the same attempted armed robbery as the defendant and that those charges were still pending. The defendant also cross-examined the cousin regarding whether the cousin hoped to gain favorable treatment on the charges due to the testimony, and in response, the cousin admitted several times that although there was no deal with the state, the cousin hoped the charges would be dismissed because of the cousin's testimony, which was a benefit far greater than any sentence reduction. Howard v. State, 286 Ga. 222, 686 S.E.2d 764 (2009).

Trial court erred by restricting the codefendants' cross-examination of a witness regarding the changes in the witness's eligibility for parole resulting from a plea and sentencing deal the witness entered into with the state in return for the witness's testimony because the parole disparity could have provided the witness with bias in favor of or motivation to assist the state; the error could not be considered harmless because the codefendants were prevented from fully exploring the possibility that the witness was biased in favor of the state due to the witness's parole disparity, while, at the same time, the state was allowed to argue in the state's closing that the witness would spend six years in jail for the crimes. Manley v. State, Ga. , S.E.2d (Mar. 1, 2010).

Trial court did not abuse the court's discretion in prohibiting the defendant's cross-examination of a witness regarding the witness's first offender plea in order to show bias and a motive to testimony favorable to the state because there was no evidence showing the connection between the witness's first offender status and the witness's desire to shade the witness's testimony to curry favor with the state; the defendant had to present facts in addition to the existence of two first offender pleas to support the defendant's efforts to impeach the witness for bias. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012).

Cross-examination as to potential bias of state's witness.

- The Sixth Amendment does not afford the defendant in a criminal proceeding an absolutely unfettered right to cross-examine the state's witnesses as to their potential bias. Shaw v. State, 201 Ga. App. 456, 411 S.E.2d 537 (1991).

A trial court's restriction of the pursuit of cross examination as to the potential bias of a state's witness, even if erroneous, may yet be harmless. Shaw v. State, 201 Ga. App. 456, 411 S.E.2d 537 (1991).

Precluding a line of questioning by defense counsel purporting to show motive for false testimony on behalf of the government witness erroneously limited defendant's right to cross-examine guaranteed by the Sixth Amendment since the witness may have been motivated by an effort to prevent an investigation into the witness's child's arrest in another case. United States v. Lankford, 955 F.2d 1545 (11th Cir. 1992).

Cross-examination of victim-witness's pending criminal charges was needed to inquire of any desire to influence their disposition by assisting the state in prosecution. Hurston v. State, 206 Ga. App. 570, 426 S.E.2d 196 (1992).

Although the trial court erred in refusing to allow the defense to cross-examine the defendant's friend concerning possible bias in favor of the state based on the friend's first-offender status, the error was harmless given the overwhelming evidence against defendant. Melson v. State, 263 Ga. App. 647, 588 S.E.2d 822 (2003).

Trial court erred by denying codefendants any chance to proffer evidence that the victim's friend was aware of the disparity in the sentence the friend received under a plea agreement and the sentence the friend would have received if the friend had been convicted of murder and by summarily excluding any evidence of the friend's parole because the disparity, eligibility for parole after 30 years of incarceration versus two years served before eligibility, could have provided the friend with bias in favor of or motivation to assist the state; however, the error was harmless because the defendant and the codefendants were allowed to extensively cross-examine the friend about potential bias flowing from the plea deal with the state. Manley v. State, 287 Ga. 338, 698 S.E.2d 301 (2010).

Because parole eligibility is not irrelevant to a witness's potential bias, to the extent that Hewitt v. State, 277 Ga. 327 (2003), Mikell v. State, 286 Ga. 434 (2010) or other cases which rely on them, can be read to state that a trial court will never err by prohibiting cross-examination on parole eligibility because it is irrelevant to the question of a witness's potential bias, they are hereby overruled. Manley v. State, 287 Ga. 338, 698 S.E.2d 301 (2010).

Defendant's right to a thorough and sifting cross-examination of the state's key witness was not violated, where the trial court appropriately exercised its sound discretion to determine the extent of cross-examination when the questions left the area of the witness's belief of personal benefit and went to the fact underlying a pending charge against the witness. Baptiste v. State, 190 Ga. App. 451, 379 S.E.2d 165, cert. denied, 190 Ga. App. 897, 379 S.E.2d 165 (1989).

Government informant.

- Where the accused makes a credible initial showing that the informant may have been mistaken as to the name of the person selling drugs to undercover police officers on the occasion in question, the police privilege against revealing the name of its informant must yield to a defendant's fundamental right to a fair trial. Wilson v. State, 209 Ga. App. 436, 433 S.E.2d 703 (1993).

Refusal to order the identification of a reliable confidential informant did not violate defendant's right to confrontation because the informant was not a witness to the crime for which defendant was charged. Brown v. State, 229 Ga. App. 87, 493 S.E.2d 230 (1997).

Defendant was not denied the right to confront defendant's accusers when the state was not required to reveal the identity of the confidential informant since the identity of the confidential informant bore no relation to defendant's guilt or innocence. Baggs v. State, 265 Ga. App. 282, 593 S.E.2d 734 (2004).

Admission of detective's testimony regarding statements made by a police informant.

- Defendant's right to confrontation was not violated by admission of the testimony of a narcotics detective regarding statements made by a police informant and which the detective heard via an audio transmitter during a drug buy, although the informant died prior to trial, because the testimony was not hearsay; the statements were incriminating admissions, and the informant's statements were not testimonial in nature because, although overheard by the police, the statements were not made to the police. Smith v. State, 302 Ga. App. 128, 690 S.E.2d 449 (2010).

Curtailing of cross-examination where insufficient foundation laid.

- Where the defendant fails in the defendant's efforts to lay a foundation for a specific defense theory and this line of questioning is overruled, the trial court does not err in sustaining the state's objection to the defendant's question to a witness regarding the alleged homosexuality of the victim. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).

Affidavits of absent witnesses cannot be admitted in evidence at criminal trials because doing so violates the right of defendants to confront witnesses against them. Adams v. State, 217 Ga. App. 706, 459 S.E.2d 182 (1995).

U.S. Const., amend. 6 does not require admission of all character evidence probative of truthfulness of witness even though evidence may be of help to jury. United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980).

Denial of cross-examination where exhibits constitute highest and best evidence.

- Because defense counsel attempted to cross-examine the state's witnesses as to whether certain accusations or traffic citations which had been admitted in evidence contained a driving under the influence charge, and because each time the state successfully objected that the exhibits themselves would be the highest and best evidence, the defendant was not denied due process, equal protection or the right to cross-examine witnesses. Ferrell v. State, 149 Ga. App. 405, 254 S.E.2d 404 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 679, 62 L. Ed. 2d 653 (1980).

Indicia of reliability must be present where no confrontation of declarant.

- In cases involving a defendant's right under U.S. Const., amend. 6 to confrontation, the focus of concern is to ensure that there are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant, and to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

What indicia of reliability viewed as determinative.

- Those indicia of reliability which have been viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant are that the statement was nonnarrative; that the declarant is shown by the evidence to know whereof the declarant speaks; that the witness is not apt to be proceeding on faulty recollection; and that the circumstances show that declarant had no apparent reason to lie to the witness. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979).

Admission of hearsay where indicia of reliability present.

- Where three of the indicia of reliability are present, the admission of hearsay testimony concerning the individual's statements incriminating both the individual and the defendant does not violate the defendant's confrontation rights under the state and federal Constitutions. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

Admission of the defendants' hearsay statements as statements made by coconspirators under O.C.G.A. § 24-3-5 did not violate the confrontation clause of U.S. Const., amend. 6, as the statements were reliable, and the statements were not testimonial in nature; each statement corroborated the other statements and the physical evidence, and each of the defendants implicated himself or herself in their statement. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91 (2007).

Admission of child molestation victims' out-of-court statements did not violate right to confrontation, where the statements bore sufficient "indicia of reliability." Smith v. State, 199 Ga. App. 378, 405 S.E.2d 78, cert. denied, 199 Ga. App. 907, 405 S.E.2d 78 (1991).

With regard to defendant's trial and conviction for child molestation, the trial court did not err by allowing the admission of the victim's hearsay statements as defense counsel had subpoenaed the victim and announced that defense counsel intended to call the victim as a trial witness; although the victim ultimately was not called to testify, the record established that the victim was present and available for cross-examination, and therefore, there was no Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), violation presented in the case. Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740 (2008).

Non-testifying victim's statements pertinent to medical treatment.

- With regard to a defendant's trial and conviction for aggravated sodomy and simple battery involving the sexual assault of an inmate upon an inmate, the trial court did not violate the defendant's rights under the Confrontation Clause by admitting the statements made by the victim to the physician and the nurse who treated the victim for the injuries received because the statements were admissible under former O.C.G.A. § 24-3-4 (see now O.C.G.A. § 24-8-803), the medical diagnosis or treatment exception, and did not fall within any class of testimonial statement. In particular, no objective witness would reasonably conclude that the statements were made under such circumstances that the statement would be available for use at a later trial. Thomas v. State, 288 Ga. App. 602, 654 S.E.2d 682 (2007), cert. denied, No. S08C0725, 2008 Ga. LEXIS 471 (Ga. 2008).

Review of psychiatric records of witness.

- Defendant's Sixth Amendment rights were not violated by a trial court's failure to conduct an in camera review of psychiatric records relating to an eyewitness to the defendant's crimes because defense counsel admitted to the trial court that there were no known psychiatric records pertaining to the eyewitness. Byrum v. State, 282 Ga. 608, 652 S.E.2d 557 (2007).

Blood test results in defendant's medical records were not testimonial.

- In the defendant's vehicular homicide prosecution, the admission of testimony regarding the defendant's blood-test results contained in the defendant's medical records did not violate the Confrontation Clause; the medical records were not testimonial in nature because the circumstances surrounding their creation objectively indicated that the records were prepared with a primary purpose of facilitating the defendant's medical care after the defendant was struck by the same vehicle that killed the victim. Hartzler v. State, 332 Ga. App. 674, 774 S.E.2d 738 (2015).

Constitutional right to confrontation does not require that all hearsay be excluded from evidence in criminal cases. Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219 (1980); Ewald v. State, 156 Ga. App. 68, 274 S.E.2d 31 (1980).

A witness can testify as to what the witness has heard without violating the confrontation clause if subject to cross-examination. Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219 (1980); Ewald v. State, 156 Ga. App. 68, 274 S.E.2d 31 (1980).

Hearsay exceptions must comport with right of confrontation.

- While U.S. Const., amend. 6 does not prevent creation of new exceptions to the hearsay rule based upon real necessity and adequate guarantees of trustworthiness, it does embody those requirements as essential to all exceptions to the rule, present or future. To hold otherwise would be to hold that Congress could abolish the right of confrontation by making unlimited exceptions to the hearsay rule. Matthews v. United States, 217 F.2d 409 (5th Cir. 1954).

Hearsay exception satisfied confrontation clause.

- Hospital record showing blood test results was properly admitted as a business records exception to the hearsay rule and bore an "indicia of reliability" sufficient to satisfy the confrontation clause. Dixon v. State, 227 Ga. App. 533, 489 S.E.2d 532 (1997).

Trial court did not err in admitting two statements the victim made regarding defendant's kidnapping of the victim, pursuant to the res gestae exception to the hearsay rule, as the victim was still under the influence of defendant's criminal act, and the state and federal courts have previously determined that admission of res gestae evidence did not violate a defendant's right to confront defendant's accuser. White v. State, 265 Ga. App. 117, 592 S.E.2d 905 (2004).

In a defendant's prosecution for, inter alia, felony murder, the introduction of a second inmate's statement that the defendant and the second inmate did not mean to kill a third inmate did not violate the defendant's Sixth Amendment confrontation rights because the voluntary statement, which was made shortly after the third inmate was found in the defendant's cell, was admissible pursuant to the res gestae exception to the rule against hearsay under former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803). Butler v. State, 284 Ga. 620, 669 S.E.2d 118 (2008).

Trial court did not err in allowing the victim's cousin and the cousin's girlfriend to testify at trial about prior difficulties between the victim and the defendant pursuant to the necessity exception to the rule excluding hearsay, and the testimony did not violate the defendant's right to confrontation because the trial court concluded the proffered testimony of the witnesses was reliable and trustworthy as it found the victim was like a sibling to the witnesses; and because any alleged harm from the admission of that testimony was mitigated by the fact that both witnesses testified that the victim and the defendant continued to be friends in spite of their prior difficulties. Thompson v. State, 294 Ga. 693, 755 S.E.2d 713 (2014).

Admission of hearsay evidence not harmless error.

- Because the evidence against the defendant was not overwhelming, admission of the officer's testimony that the witness told the officer that defendant sold the witness drugs was hearsay that violated the defendant's right to a fair trial, and was therefore not harmless error. Welch v. State, 231 Ga. App. 74, 498 S.E.2d 555 (1998).

Admission of prior inconsistent statements as affirmative evidence does not violate the confrontation clause of U.S. Const., amend. 6, because the declarant is testifying as a witness at the trial and therefore subject to full and effective cross-examination. United States v. Hill, 481 F.2d 929 (5th Cir.), cert. denied, 414 U.S. 1115, 94 S. Ct. 847, 38 L. Ed. 2d 742 (1973).

Out-of-court statements.

- The confrontation clause is not violated by admitting a declarant's out-of-court statement as long as the declarant is testifying as a witness and subject to full cross-examination. Durham v. State, 240 Ga. 203, 240 S.E.2d 14 (1977); Andrews v. State, 156 Ga. App. 734, 275 S.E.2d 782 (1980).

Because defendant was provided a full opportunity for confrontation regarding the victim's prior out-of-court statements, the trial court did not err in admitting a police investigator's hearsay evidence. Gartrell v. State, 272 Ga. App. 726, 613 S.E.2d 226 (2005).

As a witness's statement in response to police questioning was testimonial and the defendant did not have a prior opportunity to cross-examine the witness about the contents of the statement, the statement's admission erroneously infringed upon the defendant's right to confront the witnesses against the defendant; however, the witness was located and brought to court the day after the statement was read and the defendant chose not to cross-examine the witness. Thus, the error in admitting the statement was cured and the error was not grounds for reversal. Lott v. State, 281 Ga. App. 373, 636 S.E.2d 102 (2006).

Cellmate's testimony.

- Cellmate's testimony regarding incriminating statements the defendant allegedly made did not violate the defendant's Sixth Amendment right to counsel because the cellmate did not have any agreement with the lead detective and had not been promised any payment, lenient treatment, or other help in return for any evidence that the cellmate could produce; what the cellmate hoped to get for the testimony went to the cellmate's credibility, not to the admissibility of the cellmate's testimony, and there was no evidence that the cellmate deliberately elicited the incriminating statements from the defendant. Higuera-Hernandez v. State, 289 Ga. 553, 714 S.E.2d 236 (2011).

Codefendant's custodial statement.

- Introduction of a codefendant's custodial statement, which was redacted to eliminate the defendant's name and was read into evidence at trial, violated the defendant's Sixth Amendment right to confrontation because despite the redaction, the codefendant's statement, taken in context, obviously referred to the defendant; there was no instruction given for the jury to consider the statement only against the statement's maker, and because the defendant had no opportunity to cross-examine the defendant's inculpatory statements against the defendant, the defendant's Sixth Amendment rights were violated. Ardis v. State, 290 Ga. 58, 718 S.E.2d 526 (2011).

Victim's statements to officer and paramedic.

- The admission of statements by the deceased victim to an officer and to a paramedic that the defendant had struck the victim in the head did not violate the Confrontation Clause. The primary purpose of the officer's interrogation was to meet an ongoing emergency, and the statement to the paramedic was made during an initial examination and was not testimonial. Hester v. State, 283 Ga. 367, 659 S.E.2d 600 (2008).

Provision of O.C.G.A. § 24-3-16 permitting evidence of a victim's out-of-court statements does not violate the confrontation clause. Fuller v. State, 211 Ga. App. 104, 438 S.E.2d 183 (1993).

Violation of due process of law in conducting a confrontation depends on the totality of the surrounding circumstances. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622 (1971).

On-the-scene confrontations and identifications.

- Although a conventional line-up viewing is normally the appropriate procedure, nevertheless, prompt, on-the-scene confrontations and identifications, though inherently suggestive because of the representation of a single suspect, are permissible in aiding a speedy police investigation and that where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. Bennefield v. Brown, 228 Ga. 705, 187 S.E.2d 865 (1972); Flores v. State, 228 Ga. App. 152, 491 S.E.2d 86 (1997).

Suggestive pretrial identification procedures taint courtroom identification.

- Pretrial identification procedures which include an impermissibly suggestive photographic confrontation, followed by a suggestive in person confrontation at a critical stage of the proceedings conducted without counsel, disclose an inextricably related identification process making it impossible to determine that the courtroom identification is untainted thereby and had an independent origin in the face-to-face confrontation by the eyewitness at the scene of the burglary. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622 (1971).

Per se exclusionary rule does not apply to confrontations occurring before the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414 (1972).

Videotape statements admissible since testifying.

- Since both of defendant's accomplices testified and were cross-examined at trial, any Sixth Amendment right to confrontation concerns regarding the admission into evidence at trial of the statements defendant and one accomplice made on a videotape while being arrested were satisfied. Heard v. State, 257 Ga. App. 505, 571 S.E.2d 524 (2002).

Defendant's right of confrontation was not violated by the admission of a videotaped statement of a witness, who did not remain silent at the trial, and completely denied making any statement to the police regarding the murder. Wilson v. State, 277 Ga. 114, 587 S.E.2d 9 (2003).

Use of a photo suggestive of criminal conduct during an investigation does not make identification testimony possibly affected by the photo per se inadmissible. United States v. Axtman, 589 F.2d 196 (5th Cir. 1979).

Where the suspect is already in custody for other reasons, and only three pictures are used for the witness to choose from, two of which depict the suspect, and one which has been altered in a manner which might suggest that it depicted the suspect, the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622 (1971).

Exhibition of pictures of members of a line-up, including that of the defendant, to a witness for identification purposes does not violate the defendant's rights under U.S. Const., amend. 6 and work a per se exclusion of the identification. Creamer v. State, 229 Ga. 704, 194 S.E.2d 73 (1972).

In-court identification admissible if independent from illegal pretrial identification.

- Notwithstanding any illegality in the pretrial identification procedures, in-court identification by a witness may nevertheless be admitted so long as it has an independent origin from the illegal identification procedure. Foster v. State, 156 Ga. App. 672, 275 S.E.2d 745 (1980).

Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification; furthermore, even if a pre-trial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. Taylor v. State, 203 Ga. App. 210, 416 S.E.2d 554 (1992).

Where the victim observed defendant at the scene and gave a detailed description to the police immediately following the robbery, the victim's identification had an independent origin other than the photo identification; therefore, the court found no error with the trial court's admission of the photographic identification. Taylor v. State, 203 Ga. App. 210, 416 S.E.2d 554 (1992).

Per se rule applies to illegal line-up identification itself.

- While an illegality in the pretrial identification procedure does not automatically prevent the witness from also identifying the defendant during the trial, a per se rule of exclusion does apply to evidence of the illegal line-up identification itself. Foster v. State, 156 Ga. App. 672, 275 S.E.2d 745 (1980).

Codefendant's confession inadmissible where codefendant does not take stand.

- Evidence of the confession of one codefendant, which confession implicates another, cannot be admitted where the confessor does not take the stand and is not available for cross-examination. Collins v. State, 144 Ga. App. 102, 240 S.E.2d 597 (1977); Cape v. State, 144 Ga. App. 193, 240 S.E.2d 736 (1977); Munford v. Seay, 241 Ga. 223, 244 S.E.2d 857 (1978); Sewell v. State, 153 Ga. App. 177, 264 S.E.2d 708 (1980).

Defendant was deprived of right to confrontation by admission into evidence of the codefendant's confession implicating the defendant where the codefendant did not take the stand, and where evidence against the defendant was not so overwhelming as to render any error harmless. Hamilton v. State, 162 Ga. App. 620, 292 S.E.2d 473 (1982).

Admission of co-conspirator's statement.

- In cases involving a co-conspirator exception to the hearsay rule, the admission of the statement of a co-conspirator does not violate the confrontation clause if the statement and the circumstances surrounding it contain sufficient "indicia of reliability." Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 415, 314 S.E.2d 210 (1984); Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210 (1984); Hunter v. State, 179 Ga. App. 368, 347 S.E.2d 2 (1986).

Where the four factors indicative of reliability identified by the United States Supreme Court are present in the case, a demonstration of the unavailability of the co-conspirator is not required and the defendant's Sixth Amendment confrontation rights are not violated by introduction of testimony regarding the co-conspirator's declarations. Hunter v. State, 179 Ga. App. 368, 347 S.E.2d 2 (1986).

Testimony by an undercover police officer as to a statement made by a co-conspirator during the pendency of the criminal project was not inadmissible simply because the co-conspirator was not available for cross-examination since, after the fact of conspiracy is proved, the declarations of any one of the conspirators during the pendency of the project is admissible against all. Clark v. State, 236 Ga. App. 153, 510 S.E.2d 907 (1999).

Admission of codefendant's statements made during the concealment phase of a conspiracy did not violate the confrontation clause as there were sufficient indicia of reliability because the codefendant had personal knowledge of the identities and roles of the participants, the possibility that codefendant's statements were based on faulty recollection was remote because the statements concerned direct involvement in a murder, it was unlikely that codefendant misrepresented defendant's involvement in the crimes, and the statements were against codefendant's penal interest. Shelton v. State, 279 Ga. 161, 611 S.E.2d 11 (2005).

Statements by the defendant's co-conspirator to a third person regarding the defendant's actions during the criminal project and during the concealment phase bore sufficient indicia of reliability to be admissible in defendant's criminal trial, pursuant to O.C.G.A. § 24-3-5, and any objection on the grounds of the confrontation clause under U.S. Const., amend. 6 or on hearsay grounds would have lacked merit; reliability factors included that there was no express statement of past facts and the declarant spoke of matters based on first had knowledge on the same day that they had occurred. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485 (2005).

Statement by a co-conspirator to a witness had sufficient indicia of reliability, and its admission did not violate the confrontation clause; while the statement was an assertion of past facts, by the co-conspirator's admission that the co-conspirator committed the crime, the co-conspirator had personal knowledge of the other perpetrators, the possibility that the co-conspirator's recollection of the incident was faulty was remote in light of the heinousness of the crime and the co-conspirator's description that it was the best time the co-conspirator had ever had, and there was no reason for the co-conspirator to misrepresent the defendants' involvement in the crime, because the co-conspirator and the other defendants were friends; furthermore, two of the co-conspirator's statements were against the co-conspirator's own penal interest, which also weighed in favor of reliability. Dickerson v. State, 280 Ga. App. 29, 633 S.E.2d 367 (2006).

Admission of a co-conspirator's hearsay statement that defendant was the "triggerman" in a robbery violated the confrontation clause, and could not be deemed harmless error, where the hearsay lacked sufficient indicia of reliability: The statement was not res gestae, was not given under oath, was not against penal interest, and was exculpatory. Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 503 U.S. 952, 112 S. Ct. 1516, 117 L. Ed. 2d 652 (1992).

Admission of a nontestifying codefendant's statement with the names of codefendants redacted and replaced by blanks violated Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). McDonald v. State, 210 Ga. App. 689, 436 S.E.2d 811 (1993).

Admission into evidence of codefendant's prior videotaped statement as a prior inconsistent statement or under the necessity exception to the hearsay rule was error where the codefendant was present at the trial, but refused to testify. Barksdale v. State, 265 Ga. 9, 453 S.E.2d 2 (1995).

In defendant's trial on charges alleging that defendant and two codefendants robbed and killed a person in 1986, the trial court did not violate defendant's rights under the confrontation clause by admitting statements which defendant's codefendants made, even though the codefendants did not testify, because those statements were properly redacted before they were admitted and the jury was properly instructed on their use. Ingram v. State, 277 Ga. 46, 586 S.E.2d 221 (2003).

Admission of a statement by codefendant to the police investigator violated defendant's right to confrontation because defendant and codefendant were jointly tried, codefendant's statement was used to implicate defendant in the crime, and codefendant did not take the stand to face cross-examination. Sharber v. State, 268 Ga. App. 365, 601 S.E.2d 732 (2004).

Admission of a nontestifying codefendant's statement did not violate defendant's right to confrontation because the statement was redacted to remove any reference to defendant; as nothing in the statement pointed directly at defendant as a participant in the crime, the statement was not inculpatory, and the court did not err in admitting it. Dunbar v. State, 271 Ga. App. 753, 610 S.E.2d 702 (2005).

With regard to the defendant's conviction for malice murder, the trial court violated a defendant's right to confrontation by admitting two prior inconsistent statements of a codefendant after the codefendant refused to testify and shut down during direct examination, therefore, the defendant was unable to cross-examine the codefendant. However, the error were harmless beyond a reasonable doubt based on the defendant's admission to assisting in the killing and being with the codefendant at the time of the killing. Soto v. State, 285 Ga. 367, 677 S.E.2d 95 (2009).

Admission of a nontestifying codefendant's statement that listed all the other participants in the crime and substituted "a fourth person" and similar references obviously referred to the defendant and implicated the defendant in the crimes, and therefore admission of the statement was error. The error was harmless, however, because most of the statement was entirely cumulative of the defendant's own testimony and the defendant's statement to police. Laye v. State, 312 Ga. App. 862, 720 S.E.2d 233 (2011), cert. denied, No. S12C0534, 2012 Ga. LEXIS 280 (Ga. 2012).

Admission of a statement by the defendant's brother at a joint trial did not violate the defendant's right to confrontation because the jury was instructed only to consider the statement against the brother and the statement did not mention or implicate the defendant. Teasley v. State, 293 Ga. 758, 749 S.E.2d 710 (2013).

Nontestifying codefendant's statement.

- Unless the statement is otherwise directly admissible against the defendant, the confrontation clause is violated by the admission of a nontestifying codefendant's statement which inculpates the defendant by referring to the defendant's name or existence, regardless of the existence of limiting instructions. Collins v. State, 242 Ga. App. 450, 529 S.E.2d 412 (2000).

In a joint trial where neither defendant testified, the second defendant was entitled to a new trial based on the admission of the first defendant's statement against the second defendant because a Bruton violation occurred and the only evidence directly identifying the second defendant as one of the people at the victim's door in a shooting incident was the first defendant's statement. Meadows v. State, 264 Ga. App. 160, 590 S.E.2d 173 (2003).

No Bruton violation if statements not inculpatory.

- Defendant's custodial statements that the defendant was not present and that the defendant had an alibi did not inculpate codefendants. It followed that the trial court did not abuse the court's discretion in denying motions for mistrial on Bruton grounds. Metz v. State, 284 Ga. 614, 669 S.E.2d 121 (2008), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).

Confession of co-indictee.

- The admission of evidence of a co-indictee's confession, made outside the defendant's presence to a police officer after the defendant's arrest was error. It violated the defendant's Sixth Amendment right to confront and cross-examine witnesses against the defendant, as well as the provision of O.C.G.A. § 24-3-52. Crawford v. State, 203 Ga. App. 215, 416 S.E.2d 820 (1992).

Where the statement of a coactor after a crime occurs is merely cumulative of other undisputed evidence in the case and does not directly incriminate the defendant, any error in its admission in high probability does not affect the verdict and is harmless beyond a reasonable doubt. Harris v. State, 168 Ga. App. 458, 309 S.E.2d 431 (1983).

Accomplice's conversation with witness.

- Where a police officer testified as to a conversation with the alleged accomplice and what the officer did as a result of that conversation but did not testify as to what the accomplice in fact specifically told the officer about the defendant, there was no violation of the defendant's Sixth Amendment right to confrontation. Goff v. State, 165 Ga. App. 79, 299 S.E.2d 149 (1983).

Since substantial risk exists that instructions to jury will not be effective.

- Because of the substantial risk, despite instructions to the contrary, that a jury shall look to incriminating extrajudicial statements in determining a defendant's guilt, admission of the confession of a codefendant in a joint trial violates the defendant's right of cross-examination secured by the confrontation clause of U.S. Const., amend. 6. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

Admission of codefendant's confession is harmful error.

- The admission of the confession of codefendant who did not take the stand in the joint trial is harmful error under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The admission of the confession without an opportunity for cross-examination violated defendant's guarantee of confrontation of witnesses against the defendant under U.S. Const., amend. 6. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

Right of confrontation not violated where defendant's own confession supports it.

- Although evidence of the confession of the codefendant implicating the defendant cannot be admitted against that defendant at joint trial where the codefendant does not take stand and is not available for cross-examination, where the testimony presented in the codefendant's confession is supported by the complaining defendant's own confession, there is no violation of the appellant's right of confrontation. Butler v. State, 156 Ga. App. 89, 274 S.E.2d 104 (1980).

Where the defendant's own pre-trial statement admitting the defendant's own guilt was identical to the codefendant's statement, the defendant failed to show how the denial of the motion to sever was a denial of due process. Dennard v. State, 263 Ga. 453, 435 S.E.2d 26 (1993), overruled on other grounds by Sanders v. State, 281 Ga. 36, 635 S.E.2d 772, 2006 Ga. LEXIS 638 (2006).

Admission of codefendant's statement harmless.

- Because the appellant had also confessed, making the incriminating statement of the codefendants merely cumulative, its admission in violation of the Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), rule was harmless. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

Admission of codefendant's statement to the fellow prisoners referring to a robbery and a shooting by "one of the guys" did not violate defendant's federal or state rights to confront witnesses and did not mandate that defendant be tried separately as the statement did not inculpate defendant. Sampson v. State, 279 Ga. 8, 608 S.E.2d 621 (2005).

Admission of codefendant's statement is harmless where defendant not inculpated by it.

- Where the confession of the codefendant was found to inculpate only the declarant and not the defendant, its admission in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), is harmless. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

Severance of defendants.

- Neither codefendant was entitled to a severance where Bruton v. United States, 391 U.S. 123 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) did not apply, since the codefendants' statements did not directly incriminate each other, and the trial court gave limiting instructions as to the use of such evidence. Bruton only excludes statements by a non-testifying codefendant that directly inculpate the defendant, and Bruton is not violated if a codefendant's statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial. Moss v. State, 275 Ga. 96, 561 S.E.2d 382 (2002).

Defendant lacked standing to complain of a trial court's decision to sever defendant's trial from defendant's co-indictees at the request of the state based on the fact that defendant's statement to police could not have been redacted so as to delete defendant's implication of the other offenders, and the admission of the statement would have been precluded if the other offenders were tried jointly with defendant; defendant also failed to show harm, as defendant was acquitted of the charges to which the statements of the co-indictees related. Rhodes v. State, 267 Ga. App. 673, 601 S.E.2d 139 (2004).

When a defendant charged with malice murder, felony murder, and cruelty to children argued that the trial court violated the Sixth Amendment confrontation rights by not severing the defendant's trial from that of a codefendant, the court held that even if admission of the codefendant's statements was error, it was harmless; some of the complained-of statements were cumulative of other properly admitted evidence, and other statements were not an important element in the state's case, given the showing that the victim never suffered unusual injuries before moving in with the defendant and that the victim's severe injuries occurred when the defendant was the victim's sole adult caretaker. Collum v. State, 281 Ga. 719, 642 S.E.2d 640 (2007).

As neither defendant implicated the other in their statements to police, the trial court did not abuse the court's discretion in denying their motions to sever their cases on grounds of a violation of Bruton v. United States, 391 U.S. 123 (1968). Carter v. State, 285 Ga. 394, 677 S.E.2d 71 (2009).

Where the evidence contained in the confession is found to be merely cumulative, its admission in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), is harmless. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

When codefendant's inculpatory statement admissible.

- An admission of an inculpatory statement made by accused's codefendant did not violate the accused's right of confrontation where the statement was not received until all references to the accused were deleted, and where the accused had a full opportunity to cross-examine codefendant when the codefendant took the stand to deny making the inculpatory statement. United States v. Sims, 434 F.2d 258 (5th Cir. 1970).

Evidence of a codefendant's statements did not violate defendant's rights under the confrontation clause since it was not admitted for its truth, but for the limited purpose of showing context and voluntariness. Cargill v. Turpin, 120 F.3d 1366 (11th Cir. 1997), cert. denied, 523 U.S. 1080, 118 S. Ct. 1529, 140 L. Ed. 2d 680 (1998).

Codefendant's statement meets the standard for admissibility under the confrontation clause when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing codefendant. Rooks v. State, 238 Ga. App. 177, 518 S.E.2d 179 (1999).

Trial court did not err in allowing the state to introduce a codefendant's out-of-court statement without redacting the statement, and in allowing the state to cross-examine the codefendant using the name of the defendant's two alleged accomplices because, once the codefendant took the stand and answered questions concerning the codefendant's statement, even if the codefendant denounced or recanted that statement, the codefendant was subject to cross-examination. Boone v. State, 250 Ga. App. 133, 549 S.E.2d 713 (2001).

Codefendant's inculpatory statement inadmissible.

- In a trial against three alleged co-conspirators the introduction in evidence of two defendants' incriminating statements denied the third defendant the right to be confronted by these persons and to subject them to cross-examination, where the statements are crucial to the case against the third defendant, their impact is devastating, and there is not sufficient indicia of reliability to excuse confrontation by the declarants. Knowles v. State, 246 Ga. 378, 271 S.E.2d 615 (1980).

Admissibility of co-conspirator's declarations under former Code 1933,

§ 38-306 (see O.C.G.A. § 24-3-5). - Even though an alleged accomplice does not appear at the defendant's trial, the accomplice's statement can be placed before the jury under former Code 1933, § 38-306 (see O.C.G.A. § 24-3-5) without violating the due process or confrontation clauses, if the statement meets certain indicia of reliability, including the fact that it was offered spontaneously and was against the accomplice's penal interest. Spivey v. State, 138 Ga. App. 298, 226 S.E.2d 104, cert. denied, 429 U.S. 921, 97 S. Ct. 317, 50 L. Ed. 2d 288 (1976).