Smith v. the State

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

July 13, 2016

In the Court of Appeals of Georgia
A16A0519. SMITH v. THE STATE.

BOGGS, Judge.

In the second appearance of this case before this court, Jason Smith appeals

from his conviction of driving with a blood alcohol level of 0.08 grams or more in

violation of OCGA § 40-6-391 (a) (5) (DUI per se). Smith contends that we must

once again remand this case to the trial court for entry of an order with adequately

supported factual findings and the correct balancing of the four speedy trial factors

outlined in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). He

asserts in the alternative that we should conclude that the trial erred by failing to grant

his motion for an acquittal based upon a violation of his federal and state

constitutional rights to a speedy trial. For the reasons explained below, Supreme

Court of Georgia precedent requires us to vacate the trial court’s order denying
Smith’s motion for discharge and acquittal and remand this case again to the trial

court.

The record shows that on May 5, 2007, Smith was arrested for DUI less safe

and DUI per se following an accident on an interstate highway. He was convicted of

DUI per se in a bench trial on June 1 2012, five years and 28 days later. Smith was

not incarcerated during this time period as he was released on bond the day after this

arrest.

Following his arrest, Smith was instructed to appear in the City of Atlanta

Municipal Court on May 7, 2007. According to representations of the State during the

hearing on the motion for discharge and acquittal, the case remained in municipal

court through February of 2008, at which time it was transferred to Fulton County

State Court. The State asserted that some of the transfer delay was “for the defense

to review the video; for the defense to consider the offer; not within the defense’s

control, but I believe there was a family member that was ill.” We cannot determine

from the record before us whether Smith was represented by counsel while the case

was pending in municipal court.

On August 13, 2008, 15 months after Smith’s arrest, the State filed an

accusation against him charging him with DUI less safe and DUI per se. On October

2
2, 2008, Smith’s counsel filed various motions seeking discovery from the State,

including source code information for the Intoxilyzer 5000 machine that was used to

test his breath on the day of his arrest.

The case appeared on a bench trial calendar published on November 13, 2008,

but there was no date for the trial specified.1 According to the parties, the case was

“reset” because Smith did not waive his right to a jury trial. The State had not yet

responded to Smith’s discovery requests at the time this bench trial notice was issued.

On the same day the notice was published, Smith filed a motion asking that the clerk

be ordered to release his surety under OCGA § 17-6-31 (e) because the State had

failed to try him within one year after he posted bond on his misdemeanor arrest (May

of 2007). The trial court granted this motion on December 2, 2008.

On January 5, 2009, Smith’s counsel filed a request for leave of absence for a

series of 12 dates from February through June of 2009. The reason for one request

was a seminar, and the remaining 11 were for unspecified personal leave.2

1
In the blank space on the form titled “Trial Date,” the words “Further Notice”
were typed.
2
The specific dates follow: Thursday, February 5, 2009 - Friday, February 6,
2009; Thursday, February 12, 2009; Friday, February 27, 2009; Monday, March 2,
2009 - Tuesday, March 3, 2009; Monday, March 9, 2009 - Friday March 13, 2009;
Monday, March 16, 2009; Friday, March 20, 2009; Monday, April 13, 2009 - Friday,

3
 On March 4, 2009, the case was placed on jury trial calendar beginning

Monday, May 4, 2009. We cannot determine from the record before us whether the

leave of absence requests delayed the scheduling of trial between the previous

November 2008 bench trial notice and the first jury trial date of May 4, 2009. At the

time the court scheduled the jury trial, however, it still had not ruled upon the motion

filed by Smith five months earlier requesting an order determining the relevance and

materiality of the source code.

On April 23, 2009, 11 days before the first scheduled jury trial date and over

6 months after Smith’s request, the State filed a response to Smith’s discovery

requests and produced a witness list, a copy of the accusation and uniform traffic

citations, a copy of the incident report concerning his arrest, and a copy of the

intoxilyzer slip. According to the State, the case was not reached on the May jury trial

calendar. There is no evidence that Smith sought a continuance of the case on that

date for any reason.

Between May 2009 and August 31, 2011, the case was not scheduled for trial,

and the trial court still had not ruled upon Smith’s motion for an order determining

April 17, 2009; Monday, April 20, 2009; Monday, May 11, 2009 - Tuesday, May 12,
2009; Monday, June 8, 2009 - Thursday, June 11, 2009.

4
the source code to be material and relevant.3 We cannot determine from the record

before us whether the leaves of absence requests during this time frame resulted in

the case not being placed on a trial calendar for approximately 15 months.4

3
A seminal case addressing the standard for determining the materiality and
relevance of source code evidence was winding its way through our appellate courts
during this time period. See Davenport v. State, 289 Ga. 399 (711 SE2d 699) (2011).
The case was first docketed in this court on April 22, 2009 and decided on February
11, 2010. Davenport v. State, 303 Ga. App. 401(693 SE2d 510) (2010). The Georgia
Supreme Court granted a writ of certiorari on September 20, 2010, and issued its
opinion on June 20, 2011. When the trial court granted Smith’s request for a
certificate of materiality in October of 2011, it cited only to the Georgia Supreme
Court’s decision in Davenport, supra.
4
In June 2009, Smith filed another request for leave of absence for series of 13
dates for unspecified personal leave from July 2009 into January 2010. The specific
dates are: Wednesday, July 8, 2009 - Friday July 10, 2009; Monday, July 27, 2009 -
Friday, July 31, 2009; Thursday, August 6, 2009 - Friday, August 7, 2009; Monday,
August 10, 2009 - Friday, August 14, 2009; Monday, August 17, 2009; Monday,
August 31, 2009 - Thursday, September 3, 2009; Monday, September 14, 2009 -
Friday, September 18, 2009; Monday, October 12, 2009 - Friday, October 16, 2009;
Monday, October 19, 2009; Monday, November 23, 2009 - Friday, November 27,
2009; Monday, November 30, 2009; Monday, December 28, 2009 - Thursday,
December 31, 2009; Monday, January 4, 2010 - Wednesday, January 6, 2010.
In April 2010, his counsel filed a request for leave of absence for a series of ten
dates from July 2010 through December 2010 for unspecified personal leave. The
specific dates are: The specific dates follow: Monday, July 5, 2010 - Friday July 9,
2010; Monday, July 12, 2010; Monday, August 9, 2010 - Friday, August 13, 2010;
Monday, September 13, 2010 - Friday, September 17, 2010; Monday, October 11,
2010 - Wednesday, October 13, 2010; Friday, October 29, 2010; Monday, November
1, 2010; Monday, November 22, 2010 - Friday, November 26, 2010; Thursday,
December 23, 2010 - Friday, December 24, 2010; Monday, December 27, 2010 -
Friday, December 31, 2010.

5
 On August 31, 2011, the case was set on a trial calendar beginning Thursday,

September 22, 2011. On September 9, 2011, defense counsel attempted to serve a

subpoena upon CMI, Inc. in Kentucky seeking production of source code information

at the trial scheduled for September 22, 2011. On the same day as the scheduled

September trial, Smith filed a request for issuance of an out-of-state subpoena to

CMI, Inc. along with a proffer of the need for source code evidence, which included

a copy of an expert witness affidavit submitted in an unrelated criminal case. We

cannot determine from the record why the case was not tried on this date, but the trial

court had still not ruled upon Smith’s motion seeking a determination that the source

code was material and relevant.

On March 7, 2011, Smith’s counsel filed a request for leave of absence for
unspecified personal leave from April 2011 into August 2011. The specific dates are:
The specific dates follow: Monday, April 18, 2011 - Friday, April 22, 2011;
Thursday, May 19, 2011 - Wednesday, May 25, 2011; Monday, June 13, 2011 -
Monday, June 20, 2011; Monday July 25, 2011 - Friday, August 5, 2011.
On June 27, 2011, Smith’s counsel filed a request for leave of absence for
unspecified personal leave for a series of eight dates from June 2011 into November
2011. The specific dates follow: Thursday, June 2, 2011 - Friday, June 3, 2011;
Monday, June 13, 2011 - Monday, June 20, 2011; Friday, June 24, 2011; Friday, July
15, 2011; Monday, July 18, 2011; Monday, August 1, 2011 - Monday, August 15,
2011; Monday, September 12, 2011 - Friday, September 16, 2011; Monday, October
10, 2011 - Friday, October, 14, 2011; Monday, October, 31, 2011 - Tuesday,
November 1, 2011.

6
 On October 6, 2011, the trial court issued an order finding the source code

evidence material and granted Smith’s request for a certificate of materiality under

OCGA § 24-10-94. This order was issued over three years after Smith had first sought

such a determination from the trial court.

The record does not show when Smith first petitioned a Kentucky court to

obtain a subpoena directing CMI to appear in Georgia. It does show, however, that

on February 17, 2012, a Kentucky Circuit Court judge signed a consolidated

protective order allowing source code access to criminal defendants and their

attorneys and expert witnesses, as well as court personnel. Numerous petitioners were

listed on the protective order, including Jason Smith. A few days later, the Kentucky

trial court issued an order denying Smith’s request for a subpoena of source code

information, concluding that the various orders issued by Georgia courts were

defective on their face and authorized the disclosure of information that was not

“material” or “necessary.” On March 16, 2012, Smith, as well as other petitioners,

filed a notice of appeal with the Kentucky Court of Appeals.5

5
In a published and final opinion issued on June 13, 2014, a three-judge panel
of the Kentucky Court of Appeals dismissed the consolidated appeals of the Georgia
petitioners based upon a procedural defect in the appellants’ brief. Krugman v. CMI,
Inc., 437 SW3d 167 (Ky. App. 2014). One of the judges “concur[red] with the result
reached by the majority,” but would have “affirm[ed] on the merits of the appeal of

7
 During the time that Smith attempted to obtain the source code in Kentucky

after receiving a ruling from the trial court in October 2011, his case appeared on two

trial calendars.6 According to the State, the case “was tabled several times while we

waited to hear the outcome.” While Smith’s counsel also filed leaves of absence

during this time period,7 we cannot determine whether they may have had any impact

on the scheduling of the case for trial, particularly in light of the State’s

representation that this case was tabled.

the Circuit Court’s orders.” Id. at 171.
6
On December 27, 2011, the case was placed on a trial calendar beginning on
Friday, February 3, 2012. The case was not tried on this date, nor on a subsequent
trial calendar beginning Friday, April 27, 2012.
7
On September 15, 2011, Smith’s counsel filed a request for a leave of absence
for a series of seven dates from October into February 2012. The specific dates that
are not duplicative of the previous leave request follow: Monday, November 7, 2011 -
Friday, November 11, 2011 (preparation for vehicular homicide case); Monday,
November 14, 2011 - Friday, November 18, 2011 (specially set vehicular homicide
case); Monday, November 21, 2011 - Monday, November 28, 2011 (personal leave);
Thursday, December 22, 2011 - Tuesday, January 3, 2012 (personal leave); Tuesday,
January 31, 2012 - Monday, February 6, 2012 (personal leave).
On January 4, 2012, Smith’s counsel filed an additional leave of absence
request for the following dates, citing personal leave as the reason for each: Monday,
January 30, 2012- Monday, February 6, 2012; Friday, February 17, 2012 - Thursday,
February 23, 2012; Thursday, March 15, 2012 - Tuesday, April 3, 2012; Monday,
April 16, 2012 - Monday, April 23, 2012; Wednesday, May 16, 2012 - Wednesday
May 23, 2012.

8
 Smith was tried on June 1, 2012, while his Kentucky appeal was pending.8 On

the day of trial, he asserted his constitutional right to a speedy trial for the first time.9

Defense counsel also asked the trial court to exclude the breath test because he had

not yet been able to obtain the source code. In the alternative, he asked the trial court

to “reset this case to allow us to go do the source,” presumably after an anticipated

favorable ruling by the Kentucky Court of Appeals. The trial court denied Smith’s

motion to exclude the breath test and the request for a reset. It later ruled from the

bench during the middle of trial that Smith’s motion for discharge and acquittal was

denied. In Smith v. State, 325 Ga. App. 405 (750 SE2d 758) (2013) (Smith I), this

court concluded sufficient evidence supported Smith’s conviction. We also

determined that the trial court did not err by denying Smith’s request for a

continuance until after a Kentucky appellate court resolved his appeal of the

Kentucky trial court’s order denying his request to compel out-of-state witnesses to

8
Defense counsel’s last leave of absence filed on May 8, 2012 did not result
in a delay of the trial that took place 13 days later on June 1 because it requested
leave for dates beginning on June 7, 2012. Likewise, it is unknown whether the sole
leave request that fell between the last scheduled trial date of April 27, 2012 and June
1, 2012 resulted in a delay.
9
At no time did Smith file a statutory demand for a speedy trial. See OCGA §
17-7-170 (a).

9
testify about the source code for the Intoxilyzer 5000. Id. at 410 (4). Finally, we

remanded the case to the trial court “for entry of a proper order addressing the speedy

trial motion pursuant to Barker v. Wingo.” Id. at 411 (5).

The trial court then issued the following order on January 13, 2015:

The above-styled action came before the Honorable Court for hearing
on June 1, 2012 [the trial date] on Defendant’s MOTION FOR DISCHARGE AND
ACQUITTAL. After hearing the evidence and arguments of counsel for both parties,
and upon consideration and evaluation of Defendant’s constitutional speedy trial
claims according to the four-part test established in Barker v. Wingo, [supra], the
Court denied Defendant’s said motion. Consistent with Higgenbottom v. State, 288
Ga. 429 [(]704 SE2d 786[)] (2011), the Court hereby sets forth its findings of fact and
conclusions of law as follows:

1. Length of delay. The Defendant was arrested on May 5,
2007 and his instant Motion was heard by the Court on
June 1, 2012. The Court finds that a delay of five years in
this case is presumptively prejudicial. Accordingly, the
Court must analyze the other three Barker factors to
determine if Defendant’s constitutional right to a speedy
trial was denied.

2. Reason for delay. The court finds that the reason for the
delay rests primarily with the Defendant. At the pre-trial
stage, Defendant had sought discovery of proprietary
source code information from the maker of the Intoxilyzer
5000 machine used in this case, CMI, Inc., a Kentucky
corporation. The delay resulted from Defendant’s efforts to

10
 compel production of such source code information via
motion filed with and hearings held in this Court as well as
in the Kentucky court to compel CMI’s production of the
requested information. Having been unsuccessful in his
motions to compel the production, Defendant then sought
appellate review which resulted in additional delay. The
Court further finds that the State lacked access to the
source code information and did not otherwise contribute
to the delay.

3. Defendant’s assertion of his right to a speedy trial. The
Court finds that Defendant did not demand a speedy trial or
assert his right to a speedy trial during the period between
his arrest and the hearing on the instant motion, at which
time he finally asserted his constitutional right to a speedy
trial. Accordingly, this delay in asserting his right to a
speedy trial must be weighed against Defendant.

4. Prejudice to the Defendant. As to oppressive pre-trial
incarceration, the Court finds that such factor is not at issue
in this case as Defendant was released from jail soon after
his arrest and had been free on bond since his release. As
to minimizing anxiety and concern of the Defendant, the
Court finds that “anxiety and concern . . . is always present
to some extent, and thus absent some unusual showing is
not likely to be determinative in defendant’s favor.” Weems
v. State, 310 Ga. App. 590 [(]714 SE2d 119[)] (2011).

11
 Here, the Court finds that Defendant failed to present
evidence that he suffered undue or unusual anxiety.
Furthermore, the Court finds that the Defendant’s ability to
defend the charges has not been impaired by the delay.

Having weighed and considered the Barker factors as set forth above,
the Court hereby DENIES Defendant’s Motion for Discharge and
Acquittal.

1. We now determine whether Supreme Court precedent requires us to remand

this case to the trial court to consider again whether Smith was denied his right to a

speedy trial. See, e. g., State v. Johnson, 291 Ga. 863, 868 (3) (734 SE2d 12) (2012).

Both the Sixth Amendment of the United States Constitution and the Georgia

Constitution provide that criminal defendants shall have the right to a speedy trial.

See Brewington v. State, 288 Ga. 520, 520 (1) (705 SE2d 660) (2011). When

analyzing a constitutional speedy trial claim, this Court must first determine “whether

the interval from the accused’s arrest, indictment, or other formal accusation to the

trial is sufficiently long to be considered ‘presumptively prejudicial.’ If not, the

speedy trial claim fails at the threshold.” (Citations and punctuation omitted.) Ruffin

v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). If, however, the delay is

12
presumptively prejudicial, the defendant’s claim is then analyzed under the rubric of

Barker, which established a four-part balancing test to consider:

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

(Citations and punctuation omitted.) Bowling v. State, 285 Ga. 43, 44 (1) (673 SE2d

194) (2009).

“In Georgia, the application of these principles to the circumstances of a

particular case is a task committed principally to the discretion of the trial courts, and

it is settled law that our role as a court of review is a limited one.” (Citations and

footnote omitted.) State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013).

Therefore, “we must accept the factual findings of the trial court unless they are

clearly erroneous, and we must accept the ultimate conclusion of the trial court unless

it amounts to an abuse of discretion, even though we might have reached a different

conclusion were the issue committed to our discretion.” (Citations omitted.) Id.

13
 (a) Length of Delay. While the trial court properly concluded that the five-year

delay10 between Smith’s arrest and trial was presumptively prejudicial, it failed to

consider the length of the delay for a second time11 “as one of the four criteria that

must be weighted in the balance at the second stage of the analysis.” (Citation and

punctuation omitted; emphasis supplied.) Stewart v. State, 310 Ga. App. 551, 553 (2)

(a) (713 SE2d 708) (2011). And it did not assign weight for this uncommonly long

delay. Id. at 554.

(b) Reasons and Responsibility for the Delay. “The second factor in the

Barker-Doggett analysis requires the court to examine both the reason for the delay

and whether this is attributable to the defendant or the state.” (Citation and

10
Smith incorrectly asserts that the trial court should consider the time period
this case has been on appeal in calculating the delay. This time period is considered
only in cases where the case has not yet been tried. See Cawley v. State, 324 Ga. App.
358, 360 (750 SE2d 428) (2013). As this is not such a case, the trial court properly
considered only the time period between Smith’s arrest and trial. See Phan v. State,
290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012).
11
In its order, the trial court noted that the delay was presumptively prejudicial,
and then stated that it accordingly “must analyze the other three Barker factors to
determine if Defendant’s constitutional right to a speedy trial was denied.” (Emphasis
supplied.) But a finding of presumptive prejudice triggers a balancing and weighing
of four factors under Barker. And at the end of its order, it stated that it had “weighed
and considered the Barker factors as set forth above.” (Emphasis supplied.)

14
punctuation omitted.) Thomas v. State, 331 Ga. App. 641, 661-662 (8) (b) (ii) (771

SE2d 255) (2015).

This factor, which examines whether the defendant or the State bears
more responsibility for the delay, is “pivotal in evaluating the strength
of a constitutional speedy trial claim, as it can color the consideration of
all other factors.” Deliberate delay intended to hinder the defense must
be weighed heavily against the State, whereas delay occasioned by more
“neutral” causes, such as negligence or overcrowded dockets, weighs
less heavily against the State. On the other hand, delay caused by the
defense weighs against the defendant.

(Citations omitted.) Phan v. State, 290 Ga. 588, 593 (1) (b) (723 SE2d 876) (2012).

In its order, the trial court concluded that “the reason for the delay rests

primarily with the Defendant” based upon his efforts to obtain the source code. It also

found that “the State lacked access to the source code information and did not

otherwise contribute to the delay.” The trial court did not break down the overall

pretrial delay into relevant time periods and assign responsibility for delay to each

time period. Nor did it conclude whether the delay should be weighed heavily,

slightly, or neutrally against Smith. “Because of the procedural complexity of this

case, the trial court could not have exercised its discretion properly under the Barker

test without doing so.” Thomas, supra, 331 Ga. App. at 662 (8) (b) (ii).

15
 For example, the trial court did not consider the 15-month delay between

Smith’s May 7, 2007 arrest and the filing of an accusation by the State on August 13,

2008, the impact, if any, of the numerous leave of absence requests filed by defense

counsel,12 the reasons why the State took six months to respond to Smith’s request for

reciprocal discovery, its three-year delay in ruling on Smith’s request for a finding

that the source code was material and relevant, why the case appeared on no trial

calendars between May 2009 and August 2011, and whether defense counsel’s efforts

to obtain the source code were diligent and timely. When considering these time

periods, the trial court should bear in mind that “[b]ecause the attorney is the

defendant’s agent when acting, or failing to act, in furtherance of the litigation, delay

caused by the defendant’s counsel is charged against the defendant.” (Citation and

punctuation omitted.) Thomas, 331 Ga. App. at 664 (8) (b) (ii) n. 33. However, the

“filing of numerous motions does not automatically mean that any associated delay

should be assigned to [the defendant].” Id. at 664 (8) (b) (ii). Delay caused by the

pursuit of legitimate motions is “relatively benign.” Jenkins v. State, 294 Ga. 506, 512

(2) (b) (2) (iii) (755 SE2d 138) (2014). “And finally, “[w]here no reason appears for

12
See Stewart, supra, 310 Ga. App. at 555 (2) (trial court may attribute portion
of pretrial delay to defense counsel leaves of absence).

16
a delay, we must treat the delay as caused by the negligence of the [S]tate in bringing

the case to trial.” (Citation and punctuation omitted.) Cawley v. State, 330 Ga. App.

22, 26 (2) (b) (766 SE2d 581) (2014). “[T]he responsibility for the untimely

disposition of court proceedings rests with the courts and delays attributable to the

courts are attributable to the State.” Jenkins, supra, 294 Ga. at 511 (2) (b) (2) (i).

(c) Defendant assertion of the right. Smith did not assert his constitutional right

to a speedy trial until over five years after his arrest on the day he was actually tried.

See id. at 27 (2) (c) (motion for acquittal asserts constitutional right to speedy trial).

While the trial court weighed this factor against Smith, it did not specify whether it

weighed against him slightly or heavily. Additionally, it did not examine whether

Smith asserted his right to a speedy trial “in due course.” Phan, supra, 290 Ga. at 595

(1) (c). “[T]he accused is not required to demand a speedy trial at the first

opportunity.” Buckner, supra, 292 Ga. at 396 (3) (c).

To assess whether the accused insisted “in due course” upon his right to
a speedy trial “requires a close examination of the procedural history of
the case with particular attention to the timing, form, and vigor of the
accused’s demands to be tried immediately.” And because delay often
works to the defendant’s advantage, the failure of the accused to assert
his right in due course generally is accorded “strong evidentiary
weight.”

17
(Citations omitted.) Id. at 397 (3) (c). A defendant’s late assertion of a right to speedy

trial may be mitigated by a defendant’s insistence on his right to discovery. Id. One

of the factors that a trial court may consider in this context is whether, during the time

that discovery was not forthcoming from the State, the defendant “was insisting in the

meantime that the State comply with its obligations to furnish discovery.” (Citations

and punctuation omitted.) Id. Additionally, “a trial court has discretion to mitigate the

weight given this factor when a defendant fails to assert his right during the period

between arrest and indictment if he was out on bond and without counsel. [Cit.]”

State v. Pickett, 288 Ga. 674, 676 (2) (c) (3) (706 SE2d 561) (2011). Furthermore,

announcements that a defendant is ready for trial can also mitigate the weight of a late

assertion. Johnson, supra, 291 Ga. at 868 (3). In this case, Smith sought to compel

production of the source code in connection with previous trial calendars and the

record before us does not show that he sought any continuances of those trial dates.

As the Supreme recently clarified: “Although the failure to promptly assert the

right to a speedy trial ordinarily weighs heavily against defendant, Pickett, 288 Ga.

at 677 (2) (c) (3), we have acknowledged in previous decisions that the weight to be

attributed to this factor may be mitigated in some cases, and whether the

circumstances of a particular case warrant any mitigation is a question committed to

18
the sound discretion of a trial court.” Alexander, supra, 295 Ga. at 159 (2) (c). Here,

the trial court engaged in no analysis of whether Smith asserted his speedy trial right

in due course, the circumstances that possibly mitigated his late assertion, and failed

to specify the weight of this factor.

(d) Prejudice to the Defendant. The remaining factor in the Barker analysis is

prejudice to the defendant.

The types of prejudice associated with an unreasonable delay before trial
include oppressive pretrial incarceration, anxiety and concern of the
accused, and the possibility that the accused’s defense will be impaired
by dimming memories and loss of exculpatory evidence. Of these forms
of prejudice, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the entire
system. A defendant need not show demonstrable prejudice to prevail on
a speedy trial claim. Because of the difficulty of proving specific
prejudice due to the passage of time, the United States Supreme Court
has explained [that] excessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or, for that
matter, identify. While such presumptive prejudice cannot alone carry
a Sixth Amendment claim without regard to the other Barker criteria, it
is part of the mix of relevant facts, and its importance increases with the
length of delay.

(Citations and punctuation omitted.) Pickett, supra, 288 Ga. at 677 (2) (c) (4).

19
 (i) In this case, Smith correctly asserts that the trial court erred by failing to

take into account the presumption of prejudice arising from the five-year delay in this

case when considering this phase of the balancing test. While the trial court made

findings with regard to the other three types of prejudice, it was also required to

consider the presumed prejudice a second time in this portion of the Barker analysis.

See Wilkie v. State, 290 Ga. 450, 451 (721 SE2d 830) (2012); Layman v. State, 284

Ga. 83, 84-85 (663 SE2d 169) (2008). But in cases “where the defendant has made

no attempt at all to demonstrate (or even argue) that he has suffered any particular

prejudice to his mental or physical condition or to his defense strategy, any prejudice

that might be presumed by virtue only of the passage of time will carry very little

weight in the Barker analysis.[Cits.]” Phan, supra, 290 Ga. at 596 (1) (d). But it is

nonetheless also true that “the greater the delay between charging and trial, the

greater presumed impairment of witness recollections and other evidence needed for

a fair and reliable trial. [Cit.]” State v. Porter, 288 Ga. 524, 531 (2) (c) (4) (705 SE2d

636) (2011).

(ii) Smith also claims that the trial court abused its discretion by failing to

weigh the prejudice portion of the balancing test against the State because he

demonstrated “tangible prejudice through the deprivation of evidence that the State

20
admitted to destroying because ‘the city only keeps them so long.’”13 The record

shows that while the State produced in discovery the incident report for Smith’s

arrest, it did not provide the accident report for the collision in which Smith was

involved, computer automated dispatch reports (CAD reports), 911 tapes, or the

names and addresses of witnesses, including the other driver involved in the accident

and EMT personnel that informed the officer dispatched to the scene of the accident

that “they believed he was intoxicated.” The record shows that the State

acknowledged destruction of only the CAD reports, and Smith’s counsel stated in the

hearing that the State has “indicated there is no accident report that’s still available

to us, for what reason I do not know, your Honor. I’m not sure if it never existed or

whether it’s been destroyed.”

According to Smith, the missing evidence “was essential to establishing a time

line of events and [his] appearance and demeanor . . . while on the scene” and also

“essential to establishing [his] critical defense theory that an individual other than

himself was driving the white Cadillac which he was accused of driving.”

13
Smith does not contest the trial court’s finding that he did not suffer
oppressive pretrial incarceration or undue anxiety and concern.

21
 In his previous appeal to this Court, Smith raised these evidentiary issues in the

context of a claim that the State failed to present sufficient evidence to support his

conviction, and we concluded:

Smith first argues that the evidence failed to show that he was the
driver. But the first responding officer testified that “[p]aramedics came
out. They checked out the driver,” and the officer smelled an odor of
alcohol on “the driver,” whom he identified as Smith at trial. The record
does not disclose whether this description was hearsay from the
paramedics or from Smith himself, nor did Smith object on that ground,
so Smith has not demonstrated that this characterization of him as the
driver was inadmissible. Furthermore, Teague testified that Smith
volunteered to him that he was not at fault for the traffic accident
because someone else had hit or sideswiped him. Smith also discussed
with the officer the fact that even if he was not at fault he could be
considered an impaired driver. Based on the record before us, we
conclude that evidence authorized the trial court to find that no
reasonable hypothesis existed other than he was the driver of the car.

Next, with respect to whether Smith was shown to have an
unlawful blood alcohol concentration within three hours of driving,
Teague testified on direct that the test was done within three hours of
Smith’s driving. He further explained that this was based on the interval
between the computer-recorded time that he was dispatched to the scene
(10:45 p.m.) upon request by the initial investigating officer and the time
recorded on the Intoxilyzer test (11:44 p.m.). Further, there was

22
 evidence that paramedic first responders were still treating Smith while
the initial responding officer was on the scene, and that the initial officer
smelled alcohol on Smith at that time, so this supports a finding that the
accident scene was still “fresh” at the time Teague was dispatched,
which preceded the Intoxilyzer test by only one hour. Finally, there was
no evidence that Smith consumed alcohol after driving, so Smith’s test
result, 0.126, following these events suggests that his blood alcohol
concentration would have been even higher closer in time to his driving.
Accordingly, the evidence authorized the trial court to find that the only
reasonable hypothesis was that Smith’s blood alcohol concentration was
above the statutory 0.08 threshold within three hours after he drove.

(Footnotes omitted.) Smith I, supra, 325 Ga. App. at 407 (1).

In its order denying Smith’s motion for discharge and acquittal, the trial court

concluded “that the Defendant’s ability to defend the charges has not been impaired

by the delay.” We agree with the State’s contention on appeal that the record before

us contains some evidence supporting this factual finding by the trial court. A video

from a dashboard camera on the arresting officer’s patrol vehicle depicting Smith’s

appearance and demeanor was played at trial. With regard to the missing evidence,

it is speculative as to whether it would have been favorable to the defense, and its

absence allowed the defense to argue that the State had failed to meet its burden of

proof. See Stewart, supra, 310 Ga. App. at 559-560 (2) (d) (iii).

23
 (d) Balancing of Factors. In recent years, the Supreme Court has emphasized

“that it is not the job of an appellate court to weigh the Barker factors in the first

instance, and so, when a trial court has abused its discretion in its consideration of

these factors, we generally remand the case for the trial court to exercise its discretion

again.” (Citations and punctuation omitted.) Johnson, supra, 291 Ga. at 868 (3). See

also York v. State, 334 Ga. App. 581, 586-88 (2) (780 SE2d 352) (2015). “But, of

course, a remand is not always required when the trial court has erred in its

consideration of the factors. After all, in some cases, reasonable minds could not

disagree about whether the right to a speedy trial has been denied, and in those cases,

a remand would serve no purpose.” (Citation and punctuation omitted; emphasis in

original.) Id.

We may only do this, however, when the trial court has actually considered and

weighed all of the Barker factors. “The Supreme Court of Georgia has made clear that

[the] trial court must consider and weigh all four factors under the circumstances of

each case.” (Citation and punctuation omitted; emphasis in original.) Culbreath v.

State, 328 Ga. App. 153, 162 (4) (c) (761 SE2d 557) (2014). If the trial court fails to

do so, a remand is still required. See id.; Porter, supra, 288 Ga. at 533-534 (2) (e)

(reversing Court of Appeals for failing to vacate trial court’s order and remand for

24
trial court to exercise its discretion). The rationale for this rule is that “[a] trial court

exercises substantial discretion in applying the Barker balancing test, and its ultimate

judgment is reviewed on appeal only for abuse of that discretion.” Porter, 288 Ga. at

533 (2) (e). This Court is prohibited from weighing the factors in the first instance.

Id. at 527 (2) (c) (2).

In this case, the trial court did not consider and weigh all of the factors, and we

may not do so in the first instance. As outlined above, the trial court did not consider

the length of the delay a second time when conducting its balancing test, it did not

weigh the length of delay, and it did not assign any weight when it attributed the

primary reason for the delay to the defendant’s attempt to obtain the source code. We

must therefore remand this case to the trial court to consider and weigh all four of the

Barker factors. Culbreath, supra, 328 Ga. App. at 162 (3); York, supra, 334 Ga. App.

at 588 (2) (c); State v. Thompson, 334 Ga. App. 692, 700-701 (5) (780 SE2d 67)

(2015) (remanding speedy trial issue to trial court after mandating that the assertion

of the right and prejudice factors be weighed heavily against the defendant on

remand, stating “we cannot say that the delay in bringing the case to trial was entirely

attributable to [the defendant] as a matter of law”).

25
 Accordingly, this is not a case in which it is appropriate for us to conclude that

a remand is not necessary based upon an abuse of discretion by the trial court “in its

consideration of the factors” because reasonable minds could not disagree about

whether the right to a speedy trial has been denied. (Emphasis supplied.) Johnson,

supra, 291 Ga. at 868 (3). And even if we could reach this issue, we cannot find that

the trial court would have had no discretion to do anything but deny the motion to

dismiss in this case after properly considering and weighing the four Barker factors.

The length of the delay in this case was over five years, and a delay of one year is

presumptively prejudicial. The reason for the delay does not necessarily rest primarily

with the defendant in light of the State’s 15-month delay between arrest and

accusation and subsequent 6-month delay in responding to discovery, compounded

by the trial court’s 3-year delay in ruling on Smith’s request for a finding of

materiality and relevance for the source code, and the lack of any evidence showing

that the defense counsel’s leave of absence requests actually delayed the trial.

Additionally, the filing of motions or seeking of discovery does not automatically

mean that any associated delay should be attributed to the defendant and weighed

heavily against him. With regard to the assertion of the right, a defendant does not

have to demand a speedy trial at the first opportunity, but rather in due course, and

26
a late assertion may be mitigated by a defendant’s insistence upon a right to

discovery, an early lack of counsel, or a demonstrated willingness to proceed on

previous trial calendars. And finally, while the evidence supports a finding of no

actual prejudice, presumed prejudice from the five-year delay should be taken into

account in the balancing test. In short, this is a case involving a complicated

procedural history with gaps of information in the record presently before us making

it difficult for reasonable minds to agree that there could be but one outcome

following remand. See State v. Alexander, 295 Ga. 154 (758 SE2d 289) (2014)

(affirming trial court’s exercise of discretion to grant motion for acquittal based upon

violation of speedy trial right even though delay caused only presumptive prejudice

and late assertion of right on day of trial); Johnson, supra, 291 Ga. at 868 (3)

(remanding case to trial court where delay in assertion of right could be mitigated and

only presumptive prejudice, because could not say that trial court must always find

no denial of speedy trial right under such circumstances); Cawley, supra, 330 Ga.

App. at 28-29 (3).

2. Smith’s remaining enumeration of error is rendered moot by our holding in

Division 1.

27
 Judgment vacated and case remanded with direction. Barnes, P. J., concurs.

Rickman, J., concurs fully and specially.

28
 A16A0519. SMITH v. THE STATE

RICKMAN, Judge, concurring fully and specially.

The record in this matter reveals leave requests totaling 231 days, years of

litigation in the Kentucky trial and appellate courts, no assertion of a statutory right,

the assertion of a constitutional right for the first time on the date of trial, and the

seeking of a continuance immediately thereafter. If ever there were a case where a

remand seemingly would not be required, this is it.

Nevertheless, I agree with the majority that precedent from our Supreme Court

requires a remand. I write only to note that it would be much “speedier,” and much

less frustrating to the trial courts, if the law authorized us to make a determination as

to whether the trial court’s ultimate conclusion is supported by the appellate record,

regardless of mistakes made in the Barker analysis. As it stands, we must remand

cases such as this one until such time as the trial court successfully follows a

formulaic incantation of the Barker factors.