Georgia Court of Appeals Reports

LACKEY v. STATE, A06A1890 (Ga.App. 12-29-2006) LACKEY v.
THE STATE. A06A1890. Court of Appeals of Georgia, First
Division. DECIDED: December 29, 2006.

ANDREWS, Presiding Judge.

John Darren Lackey appeals from the trial court’s denial of
his plea in bar and demand for acquittal. Lackey filed the
plea in bar on the grounds that his constitutional right to
a speedy trial had been violated. For the following
reasons, we find no error and affirm.

Lackey was indicted on March 27, 2003, and charged with
aggravated battery, aggravated assault, and cruelty to
children. The record shows that Lackey filed a motion for
continuance on December 12, 2003, stating that neither he
nor the State would be ready for trial and requesting a
continuance until March or April 2004. Although the case was
on trial calendars for the weeks of April 19, 2004, May 29,
2004, December 6, 2004, January 3, 2005, September 26,
2005, and October 24, 2005, it never went to trial.

Finally, the case was specially set for May 8, 2006, due to
the need to schedule expert witnesses.

On April 11, 2006, Lackey filed the plea in bar and demand
for acquittal, asserting a violation of his constitutional
right to a speedy trial.

The Sixth Amendment to the United States Constitution
provides that the accused has a right to a speedy trial in
a criminal prosecution. The test for determining whether
that right has been violated is set forth in Barker v.
Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972),
which provides that four factors are taken into
consideration: length of the delay; reason for the delay;
defendant’s assertion of the right to a speedy trial; and
prejudice to the defense. Boseman v. State, 263 Ga. 730,
731 (438 SE2d 626) (1994). None of the factors are
regarded as necessary or sufficient to finding deprivation
of the right to a speedy trial, but rather “the factors
should be considered together in a balancing test of the
conduct of the prosecution and the defendant.” (Citation
omitted.) Id. On appeal, the question is whether the trial
court abused its discretion in ruling that [defendant’s]
speedy trial rights were violated.” State v. Redding, 274
Ga. 831, 832 (561 SE2d 79) (2002).

State v. Giddens, 280 Ga. App. 586, 587 (634 SE2d 526)

In looking at the first factor, length of the delay, the
record shows that the length of time between indictment and
the specially set trial was approximately 37 months. But,
Lackey asked for a continuance of several months after the
case was first set for trial. Further, although the record
shows that the case was set for trial numerous times after
the motion for continuance, there is nothing in the record
showing why it never went to trial. In any event, the trial
court held that the delay was presumptively prejudicial.
See, e.g., Scandrett v. State, 279 Ga. 632, 633 (619 SE2d
603) (2005) (A delay which approaches one year is generally
deemed to be presumptively prejudicial.).

With regard to the second factor, reason for the delay,
because the delay was unexplained, it is presumed that
failure to bring the case to trial was caused by the
negligence of the State. See Boseman v. State, 263 Ga. 730,
733 (438 SE2d 626) (1994) (“Where no reason appears for a
delay, we must treat the delay as caused by the negligence
of the State in bringing the case to trial.”). But,
although a deliberate attempt to delay the trial in order
to hamper the defense should be weighted heavily against
the government, here, there is no evidence that the State
intentionally delayed the trial to impair Lackey’s defense.
Ingram v. State, 280 Ga. App. 467, 469 (634 SE2d 430)

The third factor is the defendant’s assertion of his right
to a speedy trial. In the instant case, Lackey did not
assert the right until he filed the plea in bar,
immediately before his case was specially set for trial.
Accordingly, this delay is weighed against Lackey. See
Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001)
(“It is the defendant’s responsibility to assert the right
to trial, and the failure to exercise that right is
entitled to strong evidentiary weight against the

The last factor is whether the defense has been prejudiced
by the delay. Lackey’s only claim of prejudice is that two
of the witnesses on the State’s list have changed jobs and
addresses and he cannot locate them.

At the hearing, the prosecutor informed the court that she
would update the witness list that day with current
information and “[i]f those are the only reasons that he’s
claiming prejudice[,] there’s no prejudice, Your Honor.”
Moreover, the trial judge informed defense counsel that one
of the witnesses, a doctor, was now at Augusta Medical
Center. Therefore, because it appears that these witnesses
can be found should Lackey wish to do so, we conclude that
Lackey cannot show any actual prejudice due to the delay.

Balancing the above factors, we note first that Lackey
waited over 36 months before asserting his right to a
speedy trial. This failure to assert the right to a speedy
trial makes it difficult for him to prove any
Constitutional violation. Barker, supra, 407 U. S. at 532.
That, together with the fact that Lackey has suffered no
impairment to his defense and therefore can show no actual
prejudice, lead to the conclusion that the trial court did
not abuse its discretion in denying Lackey’s plea in bar.
Boseman, supra at 734.

Judgment affirmed. Barnes and Bernes, JJ., concur.