author: Branch, Judge.

text:
    A14A1006.
    DAVIDSON et al. v. METICULOUSLY CLEAN SWEEPERS, LLC.
    (765 SE2d 783)
   Branch, Judge.

In January 2011, after a winter storm, plaintiff Nancy Davidson fell outside a Dollar Tree store in a Macon shopping center owned by three corporate entities (collectively, “Rivergate”). Davidson and her husband sued Rivergate; its property management company; Dollar Tree; the Dollar Tree manager; and Meticulously Clean Sweepers, LLC (“MCS”), an independent contractor which had applied a de-icing mixture to the area on the night before Davidson fell. After all defendants except MCS settled with the Davidsons, MCS moved for summary judgment, which was granted on grounds including that the Davidsons were not third-party beneficiaries of the contract between Rivergate and MCS and that there was no evidence that MCS had been negligent. On appeal, the Davidsons argue that the grant of summary judgment was error because questions of material fact remain as to whether MCS was negligent in its application of the de-icing mixture, which it had undertaken to do in its contract with Rivergate; whether that negligence was a proximate cause of Davidson’s injury, and whether MCS had superior knowledge of the hazard posed by ice in the area where Davidson fell. We reject these contentions and therefore affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citations omitted).

Viewed in favor of the Davidsons, the record shows that in February 2010, Rivergate entered into a written contract with MCS to provide sweeping services, including the “sweeping and blowing of all trash, leaves and other matter throughout the front and rear parts” of the shopping center, “7 days a week[.]” The contract specified that “[njothing” in the contract “shall be deemed to establish any partnership, joint venture or agency relationship between the parties other than that of an independent contractor performing the services expressly provided for herein,” that each party “shall have no authority to bind [the other] or its affiliates with respect to third parties,” and that “[n]o third parties . . . are intended to, nor shall they be deemed to have a right to benefit from, or seek to enforce, any of the provisions” of the contract. For an additional charge, MCS also agreed to “de-ice” the parking lot and sidewalks.

As a winter storm approached in January 2011, Rivergate asked MCS to de-ice the premises. MCS performed de-icing services on January 9, 11, 12, and 13. The storm arrived in the area on January 10. At around 10:30 p.m. on the evening of January 11, the owners of MCS, Mazahir Ataelsid and Ali Pruitt, went to the shopping center to perform both sweeping and de-icing services. As Ataelsid followed behind him in the company truck, which contained bags of de-icing salt and sand, Pruitt applied at least three to five bags of a mixture of these ingredients to the parking lot and the sidewalks. Pruitt applied the mixture by hand from a five-gallon bucket he carried, returning several times to the truck to refill his bucket from the bags of salt and sand. Ataelsid testified that as Pruitt did his work, “[i]t was beginning to flurry, so there wasn’t like an accumulation here and an accumulation here____I didn’t look at the shopping center and say it was all white.” Ataelsid also testified that she saw “not much” snow on the ramp from the parking lot to the sidewalk in front of the Dollar Tree and that “[t]here was no ice at all” in the area.

On the next morning, January 12, 2011, Davidson drove to the shopping center with her one-year-old grandson. As she got out of her car, she saw that the parking lot surface was “clear” and that “everything had dried up.” Before crossing a traffic lane in front of the stores, Davidson picked up her grandson in order to carry him across the lane and onto a small paved ramp leading from the parking lot surface and running parallel to the sidewalk in front of the Dollar Tree. As she did so, Davidson noticed a “little puddle of water” along the curb of the sidewalk at the beginning of the ramp, which she stepped to avoid. According to Davidson, the puddle “did not look like ice.” As she walked around the puddle and stepped onto the ramp, she fell, injuring her right leg. Davidson interpreted photographs of the area of her fall taken later that day as showing the presence of black ice. She also testified that the ice could not “be reasonably seen even by somebody who [was] being careful and watching where they [were] going.”

In October 2012, the Davidsons sued Rivergate, the property management company, Dollar Tree, the manager of Dollar Tree, and MCS for negligence. On May 17, 2013, plaintiffs settled with and moved to dismiss with prejudice their claims against Rivergate, the property management company, Dollar Tree, and the manager. After the trial court granted the motion, the case was transferred from Bibb County to Gwinnett County, where MCS, the sole remaining defendant, resided. MCS then moved for summary judgment, which the trial court granted on the grounds that (1) Davidson was not a third-party beneficiary of the de-icing contract between Rivergate and MCS; (2) no evidence showed that MCS breached any duty of ordinary care; and (3) no evidence showed that MCS had superior knowledge of the black ice on which Davidson fell. This appeal followed.

1. The Davidsons argue that MCS can be liable to them for any negligent performance of MCS’s contract with Rivergate. We disagree.

Although a business owner owes a nondelegable duty of ordinary care to its invitees, “the duty [thus] imposed upon an owner or occupier of land ... is inapplicable to an independent contractor.” Maddox v. Cumberland Distrib. Svcs., 236 Ga. App. 170, 171 (1) (511 SE2d 270) (1999) (citations omitted). The Supreme Court of Georgia has held that in personal injury cases against independent contractors, “ ‘an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury.’ ” Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 117-118 (4) (537 SE2d 345) (2000), quoting Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994). And this Court has held, following Anderson, that a trial court erred in denying summary judgment to a janitorial service when the contract between the service and the owner of the supermarket in which a plaintiff fell contained “nothing ... that shows [the parties’] mutual intent to confer a direct benefit upon third parties.” R & S Farms v. Butler, 258 Ga. App. 784, 787 (575 SE2d 644) (2002).

The contract between MCS and Rivergate is clear that neither party to it intended to allow any third party to be a beneficiary of the services provided pursuant to that contract by MCS to Rivergate. Indeed, the contract expressly provided that “[n]o third parties... are intended to, nor shall they be deemed to have a right to benefit from, or seek to enforce, any of the provisions” of the contract. In the absence of any other evidence showing that these parties intended to confer any benefit arising from the contract between MCS and Rivergate upon any third party, the trial court did not err when it concluded that the Davidsons could not have been third-party beneficiaries of that contract. R & S Farms, 258 Ga. App. at 787-788 (reversing denial of summary judgment to janitorial service on plaintiff’s tort claim where no evidence showed that the contracting parties intended to create third-party beneficiaries to the contract); Anderson, 273 Ga. at 117-118 (4) (affirming grant of summary judgment to security company where its contracts with property owner showed “no intent” to confer any benefit on visitors to the property).

2. The Davidsons also argue that the trial court erred in its conclusion that no question of fact remains as to whether MCS negligently treated the area where Mrs. Davidson fell. We disagree.

In light of our holding in Division 1, the Davidsons must establish a viable cause of action in tort, “independent of” the contract between Rivergate and MCS, in order to avoid summary judgment. Westbrook v. M & M Supermarkets, 203 Ga. App. 345, 346 (2) (416 SE2d 857) (1992). Specifically, the Davidsons must show that MCS owed them a duty of ordinary care as to responsibilities undertaken in the contract with Rivergate. See, e.g., Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 509 (1) (496 SE2d 732) (1997) (independent contractor could be liable to a third party for a failure to use ordinary care in executing its cleaning duties undertaken by contract).

OCGA § 51-1-11 (a) provides in relevant part that “if [a] tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract[.]” (Emphasis supplied.) On the question whether a party has “a right of action for [an] injury done independently of [a] contract,” id., the Supreme Court of Georgia has adopted § 324A of the Restatement (Second) of Torts, which provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Huggins v. Aetna Cas. & Surety Co., 245 Ga. 248, 249 (264 SE2d 191) (1980), quoting Restatement (Second) of Torts § 324A (emphasis supplied).

Assuming for purposes of this appeal that MCS should have recognized that its de-icing services might, under some circumstances, be “necessary for the protection” of visitors to the Rivergate shopping center, the first question is whether there was some evidence authorizing an inference that MCS failed to exercise “reasonable care” in performing its de-icing services. Restatement (Second) of Torts § 324A. Only if MCS was thus negligent would we consider whether (a) this negligence increased the risk of harm at the site, (b) whether MCS’s performance was to be substituted completely for that of Rivergate, or (c) whether Mrs. Davidson was injured because she or Rivergate actually relied on MCS to remediate whatever snow or ice condition existed there. See id.; Taylor v. AmericasMart Real Estate, 287 Ga. App. 555, 559-560 (1) (b) (651 SE2d 754) (2007) (describing the possible application of subparagraphs (a), (b) and (c) of § 324A to a plaintiff’s action against a janitorial company).

The only direct evidence concerning MCS’s activities at the site was that MCS, on the night before Mrs. Davidson’s accident, had spread some of the de-icing mixture in the area where she fell the next morning. Although the Davidsons assert on appeal that MCS “contributed to creating the hazard by affecting the melting and freezing process in the location where the black ice occurred,” the Davidsons have provided no evidence tending to prove how any act or omission of MCS “affected” that location, or that MCS somehow failed to exercise reasonable care in performing its de-icing services. Though the Davidsons would have us infer MCS’s negligence merely from evidence of Mrs. Davidson’s fall in an area MCS treated the night before, “[p]roof of nothing more than the occurrence of the fall is insufficient” to show that a person bound to exercise reasonable care as to premises, whether a landowner or an independent contractor, has not done so. Weldon v. Del Taco Corp., 194 Ga. App. 174 (390 SE2d 87) (1990) (citations and punctuation omitted).

Nor does the mere existence of black ice at the spot where Mrs. Davidson fell prove that MCS was negligent in its exercise of its de-icing duties the night before. The Davidsons cite Speaks v. Rouse Co. of Ga., 172 Ga. App. 9 (321 SE2d 774) (1984), for the proposition that “the presence of salt and sand on clear streets might have contributed to a more unstable situation” in the area where that plaintiff fell on ice that formed on black asphalt. Id. at 10. In that case, we merely noted this proposition as “arguable,” however, and went on to conclude that when there was “no affirmative evidence” that the property owners had “performed any act to make the presence of ice or snow more dangerous than it was in its natural state of accumulation,” and when the plaintiff must have been “aware of the presence of water and the fact that the water could freeze,” summary judgment was properly granted to the property owner. Id. at 10-11. Likewise, the Davidsons have not provided any evidence that MCS’s mixture of sand and salt was improperly formulated or that MCS applied an inadequate amount of that mixture, with the result that summary-judgment in favor of MCS was proper.

Decided November 14, 2014.

Katherine L. McArthur, Caleb F. Walker, for appellants.

Green & Sapp, Henry D. Green, Jr., Daniel J. Moriarty, for appellee.

Because the Davidsons failed to produce sufficient evidence of a lack of reasonable care by MCS, the Davidsons cannot show that MCS was negligent in its de-icing operations, with the result that we need not reach the questions posed by subsections (a), (b), and(c) of Section 324A of the Second Restatement. It follows that the trial court did not err when it granted summary judgment to MCS on the Davidsons’ claims. Taylor, 287 Ga. App. at 559-560 (1) (b) (affirming grant of summary judgment to janitorial company when evidence did not show that the company was negligent, with the result that § 324A did not apply).

3. Because we conclude that the Davidsons were not third-party beneficiaries of the contract between MCS andRivergate, and because there is no evidence to authorize a conclusion that MCS was negligent when it treated the location where Mrs. Davidson fell, we need not consider whether MCS had equal or superior knowledge of any hazard there or whether any of its acts or omissions were a contributing proximate cause of the accident.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Pruitt was not located and gave no evidence or testimony in the case.

       See OCGA § 51-3-1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”).

       “The official comment [to § 324A] limits the application of subparagraph (b) to those situations where the alleged tortfeasor’s performance is to be substituted completely for that of the party on whose behalf the undertaking is carried out.” Huggins v. Standard Fire Ins. Co., 166 Ga. App. 441, 442 (304 SE2d 397) (1983) (citation omitted).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A1127.
    THE STATE v. SMITH.
    (765 SE2d 787)
   DOYLE, Presiding Judge.

James Smith was charged with driving under the influence of alcohol to the extent that it was less safe for him to drive (“DUI less safe”) and failure to maintain his lane. Following a hearing, the trial court suppressed the results of two field sobriety tests because they were not properly administered. The State appeals, and we reverse for the reasons that follow.

We apply the following principles when reviewing a trial court’s ruling on a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

“When the controlling facts are not in dispute, such as facts discernible from a videotape, we conduct a de novo review of both the facts and the law in determining the admissibility of the statement.”

So viewed, the record shows that on January 31,2013, Kennesaw Police Department Detective Michael Maynard initiated a traffic stop after he observed Smith’s vehicle weave, cross the center line multiple times, strike the right curb, and travel partly off of the roadway. Detective Maynard called for backup and then approached the vehicle and spoke to Smith, at which point he detected the odor of alcohol emanating from Smith’s breath. Detective Maynard then returned to his vehicle to await Officer J. C. Ferguson, who arrived on the scene shortly thereafter, at approximately 12:45 a.m.

While speaking with Smith, Officer Ferguson detected the odor of alcohol coming from Smith and noticed that Smith’s eyes were bloodshot and watery, he mumbled, and his speech was slurred. When asked whether he had been drinking, Smith replied that he was coming from a business meeting and had consumed two glasses of wine and two beers, the last one at 11:00 p.m. Smith then complied with the officer’s request to exit his vehicle and approach the police car, walking unsteadily as he did so.

Smith refused Officer Ferguson’s request to submit to an alcosensor evaluation, but agreed to submit to field sobriety tests; the tests were videotaped, and the tape was played at the suppression hearing. Officer Ferguson testified at the hearing that Smith exhibited six out of six indicators of impairment and the existence of VGN during his HGN and VGN testing. Believing that Smith may have been impaired, Officer Ferguson also administered the “walk and turn” and “one leg stand” field sobriety tests. Officer Ferguson testified that he observed five out of eight indicators of impairment during the walk and turn test and four out of four indicators during the one leg stand test. According to Officer Ferguson, although it was drizzling and very windy that night, which conditions he conceded could affect the dexterity and balance tests, he did not believe the conditions were dangerous, and he considered the “totality of the circumstances” when evaluating Smith’s performance.

At the conclusion of the hearing, the trial court suppressed the results of the HGN, VGN, walk and turn, and one leg stand tests. In a written order, the court stated that it suppressed the test results because Officer Ferguson failed to comply with National Highway Transportation Safety Administration (“NHTSA”) standards while administering the tests. The court further concluded that because of the attendant weather conditions, specifically including the wet road surface, the walk and turn and one leg stand tests were “conducted in an unsafe manner,” and “the discrepancies between Officer Ferguson’s police report and the driver impairment form g[a]ve th[e trial] court doubt as to the propriety of [the] administration of [those tests].”

In a single enumeration, the State argues that the trial court erred by suppressing the results of Smith’s walk and turn and one leg stand tests. We agree.

Decided November 14, 2014.

Barry E. Morgan, Solicitor-General, Diana M. Simmons, Assistant Solicitor-General, for appellant.

Frye Law Group, Kimberly K. Frye, for appellee.

It is well settled that although HGN and VGN tests constitute scientific procedures,

[field] sobriety tests such as the walk and turn and the one leg stand, both of which demonstrate a suspect’s dexterity and ability to follow directions, do not constitute scientific procedures. And, testimony from an officer about a suspect’s inability to complete such dexterity tests does not amount to testimony regarding scientific procedures, but instead amounts to testimony as to behavioral observations on the officer’s part. Therefore, these two tests and any testimony concerning their administration are not subject to the standard . . . for determining whether a scientific procedure is admissible.

Thus, a defendant’s arguments regarding proper administration of walk and turn and one leg dexterity tests, including compliance with NHTSA standards, go to the weight of the evidence, not to admissibility. Therefore, the trial court erred by suppressing the results of Smith’s walk and turn and one leg stand tests based solely on its conclusion that they were not properly administered.

Judgment reversed.

Dillard, J., concurs. Miller, J., concurs in judgment only.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-48 (1).

       The suppression hearing was held on December 13, 2013, and the trial court entered its written order on January 13,2014. Therefore, Georgia’s new Evidence Code applies to this case. See Ga. L. 2011, p. 99, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

       The trial court denied Smith’s motion to suppress regarding the officer’s reasonable suspicion to stop Smith’s vehicle, probable cause, and implied consent. The trial court suppressed the results of the horizontal gaze nystagmus (“HGN”) and vertical gaze nystagmus (“VGN”) field sobriety tests, but the State does not appeal that ruling.

       SeeOCGA § 5-7-1 (a) (4) (providing in relevant part that the State may appeal“[f]rom an order ... or judgment suppressing or .. . excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first”).

       (Punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013).

        Dennis v. State, 293 Ga. 688, 691 (2) (748 SE2d 390) (2013).

       Officer Ferguson testified that Smith was unable to properly recite a portion of the alphabet. The results of the alphabet test, however, were not addressed by the trial court in its order on Smith’s motion to suppress and are not at issue on appeal.

       Officer Ferguson conceded at the hearing that although he indicated in his police report that Smith exhibited five out of six clues of impairment during the walk and turn test, he noted on the driver impairment form that Smith exhibited six out of six clues. Officer Ferguson further conceded that although his police report indicates that Smith exhibited three out of four clues of impairment during the one leg stand test, the driver impairment form reflects that he exhibited four out of four. Officer Ferguson testified that the discrepancies in the forms were “human error.” We note that neither the police report nor the driver impairment form was included in the appellate record.

       (Citations and punctuation omitted; emphasis supplied.) State v. Pastorini, 222 Ga. App. 316, 318-319 (2) (474 SE2d 122) (1996). See also Stewart v. State, 280 Ga. App. 366, 368 (2) (634 SE2d 141) (2006); Heller v. State, 234 Ga. App. 630, 631-632 (2) (b) (507 SE2d 518) (1998); Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996); United States v. Renfroe, Case No. 4:13-mj-148-MSH (M.D. Ga. 2014) (order) (“The walk and turn test and the one[ ] leg stand test, however, are not scientific tests so they are not subject to [Federal Rule of Evidence] 702. Instead, these tests are lay observations[,] which are admissible under [Federal Rule of Evidence] 701.”).

        See Rowell v. State, 312 Ga. App. 559, 562 (2) (a) (718 SE2d 890) (2011); Stewart, 280 Ga. App. at 368-369 (2); Pastorini, 222 Ga. App. at 319 (2). See generally OCGA § 24-7-701 (a) (setting forth rules for lay testimony regarding the witness’s opinions and inferences).

        Pastorini, 222 Ga. App. at 319 (2). See OCGA § 24-4-402 (“All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.”).


author: Boggs, Judge.

text:
    A14A1202.
    WILLIAMS v. THE STATE.
    (766 SE2d 82)
   Boggs, Judge.

Ricky Williams appeals from his conviction of trafficking in cocaine and contends in his sole enumeration of error that the trial court erred by denying his motion to suppress. We disagree and affirm.

[TJhree fundamental principles . . . must be followed when conducting an appellate review of a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant.

(Citations, punctuation and footnotes omitted.) Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010). “Where... the issue turns on the question of whether a trial court committed an error of law in granting a motion to suppress, we apply a de novo standard of review. [Cit.]” State v. Bethel, 307 Ga. App. 508, 509 (705 SE2d 860) (2010).

So viewed, the evidence shows that a state patrol officer stopped Williams, who was traveling eastbound on 1-20 away from Atlanta, after observing Williams in a car with Michigan plates travel 10-12 miles below the speed limit and “go over the white fog line, which would be failure to maintain a lane.” The officer stopped Williams because he was concerned that Williams might be intoxicated or fatigued from driving for a long period of time.

After asking for Williams’ driver’s license and registration, the officer initially asked about how much sleep he had and whether he was too fatigued to drive. Williams informed the officer that he lived in Augusta and produced a Georgia driver’s license and a rental car agreement.

Based upon his experience, the officer did not believe that Williams was intoxicated, but was concerned about whether he was too tired to be driving. He therefore asked Williams to step out of the car so that he could assess his level of alertness. The officer testified that he made this assessment by asking Williams questions and “just listened to him answer my questions and how long it took him to process what I was saying.” After deciding that Williams was not too fatigued to be driving, the officer returned his driver’s license and warned him about his failure to maintain a lane.

The officer testified that Williams was not free to leave at that point even though the failure to maintain a lane portion of the traffic stop had concluded. The officer noticed “pretty close into the traffic stop” that the car had been rented in a female’s name for a 24-hour period and that Williams, the sole occupant of the rental car, was not listed as an additional driver. Williams produced no proof at any time that he was authorized to have the car. The officer did not return the rental agreement to Williams, because the officer believed “[tjhere was an issue whether he could drive the car off because he wasn’t an authorized driver.”

Additionally, the officer “became very suspicious [that] Mr. Williams was trafficking in drugs pretty early into the traffic stop.” Shortly after stopping Williams, the officer called his partner to come out to the scene,, and this officer arrived with his canine dog within two minutes. The officer initiating the stop testified that he did not conclude the traffic portion of the stop until the other officer arrived.

Based upon Williams’ vague reasons for driving to and from Atlanta in one day, his failure to put on a coat lying on the front seat despite the cold outside temperature and the fact that he was wearing a short-sleeved shirt, his inability to identify the person he had visited for one day in Atlanta, and his extreme nervousness, the officer told Williams that he thought he was trafficking in drugs and asked to search the car. After Williams declined to give consent for a search, the back-up officer “did a free air search around the outside of the vehicle,” and the canine gave a “positive alert.” When the officers searched the car, they found 250 grams of cocaine hidden underneath the coat lying on the front seat of the car and placed Williams under arrest. The initial officer testified that “literally from the time of the traffic stop till Mr. Williams is in handcuffs it was five to seven minutes. The traffic stop was pretty brief.”

The trial court denied Williams’ motion to suppress based on “the totality of the circumstances.” Following the presentation of the State’s case at trial, Williams renewed his motion to suppress, and a different trial judge also denied the motion. On appeal, Williams contends that the trial court erred, because the officer’s continued detention of him after the traffic portion of the stop had concluded was not supported by a reasonable articulable suspicion of criminal activity.

On a motion to suppress contraband discovered during a traffic stop, “the State bears the burden of proving that the search of the car was lawful, and to carry this burden, the State must show that it was lawful to detain [Williams] until the time the drug dog indicated the presence of drugs.”
As our Supreme Court has recently explained, claims that an officer illegally prolonged a detention resulting from a traffic stop generally fall into two categories. The first category involves those cases where the officer allegedly extended the stop “beyond the conclusion of the investigation that warranted the detention in the first place,” i.e., whether the officer prolonged the stop after concluding his investigation of the traffic violation. Rodriguez v. State, 295 Ga. 362, 369 (2) (b) (761 SE2d 19) (2014) (citation omitted). In such cases, courts have “generally concluded” that even a “short prolongation” is “unreasonable unless good cause has appeared in the meantime to justify a continuation of the detention to pursue a different investigation.” Id.
In the second category of cases, the detention is not extended beyond the conclusion of the investigation that originally warranted the detention, but it is claimed that the investigation took too long. In these cases, the courts examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
In either type of case, the touchstone of our analysis is the reasonableness of the investigating officer’s conduct, i.e., we ask whether the officer’s conduct in prolonging the stop was reasonable given the objective facts known to the officer and the circumstances under which he was working. The question of reasonableness is one of law.

(Citations and punctuation omitted.) Bodiford v. State, 328 Ga. App. 258, 261-262 (1) (761 SE2d 818) (2014).

Here, the record shows that while the officer’s investigation of Williams’ failure to maintain a lane had concluded, the officer had not yet concluded his investigation into whether Williams was entitled to possess and drive the rental car. No evidence shows that the officer had informed Williams that he was free to leave, and it is well established that a valid traffic stop “includes the time necessary for the officer to check the status of pertinent documents, such as the driver’s license, insurance, and vehicle registration. [Cit.]” Valentine v. State, 323 Ga. App. 761, 765 (2) (748 SE2d 122) (2013).

With regard to rental cars, examination of the rental agreements and any ensuing investigation are considered part of the traffic stop. See, e.g., Culpepper v. State, 312 Ga. App. 115, 120-121 (717 SE2d 698) (2011) (expired rental car agreement provided additional reason to detain driver); United States v. Collins, 2006 U. S. Dist. LEXIS 88631 at *12 (W.D. La. 2006) (officer entitled “to verify . . . that [defendant] was an authorized driver of the car” during traffic stop); People v. Grear, 232 AD2d 578, 579 (649 N.Y.S.2d 36) (Sup. Ct. N. Y. 1996) (“Since neither the driver nor the passenger was listed on the rental agreement, it was reasonable for the arresting officer to make further inquiry into the status of the rental car. [Cits.]”). “Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.” (Citation and punctuation omitted.) Rodriguez, supra, 295 Ga. at 371 (2) (b), n. 13. Accordingly, because the officer had not yet informed Williams that he was free to leave with the rental car or returned the rental agreement, the traffic stop was ongoing at the time the free-air canine search was performed.

“[A]n officer may use a drug sniffing dog to conduct an open-air search of a vehicle’s exterior during a valid traffic stop without implicating the Fourth Amendment, if the same is performed without unreasonably extending the stop. [Cit.]” Moore v. State, 321 Ga. App. 813, 815 (743 SE2d 486) (2013). Here, the record supports the conclusion that the back-up officer had already arrived with his drug-sniffing dog at the time Williams declined to give consent for a search, and the open-air search did not unreasonably prolong a traffic stop that lasted a total of five to seven minutes. See Hardaway v. State, 309 Ga. App. 432, 433-435 (1) (710 SE2d 634) (2011) (stop not unreasonably prolonged where drug dog arrived within ten minutes of initial stop); St. Fleur v. State, 296 Ga. App. 849, 851-852 (1) (676 SE2d 243) (2009) (free air sniff within five minutes of initial stop did not unreasonably prolong the stop); Wilson v. State, 293 Ga. App. 136, 138 (666 SE2d 573) (2008) (because drug dog already present, “any further delay due to retrieving the dog and conducting the walk-around of the vehicle was minimal”).

Decided November 14, 2014.

Darel C. Mitchell, for appellant.

FredricD. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

We therefore affirm the trial court’s denial of Williams’ motion to suppress.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       Our opinion in State v. Whitlow, 253 Ga. App. 149 (558 SE2d 736) (2002) (physical precedent only), does not require a different result, because, in that case, the person renting the car was present as a passenger, and there was no evidence that the officer was continuing to investigate whether the driver was authorized to possess the rental car. Additionally, this opinion has no precedential value as one member of the three-judge panel concurred in the judgment only. See Court of Appeals Rule 33 (a).

       While the initial officer’s testimony at trial varied somewhat from his testimony in the motion to suppress hearing, we are required to construe the evidence most favorably to uphold the judgment of the trial court. Harvey v. State, 328 Ga. App. 94 (761 SE2d 507) (2014).


author: ANDREWS, Presiding Judge. MCFADDEN, Judge,

text:
    A14A1224.
    MILNER v. THE STATE.
    (765 SE2d 790)
   ANDREWS, Presiding Judge.

Following his December 6, 2002 indictment for one count of aggravated assault, Czerny Milner filed a motion to dismiss the indictment on May 7, 2012, arguing that his constitutional right to a speedy trial had been violated. The trial court denied Milner’s motion in a December 6, 2012 order. Milner appeals, challenging the manner in which the trial court weighed certain analytical factors required by Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). Finding no abuse of the trial court’s discretion, we affirm.

The record reveals that Milner was arrested on May 26, 2002 for striking his girlfriend in the head with an axe. He was bound over to Fulton County Superior Court on June 6, 2002 and released on a $10,000 bond on June 12, 2002. A Fulton County grand jury returned a true bill of indictment against Milner on December 6, 2002 for one count of aggravated assault. Milner’s case appeared on a January 16, 2003 plea and arraignment calendar; however, Milner failed to appear, and a bench warrant was issued for his arrest. Thereafter, the trial court placed Milner’s case on the administrative dead docket on September 19, 2003.

More than two years later, with his case still on the administrative dead docket, Milner filed a change of address form with the clerk of Fulton County Superior Court onDecember 13,2005. Milner later retained counsel, who entered an appearance on June 22, 2006 and filed a motion to set aside the bench warrant against Milner. Therein, Milner alleged that he did not receive notice of the January 14, 2003 plea and arraignment calendar and that he suffered strokes in November 2003 and on June 20, 2004, leaving him partially paralyzed. Milner also noted that his resulting disability benefits were subsequently suspended due to his pending bench warrant. Following a hearing on September 11, 2006, the trial court entered an order setting aside Milner’s bench warrant and bond forfeiture. During the hearing, the trial court observed that Milner’s was “a really old case” and that the file was “imperfect.”

In addition, the trial court rejected Milner’s counsel’s request to withdraw. Milner, through counsel, then filed assorted motions and requested discovery on September 18,2006, but did not file a demand for Milner’s constitutional right to a speedy trial. The State responded to Milner’s discovery request on September 27,2006 and, on the same date, demanded discovery from Milner. The record does not contain discovery responses by Milner. Although placement of Milner’s case on the administrative dead docket should have been “deemed vacated and the case... reinstated” by virtue of the trial court’s September 11, 2006 order, no activity followed the trial court’s order until a December 5, 2011 status conference.

Indeed, the next filing after the State’s demand for discovery on September 27, 2006 was the State’s January 13, 2012 recommendation for a guilty plea. On January 17, 2012, the parties appeared for a plea and arraignment calendar. During that conference, Milner’s counsel again moved to withdraw from the case; Milner consented to the request, and the trial court agreed. The trial court appointed counsel for Milner, and Milner entered a plea of not guilty. Appointed counsel filed several motions and requests for discovery on January 23, 2012, but no demand for Milner’s constitutional right to a speedy trial.

At a March 19, 2012 final plea calendar, the trial court placed Milner’s case on the trial calendar. The trial court provided notice of its April 26, 2012 trial calendar on April 9, 2012, and Milner’s case was then scheduled to be called for trial on May 8, 2012. On May 7, 2012, Milner filed a motion to dismiss the indictment in which he alleged his constitutional right to a speedy trial had been violated.

During a May 10,2012 hearing on Milner’s motion, Milner stated that his prior counsel never explained a demand for speedy trial to him and never discussed the delay in his case with him. He also stated that his health had declined since 2002 because he is “getting weaker,” that he was worried about the case, and that his memory had been “affected” by his strokes. Finally, Milner claimed not to recognize the victim when she was in court for a prior appearance. The trial court then spoke with Milner. The trial court acknowledged that its file was “woefully inadequate” and that “this looks like somehow or other the clerk’s office fell down because it remained in a dead docket status,” while engaging in a lengthy examination of Milner’s case history. After hearing argument from both parties, the trial court reviewed Milner’s motion, applied the Barker analysis, and ultimately denied the motion.

1. Under Georgia law, when examining a defendant’s claim that he was denied his constitutional right to a speedy trial,

the trial court is required to decide as a threshold matter whether the delay at issue was long enough to create “presumptive prejudice.” If the delay was not long enough to create presumptive prejudice, the speedy trial claim fails at the threshold. A delay long enough to be presumptively prejudicial triggers a requirement that the trial court analyze the speedy trial claim by balancing the conduct of the state and the defendant under four factors set forth in Barker v. Wingo: (1) whether the delay before trial was uncommonly long; (2) whether the state or the defendant is more to blame for the delay; (3) whether, in due course, the defendant asserted the right to a speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay.

(Citations and punctuation omitted). Goffaux v. State, 313 Ga. App. 428, 428-429 (721 SE2d 635) (2011). See also Singleton v. State, 317 Ga. App. 637, 638 (732 SE2d 312) (2012). “[N]o single factor is necessary or sufficient to sustain a speedy trial claim,” as the factors are considered together in the balancing test of the conduct of the prosecution and the defendant. See Singleton, 317 Ga. App. at 638; Goffaux, 313 Ga. App. at 429. We review the denial of a defendant’s constitutional speedy trial claim for an abuse of discretion. Higgins v. State, 308 Ga. App. 257, 258 (707 SE2d 523) (2011).

As a threshold matter, it is clear the trial court correctly determined that the ten-year delay in this case was long enough to create “presumptive prejudice.” See Goffaux, 313 Ga. App. at 429 (“A delay approaching one year is generally deemed to be presumptively prejudicial.”); Hayes v. State, 298 Ga. App. 338, 340 (1) (680 SE2d 182) (2009) (“this case long ago crossed the presumptive prejudice threshold”). The parties do not contend otherwise. As a result, we next proceed to the four Barker factors.

2. (a) Whether the Delay was Uncommonly Long. Milner contends that the trial court abused its discretion on this factor, apparently arguing that the ten-year delay was uncommonly long and that, ipso facto, this factor should have been weighed heavily against the State. We are not persuaded.

“A delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” (Citations omitted). Higgins, 308 Ga. App. at 260 (2) (a). In this case, although the trial court found that the ten-year delay was uncommonly long, it also found that “even this lengthy delay is not weighed heavily against the State.” Id. (Emphasis in original.) The trial court then weighed this factor against the State, “but ultimately not heavily.” The parties do not appear to contest the trial court’s finding that the delay in this case is uncommonly long; rather, Milner argues that the delay should be weighed heavily against the State simply because of the length of the delay.

This argument fails because the idea of a bright-line rule is anathema to the analysis of speedy trial claims. See Vermont v. Brillon, 556 U. S. 81, 90-91 (II) (129 SCt 1283, 173 LE2d 231) (2009); Porter, 288 Ga. at 533, n. 4 (citing the “flexible balancing test required by Barker’’); State v. Pickett, 288 Ga. 674, 679, n. 1 (706 SE2d 561) (2011) (bright-line rule “would be contrary to the case-by-case balancing required by Barker”); State v. Brown, 315 Ga. App. 544, 548-549 (726 SE2d 500) (2012) (“different weights shouldbe assigned to different reasons” for a delay). Similarly, because the Barker factors are not talismanic and must be considered together, trial courts are required to “engage in a difficult and sensitive balancing process [that] necessarily compels them to approach speedy trial cases on an ad hoc basis.” Porter, 288 Ga. at 526 (2) (a); Pickett, 288 Ga. at 675 (2) (a). Moreover, no one factor is sufficient to establish a speedy trial claim. See Singleton, 317 Ga. App. at 638. Finally, we have previously found that delays of similar length may be weighed against the State, but not heavily. See generally Moore v. State, 314 Ga. App. 219, 221 (2) (a) (723 SE2d 508) (2012) (84-month delay not considered by trial court, but trial court should have “weighed it against the [S]tate”). This ad hoc approach confirms that a trial court’s discretion is substantial and that a bright-line rule tied solely to the length of the delay, similar to what Milner appears to propose, runs contrary to the Barker analysis. It follows that Milner has failed to demonstrate an abuse of the trial court’s substantial discretion on this factor.

(b) Responsibility for the Delay. Milner next argues that, in view of the extensive delay, the trial court should have weighed this factor “more than benignly against the State.” At the outset, the State offers that “the entire delay was properly laid at the feet of the State,” while Milner likewise concedes that “there is no evidence of a deliberate intent” to delay Milner’s case. Furthermore, the trial court found no such evidence. Accordingly, this factor turns upon the weight assigned by the trial court for responsibility for the delay.

“Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State.” (citation omitted). Brannen v. State, 274 Ga. 454, 455 (553 SE2d 813) (2001). “Generally, delay attributed to the State’s negligence, rather than a deliberate act, is weighed as a relatively benign factor against the State.” (Citation and punctuation omitted). Goddard v. State, 315 Ga. App. 868, 872 (2) (b) (729 SE2d 397) (2012). See also Goffaux, 313 Ga. App. at 429. However, “[e] ven benign negligence will begin to weigh more heavily against the State, the longer the delay caused by the same.” Singleton, 317 Ga. App. at 641.

Here, the trial court initially noted that no allegation had been made, and the evidence does not support, that the State “deliberately delayed [Milner’s] trial in order to hamper his defense.” Of particular import, the trial court found that Milner’s case was placed on an administrative dead docket on September 19, 2003 due to his failure to appear at his January 14, 2003 arraignment. Although the case was ostensibly removed from the administrative dead docket by the trial court’s September 11, 2006 order, it was not until a December 5, 2011 status calendar that the trial court discovered the case inadvertently had remained on the dead docket. Indeed, the trial court noted that “this looks like somehow or other the clerk’s office fell down because it remained in a dead docket status.” The trial court, unable to determine the reason for the administrative error, attributed “the delay to government negligence and weighted] [the delay] against the State but only lightly or benignly.” Under these circumstances, the trial court did not abuse its discretion in weighing this factor against the State. See Layman v. State, 284 Ga. 83, 85 (663 SE2d 169) (2008); Higgins, 308 Ga. App. at 261 (2) (b); Green v. State, 295 Ga. App. 468, 469 (3) (672 SE2d 414) (2009).

(c) Assertion of the Right to Speedy Trial. Although Milner concedes that “there was a significant delay in his assertion of his right [to a speedy trial],” he claims that the trial court abused its discretion in failing to consider as mitigation the time during which Milner was not represented by counsel and the State’s delay in responding to his discovery requests.

“[A] defendant may assert his constitutional right to a speedy trial at any time after he is arrested.” Pickett, 288 Ga. at 676 (2) (c) (3). “However, once his constitutional right accrues, the defendant has the responsibility to assert it, and delay in doing so normally will be weighed against him.” Id. See also Singleton, 317 Ga. App. at 642 (2) (c) (“when a defendant waits until years after his arrest to assert his right to a speedy trial, the failure of the accused to assert his right sooner ordinarily will weigh against him heavily”) (punctuation omitted). Indeed, “delay often does work to a defendant’s advantage.” (punctuation omitted). Layman, 284 Ga. at 85. Accordingly, the relevant inquiry on this factor is whether the accused asserted the right “in due course.” State v. Reimers, 310 Ga. App. 887, 889 (2) (c) (714 SE2d 417) (2011). The “timing, form, and vigor of the accused’s demands to be tried immediately” must be considered in determining the weight given to the assertion-of-the-right factor, (punctuation omitted). Porter, 288 Ga. at 528 (2) (c) (3). In that regard, delays of 19 months and longer have been weighed heavily against criminal defendants. See Brown v. State, 287 Ga. 892, 895-896 (700 SE2d 407) (2010) (two- and three-year delays in asserting right weighed heavily against defendants); Layman, 284 Ga. at 86 (four-year delay in asserting right weighed heavily against defendant); Jackson v. State, 279 Ga. 449, 453 (3) (614 SE2d 781) (2005) (19-month delay in asserting right weighed against defendant). See also Pickett, 288 Ga. at 677 (2) (c) (3) (“A delay of over five years typically would warrant this factor being weighed heavily against the defendant.”) (emphasis in original).

The trial court found that Milner did not assert his constitutional right to a speedy trial until May 7, 2012 — “ten years after [Milner’s] arrest, and on the eve of trial in 2012.” Further concluding that Milner did not assert his right “in due course,” the trial court weighed this factor heavily against Milner.

It is true that a trial court may sometimes consider certain factors in mitigation of the failure to demand a speedy trial, including “the fact that the accused was insisting... that the State comply with its obligations to furnish discovery.” Brown, 315 Ga. App. at 552 (2) (c). See also Richardson v. State, 318 Ga. App. 155, 161 (2) (c) (733 SE2d 444) (2012); State v. Shirley, 311 Ga. App. 141, 146 (3) (c) (714 SE2d 636) (2011). Here, it does not appear that the trial court addressed the mitigation of Milner’s delay in its written order. Nevertheless, the record does not support Milner’s argument. Milner, through retained counsel, requested discovery from the State on September 18, 2006. The State responded to Milner’s discovery request on September 27, 2006 and, on the same date, demanded discovery from Milner; the record does not contain discovery responses by Milner. Following Milner’s counsel’s withdrawal 52 months later on January 17,2012, the trial court appointed counsel for Milner and Milner entered a plea of not guilty. Appointed counsel requested discovery from the State on January 23,2012, to which the State filed a supplemental response on April 25, 2012. Milner filed a motion to compel discovery on April 26, 2012. The State notified Milner’s appointed counsel of additional evidence on May 1, 2012, although the record does not contain Milner’s response, if any. In addition, Milner’s appointed counsel’s discovery requests mirrored the initial discovery requests to which the State previously responded. See Howard v. State, 307 Ga. App. 822, 826 (2) (b) (706 SE2d 163) (2011). Finally, Milner filed his motion to dismiss the indictment on May 7, 2012 —■ one day prior to a May 8, 2012 trial date.

To the extent the trial court did not consider the possibility of mitigation, it erred; however, based on this evidence from the record, we conclude that the trial court “would have had no discretion to reach a different judgment” had it considered mitigation. Pickett, 288 Ga. at 679 (2) (d). See also Moore, 314 Ga. App. at 221 (2) (a); Williams v. State, 300 Ga. App. 797, 798 (c) (686 SE2d 407) (2009) (“we find no connection between the State’s failure to respond to her discovery and her failure to assert her rights”), aff’d, 290 Ga. 24, 27 (3) (717 SE2d 640) (2011). This is particularly true in view of Milner’s lengthy delay in asserting his right to a speedy trial, addressed supra. Similarly, Milner’s contention that he failed to assert his constitutional right to a speedy trial due to the inaction of retained counsel is unsupported by any citation of authority and is likewise unavailing. See Vermont, 556 U. S. at 90-91 (II) (“Because 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 also charged against the defendant.”) (citation and punctuation omitted); Payne v. State, 289 Ga. 691, 694 (2) (b) (715 SE2d 104) (2011); Howard, 307 Ga. App. at 826 (2) (b) (“the reality [is] that defendants may have incentives to employ delay as a defense tactic”). Accordingly, the trial court did not abuse its discretion in weighing this factor heavily against Milner. See Pickett, 288 Ga. at 677 (2) (c) (3); Higgins, 308 Ga. App. at 261 (2) (c); Howard, 307 Ga. App. at 827-828.

(d) Prejudice Resulting from the Delay. Milner contends the trial court abused its discretion in holding that Milner had not demonstrated actual prejudice in view of his anxiety over the pending case and his decreased memory.

Under the Barker analysis, the kinds of prejudice that a defendant may suffer from an unreasonable delay are “[i] oppressive pretrial incarceration, [ii] anxiety and concern of the accused, and [iii] the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.” Singleton, 317 Ga. App. at 643 (2) (d) (citing Pickett, 288 Ga. at 677 (2) (c) (4)). The third form of prejudice is the most serious, “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (punctuation omitted). Id. Because of the difficulty of proving specific prejudice due to the passage of time alone,

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.

Id.

As a threshold matter, the trial court noted that Milner failed to prove that he was “subjected to any oppressive pretrial incarceration or that he suffered an unusual anxiety or concern beyond that which necessarily attends being under indictment.” After citing its own interaction with Milner during which it engaged in a colloquy with Milner, the trial court observed that Milner “was able to respond cogently and in detail.” As a result, the trial court concluded that Milner had not suffered “any actual prejudice from the passage of time.” Furthermore, the trial court acknowledged that the ten-year delay raised a presumption of prejudice, but concluded that the presumption was outweighed by the absence of demonstrable prejudice and by Milner’s failure to assert his constitutional right.

Milner does not appear to contest that the trial court correctly concluded that he showed no oppressive pretrial incarceration; indeed, Milner was released on bail 17 days following his arrest. As a result, the trial court did not abuse its discretion on this point.

However, Milner cites his anxiety due to the delay as a mitigating factor. Milner’s argument appears to be based chiefly on his loss of disability benefits due to the pending indictment. But aside from his December 13, 2005 change of address with the clerk’s office, the record is devoid of any effort by Milner to contact the State, the trial court, or his attorney concerning the status of his case. See Goddard, 315 Ga. App. at 873 (2) (b). Furthermore, once Milner received notice of the cessation of his benefits on or about November 1, 2005, it was not until May 7, 2012 that he raised the speedy trial claim in his motion to dismiss the indictment — a period of 78 months. Importantly, Milner was represented by counsel for 71 of those months. Because Milner “chose not to alleviate his anxiety and concern by filing a speedy trial demand,” the trial court did not abuse its discretion by weighing this factor against Milner. See Green, 295 Ga. App. at 471 (6). See also Lambert v. State, 302 Ga. App. 573, 577 (4) (692 SE2d 15) (2010); Higgins, 308 Ga. App. at 262 (2) (d); Howard, 307 Ga. App. at 828 (2) (d).

Nor is Milner’s reference to his memory availing. During the hearing on his motion to dismiss the indictment, Milner agreed only that his memory was “diminished” and that his medication “affected” his memory. However, the only example Milner presented of his memory being impaired was that he did not recognize the victim in a prior court appearance. In contrast, the trial court engaged in a colloquy with Milner, during which Milner was able to recall his prior addresses (including the address where the incident occurred), the circumstances of his arrest, and his subsequent release. The trial court observed that Milner “was able to respond cogently and in detail” and therefore concluded that there was no prejudice to Milner based upon his allegedly diminished memory. Because Milner was required to show “specific evidence of how the delay impaired his ability to defend himself,” Higgins, 308 Ga. App. at 262 (2) (d), there is no abuse of discretion. See also Lambert, 302 Ga. App. at 576 (4); Goffaux, 313 Ga. App. at 431; Billingslea v. State, 311 Ga. App. 490, 493 (2) (716 SE2d 555) (2011).

Finally, the trial court noted that no prejudice to Milner’s defense had been shown because no alibi defense had been articulated and no allegation had been made that necessary witnesses were no longer available. Once again, this conclusion was not an abuse of discretion. See Billingslea, 311 Ga. App. at 493 (2); Higgins, 308 Ga. App. at 262-263 (2) (d).

(e) Balancing the Barker Factors. Milner contends, without citation to authority, that the trial court failed to properly balance the Barker factors. The record reveals that the trial court struggled at length with Milner’s motion and with the proper balancing of the Barker factors, noting that it was “very concerned obviously about the time that has passed.” Ultimately, the trial court weighed the first Barker factor — the length of the delay — benignly against the State. The second factor, the reason for the delay, was again weighed against the State “slightly.” Third, the trial court weighed assertion of the right to a speedy trial heavily against Milner. Fourth, the trial court found an absence of prejudice. “After balancing all of these factors,” the trial court concluded that Milner had not been denied his constitutional right to a speedy trial.

In sum, “[t]he balancing undertaken by the trial court was reasoned and reasonable ... and for that reason, we cannot say that it amounts to an abuse of discretion.” State v. Buckner, 292 Ga. 390, 399 (738 SE2d 65) (2013). See also Higgins, 308 Ga. App. at 263 (2) (e); Lambert, 302 Ga. App. at 578; Green, 295 Ga. App. at 471 (6). We are mindful of, and do not condone, the length of the delay in this case. See Layman, 284 Ga. at 87; Howard, 307 Ga. App. at 829 (e). However, “no one [Barker] factor is either necessary or sufficient to sustain a speedy trial claim.” Jenkins v. State, 294 Ga. 506, 510 (2) (755 SE2d 138) (2014). And as our Supreme Court has noted,

[t]here are some things about which reasonable people can reasonably disagree, and under settled Georgia law, when reasonable people could reasonably disagree about the weighing and balancing of the [Barker] factors, we must defer to the judgment of the trial court. This is such a case.

Buckner, 292 Ga. at 399. Under the unique circumstances of this case, we cannot conclude that the trial court abused its substantial discretion.

Judgment affirmed.

Ray, J., concurs. McFadden, J., concurs specially.

MCFADDEN, Judge,

concurring specially.

I concur in the judgment affirming the trial court’s denial of Milner’s speedy trial motion, but I write separately because I do not agree with all that is said in the opinion.

This case involves an extraordinarily long delay of over ten years. In Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992), the Supreme Court of the United States described the significance of a similarly extraordinary delay (eight-and-one-half years) to the Barker speedy trial analysis. As explained in Doggett,

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.

Doggett, 505 U. S. at 655-656 (III) (A) (citation omitted).“[0]ur tolerance of [the state’s] negligence [in bringing an accused to trial] varies inversely with its protractedness[.]” Id. at 657 (III) (B) (citation omitted). And “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Id. at 652 (II). Nevertheless, that presumption of prejudice can be “extenuated, as by the defendant’s acquiescence, [or] persuasively rebutted[.]” Id. at 658 (III) (B) (citation and footnotes omitted).

Accordingly, the extraordinary length of delay in this case plays a role in the analysis of all of the Barker factors. See Hayes v. State, 293 Ga. App. 338, 341 (2) (a) (680 SE2d 182) (2009) (“the weight accorded the other factors in the balancing test depends, to a large degree, on the length of the delay”) (citing Doggett, supra; other citations omitted). Most obviously, it figures into the degree to which the length of delay is weighed against the state. But the ten-year delay also figures into the tolerance given to the state’s negligence in bringing Milner to trial; the degree to which Milner’s delay in asserting his right to trial (which was also extraordinarily long) mitigates the prejudice presumed from the ten-year delay; and the amount of prejudice that can be presumed despite Milner’s inability to show actual prejudice.

Keeping in mind these implications of the ten-year delay in this case, I find no error in the trial court’s denial of the motion for speedy trial. The trial court’s order reflects a correct analysis of the Barker factors and an appropriate exercise of discretion in balancing those factors. See generally State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011) (describing nature of trial court’s role in balancing Barker factors). The order makes clear that the trial court properly considered the implications of the ten-year delay when he engaged in the balancing process, consistent with the principles explained in Doggett, supra.

Because this case can be resolved in the manner described above, I see no need for the majority opinion’s extensive analysis about the propriety of a bright-line rule. In addition, I disagree with the majority’s application of the standard of appellate review set forth in State v. Pickett, 288 Ga. 674 (706 SE2d 561) (2011), within its review of the trial court’s treatment of one of the Barker factors; that standard of appellate review is more properly applied to the balancing of all of the Barker factors. See id. at 679-680 (2) (d).

Decided November 14, 2014.

Alixe E. Steinmetz, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

       The timing of this filing appears driven by a notice to Milner from the Social Security Administration informing Milner of the termination of his disability benefits on or about November 1, 2005.

       Although Milner further alleged that he had “lived at 433 Camrose Way NW Atlanta, GA 30331 since the incident,” documents provided in discovery show Milner’s address as 999 Cascade Avenue SW, Apt. A, Atlanta, GA 30310 - the location of the initial incident - or “no address.” In addition, Milner confirmed during a May 10,2012 hearing that he was living at 999 Cascade Avenue at the time of the incident. In any event, the trial court was unable to determine whether notice of the January 16,2003 plea and arraignment calendar had been properly sent.

       The trial court took judicial notice “of the Clerk’s file... and of the Court’s own published calendars ... as well as the admissions in Czerny Milner’s filings and the stipulations of the parties as to the relevant timeline.”

       Milner’s claim that the trial court failed to properly calculate the length of the delay (“approximately ten years” as opposed to an actual delay often years, six months), while correct, presents a distinction without a meaningful difference. “Where a trial has not occurred, the delay should he calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). The trial court correctly identified and applied this principle and found the delay to be “approximately ten years.” In fact, the delay is 127 months, calculated from Milner’s arrest (May 26,2002) to the trial court’s order denying Milner’s motion to dismiss (December 5, 2012). While it is often preferable to express the length of delay in terms of months, the trial court did not abuse its discretion and we will not further review Milner’s argument on this point.

       Of note, there was no extended initial delay between Milner’s arrest and his indictment. Milner’s case was indicted approximately six months after his arrest, and the arraignment was scheduled promptly thereafter. Compare Singleton, 317 Ga. App. at 638 (two-year delay in indictment); Goffaux, 313 Ga. App. at 428 (three-year delay in indictment).

       Placement of this case on the administrative dead docket was the result of Milner’s failure to appear for his original arraignment rather than by an affirmative request by the State to refrain from prosecution. Compare State v. Redding, 274 Ga. 831 (561 SE2d 79) (2002); Hayes, 298 Ga. App. at 346 (2) (c). Furthermore, because Milner’s case was ostensibly removed from the dead docket by the trial court’s September 11, 2006 order, and because the parties believed the case had been removed from the dead docket as evidenced by the parties’ subsequent filings, this time may still he counted against Milner. Compare Harris v. State, 284 Ga. 455, 456, n. 9 (667 SE2d 361) (2008).

       During this extended period, the record does not reveal any effort by counsel to insist “that the State comply with its obligations to furnish discovery.” Brown, 315 Ga. App. at 552 (2) (c). This case is therefore dissimilar to Brown, Richardson, Shirley, supra, and related cases in which there had been a refusal by the State to provide discovery in spite of the ongoing efforts of defendants to enforce compliance with discovery requirements.

       At the May 10, 2012, hearing, Milner’s counsel acknowledged that she had seen the additional discovery from the State.

       While Milner asserts that his initial failure to demand a speedy trial should be viewed less harshly, “the discretion to mitigate the weight given this factor” applies only when the defendant is out on bond and unrepresented by counsel “during the period between arrest and indictment.” Pickett, 288 Ga. at 676 (2) (c) (3). That is not the case here. Moreover, Milner’s subsequent failure to demand a speedy trial for the ensuing 78 months — the final 71 of which he was represented by counsel - cannot be ignored. See Pickett, 288 Ga. at 677 (2) (c) (3).

       Although no hearing had been held by the trial court to evaluate its admissibility, it is likewise telling that in the incident report following Milner’s arrest, in which he gave a Mirandized statement, Milner claimed not to remember what he said to the victim that accelerated the incident to its conclusion.


text:
    A14A1358.
    A14A2061.
    WILLIAMS v. THE STATE. MERRITT v. THE STATE.
    (765 SE2d 801)
   DOYLE, Presiding Judge.

Jamarri Williams and Montaviis Merritt were each convicted of two counts of armed robbery, theft by receiving stolen property, three counts of aggravated assault, two counts of battery, and possession of a firearm during the commission of a felony. Williams and Merritt appeal the denial of their subsequent motions for new trial, arguing that the trial court erred by denying their motions to suppress inherently suggestive on-the-scene showup identifications. Because both cases arise from the same facts and involve a joint trial and motion hearings, we have consolidated them. We affirm for the reasons that follow.

Viewed in favor of the verdict, the record shows that on October 7, 2006, Richard Heidal was walking to a friend’s house in an Atlanta neighborhood after consuming five or six beers. While he was en route, two men, one of whom wielded a silver handgun, approached Heidal from behind and demanded his wallet. Heidal complied and dropped to the ground, face down, where one of the men kicked him, and the men then fled. According to Heidal, he observed the men for about 60 seconds before dropping to the ground.

Around the same time, Charles Anthony walked Ashley Adiano to her car from a bar in an adjacent neighborhood. Three men approached the pair, and one of them put a handgun to Anthony’s head, ripped his wallet from the chain affixed to his pants, and struck him in the mouth with the gun. Anthony fled on foot. One of the assailants grabbed Adiano by the hair as she ran toward a nearby pizza restaurant, pushed her to the ground, and began beating her. Several employees from the restaurant, including David Vance, Michael Kent, and Christopher Shubert, saw the assault and raced outside, yelling. The assailants ran, with one of them firing his gun as he did so.

Both victims and all three witnesses recalled that the assailants were young and black. Anthony was unable to see the assailants’ faces and recalled only that one of them wore a t-shirt. Adiano described one of them as thin and recalled that one of them wore a striped, collared shirt. Vance, who was approximately 20 feet from the assailants when they ran away, described one as short, one as average, and the other as tall. At one point the assailants were directly in front of Shubert, who recalled that two of them wore dark shirts. Kent, who was approximately 20 feet from the assailants, described one of them as taller than the other two, and he recalled that two of them wore dark shirts, and the third wore a blue and white shirt.

Shortly thereafter, but before dispatch reported the robberies, Officer James Bryant saw a young black male run and dive into the side door of a green minivan on a major street in the area. As Bryant followed the minivan, it sped up, and Bryant contacted his supervisor, who advised him to “back off a little bit” because he had not observed any crime. A minute or so later, dispatch reported the robbery and, according to Bryant, indicated that the vehicle involved was possibly a green minivan. Officer Paul Farruggia then spotted the minivan and pulled behind it. The minivan pulled over, and four males jumped out of it and fled. Farruggia pursued them, and backup officers apprehended Merritt, Williams, and Davii Merritt; the fourth man was never caught.

Police found a silver handgun on the floor behind the driver’s seat of the minivan, which van police later learned was stolen. Police also determined that the shell casing recovered at the scene of the second robbery had been fired from the handgun recovered from the minivan. Officers did not recover any of the victims’ wallets or money.

Police arrested and handcuffed the three suspects and transported them to the second scene, where they showed the suspects to the victims and three witnesses. The suspects were handcuffed at the time, and police shined a light in their faces for the identifications. All three victims and the three restaurant employees identified Williams and Montaviis Merritt. Heidal testified at trial that he was “100 percent” certain of his identification. Adiano testified that although she had the impression before the showup that police had apprehended the suspects, she was able to identify them because the showup was approximately ten minutes after the robbery. Anthony, who did not see the suspects’ faces during the assault, testified that police told him that they had apprehended the suspects before the showup and that because of the light shined in the suspects’ faces, he could not see them, and they could not see him. Nevertheless, Anthony identified the suspects based on one of their t-shirts. Shubert testified that he did not assume that they were the assailants because they were in the police car, but instead was able to visually identify them because he had just seen them minutes earlier during the attack. Kent testified that although his identification was not based on the fact that the suspects were in a police car, he conceded that he “thought perhaps it would be the people” before identifying them.

Detective Watkins, who assisted in the showup, testified that he asked the victims and witnesses whether they could identify the assailants after advising them that “we have some suspects that could possibly be involved in the robbery....” According to Watkins, the suspects were shown to the victims separately, and officers shined a flashlight in the suspects’ faces; the suspects had already been arrested and were handcuffed at the time of the showup.

Montaviis Merritt and Williams filed motions to suppress the showup identifications, and the trial court denied the motions following a hearing. The trial court entered a directed verdict as to the obstruction charge, and the jury found both defendants guilty of two counts of armed robbery, theft by receiving stolen property, three counts of aggravated assault, two counts of battery, and possession of a firearm during the commission of a felony. This appeal follows the trial court’s denial of their subsequent motions for new trial.

Williams and Merritt contend that the trial court erred by denying their motions to suppress the showup identifications of the victims and witnesses, arguing that the showups were inherently suggestive.

A two-part test is used to determine the admissibility of pre-trial identifications. First it must be determined whether the procedure used was, in fact, impermissibly suggestive. If it was, the court must consider the totality of the circumstances to determine whether a very substantial likelihood existed of irreparable misidentification.

“If [, however,] the answer to the first question is negative, we need not consider the second question; conversely, we may immediately proceed to the second question and, if the answer thereto is negative, we may entirely pretermit the first question.”

A one-on-one showup is inherently suggestive. But both state and federal courts have recognized countervailing considerations that can render one-on-one confrontations permissible, and even helpful. For instance, speedy investigation and prompt identification enhance accuracy and reliability, which expedite the release of innocent subjects.

With regard to the totality of the circumstances analysis, the United States Supreme Court has set forth specific factors to consider in determining whether there was a substantial likelihood of misidentification:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

On review of a trial court’s ruling on a motion to exclude an identification, “evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.”

Here, pretermitting whether the showup was inherently suggestive, the trial court did not err by concluding that there was no substantial likelihood of irreparable misidentification. None of the assailants covered their faces during the assaults, and the showup took place immediately after the suspects were apprehended, which occurred shortly after the assaults. Heidal, who looked at his assailants for a full minute during the assault, was 100 percent certain of his identification. The three restaurant employees were close to the assailants when they observed them, and several of the victims/ witnesses were able to describe the assailants’ builds and clothing. Although Anthony did not see his assailants’ faces during the attack, he was able to identify them by their clothing. And although the three victims had all consumed alcoholic beverages before they were attacked, there was no evidence that it impaired their ability to identify their assailants or that the restaurant employees’ ability to observe and identify the assailants was impaired.

Decided November 14, 2014.

Chaka S. Washington, for appellant (case no. A14A1358).

Long D. Vo, for appellant (case no. A14A2061).

PaulL. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Under the totality of circumstances presented here, the trial court was authorized to find that the showup procedure employed by police . . . did not give rise to a substantial likelihood of irreparable misidentification. The trial court, therefore, did not err in concluding that the . . . identifications were sufficiently reliable to be admitted at trial.

Further, police apprehended the suspects very close to the scene of the robberies shortly thereafter in a stolen vehicle, which contained the gun used in the second robbery. Therefore, even if the trial court erred by admitting the identification evidence, “in view of the overwhelming evidence of [the defendants’] guilt, such error ... would be harmless.”

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-8-7 (a).

       OCGA § 16-5-21 (b) (2).

       OCGA § 16-5-23.1 (a).

       OCGA § 16-11-106 (b) (1). Williams and Merritt also were charged with obstruction of a law enforcement officer, but the trial court directed a verdict as to that count.

       See Jackson v. Virginia, 443 U. S. 307, 319 (HI) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Both Anthony and Adiano consumed “some” drinks that evening.

       Bryant conceded at trial that dispatch records from that evening do not indicate that dispatch mentioned a green minivan.

       Davii Merritt was not tried with Montaviis Merritt or Williams.

        Salazar v. State, 245 Ga. App. 878, 878-879 (X) (539 SE2d 231) (2000).

       (Punctuation and footnote omitted.) Singleton v. State, 324 Ga. App. 141, 142 (1) (749 SE2d 753) (2013).

        Salazar, 245 Ga. at 879 (1).

        Neil v. Biggers, 409 U. S. 188, 199-200 (III) (93 SCt 375, 34 LE2d 401) (1972).

       (Citation and punctuation omitted.) Scandrett v. State, 293 Ga. 602, 603 (2) (748 SE2d 861) (2013).

       See Thomason v. State, 268 Ga. 298, 305 (3) (486 SE2d 861) (1997) (interpreting police officers’ statement “we’ve got him” to witnesses to “merely confirm[ ] that a suspect was being held who matched the lookout description, and that [the witnesses] should proceed to either confirm or deny that the proper individual had been apprehended”); Butler v. State, 276 Ga. App. 161, 164 (1) (623 SE2d 132) (2005) (“The fact that [the defendant] was in a police car when he was identified does not alone render the identification inadmissible.”); Jackson v. State, 260 Ga. App. 848, 850 (3) (581 SE2d 382) (2003) (“[T]he fact that [the defendant] was surrounded by uniformed officers and was handcuffed when the victim identified him does not render the identification per se inadmissible.”).

       (Footnote omitted.) Singleton, 324 Ga. App. at 144 (1). See also Sorrells v. State, 326 Ga. App. 888, 892-893 (1) (755 SE2d 586) (2014) (physical precedent only); Fitzgerald v. State, 279 Ga. App. 67, 68-69 (1) (630 SE2d 598) (2006).

       See Davis v. State, 216 Ga. App. 580, 582 (3) (455 SE2d 115) (1995). See also McGee v. State, 209 Ga. App. 261, 262 (1) (433 SE2d 374) (1993), disapproved on other grounds, Jones v. State, 272 Ga. 900, 903 (2), n. 13 (537 SE2d 80) (2000).