author: Branch, Judge.

text:
    A16A0952.
    WEST v. THE STATE.
    (793 SE2d 180)
   Branch, Judge.

On appeal from his conviction for sexual battery, Willie C. West, Jr., argues that the evidence was insufficient and that the trial court erred when it denied his motion for new trial asserting a violation of his constitutional right to a speedy trial. We find the evidence for his conviction sufficient, but we also conclude that the trial court failed to consider some of the factors critical to West’s constitutional speedy trial claim. We therefore vacate and remand for further proceedings consistent with this opinion.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation and emphasis omitted).

Thus viewed in favor of the trial court’s judgment, the record shows that on September 5, 2009, the nine-year-old victim was playing in the yard of a friend’s house and was bent over petting West’s dog when West rubbed her “front bottom private area” over her clothing for “a few seconds.” West, who is the friend’s step-grandfather, told the victim to wear a dress when she visited on the next day The victim immediately reported the touching to her mother, who notified the police and identified West. The victim repeated her account of the attack to a child advocate, who testified as to the circumstances and content of her interview of the victim at trial. During an interview by an investigator, West did not deny touching the child, but explained that he was trying to prevent her from being bitten by his dog.

West, who had been out on parole from a 1973 murder conviction for more than ten years, was arrested on September 17, 2009. That same day, West requested an appointed attorney A preliminary hearing and a bond hearing were held, and bond was initially granted in the amount of $20,000. On October 29, 2009, West was charged with child molestation. On November 5, 2009, West went before the parole board, which revoked his parole. West thus spent the rest of the period from November 2009 to his June 2013 trial in confinement,.

On November 20, 2009, a public defender filed a motion for discovery on West’s behalf. More than a year later, on December 29, 2010, West filed a prose speedy trial demand, citingOCGA § 17-7-170, Georgia’s speedy trial statute. Nothing was filed in the case between December 2010 and January 6, 2011, when the trial court issued an order that West be transported to court for his arraignment, which took place on February 11, 2011. A status conference was held on March 25. Although he was originally scheduled to go to trial on April 26, 2011, West began complaining to the public defender’s office in early April 2011 about the quality of the representation he was receiving, alleging that he had heard nothing from the public defender’s office before his arraignment and that the attorney representing him at that time was “totally unprepared.”

West made further complaints to the trial court about his representation in the course of the spring and summer of 2011 and filed a bar complaint against his attorney in August 2012. Between February 2011 and June 2013, trial was scheduled seven times. The State asked for a continuance on only one of these occasions, in December 2011, because the victim’s forensic interviewer, whom the State characterized as a “necessary witness,” was unavailable. At the conclusion of the trial held in June 2013, a jury found West guilty of sexual battery; he was convicted and sentenced to five years without credit for time served. In an amended motion for new trial, West’s counsel asserted that his constitutional right to a speedy trial had been violated. At the hearing on West’s motion for new trial, West testified that his parole from a 1973 murder conviction was revoked as a result of his arrest for sexual battery; that his assigned attorney “was not representing [him] as [he] wanted to be represented”; that he had wanted to hire a private attorney but could not do so because he was indigent; and that he had filed a bar complaint against his attorney in August 2012. At the same hearing, the prosecutor testified that West had asked for and was granted continuances “six or seven” times because he was dissatisfied with his representation.

In October 2015, the trial court denied West’s motion for new trial, finding that his constitutional speedy trial right was not violated because (1) part of the delay was attributable to West, “who repeatedly requested a continuance, ostensibly for the purpose of hiring new counsel, which [he] failed to do”; (2) West “failed to adequately assert his right” in that he filed his statutory speedy trial demand pro se while he was represented by counsel, with the result that the pro se demand “had no legal effect”; and (3) West had failed to show that his defense at trial was prejudiced by the delay

1. Although West contests the sufficiency of the evidence against him, it is axiomatic that the testimony of a child victim of sexual battery is alone sufficient to authorize a guilty verdict. See Lee v. State, 306 Ga. App. 144, 145 (1) (701 SE2d 582) (2010). It follows that the evidence outlined above, including the testimony of the victim at trial, was sufficient to sustain West’s conviction for sexual battery. See OCGA § 16-6-22.1 (a), (b) (defining sexual battery as “intentionally mak[ing] physical contact with the intimate parts of the body of another person without the consent of that person”); Watson v. State, 297 Ga. 718, 721 (2) (777 SE2d 677) (2015) (noting that sexual battery “does not necessarily involve sexual conduct”); Jackson, supra.

2. West also argues that the trial court abused its discretion when it denied his plea in bar based on an alleged violation of his constitutional right to a speedy trial.

“The United States and Georgia Constitutions both guarantee a criminal defendant the right to a speedy trial[.]” Weems v. State, 310 Ga. App. 590, 590-591 (714 SE2d 119) (2011). “[T]hese rights attach at the time of arrest or when formal charges are brought, whichever is earlier.” Id. at 591 (punctuation and footnote omitted). We examine West’s constitutional speedy trial claim under the four-part analysis established in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972), and clarified in Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992).

In the first stage of the Barker-Doggett analysis, “the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial.” Ferguson v. State, 303 Ga. App. 341, 342 (693 SE2d 578) (2010) (citation and punctuation omitted). “The pretrial delay is measured from the arrest of the accused or initial formal accusation brought against the accused to the beginning of the trial.” Weems, 310 Ga. App. at 591 (footnote omitted). “As a delay approaches one year, it generally is presumptively prejudicial.”Id. at592 (1) (footnote omitted). “[I]fthe trial court finds thatthe delay has passed the point of presumptive prejudice, it must then engage in the second stage of the analysis,” in which it considers “(i) whether the delay before trial was uncommonly long, (ii) whether the government or the criminal defendant is more to blame for that delay, (iii) whether, in due course, the defendant asserted the right to a speedy trial, and (iv) whether he or she suffered prejudice as the delay’s result.” Id. at 591 (citation and punctuation omitted). “Absent an abuse of discretion, we must affirm the trial court’s balancing and weighing of the four Barker factors.” State v. Thompson , 334 Ga. App. 692, 693 (780 SE2d 67) (2015) (citation and punctuation omitted).

However, where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished. In addition, the trial court’s order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker analysis.

State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011) (citations and punctuation omitted).

(a) Whether Delay was Presumptively Prejudicial. “The pretrial delay is measured from the arrest of the accused or initial formal accusation brought against the accused to the beginning of the trial.” Weems, 310 Ga. App. at 591 (citation omitted). West’s trial was delayed three years and nine months, or 45 months, from the date of his arrest in September 2009 to the trial held in June 2013. Although the trial court made no finding of presumptive prejudice, the 45-month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker-Doggett test, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) (620 SE2d 184) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) (555 SE2d 710) (2001).

(b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long.

“[A] trial court’s order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker analysis.” Porter, 288 Ga. at 526 (2) (a), citing Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

When addressing the first factor of the Barker-Doggett test, the length of delay plays a different role than in the first stage of this analysis and is not given the same degree of weight. Rather, the length of delay is considered in balance with the three other factors.

Weems, 310 Ga. App. at 592 (2) (a) (footnote omitted). This trial court made no findings as to the length of the delay suffered by West or whether that delay was uncommonly long in relation to the other three Barker-Doggett factors. Even where a trial court properly finds that a delay is sufficiently long to trigger a second-part Barker-Doggett analysis, it errs when it “fail[s] to accurately determine the [specific] length of the delay” and when it “fail[s] to weigh the length of that delay in [its Barker-Doggett] analysis.” Hayes v. State, 298 Ga. App. 338, 340 (2) (a) (680 SE2d 182) (2009).

(ii) Responsibility for the Delay. As our Supreme Court has noted, “the reason 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.” Ruffin v. State, 284 Ga. 52, 59 (2) (b) (ii) (663 SE2d 189) (2008).

The trial court found that “part of the delay” was attributable to West in that he “repeatedly requested a continuance, ostensibly for the purpose of hiring new counsel, which [he] failed to do.” The trial court failed to consider, however, the specific extent to which any portion of the entire 45-month delay was attributable to West or the State.

(iii) Timely Assertion of the Speedy Trial Right. Although

the filing of a speedy trial demand is not a prerequisite for a plea in bar for failure to have a speedy trial on constitutional grounds [,] a defendant who fails to assert the right to a speedy trial at any point in the trial court will have an extremely difficult time establishing a violation of this constitutional right.

See Ditman v. State, 301 Ga. App. 187, 193 (2) (c) (687 SE2d 155) (2009) (citation and punctuation omitted). Such a failure on the part of a defendant who later files a plea in bar is attributed “strong evidentiary weight.” Marshall v. State, 286 Ga. 446, 447 (1) (c) (689 SE2d 283) (2010) (citation and punctuation omitted).

West did not assert his constitutional speedy trial right at any time before or during trial, and the trial court found that West had “failed to adequately assert his right to a speedy trial.” The trial court also held, correctly, that West’s pro se demand had “no effect” because he was represented by counsel at the time the demand was made. See Ditman, 301 Ga. App. at 194 (2) (c) (“a pro se demand for a speedy trial filed while a criminal defendant is represented by counsel [is] of no legal effect whatsoever”) (citation and punctuation omitted); Ware v. State, 267 Ga. 510, 511 (2) (480 SE2d 599) (1997); Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001) (where a defendant filed “no statutory demand for speedy trial pursuant to OCGA § 17-7-171 and did not raise his constitutional right to a speedy trial for the 51 months between his arrest and the filing of his motion to dismiss,” the delay in asserting the right “must be weighted against” him); Simmons v. State, 304 Ga. App. 39, 43 (2) (c) (696 SE2d 75) (2010) (13-month delay in asserting the right was properly weighed against a defendant). The trial court did not err when it concluded that this factor should weigh heavily against West.

(iv) Prejudice. “The prejudice created by the delay is the fourth and final factor in our analysis, in which we consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.” Bass, 275 Ga. App. at 261 (4) (citation and punctuation omitted); see also Hughes v. State, 228 Ga. 593, 596 (1) (d) (187 SE2d 135) (1972) (“To sustain [a defendant’s] contention that there was a violation of his constitutional right to a speedy trial, not only must delay be shown, but that such delay was purposeful, oppressive, or prejudicial^]”) (citations and punctuation omitted). “[I]n determining whether a pre-trial delay gives rise to a presumption of actual prejudice, the trial court must examine the delay relative to all other factors, including the complexity of the case and the evidence existing on the date the State initiated the prosecution.” Hayes, 298 Ga. App. at 348 (2) (d) (emphasis supplied), citing Barker, 407 U. S. at 531 (IV) (“the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge”).

Although the trial court held that West had suffered no prejudice as a result of the delay because West’s time in confinement, was due to a parole hold for a prior murder conviction, and because West failed to demonstrate that his trial defense was in any way prejudiced, there is no indication in the trial court’s order that it considered either the complexity or simplicity of the case against West from the time he was indicted until trial. See Hayes, 298 Ga. App. at 349-350 (2) (d) (in light of a 54-month delay, the “relatively uncomplicated nature” of the charges against the defendant, “the fact that the government’s investigation was complete at the time of [the defendant’s] original indictment, and the fact that the delay resulted from the State’s deliberate conduct,” the reasons for the delay weighed heavily against the State).

Decided November 1, 2016.

Long D. Vo, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Justin M. Mullís, Assistant District Attorneys, for appellee.

In sum, the trial court failed to make sufficient findings of fact on parts (i), (ii) and (iv) of the second part of the Barker-Doggett analysis — that is, the legal effect of the 45-month delay in this case, the responsibility of the parties for that delay, and the prejudice suffered by West as a result of that delay (taking into account the relative complexity of the case against him). We therefore vacate the judgment and remand the case with direction that the court make sufficiently detailed findings of fact on these issues and then perform a discretionary balancing of all four Barker-Doggett factors. See, e.g., Porter, 288 Ga. at 527 (2) (c) (2) (vacating and remanding for reconsideration when trial court’s order did not discuss how more than seven years of an eight-year delay “should be attributed to or weighed against the State or [the defendant]”).

Judgment vacated and case remanded with direction.

Ellington, P. J., and Mercier, J., concur.

       The State’s single motion for continuance, for example, was explained by its need for a particular witness. Such a motion by the State “will rarely, if ever, support a [defendant’s] speedy trial claim.” Hayes, 298 Ga. App. at 342 (2) (b). Further, and although West’s complaints about his counsel began in April 2011 and continued through 2012, the United States Supreme Court has held that even when a criminal defendant “repeatedly and adamantly demand[s] to be tried,” “assigned counsel’s failure to move the case forward does not warrant attribution of delay to the State.” Vermont v. Brillon, 556 U. S. 81, 89 (I), 92 (III) (A) (129 SCt 1283, 173 LE2d 231) (2009) (punctuation omitted). West’s assigned counsel’s inaction was therefore not chargeable as delay to the State. See Weis v. State, 287 Ga. 46, 49-54 (1) (b) (694 SE2d 350) (2010) (attributing responsibility for delay to a defendant who refused to work with a public defender and attempted to proceed with hired counsel whom he could not pay).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A16A1252.
    PARKER v. THE STATE.
    (793 SE2d 173)
   Boggs, Judge.

A jury found Daireem Parker guilty on two counts of armed robbery, two counts of aggravated assault, and one count each of aggravated battery and possession of a firearm during the commission of a felony. Following the denial of his amended motion for new trial, Parker appeals, asserting that the trial court erred in finding he opened the door to character evidence and in limiting his explanation of a prior criminal charge. He also argues that he received ineffective assistance of trial counsel. For the following reasons, we affirm.

Construed in favor of the verdict, the evidence showed that a woman and her boyfriend were walking from the parking deck to their apartment around 2:00 a.m. when “two guys with guns” approached them and asked them for their cell phones. She testified that the first man did most of the talking. The female victim handed the men her phone, and her boyfriend told them he did not have a phone, but complied when the men pulled out guns.

The two men then told the couple that they “were going to walk to the elevator.” As they did so, the men pointed guns to the victims’ heads. The female victim attempted to engage the first man in conversation, but he told her to “shut the f**k up before I kill you.” When they arrived at the elevator, the first man forced the female victim to give her purse to two other men who appeared and entered the elevator with the four of them. One of them was carrying a crowbar. The two other men went through her purse finding six dollars and her debit card and asked her how much money she had in her bank account. After they arrived at the first floor, the first man told the victims that they “were going to walk to the exit, the visitor’s exit,” but when he saw “something and got scared,” he told them they were going to take him to their apartment. When the female victim told the first man, “I can’t do that,” and the boyfriend told him “there was no way that was going to happen,” he hit the female victim across the face with the gun causing it to fire. At the same time, the boyfriend was hit in the back of the head although he could not tell which of the four men hit him, and he did not witness his girlfriend being hit in the face because he blacked out for “a minute or two.” The female victim witnessed her boyfriend fall in front of her, and the four men then ran in the opposite direction. The female victim believed that her boyfriend “got shot, but later on we found out that he was hit on the back of the head by the crowbar.”

When the men fled, the victims ran out of the visitor’s door, and the female victim screamed for help. When she could get no one at the apartment complex to let them in, they ran to a nearby gas station where the female victim saw three of the assailants in “a creamish van; SUV,” and the first man in “a blue Ford with his headlights off, driving behind them.” When she saw the men, she pushed her boyfriend “into the bushes and I got on top of him. And then [the first man] drove off.” She described the vehicle the first man was driving as a “blue Ford Taurus with, like, a small spoiler.”

Detectives were able to identify a vehicle matching this description on surveillance video and retrieved the tag number. They discovered that the vehicle was registered to Parker’s mother, who told officers and testified at trial that Parker and her other son “are primarily the other people that use the vehicle.” Parker’s mother “named a person named Black [who] also uses the car,” but officers “never identified who Black was.” She explained at trial that there were others who drove her car, but she didn’t “know their names. I don’t even know their nicknames.”

Officers created two photographic lineups. Lineup A included a picture of Parker (as picture #1), and Lineup B included a picture of his brother (as picture #2). The boyfriend could not positively identify anyone in either lineup: “I think . . . [L]ineup [B], I saw someone that looked like it could have been one of the guys, but then in [Lineup A], I didn’t, right off the bat no. And I didn’t want to just pick some random person.” He explained further that in Lineup B, after a few minutes, he chose photograph #4 “because he looked like he could have been one of the guys that was there,” but that he told officers that he “was not a hundred percent sure.” With regard to Lineup A, which included the photograph of Parker, the boyfriend could not “recognize anybody right off” and was unable to pick anyone out of the lineup.

When shown Lineup B with Parker’s brother, the female victim could not readily identify anyone. She chose #4 as “looking] familiar; he could have been there,” but she was not certain. When shown Lineup A containing the picture of Parker, the female victim chose Parker immediately, “started crying and shaking, and backed away from the photo.” She testified that it only took her “one second” to identify Parker from the lineup and that she was certain he was the first man out of the four who robbed her. Both victims identified Parker at trial as the first man they encountered, and the female victim identified him at trial as the one who hit her with the gun.

After obtaining a warrant for Parker’s arrest, an officer obtained information that he had an appointment at a certain location. Officers arrived at the location, observed Parker arrive in his mother’s blue Ford Taurus, and approached him while he was inside the location, waiting in line. An officer showed Parker his badge and explained that he had a warrant for his arrest, and officers escorted him outside to a patrol car after handcuffing him. As an officer was reading the charges to Parker, “out of the corner of [his] eye, [he] saw [Parker] make a quick move like this to the left. He unlocked the — he unlocked the door and stuck his leg out, and was trying to jump out of the car while it was rolling at a slow pace.” An officer grabbed Parker, Parker “knocked [his] arms off” and “was able to get out of the vehicle and he fled with his hands behind his back.” The officer gave chase and repeatedly ordered Parker to “get on the ground.” Parker ignored the officer’s commands, but the officer grabbed him and forced him to the ground.

A detective testified that both victims’ earlier descriptions of three of the four men were consistent with one another. Parker’s height and weight were also consistent with the victims’ description. The victims were not able to make any other identifications, and no other suspects were ever identified or arrested.

Parker testified in his own defense that he did not rob and assault the victims, that he had never been to the apartment complex, and that he and his brother both had friends who also drove his mother’s blue Ford Taurus. Parker explained that he fled after he was placed in handcuffs because he thought he was “being kidnapped.” He testified that he initially assumed that the men who approached him were police, but when they put him in the car, he “didn’t think they were the police.” Parker explained that he “started to get kind of scared” when he saw the police vehicle because it was an older model car and was really dirty with “dirty clothes on the back seat.. . [and] old french fries on the floor.” He explained further that because the officers wore plain clothes, put the handcuffs on him “really, really tight,” did not lock the door when they put him in, and “didn’t go through any kind of police procedure” or tell him why he was being arrested, he believed he was being kidnapped.

1. Parker first asserts that the trial court erred in finding that he opened the door to character evidence and that the State improperly impeached him pursuant to OCGA § 24-6-609 because he was only convicted of misdemeanors. Although the parties argue that the issue is one of opening the door to character evidence, our examination of what transpired at trial reveals that the issue is more properly characterized as impeachment by disproving a fact. OCGA § 24-6-621 (“A witness may be impeached by disproving the facts testified to by the witness.”). In either case, we review the court’s ruling on this issue for an abuse of discretion. See, e.g., Arnold v. State, 305 Ga. App. 45, 51 (4) (699 SE2d 77) (2010).

During direct examination, Parker’s trial counsel asked him if there was any other person he would have allowed to drive his mother’s car. Parker responded that there were times when the car had “been gone two, three days . .. my mom and me .. . had to go pick the car up .. . and drive the car back to the house.” Trial counsel then asked Parker, “So you . . . don’t know nothing about this crime?” Parker responded:

No. I have no idea about the crime. When those people — when the people came in there and said that they — they — they’re a hundred percent sure that it’s me; like looking at them in the eye and the severity of the situation, like — like I — I haven’t been in no situation like this. This is a lot. And, so, for somebody that you’ve never seen before to just look at — to look at you and tell you in your face, I can’t even — I can’t — I can’t explain the feeling. I cannot explain the feeling to you, like, how — how terrified you get when you —.

The State then objected, and outside of the presence of the jury, asserted that Parker had opened the door to his character by stating that “he has never been in trouble before, which is not the case.” The State argued that Parker’s prior charge and conviction that included the offense of family violence battery, “goes directly in the face of his statement and that the State should be allowed to go into all of that at this time.” Parker countered that he did not open the door to his character but rather meant that he had never been “falsely accused of — robbing and kidnapping people.”

The trial court agreed with the State finding that Parker “clearly opened the door”:

So I think I’m going to allow that to come in. I’m going to allow it to come in that he was charged with an aggravated assault for which he pled to a family violence battery. That I will allow in, because I think it goes to the fact that his testimony was, I’ve never been in this situation. What is this situation? This situation here is an aggravated assault. He has been in a situation like this, which was, in fact, an aggravated assault, so I’m going to allow that in.

Parker’s statement that he had never “been in no situation like this,” “situation” could have been interpreted to refer to a charge of aggravated assault, or even more broadly, facing criminal charges. And it was within the trial court’s discretion to determine whether the jury might have interpreted his testimony in this manner. Holloman v. State, 291 Ga. 338, 342 (5) (729 SE2d 344) (2012) (it was within trial court’s discretion to determine whether jury might have interpreted defendant’s testimony, that he “got convicted once of possession of cocaine,” as implying he had only one previous encounter with the law). As the trial court ruled, the State was therefore allowed to disprove the fact Parker testified to by impeaching him with his prior charge for aggravated assault, even though that charge resulted in a conviction on a lesser offense. SeeOCGA § 24-6-621; see also Harris v. State, 333 Ga. App. 118, 121 (2) (775 SE2d 602) (2015) (where defendant stated that “he had ‘never done nothing like that’ either before or since” having engaged in sexual relations with witness when she was 14 years old, trial court did not abuse its discretion in allowing him to be impeached to disprove that fact with evidence that he had in fact engaged in improper sexual contact with another minor girl). We therefore find no merit in this claim of error.

2. Parker contends that the trial court erred in sustaining the State’s objection to his explanation of “what the prior charges were for.” On cross-examination, Parker admitted that three years earlier he had been charged with aggravated assault, family violence battery, and cruelty to children, but pleaded guilty to misdemeanor family violence battery, reckless conduct, and cruelty to children. Later during redirect, Parker’s counsel asked him who was involved in the incident that resulted in the charge of misdemeanor family violence battery Parker responded, “My — the mother of my kids,” when the State objected that such explanation was not relevant. The trial court agreed and sustained the objection.

Parker cites Davis v. State, 209 Ga. App. 755 (434 SE2d 752) (1993), in support of his argument that he should have been allowed to explain the circumstances of the charges. In Davis, we held that an officer’s brief passing reference to a prior arrest fell short of putting the defendant’s character in issue but that it was error not to allow the appellant to cross-examine the officer about the circumstances of that arrest. Id. at 759 (3). We concluded, however, that any error was harmless. Id.

Here, in contrast, the trial court ruled that Parker opened the door to evidence that he had a previous charge for aggravated assault after he testified that he had never “been in no situation like this.” The prior charge and conviction were therefore admissible to disprove his statement, as allowedby OCGA § 24-6-621: “Awitness may be impeached by disproving the facts testified to by the witness.” And the test on deciding the scope of redirect is whether the court abused its discretion. Speed v. State, 270 Ga. 688, 693 (18) n. 29 (512 SE2d 896) (1999). Because the prior charge and conviction were admitted for the purpose of disproving a fact, we cannot say that the trial court abused its discretion in not allowing Parker to present evidence about the circumstances of the crime, as opposed to an explanation of why his direct testimony was not inconsistent with the fact of his conviction, which Parker did without objection. See Williams v. State, 171 Ga.App. 927, 928 (2) (321 SE2d 423) (1984) (evidence of prior juvenile arrests admissible for impeachment pursuant to predecessor to OCGA § 24-6-621 after defendant testified that he had never before been in any kind of trouble); compare Lindsey v. State, 282 Ga. 447, 448-450 (2) (651 SE2d 66) (2007) (introduction of arrest record improper method of impeachment where defendant stated that he had never been convicted of a felony).

3. Parker argues that this trial counsel was ineffective in failing to object to the State’s closing argument.

To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 685, 695 (104 SCt 2052, 80 LE2d 674) (1984). To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.

(Citation and punctuation omitted.) Graham v. State, 337 Ga. App. 664, 670 (3) (788 SE2d 555) (2016).

Further, although both the performance and prejudice components of an ineffectiveness inquiry involve mixed questions of law and fact, a trial court’s factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous.

(Citation omitted.) Smith v. State, 296 Ga. 731, 733 (2) (770 SE2d 610) (2015).

In closing, the prosecutor argued:

He’s not new to this rodeo. He’s been arrested before, for the same crime, aggravated assault. And not only has he been arrested before, he’s been convicted of the violent crime of family violence battery and cruelty to children in the third degree, not one count but two counts. And in fact he had just been convicted, just a month earlier, on March 22nd of 2011, 30 days prior to when he committed this offense. Do you believe that somebody who’s been convicted of those crimes is not capable of committing this offense? Is not capable of holding somebody, not one but two people up at gunpoint? Do you think that somebody who’s committed that prior offense is not capable of talking to his friends and planning a robbery in an apartment building on two unknowing victims, two strangers late at night, when they hope they can get away with it because nobody else is around? No. Folks, this is not his first rodeo. He is not the innocent boy that he wants you to believe he is.

Parker argues that this was an impermissible argument on his propensity to commit the crimes when the evidence of the prior charge and conviction were only introduced for purposes of impeachment.

At the hearing on the motion for new trial, when asked about her failure to object at closing, defense counsel responded that there was no strategic reason not to object: “It got past me. I should’ve objected.” But counsel later acknowledged that if she had objected it would have “brought more attention to those charges than had [she] just let the argument go.” But even if counsel had asserted that her failure to object was strategic, the Supreme Court of Georgia has held that where a prior conviction is used to impeach the defendant, it is not a reasonable trial strategy to “permit the assistant district attorney to argue to the jury that appellant’s prior convictions . . . established appellant had a propensity to commit crime.” Phillips v. State, 285 Ga. 213, 220 (5) (b) (675 SE2d 1) (2009). The court explained that evidence of a similar transaction may be admissible to show that a defendant has a “tendency or propensity to react to similar conditions in a similar way,” id. at 219 (5) (b), but when a prior conviction is admitted to attack the defendant’s credibility, “the conviction’s purpose is limited to an attack on the defendant’s credibility and, unless the prior conviction also is admitted as a prior similar transaction, it is impermissible to use the prior conviction to establish the defendant as a bad person with a propensity for crime.” Id. at 219-220 (5) (b).

Here, evidence of Parker’s previous charge and conviction was admitted to attack his credibility by disproving facts to which he testified. See OCGA § 24-6-621. This evidence was not admitted as evidence of other acts (formerly “similar transactions”) pursuant to OCGA § 24-4-404 (b). Even ifit had been admitted for such a purpose, it could not be used to show his propensity to commit a crime. See Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016). The State therefore could not argue that this evidence showed that Parker had a propensity to commit aggravated assault here, and trial counsel was ineffective in failing to object to this portion of the prosecutor’s closing statements. See Phillips, supra, 285 Ga. at 220 (5) (b).

Under these circumstances, we must now determine whether there is a reasonable probability that the result of trial would have been different had counsel objected. As explained in Strickland, supra, 466 U. S. at 695 (III) (B), “[wjhen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Here we cannot say that there was such a probability in the face of counsel’s error. The jury heard evidence of Parker’s prior charge and conviction without the benefit of a limiting instruction, and it is the prior charge and conviction itself, the evidence used to impeach Parker, that weighs on his credibility The evidence was sufficient to sustain Parker’s conviction, and by no means was the verdict only weakly supported by the record such that it was more likely than not to have been affected by the error. See id. at 696 (III) (B). The female victim’s identification of Parker in the lineup was immediate and unequivocal, he was one of two primary drivers for the vehicle seen leaving the scene, and the victims did not identify any other primary driver in a lineup.

Decided November 1, 2016.

Daniel H. Petrey, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

While we have often held that a defendant fails to satisfy the second prong of Strickland where the evidence is overwhelming, strong evidence of guilt can also support the conclusion that no reasonable probability of a different outcome exists. See Whitaker v. State, 291 Ga. 139, 142 (2) (728 SE2d 209) (2012) (where strong evidence against defendant, no reasonable probability that outcome of trial would have been different had counsel objected); Henry v. State, 316 Ga. App. 132, 136 (7) (729 SE2d 429) (2012) (same). We therefore hold that Parker’s ineffective assistance claim fails as he has not shown a reasonable probability that the outcome of the trial would have been different, had counsel objected to the State’s closing argument. See, e.g., Herrington v. State, 332 Ga. App. 828, 830-833 (2) (775 SE2d 195) (2015) (no reasonable probability that outcome oftrial would have been different had counsel objected to evidence of two prior false information convictions).

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

       The female victim suffered a broken jaw and a hemorrhage in her right eye, and two of her teeth were knocked out. She received stitches in her eye and has a permanent scar on her lip. The boyfriend received stitches to the back of his head and has a permanent scar.

       Although at one point the court misstated that Parker opened the door to character, it is clear the court ruled Parker opened the door to evidence to disprove that he had, as the court stated, “never been in this situation. What is this situation? The situation here is aggravated assault. He has been in a situation like this. . . .” And the trial court in its order on the motion for new trial explained further that Parker was properly impeached pursuant to OCGA § 24-6-621 (impeachment by contradiction).

       Our Evidence Code has since been revised to allow evidence of other crimes, wrongs, or acts to prove, among other things, motive, opportunity, intent, and preparation, but to prohibit evidence that an accused has a propensity to commit a crime. See Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016); OCGA § 24-4-404 (b).

       Parker did not request a limiting instruction after the trial court determined that he could be impeached with the prior charge and conviction. See State v. Byrd, 255 Ga. 665, 668 (341 SE2d 455) (1986) (“reasonable and proper to insist upon a request by a defendant who wishes to have the trial judge give limiting instructions for impeachment evidence used in the mode of disproving facts testified to”). But the court instructed the jury as follows at the close of evidence:
      To impeach a witness is to show that witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified or the credibility of a witness may be attacked by disproving the facts to which the witness testified... you may determine whether there was evidence that a witness testified falsely about an important fact during the course of the trial as opposed to some other time before this trial.

       We note that Parker does not assert the trial court erred in failing to sua sponte give a limiting instruction for the admission of his prior charge and conviction, nor does he assert that his trial counsel was ineffective in failing to request one. In the absence of an instruction of how to properly consider this evidence, the jury had the freedom to consider it for any purpose, including the purpose of disproving Parker’s statement that he had never “been in no situation like this.”


text:
    A16A1469, A16A1532.
    BURROUGHS v. GEORGIA PORTS AUTHORITY (two cases).
    (793 SE2d 538)
   Branch, Judge.

In these consolidated appeals, Percy and Zina Burroughs appeal the dismissal of their tort claims against the Georgia Ports Authority (“GPA”) in a suit arising out of injuries Mr. Burroughs suffered when a container was dropped onto the flatbed truck that he was driving. The trial court held that Mr. Burroughs was not authorized to file a second renewal action after the running of the statute of limitation and that Mrs. Burroughs filed suit after the applicable statute of limitation had run for her claim of loss of consortium. For the reasons shown below, we affirm.

Our review of a trial court’s ruling on a motion to dismiss is de novo. Pinnacle Benning v. Clark Realty Capital, 314 Ga. App. 609, 612 (724 SE2d 894) (2012).

The record in the two appeals shows the following undisputed procedural facts. Mr. Burroughs was injured on January 27, 2012, and he gave ante litem notice of a claim to the relevant state agencies on December 5, 2012, as required by the Georgia Tort Claims Act (“GTCA”) Mr. Burroughs filed his initial complaint (the “first action”) on November 15, 2013, but voluntarily dismissed that action without prejudice on May 8, 2014. Mr. Burroughs refiled his action on November 7, 2014, within six months of the prior dismissal. In that second action, Mrs. Burroughs appeared for the first time as a co-plaintiff and asserted a claim of loss of consortium. GPA moved to dismiss the second action on the grounds that the plaintiffs had failed to attach copies of relevant ante litem notices as required under the GTCA and that Mrs. Burroughs’s claim was barred by the applicable statute of limitation. Almost three months after GPA moved to dismiss, the plaintiffs amended the complaint to attach a copy of Mr. Burroughs’s December 5, 2012 ante litem notice. On April 8, 2015, however, the trial court granted the motion to dismiss without prejudice on the ground that the amendment was filed outside of the 30-day time period for amendments set forth in OCGA § 50-21-26 (a) (4).

On July 14, 2015, more than a year after the voluntary dismissal of the first action and more than three years after the initial incident, the plaintiffs then filed the present action (the “third action”) against GPA, raising the same claims raised in the earlier actions. GPA again moved to dismiss. The trial court granted the motion with regard to Mr. Burroughs on the grounds that (1) Mr. Burroughs’s claims were governed by a two-year statute of limitation; (2) the third action could not be a renewal of the first action because the third action was not filed within six months of the dismissal of the first action as required; (3) the second action was the only renewal available to the plaintiffs and that case had been dismissed; and (4) even if the second action were deemed void and did not count as a renewal action, the third action was untimely as a renewal of the first action as already shown. Finally, the court initially held that Mrs. Burroughs’s claim was governed by the four-year limitation period found in OCGA § 9-3-33 for claims of loss of consortium and that, therefore, her claim was timely filed. In response to a motion for reconsideration, however, the court also dismissed Mrs. Burroughs’s claim because it was time barred by the two-year limitation of the GTCA. Mr. and Mrs. Burroughs appealed separately, but we have consolidated their appeals for review.

1. The GPAis a state agency entitled to the defense of sovereign immunity Miller v. Ga. Ports Auth., 266 Ga. 586, 589 (470 SE2d 426) (1996). The state has waived that immunity for the torts of state officers and employees while acting within the scope of their official duties or employment by enacting the GTCA, id., but only within the limitations of the act itself. OCGA §§ 50-21-21 (a); 50-21-23; Ga. Ports Auth. v. Harris, 274 Ga. 146, 149 (2) (549 SE2d 95) (2001). One of those limitations is that the GTCA has its own two-year statute of limitation:

For tort claims and causes of action which accrue on or after July 1, 1992, any tort action brought pursuant to this article is forever barred unless it is commenced within two years after the date the loss was or should have been discovered.

OCGA § 50-21-27 (c); see Sylvester v. Dept. of Transp., 252 Ga. App. 31, 32 (555 SE2d 740) (2001). Thus, any claim for which immunity is waived by the GTCA is subject to a two-year limitation period. Accordingly, even if Mrs. Burroughs’s claim of loss of consortium is a tort for which sovereign immunity is waived by the GTCA, which we need not decide, Mrs. Burroughs filed her claim outside of the two-year limitation period, and it is therefore barred. The trial court therefore correctly dismissed Mrs. Burroughs’s suit.

With regard to Mr. Burroughs, he filed the first action approximately 22 months after his injury and thus within the applicable statute of limitation. But by the time that Mr. Burroughs voluntarily dismissed the first action in May 2014, the limitation period had expired, and, accordingly, the second and third actions were filed outside of the limitation period. Accordingly, whether Mr. Burroughs’s third action relates back to the time that he filed his first action is controlled by the renewal statute.

2. Mr. Burroughs was authorized to file the second action as a renewal action under OCGA § 9-2-61 because he filed the second action within six months after the dismissal of his first action.

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontin ues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later ....

OCGA § 9-2-61 (a) (emphasis supplied). Mr. Burroughs was therefore authorized to renew the first action. But because he dismissed the first action outside of the limitation period, Mr. Burroughs was entitled to renew his suit only once, as is clearly stated in the remainder of OCGA § 9-2-61 (a):

. . . provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

Thus, given that his second action was dismissed, Mr. Burroughs was not entitled to file the third action as a second renewal of the first action. Hatton v. MARTA, 310 Ga. App. 141, 141 (1) (712 SE2d 141) (2011) (third action not authorized after second action was dismissed by the court where plaintiff had already used the renewal privilege in filing the second action); White v. KFC Nat. Mgmt. Co., 229 Ga. App. 73, 75 (2) (493 SE2d 244) (1997) (after trial court dismissed first action, attempted second renewal outside of the running of the statute of limitation was prohibited under OCGA § 9-2-61); Worley v. Pierce, 211 Ga. App. 863, 864 (1) (440 SE2d 749) (1994) (third action not authorized where plaintiff voluntarily dismissed two earlier actions after the expiration of the applicable limitation period). Nor was he allowed to file the third action as a renewal of the first action because the third action was filed more than six months after the dismissal of the first action. OCGA § 9-2-61 (a).

Mr. Burroughs argues, however, that under the present circumstances, the involuntary dismissal of the second action should not be deemed a voluntary dismissal and that, therefore, Mr. Burroughs’s third action constituted his one and only attempt to renew his first action. He states that the second action was dismissed on “a hyper-technical procedural requirement of the Georgia Tort Claims Act. . . which requires dismissal of a complaint for failure to attach the required ante litem notice if such failure isn’t cured within 30 days after the state raises such issue by motion.” Mr. Burroughs claims that he complied with the requirement in spirit by eventually filing an amended complaint attaching a copy of his ante litem notice. He adds that the Georgia Civil Practice Act and the GTCA are designed to avoid harsh results, as well as undue dismissals, without addressing the merits of a case. He concludes that because the third action was filed within six months of the dismissal of the second action, he should be allowed to file another renewal.

This argument is flawed, however, because strict compliance with the provisions of the GTCA is a condition precedent to Mr. Burroughs’s right to file suit against a state agency. Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007); Sylvester, 252 Ga. App. at 32. These provisions include the requirement that the plaintiff attach a proper copy of the ante litem notice to the complaint. Baskin v. Ga. Dept. of Corrections, 272 Ga. App. 355, 358-359 (2) (612 SE2d 565) (2005) (amendment to complaint attempting to attach proper copy of ante litem notice was untimely when filed one day beyond the thirty-day requirement of OCGA § 50-21-26 (a) (4)). Such strict compliance is required because “the GTCA represents a limited waiver of the State’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts.” Cummings, 282 Ga. at 824 (citation omitted). Accordingly, Mr. Burroughs was only entitled to one renewal as plainly provided in OCGA § 9-2-61 (a).

Decided November 1, 2016

Zipperer, Lorberbaum & Beauvais, Karl C. Zipperer, Ralph R. Lorberbaum, Eric R. Gotwalt, for appellants.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Jared M. Campbell, Assistant Attorney General, for appel-lee.

For the above reasons, we find no error in the trial court’s rulings dismissing the claims of Mr. and Mrs. Burroughs.

Judgments affirmed.

Ellington, P. J., and Mercier, J., concur.

       OCGA § 50-21-26 (a) provides:
      No person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as [set forth in this Code section].

       OCGA § 50-21-26 (a) (4) provides:
      Any complaint filed pursuant to this article must have a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail or statutory overnight delivery receipt or receipt for other delivery attached as exhibits. If failure to attach such exhibits to the complaint is not cured within 30 days after the state raises such issue by motion, then the complaint shall be dismissed without prejudice^]

       “One spouse’s right of action for the loss of the other’s society or consortium is a derivative one, stemming from the right of the other.” Douberly v. Okefenokee Rural Elec. Membership Corp., 146 Ga. App. 568, 570 (3) (246 SE2d 708) (1978) (citation and punctuation omitted); Henderson v. Hercules, Inc., 253 Ga. 685, 685 (324 SE2d 453) (1985) (same). We find no Georgia law directly holding that a claim of loss of consortium is itself a tort for which sovereign immunity is waived by the GTCA. Compare Ga. Ports Auth. v. Harris, 243 Ga. App. 508, 515-516 (8) (533 SE2d 404) (2000) (holdingthat ante litem notice of husband’s claim, as required under GTCA, did not give notice of wife’s loss of consortium claim), aff’d and disapproved on other grounds, 274 Ga. 146,150 (549 SE2d 95) (2001); Dillingham v. Doctors Clinic, P. A., 236 Ga. 302 (223 SE2d 625) (1976) (characterizing a loss of consortium claim as “sounding in tort”).

       If Mrs. Burroughs’s claim of loss of consortium is not a claim for which sovereign immunity was waived by the GTCA, then it is obviously barred by sovereign immunity unless sovereign immunity otherwise has been waived, which has not been shown.

       Despite the language providing that renewal may occur after “the plaintiff discontinues or dismisses the [case],” it has been repeatedly held by this Court that this right applies “to involuntary, as well as voluntary dismissals, where the merits of the case are not adjudicated.” Owens v. Hewell, 222 Ga. App. 563, 564 (474 SE2d 740) (1996) (citation omitted). The Supreme Court, too, has read a prior version of the renewal statute to allow renewals following involuntary dismissals not on the merits. See Clark v. Newsome, 180 Ga. 97 (178 SE 386) (1935). And although the renewal statute was revised in 1967 to remove language allowing renewals “[i]f a plaintiff shall be nonsuited,” see Ga. L. 1967, p. 226, § 39; compare Chance v. Planters Rural Tel. Co-op., 219 Ga. 1, 3 (131 SE2d 541) (1963) (quoting prior law), the decision in Clark did not rely on the nonsuit language in deciding that renewals were allowed following involuntary dismissals not on the merits. See Clark, 180 Ga. at 101-102. At any rate, we need not consider the matter because the parties have not raised it and if rene wals were not allowed following involuntary dismissals, it would provide another ground on which to affirm.


author: McFADDEN, Judge.

text:
    A16A1153.
    THE STATE v. BONAWITZ.
    (793 SE2d 191)
   McFADDEN, Judge.

The state appeals from the grant of Michael Bonawitz’s motion for discharge and acquittal for a violation of his constitutional right to a speedy trial. See OCGA § 5-7-1 (a) (1) (authorizing the state to appeal from the dismissal of an indictment). Because the trial court did not commit reversible error in its analysis of the speedy trial claim under the applicable Barker-Doggett test, we affirm.

The record shows that Bonawitz was booked into prison on an aggravated assault charge on September 20, 2012. While in custody on that charge, it was determined that there was DNA evidence allegedly implicating him in an unrelated burglary that had occurred in 2006. On January 29, 2013, Bonawitz was indicted for that burglary, and a grand jury arrest warrant was filed for Bonawitz on February 1, 2013.

Upon learning ofthe burglary charge, on June 10,2014, Bonawitz filed a pro se motion for a production order, and proceeded to file numerous motions, demands, and letters with the superior court, indicating his desire to be brought to trial on that charge. On April 18, 2015, over two years after the burglary indictment, the superior court signed a production order mistakenly placing Bonawitz on a sentencing calendar for the still unresolved burglary charge. Bonawitz was not placed on the next available trial calendar in June 2015, and there was no available trial week in J uly or August of that year. On August 13, 2015, Bonawitz filed a motion for permission to file an out-of-time speedy trial demand. Thereafter, in September 2015, Jaaziel Fortilla, who had previously pled guilty to the 2006 home invasion underlying the burglary charge that had been brought against Bonawitz, died before Bonawitz was brought to trial. On September 18,2015, Bonawitz filed a motion for discharge and acquittal of the burglary charge based on a violation of his constitutional right to a speedy trial; he did not assert a violation of his statutory right to a speedy trial. See OCGA §§ 17-7-170 to 17-7-172.

After a hearing on the motion, the trial court found that the delay in bringing Bonawitz to trial was presumptively prejudicial, that there was no credible excuse for the delay in the prosecution, that Bonawitz did not engineer the delay, that Bonawitz had timely asserted his right to a speedy trial in June 2014, and that there was prejudice to Bonawitz as a result of the delay The court thus granted Bonawitz’s motion for discharge and acquittal based on the state’s failure to provide a constitutional speedy trial, and this appeal followed.

1. Barker-Doggett analysis of speedy trial claims.

Both the Sixth Amendment of the United States Constitution and the Georgia Constitution provide that a criminal defendant shall have the right to a speedy trial. Brewington v. State, 288 Ga. 520 (1) (705 SE2d 660) (2011); Ruffin v. State, 284 Ga. 52, 54 (2) (663 SE2d 189) (2008). The template for deciding all constitutional speedy trial claims is laid out in the cases of Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992). Ruffin, 284 Ga. at 55 (2). The Barker-Doggett analysis has two stages.

First, the court must 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. If, however, the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

Ruffin, 284 Ga. at 55 (2) (punctuation omitted).

These four factors are (i) whether the pretrial delay was uncommonly long; (ii) whether the government or the criminal defendant is more to blame for the delay; (iii) whether, in due course, the defendant asserted the right to a speedy trial; and (iv) whether the defendant suffered prejudice as a result of the delay

State v. Johnson, 325 Ga. App. 128, 130 (749 SE2d 828) (2013) (citation omitted).

The application of these principles to a particular case is a task committed principally to the discretion of the trial courts, and on appellate review,

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.

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

2. Presumptive prejudice.

We must first determine whether the trial court erred in finding that the delay in the instant case was presumptively prejudicial.

The right to a speedy trial attaches at the time of arrest or formal accusation or indictment, whichever occurs first, and the courts measure the delay from the time the right attaches. A delay approaching one year is sufficient in most cases to raise a presumption of prejudice and to warrant a more searching inquiry

Buckner, 292 Ga. at 393 (2) (citations omitted). Here, the trial court found that the length of delay was in excess of two-and-a-half years from the date of indictment. The trial court held, and the state has acknowledged, that this delay was presumptively prejudicial. This finding was not erroneous, and we therefore proceed to the four-factor balancing test.

3. Barker-Doggett’s four-factor balancing test.

We note that the four factors set forth in the second part of the Barker-Doggett analysis are not an exhaustive list, they have no talismanic qualities, and no one factor is necessary for finding a deprivation of the right of speedy trial; rather, the factors “must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee.” Ruffin, 284 Ga. at 55-56 (2) (b) (citations and punctuation omitted).

(a) Length of the delay.

With regard to this first length of delay factor, it has been explained:

[T]he length of the pretrial delay in absolute terms plays a role in the threshold determination of presumptive prejudice. However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis. It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. As the Supreme Court has explained, this latter enquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time. The uncommon length of the pretrial delay thus merits consideration beyond its use as a liminal screening mechanism. Recognizing that the four-year delay was uncommonly long, the trial court properly found that this factor favored appellant.

Dillard v. State, 297 Ga. 756, 760 (4) (778 SE2d 184) (2015) (citations and punctuation omitted). In considering this first factor, our Supreme Court has held that a delay of almost 27 months in a noncapital murder case is unusually long. Ruffin, 284 Ga. at 58 (2) (b) (i). Likewise, the trial court here recognized that the two-and-a-half year delay was uncommonly long and thus properly weighed it against the state. See Dillard, 297 Ga. at 761 (4); Higgins v. State, 308 Ga. App. 257, 260 (2) (a) (707 SE2d 523) (2011).

(b) Reason for the delay.

The state argues that the trial court improperly blamed the state for the delay, since the trial judge was presented with court production orders for the purpose of bringing Bonawitz to court in April 2015 and July 2015. However, as the court noted, “[t]he district attorney, the clerk of court, and ultimately, the court are all responsible for ensuring that defendants are not neglected or ignored.” Indeed,

[t]he responsibility for bringing a defendant promptly to trial rests with the government^ which] includes all state actors, even trial and appellate court judges. The relevant inquiry for purposes of [this] factor is not whether the prosecutor or the accused bears more responsibility for the delay, but whether the government or the criminal defendant is more to blame for that delay

Over v. State, 302 Ga. App. 215, 217 (2) (690 SE2d 507) (2010) (citations and punctuation omitted; emphasis supplied). Here, the trial court was authorized to find that the government bears more responsibility for the delay in this case, and therefore this argument by the state is without merit.

The trial court further found that Bonawitz did nothing to engineer the delay The trial court noted that Bonawitz was placed on a sentencing calendar on July 9, 2015, but noted that he was not present since he was returned to prison and thus found that he was likely added to the calendar by mistake.

The state argues that the court unfairly excused Bonawitz’s dilatory tactics to secure a favorable plea. It is true that delays caused by protracted plea negotiations should be counted at least partly against the defense. Jenkins v. State, 294 Ga. 506, 510 (2) (755 SE2d 138) (2014). Bonawitz’s letter to the clerk of the court is evidence of his desire to plead guilty, and he admitted at the hearing on the motion to dismiss that he rejected a plea deal that would have extended his sentence past his parole date. The record also indicates that Bonawitz’s counsel applied for leave of court on two occasions and that Bonawitz’s counsel left for a vacation that caused a delay in the communication of the state’s plea offer. Finally, the state argues that the case could only have been diverted to a sentencing calendar if Bonawitz’s attorney had announced a guilty plea at calendar call. Once a guilty plea is announced at a calendar call, a case is transferred from a trial calendar to a sentencing calendar, which would have the effect of delaying the trial. The state argues that delay resulting from the transfer from a trial docket to a sentencing docket should therefore be attributed to Bonawitz.

In sum, the record shows that the pretrial delay in this case was partially attributable to Bonawitz, in light of his efforts to secure a better plea agreement and his attorney’s unavailability during some of the plea negotiations. Nevertheless, a large part of the delay was attributable to the government. The state has offered no explanation for the delay between the indictment or the arraignment, and the court noted that there was no explanation as to why Bonawitz was not placed on calendar call on August 5, 2015, for the trial week of September 21, 2015. Bonawitz’s numerous filings of letters and speedy trial demands also weigh against a finding that Bonawitz engineered the delay Finally, the state has provided no undisputed evidence that Bonawitz engineered the delayby announcing a plea at calendar call. The trial court inferred that he was put on the call by mistake, and “we defer to the trial court’s factual findings in analyzing a defendant’s argument that he was denied his right to a speedy trial.” Bell v. State, 287 Ga. App. 300, 301-302 (651 SE2d 218) (2007) (citations omitted). We find no error in the trial court’s determinations as to the cause of the delay.

(c) Assertion of the right to a speedy trial.

The trial court weighed the third factor against the state, noting that Bonawitz “first put the [s]tate on notice that he wanted his case to move forward in June 2014, when he asked to be brought in to handle his case.” The state, disregarding the pro se motion for production order in June 2014, argues that the trial court committed error in failing to consider the two-year delay between the indictment and Bonawitz’s first speedy trial demand, which was made on February 21, 2015. “In order to invoke the right, the accused need not file a formal motion[.]” Ruffin, 284 Ga. at 62 (citation omitted). “The relevant question for purposes of the third Barker-Doggett factor is whether the accused has asserted the right to a speedy trial in due course.” Id. at 63 (citation and punctuation omitted). The trial court’s finding that Bonawitz put the state on notice in June 2014 was not error and authorized the court in weighing this factor against the state.

(d) Prejudice suffered as a result of the delay.

The trial court considered the three types of prejudice associated with an unreasonable delay before trial, which are oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the defendant’s defense will be impaired. State v. Pickett, 288 Ga. 674, 677 (2) (c) (4) (706 SE2d 561) (2011). The trial court did not consider Bonawitz’s pretrial incarceration, but that the delay caused Bonawitz great anxiety, as evidenced by Bonawitz’s numerous filings, and that the delay impaired Bonawitz’s defense because a potentially important witness had died while Bonawitz waited to be brought to trial.

The state argues that the trial court erred by failing to assess whether the delay caused oppressive pretrial incarceration, by assessing the anxiety suffered by Bonawitz when no evidence was presented to support that he had suffered undue anxiety and by attributing Bonawitz’s anxiety to the unresponsiveness of the state. Assuming without deciding that the trial court erred in his assessment of the anxiety suffered by Bonawitz and in his failure to consider Bonawitz’s pretrial incarceration, we nevertheless find that the death of Fortilla, the potentially critical witness, was sufficient reason for the trial court to find that this factor weighed in favor of Bonawitz.

Decided November 2, 2016

Of the three factors considered when examining whether a defendant has been prejudiced due to a delay “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Pickett, 288 Ga. at 677 (2) (c) (4) (citation and punctuation omitted). The trial court found that “[t]he original investigation into this case led to the arrest and conviction of [Fortilla]. That individual died in early September 2015, causing [Bonawitz] prejudice in his case because of the loss of his testimony” The state argues that the trial court erred in making the assumption that the witness would have been a favorable witness to Bonawitz and that the court ignored the DNA evidence that would have lessened the importance of the witness’ testimony.

In order to show “prejudice due to the unavailability of a witness, [Bonawitz] must show that the missing witness could supply material evidence for the defense.” Torres v. State, 270 Ga. 79, 80-81 (2) (508 SE2d 171) (1998) (citations omitted). Here, Bonawitz has shown such prejudice because the deceased witness took sole responsibility for the crime.

To be sure, the death of a critical defense witness or destruction of tangible evidence highly favorable to the defendant would figure prominently in any evaluation of the fourth factor, and it would weigh heavily in favor of finding a violation of the defendant’s constitutional right to a speedy trial.

Ruffin, 284 Ga. at 64 (2) (b) (iv). “If witnesses die or disappear during a delay, the prejudice is obvious.” State v. Redding, 274 Ga. 831, 834 (561 SE2d 79) (2002) (citation omitted). Thus, the trial court was authorized to find that Bonawitz suffered prejudice to his defense.

Having weighed all of the Barker-Doggett factors, we conclude that the trial court did not abuse his discretion in its balancing of the factors and finding that Bonawitz was denied his constitutional right to a speedy trial.

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellant.

Holly G. Chapman, Katherine M. Mason, for appellee.


author: DOYLE, Chief Judge.

text:
    A16A1435.
    THE STATE v. YOUNG.
    (793 SE2d 186)
   DOYLE, Chief Judge.

Alfreda Jayblee Young was arrested and charged with driving under the influence of alcohol to the extent it was less safe (“DUI less safe”), driving under the influence of alcohol with an unlawful blood alcohol concentration (“DUI per se”), and impeding traffic. Following a hearing, the trial court granted Young’s motion in limine to exclude the results of the State-administered chemical testing of her breath, finding that the State failed to establish that she voluntarily consented to the test. The State appeals, and we reverse for the reasons that follow.

When reviewing a trial court’s grant or denial of a motion to exclude evidence of chemical testing, “the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” Based upon the reading of the implied consent notice and the videotaped recording of Young’s interaction with the police, we conduct a de novo review of the trial court’s ruling.

Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact [not recorded on a videotape], we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts.

This includes legal determinations based upon the totality of the circumstances.

So viewed, the record shows that at approximately 2:00 a.m. on December 28, 2014, Gwinnett County Police Department Patrol Officer Jason Bentley was traveling south on Interstate 85 near Beaver Ruin Road when he observed “a lot of commotion,” including vehicles activating their brake lights and swerving. As he neared the scene, Bentley observed a Hyundai Tiburón stopped in one of the middle lanes of the five-lane highway, impeding the flow of traffic and almost causing multiple accidents. Bentley activated his blue lights, approached the vehicle, and made contact with the driver, identified as Young, who was talking on her cell phone.

Bentley smelled alcohol as soon as Young lowered her window, and she appeared visibly upset. Young stated that her vehicle had hydroplaned and that “she pulled off the road . . . because she didn’t feel safe driving.” Bentley obtained Young’s license and was almost struck by another vehicle as he attempted to walk back to his car, at which point he instructed Young to move her vehicle to the left shoulder between the median wall and the HOV lane.

DUI Task Force Officer Richard Ross then appeared on the scene, and he spoke to Young, who conceded that her vehicle had been parked in the middle of the interstate. Young’s eyes were bloodshot and watery, her speech was slow, and Ross noticed an odor of alcohol emanating from her vehicle and her breath. When Ross asked Young if she had been drinking, she responded that she had “one or two beers . . . way earlier in the day.”

Young agreed to submit to a field sobriety evaluation. She was “slow and unsteady” as she exited her vehicle. Because they were positioned on a major interstate in dark and rainy conditions, Ross instructed Young to sit in Bentley’s patrol car so that Ross could safely perform a horizontal gaze nystagmus (“HGN”) test. At this point, the camera on the patrol car began recording, and it includes the audio of the interaction between Young and the officer. According to Ross, he observed six out of six clues during the HGN test, indicating an alcohol concentration of 0.08 grams or more. Ross also asked Young to blow into a portable alco-sensor device, which she did, and her breath tested positive for alcohol. Ross testified that he decided against performing additional field sobriety tests, such as the walk-and-turn and one-leg stand, because of safety concerns.

Based on his investigation, Ross advised Young that she was under arrest for DUI. He then instructed her to exit the patrol car, handcuffed her hands behind her back, searched her, and placed her in the back of his patrol vehicle. Ross then read Georgia’s implied consent notice for drivers over the age of 21 and asked Young whether she would submit to the State-administered breath test. Young immediately replied, “Yes,” without hesitation. Ross characterized his demeanor during this colloquy as “very respectful,” and the video supports this characterization.

After retrieving her purse from her vehicle, Ross transported Young to the police precinct, sat her in front of the Intoxilyzer 9000, which was located in a cubicle, gave her verbal instructions, and then administered the test. According to Ross, Young “did not appear reluctant,” was “comprehensive [sic],” seemed intelligent, listened to his instructions, and did not refuse to take the test. Ross “[did not] have any sort of concerns that [Young] was so impaired that she couldn’t consciously make a decision.” Young remained handcuffed during the testing, which indicated blood alcohol concentrations of 0.160 and 0.151.

Young filed a motion in limine to exclude the results of the State-administered breath test, arguing that she did not voluntarily consent to it and that it violated the United States and Georgia Constitutions. Following a hearing at which both Bentley and Ross testified, the trial court granted Young’s motion solely based upon its conclusion that “the State failed to carry its burden in establishing an actual consent to the search of . . . Young’s breath that was free and voluntary.” In the order, the trial court stated:

Young was asked if she would submit to the testing under the implied consent law but was not asked if she would consent to a search and test of her bodily substances. Young’s affirmative response was to the officer[,] and she was submitting to his authority to conduct the test. [Young] was told that the law requires her to submit to the test[,] and [she] asserts that any subsequent submission must be characterized as mere acquiescence to a claim of lawful authority, and Young was not advised that she could refuse to submit to the test.
In evaluating the totality of the circumstances, the [c]ourt finds that Young was under arrest and in handcuffs when the submission to the search was requested. [Young] was not informed that the test was not mandatory[,] and the language of the implied consent warning suggests otherwise as it begins “Georgia law requires that you submit. . . [Young] was not advised of her Mirandal ] rights[,] and she was not asked if she was freely and voluntarily agreeing to be tested.

The State appeals, arguing that the trial court erred by granting Young’s motion in limine.

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution both protect an individual’s right to be free of unreasonable searches and seizures, and apply with equal force to the compelled withdrawal of blood, breath, and other bodily substances. Because a breath test is a search within the meaning of the Fourth Amendment, absent a warrant, the State must show that it falls into one of the specifically established and well-delineated exceptions to the warrant requirement.
Consent is a valid basis for a warrantless search where it is given freely and voluntarily, and the State does not argue that any other exception might apply Therefore, [in this case,] the only question in regard to the validity of the search is whether the State met its burden of proving that [Young] actually consented freely and voluntarily under the totality of the circumstances. Historically, we considered a defendant’s affirmative response to the reading of the implied consent notice as sufficient to allow a search of... her bodily fluids without further inquiry into the validity of the defendant’s consent.
However, in Williams [v. State],[] the Supreme Court of Georgia rejected this rule automatically equating an affirmative response with actual consent to search, holding instead that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. Thus, the State is required to demonstrate actual consent for [S]tate-administered testing for the purpose of exception to the warrant requirement. And in determining whether the defendant gave actual consent to a [S]tate-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.
[VJoluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority. Consequently, the voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused’s age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused. And while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.

Instead, “[t]he court should consider whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter. Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.”

Here, the evidence, including the videotape of the stop, “does not show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain [Young’s] consent” to the breath test, and the officers and Young “conducted themselves calmly.” The trial court did not find that Young’s intoxication, “youth, lack of education, or low intelligence somehow negated the voluntariness of her consent.” Instead, the court concluded that Young’s consent was involuntary because the police failed to advise her of her Miranda rights or to inform her that the test was not mandatory and because the language of the implied consent warning suggests otherwise. But as we have previously concluded, the implied consent notice read to Young “accurately recites Georgia law as contained within OCGA § 40-5-67.1 (b) (2) and informs the suspect of her choice of either agreeing or refusing to submit to chemical testing, and the possible consequences for each choice.” And “[t]here is no unlawful coercion where[, as here,] the officer merely informs the arrestee of the permissible range of sanctions that the [S]tate may ultimately be authorized to impose.” Further, “[t]he Supreme Court of the United States and other courts have rejected invitations to create a duty to inform suspects of their constitutional right against unreasonable searches and seizures, and we will not depart from their well-worn path.”

Decided November 2, 2016.

Rosanna M. Szabo, Solicitor-General, John B. Weitnauer, Ryan A. Fisher, DanaM. Pagan, Assistant Solicitors-General, for appellant.

The trial court also based its finding that Young did not voluntarily consent to the test on the fact that she was in handcuffs when her consent was requested. But it is well settled that “the fact that [Young] was in handcuffs [did not] negate her ability to give consent.”

Based upon our de novo review of the undisputed evidence before the trial court, including the video recording, and our application of the law to these undisputed facts, we conclude that the State met its burden of proving that Young voluntarily consented to the breath test under the totality of the circumstances. Young immediately verbally agreed to submit to the requested breath test, and there is no evidence of “any coercive circumstances that would undercut the voluntariness of [her] consent.” Because “there is no evidence that [Young’s] consent was anything but free and voluntary,” the trial court erred by granting her motion in limine to exclude the results of the State-administered breath test.

Judgment reversed.

Andrews, P. J., and Ray, J., concur.

Weener & Nathan, Laura K. Wester; Chestney & Sullivan, Robert W. Chestney, for appellee.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-184 (a).

        Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011), citing State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005).

       The appellate record transmitted from the trial court contained a photocopy of the DVD of Young’s arrest; the DVD was not included in the record. We note that Court of Appeals Rule 18 (b) provides:
      When the notice of appeal directs that transcripts of a trial or a hearing be included in the record, copies of all video or audio recordings that were introduced into evidence shall be transmitted to this Court along with the trial or hearing transcript. It shall be the responsibility of the party tendering the recordings at a trial or a hearing to ensure that a copy of the recording is included in the trial court record; however, it is the burden of the appealing party to ensure that a complete record is transmitted to this Court on appeal, including the transmission of video or audio recordings. If a transcript of a trial or a hearing is designated as part of the appellate record, the clerk of the trial court shall then include the copy of the recording in the appellate record transmitted to this Court. If a copy of a recording played at a trial or a hearing is not included with the transcript designated to be transmitted in the appellate record, this Court may take whatever action is necessary in order to ensure completion of the record, including, but not limited to, issuing a show-cause order requiring an explanation of its absence. The appellant’s failure to complete the record may also result in this Court declining to consider enumerations of error related to the missing evidence. Copies of any video or audio recordings of evidence shall be submitted to this Court on DVD or on video or audio compact disc, and shall include any proprietary software necessary to play the recordings.
      Although this Court ultimately obtained a copy of the DVD from the trial court, we reiterate that the burden remains on the appellant — in this case, the State — to perfect the record on appeal.

       See Vergara v. State, 283 Ga. 175, 178 (1) (657 SE2d 863) (2008) (“where controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo”) (punctuation omitted); State v. Depol, 336 Ga. App. 191 (784 SE2d 51) (2016) (“to the extent that the controlling facts are undisputed because they are plainly discernable from the patrol car-mounted video recording, ... we review those facts de novo”) (punctuation omitted).

        Hughes v. State, 296 Ga. 744, 750 (2) (770 SE2d 636) (2015).

       Young had not pulled off the road and was instead still positioned in one of the middle lanes of the highway.

       The video depicts the back of Bentley’s patrol car and the officers and Young while they are outside of the car; it does not show Young while she is inside the car. The audio is not entirely clear given the ambient noise, including passing cars, but the communication between the officers and Young during her arrest and the reading of the implied consent notice and her response are audible.

       The implied consent notice read to Young, which applies to suspects over 21, is found in OCGA § 40-5-67.1 (b) (2) and states:
      Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       (Citations and punctuation omitted.) Kendrick v. State, 335 Ga. App. 766, 768-769 (782 SE2d 842) (2016), quoting Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015).

       296 Ga. at 817-818.

       (Citations, punctuation and emphasis omitted.) State v. Jung, 337 Ga. App. 799, 801-802 (788 SE2d 884) (2016), quoting Williams, 296 Ga. at 822-823.

       (Citations and punctuation omitted.) State v. Bowman, 337 Ga.App. 313, 317 (787 SE2d 284) (2016), quoting Schneckloth v. Bustamonte, 412 U. S. 218, 227 (II) (B) (93 SCt 2014, 36 LE2d 854) (1973); State v. Austin, 310 Ga. App. 814, 817 (1) (714 SE2d 671) (2011).

       (Citations and punctuation omitted.) Kendrick, 335 Ga. App. at 769.

       Id.

       Id.

       Id. at 771. See also Depol, 336 Ga.App. at 200, n. 7 (rejecting “[the defendant’s] argument that we should conclude that he merely acquiesced to a show of authority based upon the language of the implied consent notice”).

       (Punctuation omitted.) Gutierrez v. State, 228 Ga. App. 458, 460 (2) (491 SE2d 898) (1997).

        Kendrick, 335 Ga.App. at 770, citing Schneckloth, 412 U. S. at 231 (II) (B); Gutierrez, 228 Ga. App. at 460 (2). See also Jacobs v. State, 338 Ga. App. 743, 748 (2) (791 SE2d 844) (2016) (“There is ... no duty to inform suspects of their constitutional right against unreasonable searches.”).

        Kendrick, 335 Ga. App. at 770, citing Silverio v. State, 306 Ga. App. 438, 446 (3) (702 SE2d 717) (2010) (“voluntary consent may be given while a suspect is handcuffed”). See also Jacobs, 338 Ga.App. at 748 (2); Maloy v. State, 293 Ga.App. 648, 651 (2) (667 SE2d 688) (2008).

        See State v. Domenge-Delhoyo, 338 Ga.App. 439, 445 (1) (790 SE2d 139) (2016) (physical precedent only); State v. Reid, 337 Ga. App. 77, 78 (786 SE2d 694) (2016); Depol, 336 Ga. App. at 200.

        Reid, 337 Ga. App. at 78.

       Id. See also Domenge-Delhoyo, 338 Ga. App. at 445 (1); Depol, 336 Ga. App. at 200. In Birchfield v. North Dakota, 579 U. S._,_(V) (C) (3) (136 SCt 2160, 195 LE2d 560) (2016), the United States Supreme Court recently held that the Fourth Amendment allows breath tests under the search-incident-to-arrest exception to the warrant requirement. Because Young gave actual consent to the breath test, we need not decide whether the test was also permitted as a search incident to her arrest.