FINAL C OPY

294 Ga. 506

S13A1387. JENK INS v. THE STATE.

H INES , Presiding Justice. Larry Jenkins appeal s the denial of his motion to dismis s the indictm ent ag ainst him and his plea in bar ba sed upon the grounds that his retr ial for tw o murder s and related crimes would vio late the constitu tional prohibitio n agains t double jeopardy and th e constit utional r ight to a speedy

trial. For the re asons that fo llow, w e affir m. In Septemb er 199 5, Jenk ins was convi cted of the malice mu rders , kidnapping s with bodil

y injury and armed robber

y of two vic tims, and thetheft of $600 in co ins. The jury rec omme nded a de ath sen

tence for eac h of the murder s, finding nine aggravatin g ci rcums t ances. The trial court s entenced Jenkins to deat

h, Jenkins app ealed, and this Cou rt affirmed. See Jenkins v. State , 269 Ga. 282 (498 SE2d

502) (19 98). Jenkin s filed a petitio n for a writ of habeas corpus on Marc h 4, 1999, and aft er evid entiar y hea rings in De cem

ber 2002 a

nd January 2003, the

habea s court

vacated Jenkins’ death s entenc es and1 As noted, the habeas court determined that Jenkins was 17 when the c rimes were committed;

therefore, it vacated Jenkins’ death sentences in light of Roper v. Simmon s . Th e Warden did not appeal the ruling

vacatin g Jenkins’ death

sentences, and under Roper , Jenkins is no longer subject to those se

ntences
. 2 convict ions, findingthat Je nkins was 17 yea rs old at the tim e of

the crimes a

nd that the Suprem e Court o f the Unit ed Stat es had de clare d death sentenc es for crime s co mmitted by persons u nder the age of 1 8 to be uncon stitution al. See Roper v. Sim mons , 543 U. S. 551 , 568 (125 SCt 1183, 161 L E2d 1) (2005) . The habeas court furth er found that Jenkins’ tria l counse l rende red ine ffective assistance in the guil t/inno cence phase of Jenki ns’ trial, that J enkins’s t rial counsel had a confl ict of in terest , and tha

t there was prosecutor ial misconduct i n that the State, inter alia, suppressed evidence of the in volvement of an unindicted suspect, eviden ce related to the mental stateof a key prosecu tion witness , and cont

radict ory prior

state mentsof testi fying pros ecutio n witnes ses. The Warden appealed, and this Court affirmed the judgment of the habeas court, ordering a new trial based upon the ha beas c ourt’s determ

ination t hat Jen kins’s counsel rendere d ineffe ctive a ssistanc e in the guilt/inn ocenc e phase

of the trial. 1 See Terry v. Jenk

ins , 280 Ga . 341 (627 SE 2d 7) (2006).3

On June 27, 2011, Jen

kins file d a “Moti on to Dism iss Indictm ent and

Plea in Bar”seeking to bar his retrial on the grounds, inter alia, that it would violate the “fair tr

ial” a nd speedy

trial gu arante es and t

he prohibi tions ag ainst double jeopard y under the Fed eral and Stat e Consti tutions. On May 16, 2012, Jen

kins filed a “Motio n to Bar Retria l Under t he Stat e and Federal Do uble Je opardy Clauses.” It was denied on October 22, 2012. O n Novem ber 14, 20 12, he filed

a “Plea in BarBased

Upon Viol ations of

the De fendant ’s Consti tutional Right to a Spee dy Tria

l.” B y consent of Jenkins and the State, on that sa

me da te the tri al court

entere d an orde r vaca

ting the O ctober 22, 2012 de nial order on the basis that th e court would enter a co nsol idated order on th e mo tion to dismis s indictm ent

and the ple as in ba

r following a sche duled he aringin the matter. On January 28, 2013, t he trial court d enied the pen ding motion and pleas i n bar. 1. Jenkins contends that th e trial court e rred in denying his m otions and pleas in bar because his re trial would constit ute dou ble jeo pardy und er the United States and Georgia C onstit u tions for t he rea son that t

he prose cution committedintentional misconduct which violated due p rocess, and thu s, denied him his right to a

fair trial. He urges this Court to adopt a reading of the Ge orgia constituti onal protec tions against double jeopardy as t hat set forthin the caselaw2 Jenkins relies principally upon the caselaw of Pennsy

lvania a nd New Mexico, spec ifically Commonwealth v. Smith , 532 Pa. 177 (615 A 2d 321) (1992) ( failing to disclose exculpatory evidence, intentionally suppressing evidenc e on dire ct appea

l, and att empting to discre dit

a witness constituted prosecutorial misconduct which violated Pennsy lvania Con stitutions’ doublejeopardy clause) an d Sta te v. Bre it , 122 N.M. 655 (930 P 2d 792) (1996) (double jeopardy clause of New Mexico C onsti tution bars retrial following mistrial based on prosecutorial misconduct when prosecutor

knows conduct is improper and prejudicial and either intends to provoke mistrial or acts inwillful disregard of the possibility of mistrial, retrial, or

re versal; prosecutors’ pervasive, incessant, and outrageous misconduct, which had re sulted in mistrial, barred re-prosecution).

4 of other juris dictions, wh ich have fou ndthat prosecut orial miscondu ct, similar to that alleged in Jen kins’s case, warranted discharge. 2 But, Jenkins’s ar gument is unavailing. This Cour

t is to assess the fac tual fin dings of the trial c ourt under

the standar dof clear error, but thi s Court is to independent ly examine the trial court’s conclus ions of law. See State v. Caffee , 291 Ga . 31, 33 (3 ) (728 SE2d 171) (2012). The le gal sta ndard emplo yed by

the tria l court, and its r esulting legal conclus ions are

not in err

or. Jenk ins com plains that the trial court relied

on the le gal sta

ndard se t forth in State v. D’Auria , 229 Ga. App. 34 (49 2 SE2d 918) (1997): As a gene ral rule , a post -convic tion reversal or grant of a motion for new trial which is not based on insufficien cyof the evidence does not preclu de retr

ial. [ Cit.] Thereis an e xcepti on to this gener al rule, howeve r: T he defe ndant cannot be retried if the retrial is necessitated by prose cutorial misc onduct whi ch was intende d t o5

subvert the protections afforded by the D o uble Jeopardy Clause. [Cits.] Id. at 35. (Citation s and punctu ation omitted.) An d, t he Doubl e Jeopa rdy Clause s of both the

Federal and Sta

te Const itutions [protect] crimi nal defendants from three governmental abuses: a secon dprosecutio n for the same offen se after acquittal, a seco n d prosecu tion for the sa

me off ense a fter c on vi ction, and multiple punishments for the same offens e.
Williams v. State , 288 Ga. 7, 8 (2) (700 SE2d 564) (20 10). In D’Auria, itwas noted that some defe ndants have argued, as Jenkins is now doing, that double jeopard y should pre clude a

defenda nt’s ret rial wh eneve r the pros ecutors ’ intention al misconduct is egregio us and pre judicial so that

it denie s the defenda nta fair trial. State v . D’Auria at 35. Howev er, for this Court to interpret the double jeopardy bar so expansively would be t antamount to m aking the constituti onal protectio n a type of exclusio nar y rul e. Id.; Roscoe v. State , 286 Ga. 325 (687 SE2d 455) (2009). Gene rally, the Double Jeopardy Cla uses of both the Federal and State Constitut ions do not prote ct a c rimina l defen dant

from be ing put in je opardy of life and liberty m ore than o nce for the same offense in the c ase of t

he grant of6

a new tr ial followin g convictio n or when ther e is a mistrial. Williams v. State , 288 Ga. a t 8 (2 ). And, with ra

re exc eptions, even in

the situ ation in w

hich a defenda ntwas de prived of effec tive as sistanc e of coun sel but the evidence was

never theles s suffici ent to c onvict, the proper rem edy is n ot to disc harge t he defenda ntbut rather to reverse the defend ant's convi ction and remand th e matter for a new trial. Green v. State , 291 Ga. 287, 2 8 8-289 (1) (728 SE2d 668) (2012). However, double jeopardy does prohibit th e retrial of a criminal defenda ntwhen the State does no t produce su fficient eviden ce at the initial tri al to sustain a conv iction. Dinni ng v. State , 267 Ga . 879, 880 ( 485 SE2d 464) (1997 ). It als o precl

udes ret rial wh en the d efenda

nt is gran ted a m istrial or a reversal on appeal of his or her convictio n in the case of in tentional prosecutor ial misc onduct, w hich is “p ur

posefull y designed to s ecure an opportunity

to retry the ca se.” Id. This Court has deter mined that the eviden ce at Jenkins’s i nitial trial was sufficie ntto enab le a ra

tional t rier of f act to find Jenkins gui lty of the c rimes charged beyond a reasonable dou bt. Jenkins v. State , 269 Ga. at 284. As to the issue

of the int ent of the

prosecu torial m isconduc t found by t

he habeas court, there i s no showing that the State’ s conduct

was aimed a

t aborti ng7

the trial and securin g an opportunity to retry the case. Dinning v. State , 267 Ga. at 880. In fact, quite the c ontrary. Jenkins acknowledge s in his argument to this Court that “[t]he e v idence is clear that the S tate was not trying to induce a mistrial,” but rathe

r was tr y ing t o obtain hi s convic tions. Thus, thetrial c ourt properly concluded that double jeopa rdy does not bar Jenkins’s retrial. 2. Thereis likew ise no meri t to Jenkins’s further clai m that the tria l court erred when it denied h is plea alleging that th e State had violated his Fede ral and State Constitut ional righ ts to a speedy trial. In examining an alle ged denial of the consti tutional right to a sp eedy trial, courts must engage in a balancing te st with th e following factors being considered: ( 1) the length of the delay; (2) the reasons for the de lay; ( 3 ) the defenda nt's asse rtion of the

right to a spee dy trial; and (4) prejudic e to the defenda nt
. Barker v. Wingo , 40 7 U. S. 514 [(92 SC t 2182, 33L E2d 101) (197 2)]. The existence of

no one factor is either nec essary or sufficient to sustain a speedy trial cla im, and a tria l court's findings of fact and its weighing of disputed facts will be afforded deference on appeal. We review the tria l court's ruling for a

buse of dis creti on. Higgenbot

tom v. State , 290 Ga. 198, 200 (1) (719 SE2d 482) (2011). H owever , before the Barke r v. W ingo test is applied, th ere must be a threshold determ ination as to whether the in ter val bet ween the acc used’s arrest, ind ic tment, formal accusation, or other triggering event and the tria l is8

sufficiently

long for itto be “pre sumptiv ely pre judicial.” Id. If that p resum ption is unwarra

nted, then the

analy sis goes n o further becau se the speedy trial cla im fails; howeve r, if the

delay raise s the pre sumptio n of prejudi ce, t hen theanalysis proceeds to th e examination of all th e Barke r v. W ingo factor s. Id. (a) Thr e shold Inquiry . In gene ral, a delay of one ye ar in pros ecutin g a crime is considered to be delay which is presumptively

pr ejudicial. Brock v. State , 29 3 Ga . 156, 158 ( 2) (a) (743 SE2d 410 ) (2013) . Jenkins ur ges that becau se of the intenti onal prosecu torial miscondu ct and thelack of conflict- free counsel at trial, the de lay should be me asured f

rom the date of arrest . Howe ver, as the t rial c ourt noted , Jenkin s did not raise the denial of his right to a speedy trial prior to his first tri al, on direct a ppeal of hi s c onviction s, or in his habeas corpus proceeding. The dela y inthis ca se, in w

hich no retrial has occurre d, is properlycalc ulated

from the dat e of theremi ttitur

from thi s Court fol lowing the affirmance of the judgment of the habeas court, which w as April 6, 2006, t o the date the supe rior court

denied Jenkins’s motions , whic h was Ja nuary 28, 2013. See Phan v. State , 290 Ga. 588, 5 93 (1) (a) (723 SE2d 876) (20 12). Thus, th e releva ntamount of time i s approximately six y ears and nin e mon ths, and the State agrees that su ch delay raises the pres umption of p rejudice.9

(b) The Four B arker F

actors (1) Length of D elay . The S tate c oncede s that th e lengt h of t he d elay is uncommonly long and shoul d be weighed again st it. (2) Reasons f

or the De lay . This p ivot al facto r exami nes wheth er the defend ant o r the State bears more resp onsibili ty for the delay. Phan v. State , 290 Ga. a t 593 ( 1) (b). The tri al court assessed this factor in three stages: (a) the period

betwe en the f

iling of Jenkins’s habeas corpus petition in 1999 to its dispositio n in 2006 ; (b) the perio d between the retur n of the case to th e trial court in 200 6 to “the middle of 2011, ” at w hich tim e Jenki ns filed o ne of the present motions and ple as, indi cating that ple a negoti ations were a t an end ; and (c) the per

iod betw een mid-2011 unti l the dis position of the motions and p leas in 2013. (i) 1999-20 06. The trial cour t concluded that any de lay dur ing this period

was attribu

table to the Sta

te bec ause th e respon sibility for the untimel y dispositio n of court proceedings rests with the courts and delays attri butable to the courts are attributable to the State. See State v. Takyi , 322 Ga. A pp. 832, 83 7 (2) (b) (747 SE2d 24) (2013). And, the State does not offer any evidence in10

disp ute. Howe ver, this int erval shoul d not have been i ncluded in th e trial court’s analysis beca

use, as has been note d, the date triggering consideration of the Barke r v. W

ingo factors in th is case is April 6, 2 006. (ii) 2006-m

id-2011. The record supports the tria l court’s conclus ionthat this d elay was at

tributab le to both

the Sta te and t he defense. A s noted by

the trial court, the unique

posture of

the casecontribut ed to the delay in com pleting it; afterJen kins’s con

victions were v acat ed, heagain b ecame eligi ble for appointed counsel , and the re aros e confus ion as to w he ther habeas coun sel wouldcont inue to repres ent him or wheth er the S tate’ s indigent defense program would as sume responsibi lity for the case; habea s counsel had multiple schedul ing conflicts and made request s for exte nsions of ti me; w ith the elim ination

of the death p enalty

for Jenki ns, it w as repr esente d to the t rial c ourt that the case wa s likely to be resolved by a plea; there were several hearin gs set to determine how to conclu de the case; and because of the peculiar circu msta nces, the tria

l court pe

rmitte d a longe r than normal tim e for ple a negotia tions. The State takes i ssue wit h attrib uting any

delay to it and

cites the11

numero us rescheduling requests by defense counsel. However, th e trial c ourt plai nly recognized the defense’s role in the protracted proce edings, but i t properlyalso ac knowledge d the contribut ing difficulty of co nfusion involving Jenkins’s indigent d efense. See Phan v. State , 290 Ga . at 59 3-595 (1) (b). Thu s, the trial court correc tly concluded that both the Stat e and th e defe ns e shared the responsibilit

y for this period of d elay , and the second f actor o f the Barke r v. W

ingo analy sis is neutral for this peri od of tim e. Id. at 595 (1) (b). (iii) Mid-2011-201 3. The record a lso supports the tria

l court’s deter minatio n that the extended period of plea negotiations and efforts to determ ine the future of Jen

kins’s le gal rep resent ation ended with the

filing of the present

defense motions and pleas, which if gra nted, would bar retrial. Jenkins does not offer evi dence to dispu te the court’s f urther finding s that delay in hearing the motio ns and pleas was due to the representation by both the State and the defense that th e issues to be reso lved could b e decided on the bas is of stipulat ions made; that the stipulations ultimate lysubmitt ed by the defense were “argum entative and unwork able,” resulting in the court electin g not to pr oceed bystipulation; and that while defense counsel felt the responsib ility t o file a nd12

pursue the m otions and

pleas, it did not a

lter the fact t hat thecasewould hav e been brought to trial but f or th e need to hear and rule o n them. Consequentl y, the court a

ppropriat ely c onclude d that the post-rem and delay should b e weighed against Jenkins, but that inasm uch as i t was, inter alia, in the pursu it of legitimate motions and pleas, it was “relativ ely benign.” In sum, both the Sta

te and J enkins m

ust be he ld respons ible for the reasons for the delay. (3) Assertion of the Right to a Speedy Trial

. Jenkins do es not dis pute the trial court’s f

inding tha

t he firs tassert ed his rig

htto a speedy trial in No vember 2012. Yet, he urges that t his factor should be weighed heavily against the State becau se he contends h e was unable to assert his right to a spee dy trial from t he time of his indic tment

in 1993 until

January 2011 due to t

he gover nme nt’s failure to appoint

him c onflict- free c ounsel a nd its dec ision to withho ld exculpa tory evidence. However, as the trial court aptly noted, this factor must be considered in light of

the changes in the la

w since Jenkins was indicte d in 1993 and i ts implications for the cours e of his case. As noted, J enkins wa s indicte d in 1993, t ried in 1995, granted habeas13

relief in 2005, a

nd the judg

ment o f the ha

beas court wa s a ffirmed in 200 6. Therefore, he was properly held full y acc ountable

for his failure to dema

nd a speedy trial f rom the 2006 affir

manc e of his grant of habea s relie f until 2012. During this time, there was no ev idence of any confl ictof inter est of defe nse counsel or of any

governm ent ac tion whic h would ha ve prevented Je nkins from raising his right t o a spee dytrial . Thus, this factor m ust be weighed heavily against Jenkins. See State v. Pick ett , 2 88 Ga . 674, 677 ( 2) ( c) (3) (706 SE2d 561) (2011). (4) Prejudice to t

he Def endant . This f

actor s hould b e asse ssed i n light of the interests o f defen dant s which the speedy tria l right was designed to protect, that is, to preve nt oppress ive pre trial incarc erati on, to m inimiz e the

accus ed’s anxiety

and concern, and to limit the possi bility o f impairme nt of the defense. State v . Johnson , 291 Ga . 863, 867 ( 2) (d) (734 SE 2d 12) (2012), citing Doggett v. United States , 505 U. S. 647, 654 (III) (A) (112 SCt 2686, 120 LE2d 520) (19 92). T he trial court foun d that while al l incar ceratio n is o ppres sive t o some degree and that anyo ne facin g two mu rder ch arges p resumab ly suf fers s ome14

d e gree of anxie ty and c oncern, there w as no show ing that a nything a bout Jenkins’s confinement was “ou tside the nor m” or any evidence of an extraor dinary imp act upon him re sulting fro m anxi ety a nd conce rn. Inde ed, Jenkins has made no sh owing that hehas been subjec ted to sub standar d condition s in jail , nor

has he dem onstrate d that he has suffered anxi ety a

nd

conce rn over and abov e that which w ould be e xpecte d during inc arce ration, and experienced by one who was to be tried on th e char ges of whi ch Jenkins is

accus ed. State v . Johnson ,291 Ga . at 867 (2) (d). B ut rega rdless, the le ngth of the pretrial delay alon e raises the presumpt ion of pr ejudice. Id. Jenkins maint ains that he has “suffere d severe prejudic e” as a result of the delay principally b ecau se the individual who he claim s shot the victims “is currently wanted due to abs conding f rom post-co nviction sup ervision,” and may not be apprehended p rior to retr ial. However, the trial cou rt properl y found th at the pre sumptio n of prejudi ce has been overcome bec ause, inter alia, a ssuming that such indi vidual is not found p rior to tr ial, the defense has the ability to present already-obtained eviden ce cla imed to support the individua l’s involvement, and thus, present its apparent t heory that a third party

committed15

the crimes. A dditionally, upon retrial, Je nkins will be able to a vail him self of the evidence withheld by the State at his first tr ial. It should also be noted th at in general, the i

nevita ble eff ects of the pas sage of

time on witnesses’ memories and availability

of evidence tend t o help rather th an hinder the accused inasmuch

as the Sta te mus t carr

ythe burden of

proving beyond a reasonab le doubt each elem ent of its ca se . Brock v. State , 293 Ga . 156, 160 ( 2) (743 SE2d 410) (20 13). (c) Balanci

ng the Fa ctors . This test compels the e xami ning court to consider and

weigh all four factors in

the context of

the particular circu mstances of the case a t issue. State v. Porter , 288 Ga . 524, 533 ( 2) (d) (705 SE 2d 6 36 ) (2011). And, plainly th e trial co urt did so in this case; its balancing was reasoned and reasonable. State v. Buckner , 292 Ga. 390, 399 (3) (e) (738 SE 2d 65) (2013). Si mply, there w as no abu se of the trial c ourt’s disc retion i n applying the te st

of Barke r v. W

ingo and ultimately

denying Jenkins’s motions and pleas to bar his retrial on the ba sis of the violati on of

his constitutiona l right to a spe edy tri al. Id. Judgme nts affi rmed. All the Justice s concur .16 Decid ed Februa

ry 24, 201 4. Murder, etc. Wa

yne Superior Court. Before Judge Sc arlett. Jonatha n P. Loc kwood , for appellant. Jacquelyn L. Johnson , District Attor ney, Andrew J. Ekonomou, Assis tant District Attorney, Samuel S. Olens , Attorney G en eral, Patricia B. Attaway Burton, Dep uty Attorney General, Pau la K. Smith, Senior As sistant Atto rney General , for appellee.