NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: February 7, 2023
S22A1316. RUCKER v. THE STATE.
LAGRUA, Justice.
Appellant Anthony Tyrone Rucker, Jr. was convicted of malice
murder and other crimes in connection with a January 28, 2014
home invasion and armed robbery in Fulton County, which resulted
in the death of Tommy Lee Finch, Jr. and serious injuries to Zaccarie
Printup. 1 On appeal, Rucker contends that the trial court erred in
In March 2016, Rucker was indicted by a Fulton County grand jury on
1
charges of participation in criminal street gang activity, malice murder, five
counts of felony murder, two counts of armed robbery, two counts of aggravated
assault with a deadly weapon, aggravated battery, burglary in the first degree,
and two counts of possession of a firearm during the commission of a felony.
In September 2017, a jury found Rucker guilty of all counts. The trial court
sentenced Rucker to serve life in prison without the possibility of parole on the
malice murder count and concurrent life sentences without the possibility of
parole for each armed robbery count, plus an additional 45 years on the
aggravated battery, burglary, participation in criminal street gang activity,
and possession of a firearm counts. The felony murder counts were vacated by
operation of law. On October 2, 2017, Rucker filed a timely motion for new trial,
which he amended through new counsel on April 22, 2019. Following an
evidentiary hearing, the trial court denied Rucker’s motion for new trial on
failing to instruct the jury on accomplice corroboration and in
denying Rucker’s motion to dismiss the case on constitutional
speedy trial grounds. For the reasons that follow, we affirm
Rucker’s convictions.
The evidence presented at Rucker’s trial showed that, on the
evening of January 28, 2014, Finch and his wife, Patricia Finch,
were at their home in Southwest Atlanta. Patricia was known
around the neighborhood as the “Candy Lady” because she sold
candy and soda out of her house to neighborhood children, as well as
“loose cigarettes” to “older customers.” Patricia testified that she
generally operated her candy business from 8:00 a.m. to 9:00 p.m.
each day, but that business had been slow on January 28 because it
was snowing “pretty heavy” and “getting a little slippery.” Around
7:00 p.m., a customer came to the Finches’ house whom Patricia did
not recognize. This young man—whom Patricia identified at trial
as Rucker—was short, with his hair styled in “little twists” or a
May 6, 2022. Rucker filed a timely notice of appeal to this Court on June 1,
2022, and the case was docketed to the August 2022 term of this Court and
submitted for a decision on the briefs.
2
“little [A]fro,” and was wearing a red and blue jacket and “sweating
real bad” down his face to his neck. Patricia testified that she
“couldn’t understand why he was sweating like that” because he had
just come from outside where it was snowing. She asked Rucker
why he was sweating, but he did not respond. Rucker was
accompanied by an unidentified young man who stayed at the top of
the Finches’ driveway and did not come inside the house.
According to Patricia, Rucker told her that he wanted to buy
“[a] Snicker bar and a cigarette.” Patricia kept the candy on a candy
stand right outside her bedroom door and the cigarettes and soda
“[r]ight by” her bed. As Patricia led Rucker to her bedroom, she
observed Rucker “looking all around.” She testified that he “was
looking in her bedroom. He was looking at everything. He was
looking in the kitchen. He was—he was just strange. He was just—
it just didn’t seem right. I never had a child come in and do that.”
Patricia let Rucker select candy from the candy stand, and she sat
on the edge of her bed and asked him “what he was doing out here
in the cold like that.” Rucker told her that he wanted to buy a
3
cigarette, so Patricia handed him one. Rucker then paid for the
items and left the house. Patricia was worried after that because
Rucker had been “sweating so bad” and “his demeanor, the way he
was acting” was “odd.”
Printup, the Finches’ adult son, Mia Stewart, Printup’s fiancée,
and their young daughter also lived at the Finches’ house. Printup
owned a disc jockey (D.J.) service and was supposed to D.J. for a
party on the night of January 28, but the party was cancelled
because of the snow. Printup had already set up for the party earlier
in the evening, and he returned home around 8:30 or 9:00 p.m. after
breaking everything down. When Printup returned, he unloaded his
equipment—two speakers and a 32-inch television—into the
bedroom he shared with Mia and their daughter, and then he played
video games for the rest of the evening on a PlayStation connected
to a wall-mounted television in his bedroom.
Around 10:30 p.m., Mia put their daughter to sleep in her bed,
and Mia also got into bed and went to sleep. About 30 minutes later,
Printup—who was still awake playing video games—heard “heavy
4
footsteps walking up the ramp” to the front porch of the house.
According to Printup, he “could tell there w[ere] two people, because
the first footsteps came up first, and then the second one followed
it.” Printup heard a knock at the door, and since everyone else in
the house was in bed, he went to answer the door. 2 Printup asked
who it was and what they wanted, and the people at the door
responded, “cigarettes and a drink.” Printup then opened the door.
According to Printup, “[b]y the time [he] could get the door
halfway open, a gunshot flew across [his] face. [He] couldn’t even
get the door opened up quick enough.” Printup testified that he tried
to close the door, but “it slammed on a gun.” Two men—both armed
with handguns—then “pushed the door in and just started
shooting.”3 Printup testified that the men told him, “[Y]ou’re going
to die today,” and one of them “shot [Printup] in the back.” Printup
2 Printup testified that the late hour of this visit did not alarm him
because he “never thought something would happen to a Candy Lady.” He just
assumed if someone was coming to see the Candy Lady, “it was some honest
person coming to the door.”
3 Law enforcement located a .32-caliber shell casing in the Finches’ living
room and a .45-caliber shell casing in the doorway of the Finches’ bedroom.
There were also two “indentions” in the wall of the living room caused by
gunshots.
5
also felt a “sting” on his left side. One of the men was around his
size—5’9” or 5’10”—and the other was shorter than him. Printup
started tussling with the shorter of the two men, and then the
shorter man broke free and ran towards the Finches’ bedroom.
Printup managed to crawl out of the front door into the snow and
laid his head on the concrete to get “elevation to [his] neck” because
he “was losing breath.”
Patricia testified that, around 11:00 p.m., she woke up to
gunshots, “a lot of shots.” She testified that the Finches did not keep
firearms in the house because she is “scared of guns.” Patricia could
hear Printup asking for help, and then, a “young man c[a]me in [her]
room” and stood near the doorway. Patricia said the young man—
whom she identified at trial as Rucker—was the same man from
earlier in the evening and was wearing the same red and blue jacket.
Rucker was also wearing a mask, but he had it pulled up, exposing
most of his face and his eyes. Patricia testified that she was “so
upset that he could come back and do this to me.”
According to Patricia, Rucker pointed a gold and black
6
handgun at her. Finch jumped out of bed, and when he did, Rucker
shot him. Patricia was “screaming, saying please don’t kill him.”
Rucker directed Finch to lay on the floor, and Finch begged Rucker
not to kill his wife. Patricia continued screaming, and she “could see
where [Rucker] had shot [Finch] on his stomach,” and there was “a
lot of blood” and “[a] big hole.” Patricia begged Rucker not to kill
them, and Rucker told her to “shut up” and “lie down on the floor.”
Patricia testified that, when she heard Rucker’s voice, she knew it
was the young man from “earlier in the day”—the one who “had on
the red-and-blue jacket.” Rucker then reached into the television
stand in the Finches’ bedroom and “grabbed the Snickers bars, he
snatched the cable box, and the T.V. off the stand.” Rucker left the
room, and Patricia could hear Mia screaming. Rucker came back
into the Finches’ bedroom and told Patricia to give him their cell
phones. Patricia gave Rucker two cell phones. Patricia testified that
another young man was with Rucker that night, and she heard him
tell Rucker, “[L]et’s go, let’s go.”
Mia testified that she woke up to gunshots around 11:00 p.m.,
7
and when she heard “the commotion” outside of her bedroom, she
immediately closed and locked the bedroom door, told her daughter
to “stay quiet,” covered her daughter’s head with a blanket, and
crouched behind the bedroom door on the floor. While Mia was
crouched on the floor, someone kicked in the door, and a young
man—whom Mia identified at trial as Rucker—entered the room,
wearing a red and blue jacket and a mask pulled up above his eyes.
Mia testified that Rucker pointed a gold handgun at her head and
asked her, “what works,” referring to the electronics in the bedroom.
Mia did not respond, and Rucker tried to grab the television off the
wall, but could not “get it down.” He also tried to grab Printup’s
speakers, but could not “pick that up,” so “he ended up taking the
TV”—the 32 inch television Printup used for his D.J. services.
Rucker also took the cell phone out of Mia’s hand—a black Samsung
phone with a pink case—and left. Mia remained in the bedroom for
about 15 or 20 minutes to make sure Rucker was gone. Mia then
ran outside of the house, screaming, and she saw Printup “bleeding
in the snow.” Mia ran inside to grab a pillow and blanket for
8
Printup, and she covered him while she ran next door for help.4
According to Patricia, she and Finch also stayed in their
bedroom for about 15 minutes after the shootings to make sure the
intruders were gone, and then, they jumped up and ran into the
living room, looking for Printup. Patricia testified that, even though
Finch was “bleeding so bad,” he still “ran to the door screaming
where is his child.” The Finches found Printup in the front yard,
and Finch and his uncle—who also lived with the Finches—picked
up Printup and carried him into the living room. Patricia testified
that the only phone they had access to was Finch’s uncle’s phone—
since the others had been stolen—and they called 911.
Fire rescue arrived about 30 minutes later—close to
midnight—because the roads were difficult to traverse due to snow.
The police and emergency personnel eventually arrived, as well, and
4 Patrick Pinson, the Finches’ next door neighbor, testified that he “was
awakened by Mia bamming at the door” around 11:00 p.m. Pinson stated that,
when he opened the door, Mia was “[f]rantic, scared, and crying” and “couldn’t
get her words together.” Pinson got dressed and went to the Finches’ house
with Mia to assist her.
9
Finch and Printup were transported to the hospital. Printup
sustained gunshot wounds to his back and left side and remained in
the hospital for approximately two weeks, where he “had to learn
how to walk again.” Finch, who was placed in a medically-induced
coma shortly after his admission, sustained a gunshot wound to the
abdomen and underwent numerous operations over the next few
months. On May 10, 2014, Finch died from complications from the
gunshot wound, including sepsis and respiratory distress.
On February 5, 2014, Detective Paul Vignola with the Atlanta
Police Department interviewed Patricia, Mia, and Printup at the
hospital. Detective Vignola showed Patricia a photographic lineup
of several juveniles, including one potential person of interest, based
on the limited descriptions of the shooter the police had been given;
however, Patricia was unable to identify anyone. At that time, Mia
told Detective Vignola that she believed her cell phone was still
active and being used after it was stolen. 5 Detective Vignola then
5 Printup testified that he tried calling Mia’s phone number while he was
in the hospital, and an unidentified woman answered the call.
10
secured a court order for Mia’s phone number to search for activity
on the phone on or after January 28, 2014. Before Detective Vignola
was able to review the corresponding call logs, Finch passed away,
and the case was reassigned to Atlanta Police Detective Cedric
Smith in the homicide unit.
Detective Smith testified that, after he took over the
investigation, he was able to review Mia’s cell phone records from
January 28 to February 9, 2014, and he linked one of the phone
numbers to Tamecia James. James—who dated Rucker for a few
months in 2011—testified that, a day or two after the January 28
incident, she asked Rucker if he had a cell phone she could use and
“switch her service to” because her old phone had a cracked screen.
Rucker told James he would “meet [her] with a phone soon.” On
February 6, 2014, James met Rucker at the Westlake MARTA
station to pick up the new cell phone. According to James, the cell
phone—a black Samsung phone with a pink case—had a picture of
a girl on the screen whom James did not recognize. After obtaining
the phone from Rucker, James tried to call her existing cell phone
11
number from the new phone. James’s old phone started ringing, and
at that point, she “realized that the [new] phone was still on.” James
testified that she was “trying to figure out” why Rucker would “give
[her] a phone with the service still on it,” so she contacted Rucker to
tell him that the phone was “still on.” Rucker told her not to use it
until it “got turned off.”
According to James, about a week after she advised Rucker
that the new cell phone still had service, she received a call from a
detective on the new phone. James testified that, as soon as the
detective identified himself, she hung up on him. Then, in late May
2014, another detective—Detective Smith—contacted James “on her
old cell phone” and asked her how she got the other phone—i.e., the
cell phone Rucker had given her. James told Detective Smith that
“Uno”—Rucker’s nickname—had given her the phone, and Detective
Smith advised her that her old cell phone number had shown up on
the call log for that phone. After the phone call with Detective
Smith, James contacted Rucker, who told her to “throw the phone
away.” James testified that this raised suspicions for her that “he
12
probably did something to get the phone,” so she “got rid” of the
phone.
Based upon Detective Smith’s conversation with James and the
corresponding phone records, he was able to determine that James
received Mia’s cell phone from Rucker. Detective Smith searched
through social media, looking for people with the nickname “Uno.”
Detective Smith located two men with this nickname—Rucker and
another man named Anthony Repress. Detective Smith then
prepared two photographic lineups—each containing photographs of
Rucker, Repress, and four other men—with a different photograph
of Rucker and of Repress in each lineup.
On June 2, 2014, Detective Smith went to the Finches’ house
to show Patricia and Mia the photographic lineups. Detective Smith
separated the two women, with Patricia in the living room and Mia
in the kitchen, and showed them the lineups. According to Detective
Smith, Patricia was able to identify Rucker in “[s]econds.” She held
the photograph and “became very emotional.” Detective Smith
testified that Patricia looked through all of the photographs and “she
13
said this is the person that came into the house”—identifying
Rucker’s photograph. Patricia testified that, as soon as Detective
Smith flipped over Rucker’s picture, she “knew he was the one who
shot [her] husband.” Patricia identified Rucker again at trial,
stating she knew he shot her husband and son on January 28, 2014,
because she saw “the young man’s face,” “his mouth,” and “his
teeth.” Patricia said, “[She] was sure. She was positive.”
After Detective Smith showed the photographic lineup to
Patricia, she left the living room and went into her bedroom.
Detective Smith then showed the other photographic lineup to Mia.
Mia also quickly identified Rucker, pointing “to him with her finger.”
Mia testified that, when she viewed the photographic lineup, she
was able to identify Rucker “immediately,” stating, “[T]hat’s him. I
know a hundred percent that’s him.” Mia also identified Rucker at
trial as the man she identified in the photograph, who “put a gun to
her head.”
When the police later secured Rucker’s cell phone, they
obtained a search warrant to “dump the content of the phone” and
14
discovered personal photographs from Patricia’s and Mia’s stolen
cell phones in Rucker’s phone contents, which—according to the
police—likely occurred when Rucker downloaded material from the
stolen phones onto a common device. Additionally, the police
discovered photographs, text messages, and social media postings
on Rucker’s cell phone indicating that Rucker was likely affiliated
with the “Sex Money Murder” set of the East Coast Bloods gang.
Detective Mark Belknap, an Atlanta Police Department detective
with the Criminal Intelligence Unit—a sub-unit of the Gang Unit—
testified as an expert at trial and stated that he believed Rucker was
a member of the “Sex Money Murder” gang based on Rucker’s
tattoos; photographs on his cell phone and social media accounts
depicting hand signals, gang apparel, marked money, and
handguns; and text messages between Rucker and other contacts
with “gang identifiers.” Several of those text messages referenced
Rucker’s involvement in the home invasion and shootings at the
Finches’ home on January 28, 2014. Detective Belknap also talked
to several gang members who knew Rucker and confirmed he was
15
affiliated with the gang. Rucker was ultimately arrested for these
crimes on November 6, 2015.
1. On appeal, Rucker contends that the trial court erred in
failing to instruct the jury on accomplice corroboration because
James was an accomplice to the crimes. See OCGA § 24-14-8.6 The
trial court did not charge the jury on corroborating an accomplice’s
testimony, but instead, instructed the jury that: “The testimony of a
single witness, if believed, is sufficient to establish a fact. Generally,
there is no legal requirement for corroboration of a witness provided
you find the evidence to be sufficient.” However, Rucker did not
request an accomplice corroboration instruction or object to the trial
court’s failure to give this instruction after the jury was charged.
“[T]hus any appellate review of the trial court’s instructions is for
plain error only.” Palencia v. State, 313 Ga. 625, 628 (872 SE2d 681)
6 OCGA § 24-14-8 provides that:
The testimony of a single witness is generally sufficient to
establish a fact. However, in certain cases, including prosecutions
for treason, prosecutions for perjury, and felony cases where the
only witness is an accomplice, the testimony of a single witness
shall not be sufficient. Nevertheless, corroborating circumstances
may dispense with the necessity for the testimony of a second
witness, except in prosecutions for treason.
16
(2022).
To establish plain error in regard to jury instructions, Rucker
must satisfy the following four prongs:
First, there must be an error or defect—some sort of
deviation from a legal rule—that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error—discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.
Palencia, 313 Ga. at 628 (quoting State v. Kelly, 290 Ga. 29, 33 (2)
(a) (718 SE2d 232) (2011)). “Satisfying all four prongs of this
standard is difficult, as it should be.” Kelly, 290 Ga. at 33 (2) (a).
Rucker asserts that the trial court’s failure to instruct the jury
on accomplice corroboration was obvious error because the following
evidence demonstrated that James was an accomplice to the crime:
(1) James was Rucker’s former girlfriend; (2) she asked him to
17
procure her a cell phone; (3) she accepted a cell phone from Rucker
that she suspected had been stolen; (4) she avoided phone calls from
the police and then advised Rucker that the police had attempted to
contact her; (5) she threw the cell phone away when Rucker told her
to do so; and (6) she referred to Rucker by his purported gang
nickname, “Uno.” Rucker contends that this evidence of James’s
close association with him, in addition to her actions to help conceal
the crime after it occurred, are sufficient to establish her as a party
to the crime and show her connection to it. And, Rucker further
argues that, because he was directly linked to the crime through the
testimony of James, the trial court erred in failing to instruct the
jury on accomplice corroboration.
“A jury instruction on the need for accomplice corroboration
should be given if there is slight evidence to support the charge.”
Thornton v. State, 307 Ga. 121, 125 (2) (c) (834 SE2d 814) (2019)
(citation and punctuation omitted). “An accomplice is someone who
shares a common criminal intent with the actual perpetrator of a
crime.” Id. (citation and punctuation omitted). Assuming for the
18
sake of argument that “slight evidence,” id., was presented of
accomplice corroboration such that the trial court clearly erred in
not giving this charge—thereby satisfying the second prong of the
plain error test—we conclude that Rucker has not met the third
prong of the plain error test, “as he fail[ed] to establish that omitting
the instruction probably affected the outcome of his trial.” Lyman
v. State, 301 Ga. 312, 318 (2) (800 SE2d 333) (2017). See also Kelly,
290 Ga. at 34 (2) (b) (holding that “the omission of the instruction
did not affect the outcome of the proceedings”). The evidence
presented by the State in this case was substantial and included two
eyewitness identifications of Rucker as the perpetrator, as well as
incriminating text messages from Rucker’s cell phone to his gangaffiliated contacts, acknowledging that he participated in the
January 28, 2014 home invasion and shootings.
In light of the other evidence presented against Rucker at trial,
Rucker “has not met his burden of affirmatively showing that the
failure to give an accomplice corroboration instruction probably
affected the outcome of his trial.” Lyman, 301 Ga. at 320-321 (2).
19
Accordingly, even if there was clear and obvious error, “there is no
likelihood that the outcome of the trial would have been different
had the instruction in question been given, and, for this reason [],
there is no plain error.” Kelly, 290 Ga. at 34 (2) (b).
2. Rucker also contends that the trial court erred in denying
his motion to dismiss the case on constitutional speedy trial
grounds, which was filed on April 13, 2017. After a hearing, the trial
court determined that Rucker’s constitutional speedy-trial right was
not violated and denied his motion to dismiss on June 28, 2017. In
denying the motion, the trial court concluded that 19 months
elapsed between the date of Rucker’s arrest and the issuance of the
order, which met the threshold to require application of the fourfactor balancing test set forth in Barker v. Wingo, 407 U.S. 514 (92
SCt 2182, 33 LE2d 101) (1972). See also Doggett v. United States,
505 U.S. 647, 651 (112 SCt 2686, 120 LE2d 520) (1992). And, after
reviewing and considering each of the Barker-Doggett factors, the
trial court concluded that the State had not violated Rucker’s right
to a speedy trial. The case then proceeded to trial on September 18,
20
2017. We see no clear error in the trial court’s factual findings nor
any abuse of discretion in the trial court’s weighing of the BarkerDoggett factors and its conclusion that Rucker’s constitutional right
to a speedy trial was not violated here.
Courts examining an alleged denial of the constitutional
right to a speedy trial first must consider whether the
interval between the defendant’s arrest, indictment, or
other formal accusation and the trial is sufficiently long
so as to be characterized as presumptively prejudicial. If
the delay is long enough to invoke the presumption of
prejudice, the trial court must balance four factors: (1)
whether the delay before trial was uncommonly long, (2)
whether the government or the criminal defendant is
more to blame for the delay, (3) whether, in due course,
the defendant asserted his right to a speedy trial, and (4)
whether he suffered prejudice as the delay’s result. In
this context, we must accept the factual findings of the
trial court unless they are clearly erroneous. Moreover,
the trial court’s weighing of each factor and its balancing
of all four factors—its ultimate judgment—are reviewed
on appeal only for abuse of discretion. As we have
discussed, speedy-trial claims require trial courts to
engage in a difficult and sensitive balancing process. This
task is committed principally to the discretion of the trial
court, and this Court has a limited role in reviewing the
trial court’s decision.
Williams v. State, 314 Ga. 671, 677-678 (4) (878 SE2d 553) (2022)
(citations and punctuation omitted).
21
In this case, the trial court determined that the length of the
delay between the date of Rucker’s November 2015 arrest and the
June 2017 motion to dismiss hearing was 19 months, and thus, it
met the one-year threshold to be deemed “presumptively
prejudicial.” Doggett, 505 U.S. at 651. Although both parties
concede that the trial court “properly determined that the delay was
presumptively prejudicial,” Williams, 314 Ga. at 678 (4), Rucker
challenges the date on which the trial court started calculating the
delay, as well as the trial court’s weighing of the four factors under
Barker-Doggett and the corresponding conclusions.
(a) Length of the Delay.
The trial court concluded that the 19-month delay—“to the
extent that it constitute[d] more than the customary period for
investigation and delay”—weighed against the State, but that “the
mere passage of time” was “not enough, without more, to constitute
a denial of due process.” Neither party contests that the trial court
properly weighed the length of the delay against the State.
22
However, as noted above, Rucker disputes the trial court’s
calculation as to the length of the delay.
At the hearing on Rucker’s motion to dismiss, trial counsel
stated in her place that Rucker was interviewed by an Atlanta Police
Department detective about the crimes in June 2014, but counsel
did not specify the exact date or location where this interview
occurred or provide any substantive detail as to what was discussed
during the interview. 7 Rucker asserts that the trial court should
have calculated the length of the delay from the date of Rucker’s
police interview, as opposed to Rucker’s November 2015 arrest date,
and argues that this period of delay was “uncommonly long.” Rucker
also argues that, because he was already being held on other charges
when police interviewed him, his incarceration likely attributed to
the delay in seeking a warrant for his arrest on these charges, which
“exacerbate[d], rather than mitigate[d], the harms of pretrial
detention.”
7 The only information about the location of this interview was that it
occurred during Rucker’s incarceration in DeKalb County on unrelated
charges.
23
The trial court found no merit to this argument given that
Rucker was not arrested for these charges after the June 2014
interview, but was irrefutably arrested on November 6, 2015—“the
benchmark for the Barker-Doggett analysis.” We conclude that the
trial court did not err by starting its length-of-delay calculation on
the date of Rucker’s arrest—which, as discussed above, still resulted
in a delay that exceeded the one-year threshold for presumptive
prejudice. See Cash v. State, 307 Ga. 510, 515 (2) (b) (i) (837 SE2d
280) (2019). And “we see no abuse of discretion in the trial court’s
conclusion that the length of the delay” weighed primarily against
the State. See id. at 516 (2) (b) (i).
(b) Reasons for the delay.
In considering the reasons for the delay, the trial court focused
on two phases of the case—the pre-indictment period between
Rucker’s November 6, 2015 arrest and the March 18, 2016
indictment, and the post-indictment period between the indictment
and the June 13, 2017 hearing on Rucker’s motion to dismiss. The
trial court concluded that the four-month pre-indictment delay
24
weighed neutrally or—at worst—benignly against the State, noting
that there was “no allegation or evidence that the State deliberately
delayed this indictment” to “hamper [Rucker’s] defense,” see Barker,
407 U.S. at 531, and that cases involving criminal gang charges are
complex to prepare and present. The trial court further observed
that, for more complex charges, investigative delay by the State is
acceptable, and the trial court concluded that, to the extent there
was any delay attributable to the State’s preparation of its case in
the pre-indictment stage, it was at most negligent and weighed “as
a relatively benign factor against the State.”
As for the post-indictment delay, the trial court determined
that the case was not “neglected since indictment” and “proceeded
with ordinary promptness” and that any delay was the “inevitable
delay owing to the human aspects of the practice of law.” The trial
court noted that Rucker had not alleged that “the State deliberately
delayed the case in order to obtain a tactical advantage over Rucker”
and concluded that “the reasons for the post-indictment delay [were]
neutral, weighing neither against the State nor [Rucker,] because
25
this case ha[d] been prosecuted with that orderly expedition
consistent with due process of law.”
Rucker argues that the trial court erred in finding that the
delay was neutral or benign because, while it may be generally true
that gang cases are “uncommonly complex” and “require significant
resources to investigate,” such circumstances “did not appear to be
true in this case.” Rucker asserts that with two eyewitness
identifications and statements from Rucker’s former girlfriend that
he had given her a stolen cell phone, there was “likely probable cause
to issue an arrest warrant when the detective first spoke to [Rucker]
in June 2014 and the delay from that point is fairly hard to explain.”
Rucker thus contends that the trial court should have weighed this
factor against the State as neglect and abused its discretion in
weighing this factor neutrally.
We have already rejected Rucker’s argument that the time for
calculating the length of the delay should have run from the date of
Rucker’s police interview in June 2014. And, even if the State was
negligent in bringing the case to trial once Rucker was arrested, “[a]
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more neutral reason such as negligence . . . should be weighted less
heavily” against the State. Barker, 407 U.S. at 531. We see no abuse
of discretion in the trial court’s conclusion that the reason for the
delay weighed neutrally or benignly against the State. See Cash,
307 Ga. at 517 (2) (b) (ii).
(c) Assertion of the right.
The trial court weighed Rucker’s delay in asserting his right to
a speedy trial heavily against him. Rucker argues that the trial
court erred in this regard because, although he did not assert his
right to a speedy trial until he filed his motion to dismiss the
indictment on April 13, 2017, he was not served with initial
discovery until March 2016 or witness transcripts until July 2016
and “the time before a defendant has had a chance to view the
evidence should not weigh heavily against him.”
The accused is not required to demand a speedy trial at
the first available opportunity, for the Supreme Court has
expressly rejected the demand-waiver approach to the
constitutional speedy trial right. Even so, a defendant
who fails to assert the right at any point in the trial court
will have an extremely difficult time establishing a
violation of his or her constitutional right to a speedy
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trial. In order to invoke the right, the accused need not
file a formal motion, though that is certainly sufficient.
Moreover, invocation of the speedy trial right need not
await indictment, information, or other formal charge;
the accused can begin demanding that the right to a
speedy trial be honored as soon as he or she is
arrested. 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. This
requires a close examination of the procedural history of
the case with particular attention to the timing, form, and
vigor of the accused’s demands to be tried immediately.
Ruffin v. State, 284 Ga. 52, 62-63 (2) (b) (iii) (663 SE2d 189) (2008)
(citations and punctuation omitted).
In denying Rucker’s motion to dismiss, the trial court noted
that Rucker waited 17 months to file his constitutional speedy trial
motion, that he did not demand a statutory speedy trial or request
special permission to file an out-of-time statutory speedy trial
demand, and that he was represented by counsel “every step of the
way.” After weighing the “eve-of-trial assertion of the demand for
dismissal (versus a demand for trial), the absence of mitigation, and
the fact that Rucker did not demand a statutory speedy trial,” the
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trial court concluded that this factor should weigh heavily against
Rucker.
We cannot say that the trial court erred in reaching this
determination. Because delay often works to a defendant’s
advantage, “the accused bears some responsibility to invoke the
speedy trial right and put the government on notice that he . . .
would prefer to be tried as soon as possible.” Ruffin, 284 Ga. at 62
(2) (b) (iii). And, “[o]ur cases hold that an extended delay in
asserting the right to a speedy trial should normally be weighed
heavily against the defendant.” State v. Porter, 288 Ga. 524, 529 (2)
(c) (3) (705 SE2d 636) (2011) (emphasis in original). Here, Rucker
waited over a year after he was indicted to assert his right to a
constitutional speedy trial, and he never filed a statutory speed trial
demand, even though he was represented by counsel throughout
these proceedings. See Sosniak v. State, 292 Ga. 35, 42 (3) (734 SE2d
362) (2012) (holding that the trial court did not err in finding an eveof-trial demand for dismissal untimely and properly weighed this
factor heavily against the defendant). See also Higgenbottom v.
29
State, 290 Ga. 198, 202 (1) (C) (719 SE2d 482) (2011) (holding that
the defendant’s failure to file his constitutional speedy trial motion
to dismiss “until over two years following his arrest” and his failure
to “avail himself of his statutory right to a speedy trial” supported
the trial court’s determination to weigh this factor against the
defendant). Accordingly, we conclude that the trial court acted
within its discretion in weighing this factor heavily against Rucker.
(d) Prejudice.
Finally, the trial court concluded that, although Rucker was
entitled to the presumption of prejudice that arises from a 19-month
delay since arrest, the presumption was overcome in this case. In
reaching this conclusion, the trial court noted that Rucker “failed to
allege actual prejudice in his motion” and further noted that his only
assertion of prejudice—beyond the mere passage of time—was
raised at the motion to dismiss hearing, when trial counsel stated in
her place that one of the State’s witnesses listed in discovery had
difficulty recalling the statement she gave to police around the time
of the incident. The trial court determined that this assertion did
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“not amount to much” since the witness’s statement would have
been available to refresh the witness’s recollection or impeach her
testimony at trial. Thus, the trial court weighed this factor only
benignly against the State. However, the trial court ultimately
concluded that, based on “the absence of demonstrable prejudice”
and Rucker’s “own delay in asserting the right,” this factor did not
weigh in Rucker’s favor.
Rucker asserts that the trial court abused its discretion in
reaching this conclusion because the length of the delay was
presumptively prejudicial. “But the prejudice prong may be weighed
against the defendant even in cases of excessive delay.” Cash, 307
Ga. at 518 (2) (b) (iv) (citation omitted). Here, the trial court
acknowledged “the presumption of prejudice created by the delay,”
id., but determined that Rucker did not demonstrate actual
prejudice and contributed to the delay in waiting to assert the right.
“[I]n attempting to establish that his right to a speedy trial was
violated, [Rucker] cannot rely solely on the presumptive prejudice
from the [19]-month delay.” Williams, 314 Ga. at 680 (4) (d). Thus,
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we conclude that the trial court did not abuse its discretion by failing
to weigh this factor in Rucker’s favor.
“In sum, we see no abuse of discretion in the trial court’s
weighing of the [Barker-Doggett] factors or clear error in the factual
findings that supported those determinations.” Cash, 307 Ga. at 520
(2) (b). And we see no abuse of discretion in the trial court’s
conclusion that the 19-month delay in trying Rucker did not violate
Rucker’s constitutional right to a speedy trial.
Judgment affirmed. All the Justices concur.
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