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Defendant appealed the denial of his motion to dismiss for failure to provide a speedy trial in violation of his rights under the State and Federal Constitutions, as well as the denials of his "plea in bar and motion to dismiss" and "general demurrer," which both asserted that the indictment returned against him was defective because the non-murder crimes charged therein were time-barred. The court held that there was no abuse of the superior court's discretion in denying defendant's motion to dismiss based on alleged violations of his constitutional rights to a speedy trial; the superior court did not err in failing to dismiss the indictment where neither prejudice nor deliberate adverse action on the part of the State had been shown; and the superior court did not err in failing to grant his "plea in bar and motion to dismiss" and his "general demurrer," where the applicable statute of limitations was tolled under OCGA 17-3-2(2). Accordingly, the judgment was affirmed.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF GEORGIA
November 29, 2011
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
It appearing that the enclosed opinion decides a second-term appeal, which
must be concluded by the end of the September Term on December 16, 2011, it is
ordered that a motion for reconsideration, if any, must be received in the Clerk’s
Office by 4:30 p.m. on Tuesday, December 6, 2011, including any motions
submitted via the Court’s electronic filing system.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I hereby certify that the above is a true extract from
the minutes of the Supreme Court of Georgia
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
In the Supreme Court of Georgia
November 29, 2011
S11A0948. HIGGENBOTTOM v. THE STATE.
Dale Lee Higgenbottom appeals the denial of his motion to dismiss for
failure to provide a speedy trial in violation of his rights under the State and
Federal Constitutions, as well as the denials of his “plea in bar and motion to
dismiss” and “general demurrer,” which both asserted that the indictment
returned against him is defective because the non-murder crimes charged
therein are time-barred. For the reasons which follow, we affirm.
The record reflects the following. On December 20, 1992, Christopher
Dewayne Breazeale, a fifteen-day-old infant, died from head injuries.
Higgenbottom, who was fifteen years old at the time, had stayed at the home
of the victim the evening that the baby’s fatal injuries were sustained, and he
and the infant’s family members and neighbors were interviewed by police.
At that time, the police were told that the baby was dropped by the infant’s
four-year-old sister. Shortly after the infant’s death, an autopsy was
performed by Dr. Floyd James, who concluded that the death was accidental.
In late 1992 and early 1993, the Catoosa County Sheriff’s Office, the City of
Ringold Police, and the Georgia Department of Family and Children Services
(DFACS) conducted an investigation. Higgenbottom was again questioned
by police on January 26, 1993. No criminal charges were filed after the
investigation. Dr. James died in 2004, and in June 2007, Georgia Bureau of
Investigation Chief Medical Examiner, Dr. Kris Sperry, issued a revised
opinion on the infant’s death, concluding that it should have been ruled a
homicide and not an accident. On August 30, 2007, Higgenbottom was
arrested for the murder of the baby. He was released on bond on September
On April 8, 2009, a Catoosa County grand jury returned a seven-count
indictment against Higgenbottom stemming from the baby’s death: Count (1)
- malice murder; Count (2) - felony murder while in the commission of
cruelty to children; Count (3) - felony murder while in the commission of
aggravated battery by rendering a member of the child’s body useless; Count
(4) - felony murder while in the commission of aggravated battery by
seriously disfiguring the child’s skull; Count (5) - cruelty to children in the
first degree; Count (6) - aggravated battery by rendering a member of the
child’s body useless; and Count (7) - aggravated battery by seriously
disfiguring the child’s skull. Higgenbottom, with the assistance of counsel,
entered pleas of not guilty to the charges on April 27, 2009.
Trial was set for the September 2009 term of the Superior Court of
Catoosa County, but at the request of Higgenbottom and by agreement of the
State, an order was entered on September 9, 2009, continuing trial of the case
until the next term of court. On January 22, 2010, Higgenbottom filed the
“plea in bar and motion to dismiss” and “general demurrer,” alleging the
expiration of the statutes of limitation regarding the non-murder counts, and
on February 17, 2010, he filed the motion to dismiss the indictment for
failure to provide a speedy trial. Following a hearing on March 11, 2010, the
superior court denied all three motions on April 12, 2010. Higgenbottom
filed a notice of appeal on May 12, 2010, and on January 10, 2011, this Court
vacated the judgment of the superior court denying the motion to dismiss the
indictment for violation of the constitutional right to speedy trial on the basis
that the superior court’s order contained insufficient findings for appellate
review, and remanded the case to the superior court for its entry of an order
including findings in accordance with Barker v. Wingo, 407 U.S. 514 (92 SC
2182, 33 LE2d 101) (1972). Higgenbottom v. State, 288 Ga. 429 (704 SE2d
786) (2011). Following remand, on February 17, 2011, the superior court
entered an amended order denying the motion to dismiss for failure to
provide a speedy trial.
1. Higgenbottom contends that the superior court erred in failing to
grant the motion to dismiss for failure to provide a speedy trial. This Court’s
analysis of the merits of such a contention is governed by well-established
In examining an alleged denial of the constitutional right to a
speedy trial, courts must engage in a balancing test with the
following factors being considered: (1) the length of the delay;
(2) the reasons for the delay; (3) the defendant's assertion of the
right to a speedy trial; and (4) prejudice to the defendant. Barker
v. Wingo, 407 U.S. 514 (92 SC 2128, 33 LE2d 101) (1972). The
existence of no one factor is either necessary or sufficient to
sustain a speedy trial claim, and a trial court's findings of fact and
its weighing of disputed facts will be afforded deference on
appeal. We review the trial court's ruling for abuse of discretion.
(Citations and punctuation omitted.) Fallen v. State, 289 Ga. 247, 248 (710
SE2d 559) (2011). But, before application of the full four-factor balancing
test of Barker v. Wingo, a threshold determination must be made as to
whether the interval between the accused's arrest, indictment, or other formal
accusation and the trial is sufficiently long so as to be characterized as
“presumptively prejudicial.” If such a presumption is not warranted, the
analysis need go no farther because the accused’s speedy trial claim fails; if,
however, the delay invokes the presumption of prejudice, then the analysis
proceeds to the examination of all Barker v. Wingo factors. Ruffin v. State,
284 Ga. 52, 55 (2) (663 SE2d 189) (2008).
A. Length of the Delay. As for the length of the delay, Higgenbottom
asserts that there are three prejudicial delays in his case: the approximately
15-year period between the death of the infant and his arrest; the almost 16
months between his arrest and the return of the indictment; and the 11- month
interval between the indictment and the motions’ hearing.
There are two types of pre-trial delay which may constitute violations
of an accused’s constitutional rights to a speedy trial. Jones v. State, 284 Ga.
320 (1) (667 SE2d 49) (2008); Wooten v. State, 262 Ga. 876, 878(2) (426
SE2d 852) (1993). The first precedes the accused’s arrest or indictment and
due process implications under the Fifth and Fourteenth Amendments may be
triggered during the investigation stage of a case if the accused is in custody
during that period. Harrison v. State, ___ Ga. App. ___ ( Case No.
A11A1279, decided September 27, 2011. But, that is not the situation in this
case. The second type of delay may occur after arrest or indictment, and
potentially triggers Sixth Amendment concerns. Id. In this case, the relevant
time period is the 30-month interval between Higgenbottom’s arrest and the
filing of his motion to dismiss based upon the violation of his speedy trial
rights. Jones v. State, supra at 323(2). Citing Wimberly v. State, 279 Ga. 65
(608 SE2d 625) (2005), in which this Court observed that there is not a
“bright-line” rule for determining whether the subject delay raises a
presumption of prejudice to the accused, the superior court found that the
time period at issue did “not rise to the level of being presumptively
prejudicial”; it noted that the case involved an “old” and once “cold”
homicide which had been initially determined to be an accident and was not
ruled a criminal homicide until 15 years after the victim’s death.
Nevertheless, the superior court rightly acknowledged that the 30-month
delay might invoke the presumption of prejudice, and proceeded to apply the
full Barker v. Wingo test. Ruffin v. State, 284 Ga. 52, 55(2) (663 SE2d 189)
B. Reasons for the delay. The superior court expressly found that there
was no evidence that the delay was the result of any intentional or deliberate
action by the State to hamper the defense; that the initial delay of 24 months
between Higgenbottom’s arrest and his case being placed on a trial calendar
was attributable to the State, but that the delay was “not uncommonly long”
given the peculiar circumstances of the case; and that once the case appeared
on a trial calendar, Higgenbottom lengthened the delay by seeking and
obtaining a continuance. After balancing these reasons for the delay, the
superior court weighed this factor slightly against the State.
Higgenbottom urges that the State was required to provide a reason for
its contribution to the delay, and that inasmuch as the State did not do so, the
delay must be found to be caused by the negligence of the State in bringing
the case to trial. It is true that when no reason appears for a delay, it will be
treated as caused by the State’s negligence. Boseman v. State, 263 Ga. 730,
733 (1) (b) (438 SE2d 626) (1994). However, even accepting the premise of
the State’s failure to explain with specificity its role in the delay so as to
result in a finding of negligence, when a delay is caused by the mere
negligence of the State, this is relatively benign, and therefore, this factor
should be weighed only slightly against the State.1 Fallen v. State, 289 Ga.
247, 248 (2) (710 SE2d 559) (2011). And, that is precisely what the superior
C. Defendant’s assertion of the right to a speedy trial. The superior
court weighed this factor heavily against Higgenbottom. It did so after
noting that Higgenbottom did not file his constitutional speedy trial motion to
dismiss until over two years following his arrest and after he requested and
was granted a continuance, nor did he avail himself of his statutory right to a
speedy trial. These circumstances support the superior court’s determination
to weigh this factor against Higgenbottom.2 Bowling v. State, 285 Ga. 43,
45-46 (1) (c) (673 SE2d 194) (2009); Nelloms v. State, 274 Ga. 179, 181
(549 SE2d 381) (2001).
In argument, Higgenbottom also asserts that the State delayed handing over discovery
material for two years following his arrest, and then did so only three weeks prior to the
scheduled trial date, so that it must be concluded that the State intended to disrupt the defense.
However, there is no evidence of any intentional or deliberate action on the part of the State to
withhold discovery or, by action or inaction, in any manner attempt to hamper the defense.
Higgenbottom complains that the superior court’s citing of his failure to timely file a
motion to dismiss after his arrest ignores that an accused must be indicted before the accused can
file a motion to dismiss the charges; however, such complaint is unavailing as an accused may
assert the right to a speedy trial prior to indictment, and the pre-indictment failure to assert the
right may be weighed against the accused. Haisman v. State, 242 Ga. 896, 899 (2) (252 SE2d
D. Prejudice to the defendant. This factor addresses three interests
which the right to a speedy trial was designed to protect, with the last interest
being of the most import; these interests are to prevent pre-trial incarceration
from being oppressive, to minimize any anxiety and concern on the part of
the accused, and to limit possible impairment of the defense. Fallen v. State,
supra at 249 (4).
As Higgenbottom acknowledges, oppressive incarceration is not at issue
inasmuch as he was released on bond only eight days after his arrest.
However, he urges that he suffered significant anxiety and concern as he was
interrogated by police multiple times and for an extended period, the
accusation of infanticide has “hung over [his] head” for many months and
continues, and his defense has been severely impaired.
As to the second interest, anxiety and concern are always present to
some extent during the pendency of a criminal prosecution, and
Higgenbottom has not made any unusual showing in this regard; therefore,
this interest will not be determined in his favor. Fallen v. State, supra at 249
(4); Mullinax v. State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001)
Higgenbottom cites prejudice from the death of Dr. James, and the
resulting inability to question him about the medical and photographic
evidence he presumably utilized in reaching his later discredited conclusion
that the infant’s death was accidental. However, the accused’s constitutional
rights to a speedy trial attach at the time of arrest or when formal charges are
brought, whichever is first in time. Wimberly v.State, supra at 65. Thus, any
impact on Higgenbottom’s case by the death of Dr. James existed prior to the
attachment of his constitutional rights to a speedy trial. Herndon v. State, 277
Ga. App. 374, 379 (4) (c) 626 SE2d 579) (2006); compare Hester v. State,
268 Ga. App. 94 (601 SE2d 456) (2004). Furthermore, it appears that the
State is willing to stipulate to the admission of Dr. James’s autopsy report.
See Nelloms v. State, supra at 181. Simply, Higgenbottom has failed to show
that the superior court was in error in finding that he made no showing of
actual prejudice to his defense.
There was no abuse of the superior court’s discretion in denying
Higgenbottom’s motion to dismiss based on alleged violations of his
constitutional rights to a speedy trial. Fallen v. State, supra at 249(4).
2. Higgenbottom also contends that the superior court erred in failing
to dismiss the indictment because the delay in his arrest and indictment
violates his rights to due process guaranteed by the 5th and 14th Amendments
to the United States Constitution and Article I, Section I, Paragraph I of the
1983 Georgia Constitution. However, as already noted, Higgenbottom was
not in custody during the period in question. See Division 1 (A), supra.
And, as Higgenbottom acknowledges, in order for a delay to constitute a
violation of due process, it must cause actual prejudice to the defense and it
must be the product of deliberate action by the prosecution designed to gain a
tactical advantage. Jones v. State, supra at 320-321 (1); Wooten v. State,
supra at 878 (1). But, as has been discussed, neither actual prejudice nor
deliberate adverse action on the part of the State has been shown. See
Division 1 (D), supra.
3. Higgenbottom contends that the superior court erred in failing to
grant his “plea in bar and motion to dismiss” and also presumably his
“general demurrer,” and thereby, to prohibit prosecution of the non-murder
counts in the indictment, as they are barred by the applicable statutes of
limitation.3 But, there was no error is denying such motions on the basis
It should be noted that OCGA § 17-3-2.1 expressly excludes from periods of limitation
prosecution for certain offenses, including the situation of a victim of a violation of:
OCGA § 16-5-70, relating to cruelty to children if the victim is under 16 years of age on the
date of the violation. Under this provision, the time period in which a prosecution must be
Under OCGA § 17-3-2(2),4 the applicable statute of limitation is tolled
during any period in which the “person committing the crime is unknown or
the crime is unknown.” The knowledge component of this exception has been
construed as requiring the State to have actual knowledge of the identity of
the alleged perpetrator or the crime. Beasley v. State, 244 Ga. App. 836 (536
SE2d 825) (2000). And, the record does not support a finding that the State
had actual knowledge that there was criminal wrongdoing resulting in the
fatality much less that Higgenbottom would be charged as the perpetrator of
the baby’s death, until the superseding medical examiner’s report in 2007.
Although it is true that Higgenbottom was interviewed by authorities shortly
commenced does not begin to run until the victim has reached the age of 16 or the violation is
reported to a law enforcement agency, prosecuting attorney, or other governmental agency,
whichever event occurs first.
OCGA § 17-3-2 provides:
The period within which a prosecution must be commenced under Code Section 17-3-1
or other applicable statute does not include any period in which:
(1) The accused is not usually and publicly a resident within this state;
(2) The person committing the crime is unknown or the crime is unknown;
(3) The accused is a government officer or employee and the crime charged is
theft by conversion of public property while such an officer or employee; or
(4) The accused is a guardian or trustee and the crime charged is theft by
conversion of property of the ward or beneficiary.
after the crimes, this was done as part of the investigative process, and during
the time frame when the baby’s injuries had been determined to have been
accidentally sustained. Compare Jenkins v. State, 278 Ga. 598 (604 SE2d
Judgments affirmed. All the Justices concur.