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Cash v. State

Supreme Court of Georgia

December 23, 2019

CASH
v.
THE STATE.

          PETERSON, JUSTICE.

         Dundell Cash appeals his 2017 malice murder conviction for the 2006 fatal shooting of Euan Dougal outside a Columbus nightclub.[1] His sole argument on appeal is that the trial court erred by denying his motion for new trial based on an alleged violation of his constitutional right to a speedy trial. Finding no abuse of the trial court's considerable discretion in rejecting Cash's speedy trial claim, we affirm.

         Dougal was shot and killed during an encounter outside a Muscogee County strip club in the early morning hours of November 10, 2006. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that Dougal was shot at closing time while waiting on his girlfriend, a club dancer named Samantha Taylor. Taylor had gone outside to speak to Dougal, but the doorman had directed her to go back inside per club protocol. As she reached the door to go back into the club, Taylor heard gunshots. Just before the shooting, the club's doorman had warned Cash, who also was standing outside, about talking to the club's female employees as they were leaving; Cash complained about wanting more in return for the money he had spent at the club that night.

         Later that day, police obtained a warrant for Cash's arrest charging him with Dougal's murder. Cash was arrested in South Carolina on November 2, 2008. On April 21, 2009, a Muscogee County grand jury returned a no-bill on an indictment charging Cash with malice murder and other crimes. Cash was released from jail shortly thereafter. Cash's trial attorney later testified that an assistant district attorney informed the defense at the time that the no-bill was returned because the only eyewitness to the shooting, Dennis Archer, had died. The ADA testified that he did not remember whether he had contacted defense counsel to inform him about the no-bill; he also testified that he did not lie to or mislead the defense and "shared with the defense, if anything at all, that we had no idea where [Archer] was[.]"

         On March 10, 2015, a grand jury returned a true bill of indictment against Cash, charging him with malice murder, felony murder, and other crimes arising from the shooting. On October 1, 2015, Cash filed a motion to dismiss the indictment based on a violation of his constitutional right to a speedy trial. Cash argued that the delay in bringing his case to trial had prejudiced him, in part due to the loss of several witnesses, including Calvin Jones, who died in 2010. Cash submitted his own affidavit stating that Jones had picked him up at the club shortly after closing on the night of the murder and that Jones saw that he was wearing a black jacket. After a hearing, the motion was denied by a written order entered on April 7, 2016. This Court denied appellant's application for interlocutory appeal.

         At the January 2017 trial of the case, the jury heard from several witnesses who identified Cash as the man they saw standing outside the strip club with Dougal just before the shooting. At least one of those witnesses said Cash was wearing a gray "hoodie"; another witness who saw Cash that night told police that Cash was wearing a dark blue or black jacket and testified that Cash wore a jacket with a hood. Another witness picked Cash out of a photo lineup as a man she saw walking briskly away from the club after the shooting; that witness said the man she saw was wearing a "big black jacket." A group of Army Rangers who had been visiting the club saw a black man running away from the club after the shooting; one of them who testified at trial said that the man he saw running was wearing a gray "hoodie," while a brother of one of the Rangers testified that a man who "caught [his] eye" at a gas station immediately after the shooting wore a "grayish hoodie."

         The jury also heard live testimony from Archer, who, as it turned out, was still very much alive. Archer testified that he was outside near an entrance to the club at the time of the shooting and saw two people having a conversation but did not see any faces. He denied signing his initials on a photo lineup shown to him on the night of the shooting, when, according to a law enforcement witness, he picked out Cash as the shooter.

         Two Army Rangers who were at the club on the night of the shooting, Ben Frieberg and Steven Bell, could not be located for trial, so their statements to police were read into the record by a retired Columbus police detective. Neither could identify the shooter; Bell said the shooter wore a jacket, while Frieberg said that, at the gas station, they encountered a man wearing a gray "hoodie" with a handgun hanging out of his pants.

         Convicted of malice murder, Cash received a sentence of life in prison. Cash argued in moving for a new trial that he had been denied his constitutional right to a speedy trial. The trial court in its order calculated the relevant period of delay as at most 28 months - the six months between Cash's November 2008 arrest and subsequent release from jail in April 2009 after the grand jury returned a no-bill, plus the 22 months from the date of the March 2015 indictment to the trial that began on January 24, 2017. Otherwise, the trial court's analysis of the appropriate factors was similar to that in its order denying the motion to dismiss: the trial court found that the length of the delay weighed against the State, but not "too heavily"; that the reason for the delay factor weighed "relatively benignly" against the State; that Cash's failure to exercise his speedy trial right sooner weighed against him; and that the prejudice factor could not weigh in Cash's favor, because he had not shown that he had suffered actual prejudice as a result of the delay. The trial court specifically found that Cash had not proven that the State lied to or misled the defense about the status of Archer.

         1. Although Cash does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the evidence presented at trial - while not strong - was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crime of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Cash argues that the trial court erred in failing to dismiss the indictment for a violation of his right to a speedy trial. We find no clear error in the trial court's factual findings, and we find no abuse of discretion in the court's weighing of the factors and ultimate decision to reject Cash's speedy trial claim.

         (a) Threshold considerations

         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." See State v. Porter, 288 Ga. 524, 525 (2) (a) (705 S.E.2d 636) (2011). 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. See Barker v. Wingo, 407 U.S. 514, 530-533 (92 S.Ct. 2182, 33 L.Ed.2d 101) (1972); see also Doggett v. United States, 505 U.S. 647, 651 (112 S.Ct. 2686, 120 L.Ed.2d 520) (1992). "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." Porter, 288 Ga. at 526 (2) (a). "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." Id. (citation and punctuation omitted).

         The trial court found that the delay in Cash's case was at most 28 months. The trial court determined that this qualified as presumptively prejudicial and thus proceeded to consider the four Barker factors. Cash does not meaningfully dispute that the trial court properly calculated the length of the delay for purposes of triggering the Barker analysis at 28 months at most.[2] And the State has not challenged the trial court's determination that the delay was sufficiently long to warrant consideration of the Barker factors. See Doggett, 505 U.S. at 652 n.1 ("Depending on the nature of the charges, the lower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year." (citation omitted)); Heard v. State, 295 Ga. 559, 564-565 (2) (d) (761 S.E.2d 314) (2014) ("a delay approaching one year is sufficient in most cases to raise a ...


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