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From the Chatham County Superior Court, Case Number CR110672 Newell M. Hamilton State Bar of Georgia No. 320905 Jason Randall Clark State Bar of Georgia No. 127181 Office of the Georgia Capital Defender 11 Judicial Lane, Suite 230 Brunswick, Georgia 31520 (912) 261-3902


BRIEF BEGINS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PROCEEDINGS BELOW (FACTS ON APPEAL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT .. . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23



NO. S12A1981

BRIEF OF THE APPELLEE I. STATEMENT OF JURISDICTION This Court has jurisdiction under Article VI, Section VI, Paragraph III of the State Constitution, and as set forth in State v. Thornton, 253 Ga. 524 (1984), because the indictment under which Mr. Buckner is accused contains charges of murder. See also, State v. Murray, 286 Ga. 258 (2009).


STATEMENT OF FACTS The Statement of Facts offered by the Appellant is not entirely correct and/or

the method of citation is such that the assertions made therein cannot be verified. Additionally, a large portion of Appellant's Statement of Facts is improper argument and/or commentary. While not wanting to engage in the same type of behavior, Appellee does not wish for these improper assertions to appear uncontested. For the sake of clarity, Appellee will attempt to address the facts in

the order raised by Appellant. Ashleigh Moore did go missing from her home in the early morning hours of April 18, 2003. She was last seen by Mr. Buckner, her cousin, Jaleel Coleman, and her sister, Montranece Woodard, when Mr. Buckner told her to go back to bed, upon finding her in the room with the other children. Notably, according to both witnesses testimony, Ashleigh Moore was not dragged from the room. (Transcript of Motion Hearings held March 14, 2012, 140:12-23; 144-146). Mr. Buckner was arrested on April 20, 2003, for a violation of his probation; being alone in the home with Ashleigh Moore and the two other children, discovered as a result of the disappearance of Ashleigh Moore. Mr. Buckner was indicted for the murder of Ashleigh Moore with the first indictment being returned on December 12, 2007, the second indictment being returned on May 13, 2009 (R-9195, 9226). Finally, the third indictment was returned March 23, 2011 (R-10). Death notices were filed in both the second and third indictments. (R-11, 12, 9407, 9408). The case was on numerous calendars and set for trial at least one time, contrary to the commentary offered by the State. The history of the case is thoroughly outlined in the Court's Order and Exhibit A included with the Order. (R-9466-9473) Notably, if the Appellant wishes to contest the findings of fact made by the trial court, he needs to cite to the record to show error. The parties

stipulated that the record in the previous indictments could be made a part of the record in this indictment on appeal, however appellant has not utilized that option. (Transcript of Motion Hearings held March 15, 2012, 8-10; R-9189). The case was set for trial, and the usual pre-trial motions were being prepared to be heard on February 16, 2011. Notably, Mr. Perry announced to the court, “And we’re talking about, what, a seven year old case. I’ve been here for less than 90 days, and I’m going to be up to speed when we get ready to go to trial. I’m not up to speed right now.” (R-9399-9400). Further, the trial court, after a review of the record, and extensive hearings, found the State intentionally caused more delay in this case by announcing “its intent to seek the death penalty on the very date the case was set to go to trial for the tenth time” and, “the [c]ourt cannot now find that the delay that resulted … was because of mere negligence when the State knew (or should have, by its own admission, known) that problems existed with the evidence.” (R-9442). The State chose to file this notice of intent to seek the Death Penalty in what is by its own admission a “largely circumstantial” case. (State’s Appellate Brief-3). This decision was apparently made without reading the thousands of pages (5 banker boxes full) of reports, records, notes, photographs, and recordings referenced in their brief, but instead was made while getting ready for the trial being planned for at the February hearing referenced above. (Transcript of Motion

Hearings held June 13, 2011, 39-40). We also know that the Assistant District Attorney who made the decision to seek death in this case while preparing for trial, had not reviewed all of the discovery as late as August of 2011. (Transcript of Motion Hearings held August 24-26, 2011, 53:21-25 through 54:1-8). Law enforcement agencies have lost various pieces of potentially exculpatory evidence, including evidence of law enforcement officers tampering with the alleged crime scene. Both the State and Defense agree that this evidence is missing, and the trial court has also found that fact. (R-9448-9458). The State claims it has never asked for a continuance, yet it remains silent as to the delays and continuances caused by is failure to meet its discovery obligations in this matter, despite having been ordered by the court to do so on numerous occasions. (R-1130, 1319, 1321, 9460-9460) While the State contends on page 5 of its brief that the Defense was silent on this issue at a hearing on June 30, 2011, a transcript of the hearing reflects otherwise. (Transcript of Motion Hearings held June 30, 2011, 6:8-13). These

discovery problems were addressed again towards the end of August. (Transcript of Motion Hearings held August 24-26, 2011, 44-54). Further, these discovery issues were still present until the conclusion of this case. (R-9460-9464). The State concludes its statement of facts with explanations and commentary as to why the lost evidence is not the fault of the District Attorney’s Office. Not

only do these assertions lack any citation to any factual source, blame as to which specific government agency may be at fault is irrelevant.



ARGUMENT The trial court did not abuse its discretion in granting Mr. Buckner’s

Motion for Discharge Pursuant to the Sixth Amendment of the United States Constitution. The Supreme Court will review a trial court's grant or denial of a motion to dismiss the indictment on speedy trial grounds for abuse of discretion only. Ruffin v. State, 284 Ga. 52, 65-66 (2008). The Sixth Amendment of the United States Constitution guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to aspeedy ... trial . ...” This right is enshrined in the Georgia Constitution and is co-extensive with the federal guarantee made applicable to the states by virtue of the Fourteenth Amendment of the United States Constitution. Every constitutional speedy trial claim is subject to a two-tiered analysis as set forth in the United States Supreme Court decisions Barker v. Wingo, and Doggett v. United States. As for the first tier of the analysis, it must be determined if the delay in question is presumptively prejudicial. If not, there has been no violation of the constitutional right to a speedy trial and the second tier of analysis is unnecessary. If, however, the delay is determined to be presumptively prejudicial, then the court must engage the second tier of analysis by applying a four-factor balancing test to the facts of the case. Those four factors include: (1) whether the delay is uncommonly long; (2)

Reason for delay/whether the government or the defendant is more responsible; (3) defendant's assertion of the right to a speedy trial; and (4) the prejudice to the defendant. Brewington v. State, 288 Ga. 520, 520-521,(2011), internal

citations omitted. The trial court found a delay of 53 months in this instance, and the Appellant agrees that this delay is presumptively prejudicial, so as to trigger a full analysis of the Barker factors. (R-3; State’s Appellate Brief-9). It is also notable that there was another nearly 56 months of delay in bringing an indictment in this matter during which Mr. Buckner was incarcerated as a result of the investigation in this case, that was not included in the 53 month delay found by the court, but was considered a relevant circumstance. (R-8758; 9759). (1) Whether the Delay is Uncommonly Long "[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker v. Wingo, 407 U.S. 514, 531 (1972) The pretrial delay in this case far exceeds the one-year benchmark for presumptive prejudice, and it is unusual even in comparison with other noncapital murder cases. Ruffin v. State, 284 Ga. 52, 58 (2008). See Williams v. State, 282 Ga. 561, 564(2007) (noting, in discussion of pretrial delay in non-capital cases, that “several murder convictions appealed to this Court recently have featured pre-trial delays of twelve to sixteen months”). See generally, Doggett v.

United States, 112 S. Ct. 2686, 120 L. ED. 2d. 520 (1992). The trial court in this case made a specific finding that the delay was uncommonly long, after a review of relevant case law in its Order, and relying on its own experience in presiding over other cases of a similar nature. This factor was correctly weighted against the State. (R-9432, fn 11, 9433). The State does not now in its brief, nor has it previously contested this finding or assertion. (R9433, fn 14). (2) Reason for delay The trial court engaged in a lengthy and detailed analysis of the history in this case, and found that on the whole, this factor must weigh against the State. The trial court further found that because a significant portion of the delay was due to deliberate action on the part of the State, by filing a death notice on the eve of trial, that it withdraw after just four months, when the State knew or should have known what the result of its action would be. (R-9442, 9444). While just stopping short, or perhaps just omitting the words, of finding bad faith, these actions on the part of the State were egregious and such that the delay should weigh heavily against the State. The prosecutor and the court have an “affirmative constitutional obligation” to try the defendant in a timely manner. Dickey v. Florida, 398 U.S. 30 at 38, (1970); Smith v. Hooey, 393 U.S. 374, (1969). This “constitutional duty” is not

satisfied unless “a diligent good-faith effort” has been made to try the defendant promptly. Moore v. Arizona, 414 U.S. 25, 26, (1973). "Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.... Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness .... Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority. The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it... where no reason appears for a

delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” Ruffin v. State, 284 Ga. 52, 60-61(2008), internal citations ommitted. The State intentionally filed its notice to seek the death penalty on the eve of trial in this matter, either to get a continuance, or knowing that is what the end result would be. (R-9442, 9444). Despite the protestations of the State to the

contrary, the State did not diligently pursue the prosecution of this matter. (R9462). The Assistant District Attorney prosecuting the case had not read the discovery in the case on the eve of the scheduled trial. (Transcript of Motion Hearings held February 16, 2011, 16:1-3). Then, six months later despite having announced, and then withdrawn its intention to seek the death penalty, the Assistant District Attorney still had yet to read the discovery. (Transcript of Motion

Hearings held August 24-26, 2011, 53-54). If the lead prosecutor has not read his own case file prior to the scheduled trial date, then shows up the day of the scheduled trial with a notice of intent to seek the death penalty causing the delay one would expect by such actions, and then has yet to read the discovery six months later after having withdraw the death notice, it cannot legitimately be argued his actions were in good faith. Additionally, there is some evidence in the record of the pre-indictment delay in the case and the filing of the death notice to be some scheme to coerce a guilty a plea. (Transcript of Motion Hearings held

December 14, 2011, 175-195; R-8174). While the court did not make a specific finding as to its part in the analysis, the court considered the ultimate loss of the hair that was the subject of that hearing and email as a relevant factor. (R-9459). There is also extraordinarily long delay in this case, with no justification, such that even if it were the solely the result of negligence that it could weigh against the State "heavily". State v. Brown, 315 Ga.App. 544, 549-550 (2012). (3) Defendant's Assertion of the Right to a Speedy Trial The trial court found that Mr. Buckner did not assert his right to a speedy trial until December 9, 2011. (R-9444). In accordance with that finding, and in accordance with the law, the trial court found that this factor weighed against Mr. Buckner, however it was mitigated due to his repeated demands for the State to comply with discovery, and provide copies of documentary evidence to Mr. Buckner's defense team. (R-9445). The discovery problems in this case as a result of the prosecution's actions are well documented, and the trial court made the appropriate finding in this regard. (R-8759, 9460-9464). Many of the issues in this case (discovery problems and length of delay) are strikingly similar to those in State v. Brown, recently decided by the Georgia Court of Appeals, and cited below:
Our Supreme Court has acknowledged that a failure to assert the right until after indictment sometimes may be mitigated by the fact that the accused was “out on bond and without counsel” until after indictment. See Pickett, 288 Ga. at 676(2)(c)(3), 706 S.E.2d 561. And our Court has said that, even after indictment, a delay in demanding a speedy trial 13

sometimes may be mitigated by the fact that the accused was insisting in the meantime that the State comply with its obligations to furnish discovery. See State v. Shirley, 311 Ga.App. 141, 146(3)(c), 714 S.E.2d 636 (2011). In light of the potentially mitigating circumstances that appear in this case, we conclude that the court below did not abuse its discretion when it found that Brown asserted his right to a speedy trial in due course. State v. Brown, 315 Ga.App. 544, 551-552, (2012).


The Prejudice to the Defendant “A fourth factor is prejudice to the defendant. Prejudice, of course, should

be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious.” (emphasis added) Barker v. Wingo, 407 U.S. 514, 532 (U.S. 1972). (i) preventing oppressive pre-trial incarceration The trial court found that the delay in this case had only a minor effect on Mr. Buckner's interest in preventing pre-trial incarceration, since Mr. Buckner would still be incarcerated as a result of previous sentences. (R-9446). However, a defendant being incarcerated on other charges is not entirely dispositive of the issue as this court explained in Ruffin v. State, 284 Ga. 52 (2008), "At first blush it

might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from “undue and oppressive incarceration prior to trial.” But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him." (ii) minimize anxiety and concern of the accused The trial court found that Mr. Buckner suffered no more anxiety and concern than any other defendant, because of his failure to offer specific evidence on these issues (R-9446). However, given the length of delay, the State announcing its intention to seek the Death Penalty on the eve of his previously scheduled trial, and the State's action since seeking the Death Penalty, there should be some amount of presumed anxiety and concern. Certainly, one whom the State is trying to kill


suffers more anxiety and concern than most defendants. The facts and history of this case, are certainly extreme and unusual. (iii) the possibility that the defense will be impaired. In this case, not only did the trial court find presumptive prejudice that weighs against the State (R-9447), but there was also a finding of actual prejudice to the defense (R-9448). Mr. Buckner's case has been severely prejudiced by this delay. There has been the loss of physical evidence, the loss of recorded interviews as to evidence of tampering of the crime scene, and the record is replete with instances of memory problems attributed to the length of time this case has gone on. These memory problems occur both with law enforcement and civilian witnesses. There has been much physical evidence lost, notably the previously mentioned hairs and fingerprint evidence, which the State has conceded is crucial information. (Transcript of Motion Hearings held March 15, 2012, 77:11-16). A review of items that have been lost was recited in the December 14, 2011 hearing (Transcript of Motion Hearings held December 14, 2011, 120-126, 129, 130, 146, 150, 153). The loss of all of this evidence deprives Mr. Buckner of the right to

investigate his defense when such is meaningful. Of greatest importance is the loss of potentially exculpatory evidence, which is Brady material, that is the Caucasian

head hairs found at the crime scene and in the victim's pubic hair. The State stipulated that the Caucasian head hair that was found in the pubic hair of the victim was destroyed. (Transcript of Motion Hearings held December 14, 2011, 153:11-17) The Caucasian hair found under the fingernail of the victim, was likewise established destroyed at that hearing. It is also significant that the GBI

Crime Lab and the Chatham County District Attorney's Office intentionally manipulated the handling and testing of the hairs in an effort to force a plea. (Transcript of Motion Hearings held December 14, 2011, 175-195; R-8174). Even more nefarious, as the record shows, the District Attorney's Office did eventually seek the Death Penalty in an effort to gain leverage when confronted with the evidentiary weaknesses in their case, after depriving Mr. Buckner access to these materials. The loss of such potentially exculpatory evidence is analogous to the

death or disappearance of witnesses, where "the prejudice is obvious." The tapes of the witnesses interviewed by the GBI in conducting their investigation of tampering with the crime scene by law enforcement officers at the time Ashleigh Moore disappeared have been lost, and one of those witnesses has died. It was established at the hearings held on March 14-15, that the three

remaining witnesses (Michelle Moore, Florence Glover, and Officer Carolyn Bryant ) who were interviewed had no real recollection of what occurred due to the

passage of time. Likewise, investigator Armando Tamargo and Wolfgang Ziegler also had little to no specific recollection, which they also admitted was due to the extraordinary passage of time in this case. Finally, Stacey Marcus now cannot identify which pair of glasses belonged to Ashleigh Moore at the time of her disappearance, due to the delay. The harm from this loss is obvious, and causes great prejudice. Of great importance also is the testimony of Montranece Woodard and Jaleel Coleman. Given the length of time, neither of these witness who where children at the time of Ashleigh Moore's disappearance have very good recollection. Of great importance, as shown by Defense Exhibits 16-21 (R-85228611), the statements of the children taken down at each time, conflict and change over time. Notably, in the Rice interviews (R-8574-8611), Montranece expresses difficulty separating what she has been told over the years from what her actual memory is. All of the memory problems of the witness are highly relevant to the defense of this case. Not only are there now problems with locating actual physical evidence, but we are now deprived of actual recollections of tampering with the crime scene, before the Savannah Police Department arrived by other law enforcement officers with relationships with the Moore family, and most importantly the memories of the children who witnessed what may or may not

have been the kidnapping alleged by the State. It is important to keep in mind Barker lists this as a specific harm that can rarely be shown. "If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown." Barker v. Wingo, 407 U.S. 514, 532, (1972). Mr. Buckner has made this showing in this case with much more specificity than Barker and its' progeny have contemplated. While not being able to show what the information would be, Mr. Buckner has shown what information he is deprived of, and the fact that he has been deprived of his opportunity to meaningfully investigate and present a defense as contemplated by Jones v. State, 283 Ga.App. 838 (2007) and Lett v. State, 164 Ga.App. 584 (1982).


IV. 1)

CONCLUSION The trial court has not made any misstatement of the representations made

by the District Attorney's Office, and the transcript being complained of is in the record. No one has yet to contest the accuracy of the transcript nor seek to have it corrected. 2) The trial Court gave the proper weight to the testimony of the Chief

Assistant District Attorney. Trial Courts do not have to give credence to any testimony not found credible, regardless of who the propounder is. 3) The State is seeking to have internal personnel changes serve as some

mitigating factor for their unreasonable delay, and their abuse of the death penalty notice. 4) Exculpatory evidence was lost. Stipulations by the State do not cure the

value of having the original evidence at a trial, nor does it give the Defendant what further evidence may have been learned from its pursuit. Not only was evidence lost, but so was Mr. Buckner's right to investigate and prepare his defense. 5) The trial court as the trier of fact, after hours of hearings and a very thorough

review of the enormous record in this case, made the proper finding that the death penalty was sought solely to gain a continuance in this matter, and to gain some improper leverage of Mr. Buckner. The Death Penalty, if it is to be used at all, is to be treated with caution and respect, not a prosecutor's toy.


The court gave proper weight and analysis to any delays caused by Mr.

Buckner. 7) The trial court did not expressly set forth the delay caused by her medical

issues, however, delay caused by a trial court, is delay attributed to the State. 8) The State appears to be arguing that by filing a death notice, they actually

conferred a benefit upon Mr. Buckner, because the Capital Defender Office was able to find exculpatory evidence that had been hidden, lost, and/or destroyed, that had apparently gone unnoticed by Mr. Buckner's previous attorneys. This

argument is offensive for a host of reasons, however it underscores the lack of respect and gravity with which the Chatham County District Attorney's Office treats the Death Penalty with. This Court should AFFIRM the Order of the court below.

Respectfully submitted, this 21st day of September, 2012.

s:\Newell M. Hamilton Newell M. Hamilton Georgia Bar No. 320905 Office of the Georgia Capital Defender 11 Judicial Lane, Suite 230 Brunswick, Georgia 31520 (912) 261-3902


s:\Jason Randall Clark Jason Randall Clark Georgia Bar No. 127181 Office of the Georgia Capital Defender 11 Judicial Lane, Suite 230 Brunswick, Georgia 31520 (912) 261-3902



NO. S12A1981

CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the within and foregoing APPELLANT'S BRIEF on: Larry Chisolm, 133 Montgomery Street, Suite 600, Savannah, GA 31402, by hand delivery, and upon Hon. Sam Olens, Office of the Attorney General, 40 Capitol Square, S.W., Atlanta, GA 30334-1300 by depositing said copy in the United States Mail in a properly addressed envelope with adequate postage thereon to ensure delivery. This 21st day of September, 2012.

s:\Jason Randall Clark Jason Randall Clark Georgia Bar No. 127181 Office of the Georgia Capital Defender 11 Judicial Lane, Suite 230 Brunswick, Georgia 31520 (912) 261-3902