                              FIRST DIVISION
                               BARNES, P. J.,
                          MCMILLIAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    August 8, 2018




In the Court of Appeals of Georgia
 A18A1107. GRAY v. THE STATE.

      MCMILLIAN, Judge.

      In 2010, Ronald Bernard Gray was indicted on one count of feticide, three

counts of family violence aggravated assault, one count of false imprisonment, one

count of misdemeanor family violence battery, one count of family violence simple

battery, and two counts of cruelty to children in the third degree.1 Following a jury

trial in December 2015, Gray was convicted of one count of family violence

aggravated assault, two counts of misdemeanor family violence battery (one count as

a lesser-included crime to family violence aggravated assault), one count of false


      1
        The State re-indicted Gray during the grand jury’s September 2014 term for
the same offenses, with the indictments differing only as to the language contained
in some of the counts. Gray filed a general and special demurrer to that indictment in
October 2014, and after the trial court granted the demurrers, the State again re-
indicted Gray for the same offenses in December 2014.
imprisonment, and two counts of cruelty to children in the third degree.2 Gray appeals

the denial of his motion for new trial, asserting that the trial court erred in (1) denying

his motion to suppress his statements to law enforcement and (2) finding that his

constitutional right to a speedy trial was not violated. For the reasons that follow, we

affirm.

       Viewed in the light most favorable to the jury’s verdict,3 the evidence shows

that at the time of the incident, Gray lived with his wife, Latasha McGhee, and her

two young children at a boarding house in DeKalb County. On Monday, May 11,

2009, Gray’s wife asked Devondra Starks, a fellow boarder, to call an ambulance

because her husband had been “beating her up all weekend.” Starks saw that McGhee

was “very emotional” and had a black eye, a bald spot on her head, a swollen foot,

and bruises on her stomach, back, arms, and legs. McGhee, who was seven months

pregnant at the time, feared that she had not felt her baby move since Friday.

       While the resident was on the phone with 911, Gray returned home, and

McGhee ran to her room in fear, and Gray followed. Shortly thereafter, police arrived

and escorted Gray outside. One officer went back upstairs with Gray to retrieve his

       2
           The jury acquitted Gray of the remaining charges.
       3
           Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                            2
identification, but Gray jumped from a second story window and escaped. After Gray

fled, McGhee was taken to the hospital, where she learned that her baby had died and

was induced to deliver her stillborn daughter. On May 14, Gray was found in a Stone

Mountain apartment hiding in a small cabinet and arrested. He was then interviewed

by two DeKalb County police detectives. Gray confessed that he had committed

several of the acts for which he was later indicted, including punching his wife in the

face and beating her with a belt.

      At trial, the State presented the testimony of McGhee, who recounted that over

the course of that weekend, Gray repeatedly kicked her and beat her with a variety of

objects, including a lamp, phone, belt, and shoes. At one point, McGhee asked him

to stop before he hurt their baby, but he told her “I don’t give a ‘f’ about that baby.

She is going to be a b*tch just like the rest of you h*’s.” Some of the beatings took

place while her children watched. The older child, who was 11 years old at the time

of trial, testified that he saw Gray hitting his mother and heard his mother crying the

day the police came. An audio recording of Gray’s confession to hitting his wife was

played for the jury, along with the testimony of one of the detectives to whom Gray

confessed.



                                          3
      1. Although Gray does not challenge the sufficiency of the evidence, we

conclude upon review that the evidence presented at trial was sufficient to authorize

a rational trier of fact to find beyond a reasonable doubt that Gray was guilty of the

offenses of which he ultimately was convicted. See Jackson v. Virginia, 443 U.S. 307

(99 SCt 2781, 61 LE2d 560) (1979).

      2. In his first enumeration of error, Gray asserts that the trial court erred in

failing to suppress his statements under OCGA § 24-8-824 because they were given

without a full understanding of his Miranda rights and thus were not voluntary.

      Miranda warnings are intended to preserve a defendant’s Fifth Amendment

right against self-incrimination and “must be administered to an accused who is in

custody and subject to interrogation[.]” State v. Troutman, 300 Ga. 616, 617 (1) (797

SE2d 72) (2017). OCGA § 24-8-824 provides “[t]o make a confession admissible, it

shall have been made voluntarily, without being induced by another by the slightest

hope of benefit or remotest fear of injury.” Statements made to police are deemed to

be voluntary, and thus admissible, if the defendant knowingly and intelligently

waives his rights under Miranda. Benton v. State, 302 Ga. 570, 573 (2) (807 SE2d

450) (2017); Clay v. State, 290 Ga. 822, 825-26 (1) (725 SE2d 260) (2012). This

“waiver must be . . . made with a full awareness of both the nature of the right being

                                          4
abandoned and the consequences of the decision to abandon it.” (Citations and

punctuation omitted) Berghuis v. Thompkins, 560 U.S. 370, 382-83 (III) (B) (130 SCt

2250, 176 LE2d 1098) (2010). See also State v. Floyd, 306 Ga. App. 402, 405-06

(702 SE2d 467) (2010).

      In making this determination, the trial court looks to the totality of

circumstances under a preponderance of the evidence standard. Floyd, 306 Ga. App.

at 405. “On appeal, we accept the trial court’s findings of fact and credibility

determinations unless they are clearly erroneous . . . [but] independently apply the

legal principles to the facts.” (Citation and punctuation omitted.) Norris v. State, 302

Ga. 802, 804 (II) (809 SE2d 752) (2018). And where there are no disputed facts, such

as here when the statement was recorded, “our review of the trial court’s application

of the law to the undisputed facts is de novo.” Mack v. State, 296 Ga. 239, 241-42

(765 SE2d 896) (2014). See Benton, 302 Ga. at 572 (2) (“where controlling facts are

not in dispute, such as those facts discernible from a videotape, our review is de

novo.”)

      Here, the record shows that the detectives began the interview by handing Gray

a printed copy of his Miranda rights and reading them aloud. Gray was instructed that

he could “decide at any time to exercise these rights and not answer any questions or

                                           5
make any statements.” He was then asked if he understood everything that had been

read to him, to which he responded, “Yes.” One of the detectives also asked Gray if

he was “clear on all that,” and Gray responded, “Yes.” Gray was then asked whether

he wanted to continue with the interview, and again he responded, “Yes.”

      The detectives then asked Gray to initial by each statement of his rights on the

printed copy of the Miranda form to indicate that he had read and understood each

one, and Gray did so. Gray then signed a statement confirming “I have read the above

statement of my rights and I understand each of those rights.” Finally, Gray was asked

to sign under the line that read “[h]aving these rights in mind, I am willing to give up

these rights at this time and willingly make a statement.” At that point, Gray

responded, “Hold up. What you mean give my rights up?” One of the detectives

answered that he would be giving his rights up “to make a statement,” but that he

could “stop at any time” and that “[j]ust cause you sign that doesn’t mean . . . you

have to answer anything. You’re not really giving up any rights . . . you know, just

– you talk; you feel like you don’t want to talk anymore, you just stop talking. That’s

– that’s your – your right.” The detectives then proceeded to interview Gray, and he

answered their questions, at no point invoking any of his rights.



                                           6
      Gray argues that his question demonstrates that he did not have the

understanding necessary to knowingly and intelligently waive his rights and that the

detective’s response undermined the entirety of the warnings read and given to him.

Because the detective’s response that Gray would not be “really giving up any rights”

directly contradicted the Miranda warnings he had just administered to Gray, and the

detective then incompletely paraphrased the right to remain silent, we agree. See

Benton, 302 Ga. at 573-74 (2) (custodial statement invalid where officer’s rephrasing

of Miranda warnings following defendant’s demonstration of lack of understanding

was both incomplete and misleading); Clay v. State, 290 Ga. 822, 825-26 (1) (A) (2)

(725 SE2d 260) (2012) (custodial statement invalid where officer’s “super-speed”

reading coupled with defendant’s drug-induced stupor made any possibility of

understanding impossible); State v. Floyd, 306 Ga. App. 402, 406 (702 SE2d 467)

(2010) (statement invalid where officer read Miranda rights too quickly to be

reasonably understood and did not ascertain whether defendant understood). Once

Gray expressed that he did not understand that he was giving up his rights, it was

incumbent on the interrogating officers to take steps to ensure that Gray understood

what his rights were and that he would be waiving them by proceeding to make a

statement. Here, not only did the officer incompletely describe the rights that Gray

                                         7
would be waiving but he erroneously told Gray that he would not be giving up any

rights. Looking at the totality of the circumstances, we conclude that Gray did not

knowingly and intelligently waive his rights under Miranda, and the trial court erred

in holding otherwise. See Benton, 302 Ga. at 573-74 (2).

      However, “a violation of Miranda is not reversible if it was harmless beyond

a reasonable doubt.” (Citation and punctuation omitted.) Benton, 302 Ga. at 575 (2),

n.8. In addition to Gray’s statement, the State presented the testimony of McGhee,

who identified Gray and detailed the methods and manner in which he violently

assaulted her; the son who recounted that he had seen Gray beating his mother;

various medical professionals who treated McGhee and described her injuries; the

responding officer, who noted both McGhee’s appearance and the fact that Gray fled

the scene by jumping out of a second-story window in order to avoid arrest;4 the

investigator who discovered Gray hiding after he fled from the boarding house; and

photographs documenting McGhee’s injuries that matched her description of events.

Accordingly, we find the admission of Gray’s custodial statement was harmless

      4
       See Rush v. State, 294 Ga. 388, 390 (2) (a) (754 SE2d 63) (2014) (evidence
showing a defendant attempted to evade arrest is admissible as circumstantial
evidence of guilt); Michael v. State, 335 Ga. App. 579, 585 (1) (782 SE2d 479)
(2016) (attempt to hide from or elude police constitutes circumstantial evidence of
consciousness of guilt).

                                         8
beyond a reasonable doubt, and this enumeration of error provides no basis for

reversal. See Spears v. State, 296 Ga. 598, 604 (4) (769 SE2d 337) (2015).

      3. In his final enumeration of error, Gray asserts that his constitutional right to

a speedy trial was violated. An individual accused of criminal activity is guaranteed

the right to a speedy trial by the Sixth Amendment to the United States Constitution

and Article I, Section I, Paragraph XI (a) of the Georgia Constitution. See Brewington

v. State, 288 Ga. 520, 520 (1) (705 SE2d 660) (2011). When considering an accused’s

motion for discharge and acquittal on the basis of a constitutional speedy trial

violation, the trial court must perform a two-stage analysis, pursuant to Barker v.

Wingo, 407 U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United

States, 505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992). See also Ruffin v. State,

284 Ga. 52, 55 (2) (663 SE2d 189) (2008).

      (a) In the first stage of this analysis, the trial court must inquire whether the

delay from the accused’s arrest, indictment, or other formal accusation to the time of

trial is so long as to be considered “presumptively prejudicial.” State v. Pickett, 288

Ga. 674, 675 (2) (a) (706 SE2d 561) (2011). If there has not yet been a trial, “the

delay should be calculated from the date of arrest or other formal accusation to the

date on which a defendant’s speedy trial motion was granted or denied.” State v.

                                           9
Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). For serious crimes lacking

unusual complexities, “one year generally marks the point at which expected

deliberateness in the prosecution of a criminal matter turns into presumptively

prejudicial delay.” (Citation omitted.) Ruffin, 284 Ga. at 55 (2) (a).

      Gray was arrested in May 2009. His first motion to dismiss was filed in January

2014 and denied by the trial court in April 2014.5 Thus, even the time between Gray’s

arrest and the denial of his first motion is nearly five years, and the trial court

properly found that this delay is presumptively prejudicial.6

      (b) We therefore turn to the next stage of the Barker analysis. In this stage, the

trial court 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. 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.




      5
          That order was not included in the record.
      6
       The trial court initially denied the speedy trial motion by orders dated April
21, 2014 and December 7, 2015 but conducted a fuller Barker analysis in its order
denying the motion for new trial.

                                          10
(Citations omitted.) Higgenbottom v. State, 290 Ga. 198, 200 (1) (719 SE2d 482)

(2011). Thus, on appeal we “must accept the ultimate conclusion of the trial court

unless it amounts to an abuse of discretion[.]” (Citation omitted.) State v. Buckner,

292 Ga. 390, 391 (738 SE2d 65) (2013). However, “[i]f the trial court significantly

misapplies the law or clearly errs in a material factual finding,” we will only affirm

the trial court’s decision if we conclude that “had the trial court used the correct facts

and legal analysis, it would have had no discretion to reach a different judgment.”

Pickett, 288 Ga. at 679 (2) (d).

      (i) Length of the delay

      While the length of delay acts as the threshold matter for the Barker factors, it

is “important that trial courts not limit their consideration of the lengthiness of the

pretrial delay to the threshold question of presumptive prejudice[.]” Ruffin, 284 Ga.

at 56-57 (2) (b) (i). Here, the trial court did separately address the length of delay and

acknowledged that the time between Gray’s arrest in May 2009 and his eventual trial

in December 2015 was over six years. However, the trial court did not expressly state

how it weighed this factor. Even with the complexities of proving the feticide charge,

this is an uncommonly long period of time to prosecute a domestic violence case and

should be weighed heavily against the State. See id. at 57 (2) (b) (i) (two year, two

                                           11
months, and twenty three days exceptionally long in noncapital murder case). But, as

the trial court noted, the “[m]ere passage of time, standing alone, does not compel a

finding of denial of due process.” (Citation and punctuation omitted.) Shuler v. State,

263 Ga. App. 124, 127 (4) (587 SE2d 269) (2003).

      (ii) Reasons for the delay

      If the State is shown to have deliberately delayed the trial to “hamper the

defense,” this factor should be “weighted heavily against the government[.]” Buckner,

292 Ga. at 394 (3) (b). “[A]n unintentional delay, such as that caused by the mere

negligence of the prosecuting attorneys or the overcrowded docket of the trial court,

should be weighted less heavily.” (Citation and punctuation omitted.) Id. On the other

hand, any delay caused by the defendant will be held against the defendant. Jakupovic

v. State, 287 Ga. 205, 206 (1) (b) (695 SE2d 247) (2010).

      After his arrest, Gray posted bond and was released from custody in February

2010. Gray was on trial calendars in June 2011, January 2012, and February 2012, but

the trial had to be continued each time. Gray was then placed on the trial calendar for

March 2012 but failed to appear in court and remained at large until he was arrested

in June 2012 on an unrelated domestic violence offense against a different victim.

The trial court found that of the various delays, one was caused by the State’s lead

                                          12
prosecutor being on trial elsewhere, one was due to the trial court’s hearing a separate

statutory speedy trial case, another was the result of a scheduling issue with Gray’s

expert witness, and yet another was due to a defense conflict with a date specially set

by the Court.

      Thus, the trial court properly assessed the reasons for delay as falling partially

on both parties, while finding the State’s delay was “not engineered . . . with an eye

towards gaining a trial advantage.” Because the burden for bringing a case to trial

rests on the State, who was primarily responsible for the uncommonly long delay in

this case, we agree that this factor should be weighed against the State. See Kemp v.

State, 314 Ga. App. 327, 331-32 (2) (b) (724 SE2d 41) (2012); Teasley v. State, 307

Ga. App. 153, 160 (2) (b) (704 SE2d 248) (2010) (when delay can be held against

both parties, this factor weighs against party responsible for longest portion of delay).

      (iii) Assertion of the right to speedy trial

      Although an accused is not required to ask for a speedy trial at the first

available opportunity, “the accused bears some responsibility to invoke the speedy

trial right and put the government on notice that he or she, unlike so many other

criminal defendants, would prefer to be tried as soon as possible.” Ruffin, 284 Ga. at

62 (2) (b) (iii). “The relevant question for purposes of the third Barker factor is

                                           13
whether the accused has asserted the right to a speedy trial in due course.” (Citation

and punctuation omitted) Id. at 63 (2) (b) (iii). “And because delay often works to the

defendant’s advantage, the failure of the accused to assert his right in due course

generally is accorded strong evidentiary weight.” (Citations and punctuation omitted.)

Buckner, 292 Ga. at 397 (3) (c).

      Gray first asserted his right via motion to dismiss on January 2, 2014, more

than four and a half years after his initial arrest.7 Because Gray did not assert this

right in due course, the trial court did not abuse its discretion in weighing this

consideration against him. See Buckner, 292 Ga. at 397 (3) (c) (defendant’s nearly

four year delay in asserting his right properly weighed heavily against him); Ruffin,

284 Ga. at 63-64 (2) (b) (iii) (where defendant waited a year and a half to assert the

right, this factor is properly weighed against him).

      (iv) Prejudice to the defendant

      This factor is “assessed in the light of the interests of defendants which the

speedy trial right was designed to protect.” Buckner, 292 Ga. at 398 (3) (d).

Specifically, we look to three types of prejudice caused by an excessive delay:

      7
        Although Gray filed a pro se speedy trial demand on June 13, 2013 (more
than four years after his arrest), this demand had no effect as he was represented by
counsel. See Thomas v. State, 331 Ga. App. 641, 644 (771 SE2d 255) (2015).

                                          14
“oppressive pretrial detention; anxiety and concern of the accused; and the possibility

that the accused’s defense will be impaired.” Kemp, 314 Ga. App. at 333 (2) (d). Of

these types, “the most serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system.” (Citation and

punctuation omitted.) Doggett, 505 U.S. at 654 (III) (A). “[O]nce the threshold

presumptive prejudice is satisfied, a presumption of prejudice always exists, although

it increases in weight over time.” (Citation omitted.) Porter, 288 Ga. at 531 (2) (c)

(4).

       While Gray’s pre-trial incarceration was substantial, he has “failed to establish

the type of oppressive pretrial incarceration or anxiety and concern beyond that which

necessarily attend confinement in a penal institution.” (Citation and punctuation

omitted.) Harris v. State, 284 Ga. 455, 456 (667 SE2d 361) (2008) (delay of five and

one-half years between arrest and motion to dismiss hearing is significant). With

respect to the final type of prejudice, Gray argues that the delay injured his defense

because of the clouding it inevitably had on the memories of the witnesses and his

inability to track down his ex-girlfriend, Erika Terry, to testify on his behalf as a

character witness.



                                          15
      We first note that the “mere assertions that memories have faded over time” are

insufficient to establish prejudice. Stewart v. State, 310 Ga. App. 551, 560 (2) (d) (iii)

(713 SE2d 708) (2011). Moreover, with respect to Gray’s specific claims regarding

diminished memory, each of the witnesses he complained of were witnesses called

by the State against him. Thus, as the State notes, the loss of memory caused by the

delay was as likely to aid Gray’s defense as prejudice it. See Jakupovic, 287 Ga. 207

(1) (d). For example, though one child witness testified that Gray hit his mother, the

child was unable to identify Gray in the courtroom.

      Turning to Gray’s claim that he is now unable to locate a character witness, we

have explained that in order to carry the burden of showing “prejudice due to the

unavailability of a witness, [the defendant] must show that the missing witness could

supply material evidence for the defense.” Ellis v. State, 343 Ga. App. 391, 400 (4)

(d) (806 SE2d 839) (2017). At the new trial hearing, Gray argued that he was unable

to locate Terry, the mother of his other children. According to Gray, part of the

argument leading to the incident he was arrested for was regarding whether or not

McGhee had been contacting Terry on his cell phone. Gray claims he would have

been able to use Terry’s testimony that McGhee was contacting her to establish

motive for why she called the police on him. However, at trial, McGhee testified that

                                           16
she was aware of Terry and that she had gotten back in touch with Gray and was

making plans for Gray to see his sons. She also admitted to contacting Terry via

Gray’s email account. Thus, the trial court did not err in finding that Gray failed to

establish that Terry’s testimony would have supplied material evidence for his

defense. See Miller v. State, 313 Ga. App. 552, 556 (2) (722 SE2d 152) (2012).

      (v) Balancing the Barker factors8

      Although the trial court neglected to expressly assign a weight to the first

Barker factor, we need not remand this case because, based on the record before us,

had the trial court used the correct legal analysis, it would have had no discretion to

reach a different judgment. See Leopold v. State, 333 Ga. App. 777, 784 (2) (e) (777

SE2d 254) (2015). Although the length of the delay was substantial, and the State was

primarily responsible for most of the delay, those relatively benign considerations are

outweighed by the fact that Gray waited for four and one half years before asserting

his right to a speedy trial and that he has not shown that he has been prejudiced by the

delay. See Dillard v. State, 297 Ga. 756, 763 (4) (778 SE2d 184) (2015) (“delayed

assertion of the right to a speedy trial and lack of prejudice are the two factors that

      8
       Although the trial court did not expressly balance the Barker factors in its
order denying the motion for new trial, it did so in its December 7, 2015 order
denying the speedy trial motion.

                                          17
most often weigh heavily against defendants and which then support the overall

conclusion that speedy trial rights have not been violated”) (citation and punctuation

omitted); Sweatman v. State, 287 Ga. 872, 876 (6) (700 SE2d 579) (2010) (although

nearly five-year delay weighed against the State, no abuse of discretion in denying

motion to dismiss because the State did not deliberately cause delay, defendant waited

ten months after indictment and until eve of trial to assert her right, and there was no

demonstrable prejudice to her defense); Harris v. State, 284 Ga. 455, 457 (667 SE2d

361) (2008) (defendant could not prevail on speedy trial claim where, balancing all

Barker factors, presumptive prejudice was outweighed by other considerations,

particularly his lengthy delay in asserting the right and absence of demonstrable

prejudice to his defense). Accordingly, we find no abuse of discretion and affirm the

trial court’s denial of the speedy trial motion.

      Judgment affirmed. Barnes, P. J., and Reese, J., concur.




                                          18
