Kitchens v. State

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
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official text of the opinion.

In the Supreme Court of Georgia

Decided: July 1, 2025

S25A0788. KITCHENS v. THE STATE.

WARREN, Presiding Justice.

Appellant Deonte Kitchens was convicted of malice murder and

other crimes in connection with the shooting death of Alveno

Culver. 1 Kitchens filed a motion for new trial claiming, among other

1 Culver was killed on October 29, 2011. In November 2015, a Bibb
County grand jury indicted Kitchens and Kelvin Carswell for various crimes
in connection with Culver’s death. Specifically, Kitchens was indicted for
malice murder, two counts of felony murder, three counts of violating the
Street Gang Terrorism and Prevention Act, possession of a firearm during the
commission of a felony, and possession of a firearm by a first-offender
probationer. Kitchens was tried alone from September 26 to 30, 2016.
Carswell testified for the State at Kitchens’s trial; his case is not part of this
appeal. The jury found Kitchens guilty of all counts, and the trial court
sentenced him to serve life in prison without the possibility of parole for malice
murder, 15 consecutive years in prison for each gang count, 5 consecutive years
in prison for possession of a firearm during the commission of a felony, and 5
concurrent years in prison for possession of a firearm by a first-offender
probationer. The trial court purported to merge the felony-murder counts, but
those counts were actually vacated by operation of law. See Malcolm v. State,
263 Ga. 369, 374 (434 SE2d 479) (1993). Kitchens filed a timely motion for new
trial, which he amended through new counsel in February 2022. After an
evidentiary hearing in March 2022, the trial court denied the motion in
things, that the State violated his constitutional right to a speedy

trial. The trial court rejected that claim and ultimately denied the

motion. Kitchens now appeals, raising several enumerations of

error, including the speedy-trial claim. As discussed below, the trial

court’s ruling on this claim was based on a clearly erroneous finding

about a material fact, as well as several significant misapplications

of law. We therefore vacate in part the trial court’s order denying

Kitchens’s motion for new trial and remand the case for the court to

properly address the speedy-trial claim. 2

1. We begin with the legal principles underpinning the

analysis of a speedy-trial claim. The Sixth Amendment to the

United States Constitution guarantees criminal defendants “the

right to a speedy . . . trial,” among other things. A defendant’s claim

that the State violated this constitutional right is analyzed under

January 2025. Kitchens filed a timely notice of appeal, and the case was
docketed to this Court’s April 2025 term and submitted for a decision on the
briefs.

2 We do not address Kitchens’s remaining enumerations of error. See
Redding v. State, 313 Ga. 730, 730 (873 SE2d 158) (2022); Goins v. State, 306
Ga. 55, 55 n.1 (829 SE2d 89) (2019). Kitchens may raise them again in a
renewed appeal if the trial court rejects the speedy-trial claim on remand.
2
the two-part framework set forth in Barker v. Wingo, 407 U.S. 514

(92 SCt 2182, 33 LE2d 101) (1972), and refined in Doggett v. United

States, 505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992). See, e.g.,

Nelson v. State, 321 Ga. 460, 462 (___ SE2d ___) (2025). First, “‘the

trial court must determine whether the delay at issue was

sufficiently long to be considered presumptively prejudicial.’” Id. at

462-463 (citation omitted). If it was, the trial court is required under

the second part of the framework to apply a four-factor balancing

test that examines: (1) the length of the delay; (2) the reasons for the

delay; (3) the defendant’s assertion of his right to a speedy trial; and

(4) whether he suffered prejudice as a result of the delay. See id. at

463.

This analysis requires trial courts to “engage in a difficult and

sensitive balancing process, while bearing in mind that these four

factors have no talismanic qualities and must be considered together

with such other circumstances as may be relevant.” Leonard v.

State, 316 Ga. 827, 839 (889 SE2d 837) (2023) (cleaned up). It is a

“‘task committed principally to the discretion of the trial courts, and

3
it is settled law that our role as a court of review is a limited one.’”

Id. (citation omitted). Thus, this Court accepts the trial court’s

factual findings unless they are clearly erroneous, and we review the

trial court’s weighing of each factor, and its ultimate judgment in

balancing all four factors, for an abuse of discretion. See Nelson, 321

Ga. at 463. If the trial court “significantly misapplies the law or

clearly errs in a material factual finding,” we will affirm the trial

court’s exercise of discretion only if we “can conclude that, had the

trial court used the correct facts and legal analysis, it would have

had no discretion to reach a different judgment.” State v. Pickett,

288 Ga. 674, 679 (706 SE2d 561) (2011). See also, e.g., Nelson, 321

Ga. at 463. But “‘[i]f the trial court would still have discretion to

reach a different judgment, we remand for the trial court to reweigh

the factors and exercise its discretion using the correct factual and

legal analysis.’” Id. (citation omitted).

2. We now turn to the trial court’s application of the speedy-

trial framework in this case. As to whether the delay was

presumptively prejudicial under the first part of the framework, it

4
is undisputed on appeal, and we agree, that the delay in this case

was longer than a year, such that a presumption of prejudice arose

and triggered the application of the second part of the speedy-trial

framework. See Nelson, 321 Ga. at 464 (explaining that a one-year

delay is typically presumed to be prejudicial). We therefore proceed

to evaluate the trial court’s analysis of the four-factor balancing test.

(a) Length of the Delay

“‘The length of the pretrial delay in absolute terms plays a role

in the threshold determination of presumptive prejudice.’” Redding

v. State, 318 Ga. 225, 227 (897 SE2d 801) (2024) (citation omitted;

emphasis in original). But “‘it also wears another hat as one of the

four interrelated criteria that must be weighed in the balance at the

second stage of the Barker-Doggett analysis.’” Id. (citation omitted).

In this respect, we have said that the presumptive-prejudice

threshold and the length-of-the-delay factor are similar but separate

inquiries. See id.; Nelson, 321 Ga. at 464. See also Ruffin v. State,

284 Ga. 52, 56-57 (663 SE2d 189) (2008) (explaining that “[i]t is

important that trial courts not limit their consideration of the

5
lengthiness of the pretrial delay to the threshold question of

presumptive prejudice and remember to count it again as one of four

criteria to be weighed in the balancing process at the second stage

of the Barker-Doggett analysis”).

Generally, in calculating the length of the delay, a trial court

measures the delay from the time the constitutional right to a

speedy trial attaches, which is the time of arrest or formal

accusation or indictment, whichever occurs first, until the date on

which the defendant’s trial begins. See, e.g., Nelson, 321 Ga. at 464.

And in analyzing this factor, “a court must consider ‘whether delay

before trial was uncommonly long,’” Redding, 318 Ga. at 227-228

(quoting Doggett, 505 U.S. at 651), meaning “the extent to which the

delay stretches beyond the bare minimum needed to trigger judicial

examination of the [constitutional speedy-trial] claim,” Doggett, 505

U.S. at 652. “‘[T]he delay that can be tolerated in a particular case

depends to some extent on the complexity and seriousness of the

charges in that case,’ and a delay may be uncommonly long when

the case is ‘not prosecuted with the promptness customary in such

6
cases.’” Redding, 318 Ga. at 228 (citation omitted).

Here, the trial court, “[i]n reviewing the length of the delay,”

noted that Kitchens was arrested on November 3, 2011; he was

indicted in October 2014 and reindicted in November 2015; and he

was tried from September 26 to 30, 2016. The court then said that

“the time span of this delay was presumptively prejudicial to

Kitchens, as any time delay of a year or more is typically considered

prejudicial under the law” and concluded that “[t]his delay is

properly considered against the State.”

But the trial court did not expressly calculate the length of the

delay. And despite setting out several dates related to Kitchens’s

case, it did so without indicating on which of those dates Kitchens’s

right to a speedy trial attached and detached. Although the parties

correctly assert that Kitchens’s speedy-trial right attached on the

date of his arrest on November 3, 2011, and ran until his trial began

on September 26, 2016, see, e.g., Nelson, 321 Ga. at 464, it is not

clear whether the trial court calculated the length of the delay from

the date of Kitchens’s arrest or from one of the later dates on which

7
Kitchens was indicted and which the trial court noted in its order.3

Thus, we cannot determine from the trial court’s order the length of

time that the court used in balancing the factors.

And even if the trial court used the correct length of time

between the date of Kitchens’s arrest and the date on which his trial

began, the court conflated its analysis of whether the delay was

sufficiently long to be considered presumptively prejudicial (the

threshold issue under the first part of the speedy-trial framework)

with its analysis of the length of the delay (one of the factors under

the second part of the framework). In this respect, the court, “[i]n

reviewing the length of the delay,” determined only that the delay

3 It appears that the trial court did not erroneously calculate the length

of the delay from the date of Kitchens’s reindictment in November 2015
because if the court had done so, it likely would not have concluded that the
delay from that time until his trial in September 2016 was more than a year
and thus presumptively prejudicial. But there is no such indication in the trial
court’s order about whether the court incorrectly calculated the length of the
delay from the date of Kitchens’s initial indictment in October 2014 or whether
the court correctly calculated the delay from the date of Kitchens’s arrest on
November 3, 2011.
We also note that the record does not include an October 2014
indictment. But in any event, whether Kitchens was first indicted in 2014 or
2015 is not material to the analysis of his speedy trial claim because, as
discussed above, his right to a speedy trial attached when he was arrested on
November 3, 2011. See, e.g., Nelson, 321 Ga. at 464.
8
was “presumptively prejudicial” and then weighed the length-of-the-

delay factor against the State. And the trial court made no express

findings as to whether the delay was uncommonly long—that is, the

extent to which the delay stretched beyond the point of presumptive

prejudice. See Redding, 318 Ga. at 227-228. See also Doggett, 505

U.S. at 652.

In sum, the trial court failed to expressly calculate the length

of the delay, conflated the distinct analyses of presumptive prejudice

and the length of the delay, and failed to consider whether the length

of the delay was uncommonly long. These errors amounted to

significant misapplications of the law. See Nelson, 321 Ga. at 464-

465 (vacating the trial court’s order denying the appellant’s

constitutional speedy-trial motion and remanding the case because

the trial court “considered the length of the delay only with regard

to the presumption of prejudice and gave no consideration to the

length-of-the-delay factor: the court did not calculate the length of

the delay, address whether the delay was uncommonly long, or

assign weight to the length-of-the-delay factor,” among other things,

9
such that the trial court “‘significantly misapplie[d] the law’”)

(citation omitted); Redding v. State, 313 Ga. 730, 735 (873 SE2d

158) (2022) (vacating and remanding where the trial court failed to

expressly calculate the length of the delay and did not consider the

length of the delay factor separately, among other errors).

(b) The Reasons for the Delay

In assessing the reasons for the delay, a trial court “‘must

consider which party was responsible for the delay, whether the

delay was intentional, and, if it was intentional, what the motive

was for seeking or causing the delay.’” Leonard, 316 Ga. at 840

(citation omitted). Different weights should be assigned to different

reasons. See id. For example, “‘[a] deliberate attempt to delay the

trial in order to hamper the defense should be weighted heavily

against the government,’” but “‘an unintentional delay, such as that

caused by the prosecuting attorney’s mere negligence or the trial

court’s overcrowded docket, should be weighted less heavily.’” Id.

(citation omitted). “[P]retrial delay is often both inevitable and

wholly justifiable,” as the State may need time to collect witnesses

10
and evidence against the accused. Doggett, 505 U.S. at 656. See also

Ruffin, 284 Ga. at 59. And “there is more tolerance with regard to

delay in a case involving serious complex charges.” Williams v.

State, 290 Ga. 24, 26 (717 SE2d 640) (2011).

Here, in considering the reasons for the delay, the trial court

found that “this was a particularly complex case, which required

additional investigation by the [State] to bring essential evidence to

light prior to trial.” Noting that many of the State’s witnesses were

“reticen[t]” to testify at trial “for fear of retribution,” the trial court

explained that “a number of witnesses gave multiple conflicting

statements throughout the course of the investigation”; “it was no

easy feat to locate many of the witnesses and to follow all the various

leads in this case”; and there were “multiple interviews of multiple

persons.” The court also found that the State “discovered

contraband cell phones in the jail” that Kitchens and his co-indictee

used to communicate, which resulted in the State’s obtaining a

“wiretap order” that “brought forth additional evidence and revealed

threats being discussed in relation to potential witnesses.” In sum,

11
the trial court found that “[t]he entire investigation was basically

ongoing . . . until the trial in 2016” and that the delay was “not

deliberately designed to sabotage or to hamper Kitchen[s]’s defense

nor to gain any unfair tactical advantage.” The court “d[id] not

weigh this factor heavily against the State.”

Kitchens does not challenge the trial court’s findings about the

complexity of the case and the State’s lengthy and extensive

investigation, nor does he argue that the State deliberately

attempted to delay the trial “‘in order to hamper the defense.’”

Leonard, 316 Ga. at 840 (citation omitted). The record supports the

trial court’s factual findings regarding the reasons for the delay, and

under the circumstances of this case, we see no abuse of discretion

in the court’s decision to weigh this factor against the State, but not

heavily so. See, e.g., McCullum v. State, 318 Ga. 485, 496 (899 SE2d

171) (2024) (concluding that the trial court did not abuse its

discretion by weighing the reasons-for-the-delay factor against the

State, but not heavily, where the record supported the trial court’s

findings that the case was complex and the State had difficulty

12
locating a witness, among other reasons); Rucker v. State, 315 Ga.

568, 579 (883 SE2d 790) (2023) (holding that the trial court did not

abuse its discretion by concluding that the reasons for the delay

weighed neutrally or benignly against the State, where the trial

court found that the case was complex, such that “investigative

delay by the State [was] acceptable,” and there was no evidence that

the State deliberately delayed the case to hamper the defendant’s

defense); Wilkie v. State, 290 Ga. 450, 452 (721 SE2d 830) (2012)

(upholding the trial court’s decision to weigh the reasons-for-the-

delay factor lightly against the State where the record supported the

court’s finding that the case was difficult and complex, as the State

obtained information that the victim was killed for insurance

proceeds and was seeking and receiving records from insurance and

financial institutions during the period at issue, the years prior to

indictment were thus “‘used for investigation,’” and there was “‘no

evidence that the State intentionally delayed the indictment or

trial’”) (citation omitted).

(c) Assertion of the Right

13
In considering the assertion-of-the-right factor, a trial court

must evaluate whether the defendant “‘has asserted the right to a

speedy trial in due course,’” which 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.’” Rucker, 315 Ga. at 580 (citation omitted). To invoke

the right, “‘the accused need not file a formal motion, though that is

certainly sufficient,’” and he “‘can begin demanding that the right to

a speedy trial be honored as soon as he . . . is arrested.’” Id. (citation

omitted). But a defendant must assert the speedy-trial right to the

court; “[p]rivileged, off-the-record conversations cannot serve as a

sufficient assertion of this right, as neither the trial court nor the

State are put on notice of such privately made assertions until they

are relayed through counsel.” Henderson v. State, 310 Ga. 231, 237

(850 SE2d 152) (2020). And “‘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 . . . constitutional right to a

speedy trial.’” Rucker, 315 Ga. at 580 (citation omitted). See also

14
Barker, 407 U.S. at 532 (emphasizing that the “failure to assert the

right will make it difficult for a defendant to prove that he was

denied a speedy trial”).

In this case, the trial court found that although Kitchens

presented evidence at the hearing on his motion for new trial that

he sent several letters to his pretrial counsel about his right to a

speedy trial, those private communications were insufficient to

invoke the right. The court also said that it “d[id] not find in the

record that Kitchens ever made known to the [c]ourt any desire to

avail himself of th[e speedy-trial] right,” citing Barker for the

proposition that a defendant who fails to assert the right “will have

an extremely difficult time establishing a violation of that right.”

The trial court concluded: “As Kitchens never invoked his right to

demand a speedy trial, the [c]ourt weighs this factor heavily against

him.”

The court correctly determined that Kitchens’s private letters

to his lawyer failed to put the trial court or the State on notice of an

assertion of his right to a speedy trial and that, consequently, those

15
“[p]rivileged, off-the-record conversations” did not serve as a

sufficient invocation of the right. Henderson, 310 Ga. at 237. But

the trial court’s finding that Kitchens never invoked his right to a

speedy trial is clearly erroneous. The record shows (and Kitchens

points out in his appellate brief) that Kitchens’s pretrial counsel

filed a constitutional speedy trial demand on August 8, 2014. The

trial court was not required to allot significant weight to this sole,

pro forma demand, which was filed nearly three years after

Kitchens’s arrest. See, e.g., Barker, 407 U.S. at 529 (explaining that

courts are allowed to “weigh the frequency and force of the objections

as opposed to attaching significant weight to a purely pro forma

objection”); Redding, 318 Ga. at 229 (“‘Although an accused need not

demand a trial at the first available opportunity, his failure to assert

his right with reasonable promptness will ordinarily weigh heavily

against him.’”) (citation omitted).4

Nevertheless, the trial court’s clearly erroneous finding that

4 Notably, the record does not indicate that Kitchens or his counsel
pursued the constitutional speedy trial demand further.
16
Kitchens never invoked his right to a speedy trial was material to

the court’s decision to weigh this factor heavily against Kitchens,

and if this factor is to be weighed differently in light of Kitchens’s

2014 constitutional speedy-trial demand, that exercise of discretion

is committed to the trial court. See Nelson, 321 Ga. at 466-467

(vacating the trial court’s ruling on a speedy-trial motion and

remanding the case where the trial court, among other things,

erroneously found that the appellant first asserted his constitutional

right to a speedy trial three years after his arrest and two years after

indictment, when the record showed that he asserted the right two

months after he was arrested, before he was indicted); Pickett, 288

Ga. at 677 (vacating and remanding where the trial court

significantly erred in its analysis of the assertion-of-the-right factor,

among other errors, and explaining that “[i]f the factor is to be

weighed differently based on the particular circumstances of this

case, that exercise of discretion is committed to the trial court, not

the appellate courts”).

(d) Prejudice

17
“When prejudice is presumed based on the length of a delay in

trying the case, that presumption not only remains in place but

‘increases in weight over time.’” Davis v. State, 315 Ga. 252, 258

(882 SE2d 210) (2022) (citation omitted). See also Williams v. State,

277 Ga. 598, 601 (592 SE2d 848) (2004) (explaining that “greater

pretrial delays simultaneously increase the degree of prejudice

presumed and decrease the expectation that the defendant can

demonstrate tangible prejudice to his or her ability to present a

defense”). However, presumptive prejudice can be counterbalanced,

or even outweighed, by a defendant’s failure to show evidence of

actual prejudice. See Davis, 315 Ga. at 258. See also Williams v.

State, 314 Ga. 671, 680 (878 SE2d 553) (2022) (explaining that “‘the

prejudice prong may be weighed against the defendant even in cases

of excessive delay’”) (citation omitted).

Actual prejudice is assessed by considering evidence of

“‘oppressive pretrial incarceration,’ ‘anxiety and concern of the

accused,’ and ‘the possibility that the [accused’s] defense will be

impaired’ by dimming memories and loss of exculpatory evidence.”

18
Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 532). “Of these

forms of prejudice, ‘the most serious is the last, because the inability

of a defendant adequately to prepare his case skews the fairness of

the entire system.’” Id. (quoting Barker, 407 U.S. at 532).

We have said that “[f]or the first two types of prejudice to weigh

in favor of a defendant, the defendant must introduce evidence of

‘oppressive pretrial incarceration or anxiety and concern’ that goes

‘beyond that which necessarily attends confinement in a penal

institution.’” Nelson, 321 Ga. at 467 (citation omitted). And we have

also concluded that, to show the possibility of impairment to the

defense from the loss of evidence, a defendant must demonstrate

what the allegedly lost evidence would have shown. See, e.g.,

Redding, 318 Ga. at 231 (holding that the trial court did not abuse

its discretion by weighing the prejudice factor heavily against the

defendant in the speedy-trial analysis where he failed to show how

a potential witness who died prior to trial would have assisted his

defense); Henderson, 310 Ga. at 239 (explaining that the trial court

correctly determined, in considering the prejudice factor, that the

19
appellant had not shown that his defense was impaired by a

potential witness’s failure to testify at trial because the appellant

presented no evidence about what that witness would have said or

that he sought to secure her attendance at trial).

Here, the trial court “acknowledge[d]” that “there is a

presumption of prejudice due to the passage of time” in this case, but

found that Kitchens had not demonstrated actual prejudice because

he had “not put forth any evidence of how his defense was harmed

or impaired by the passage of time, nor ha[d] he shown that any

anxiety he may have experienced was greater tha[n] that always

present in such situations.” Noting that Kitchens could not rely

solely on presumptive prejudice, the court weighed this factor

heavily against him.

The trial court properly noted that a presumption of prejudice

exists in this case. But we cannot discern whether the court

appropriately assessed the degree of presumed prejudice. That is

because, as discussed above, the court did not expressly calculate

the length of the delay, and as the delay increases, so does the degree

20
of prejudice that is presumed. See Davis, 315 Ga. at 258; Williams,

277 Ga. at 601. Because the trial court did not expressly calculate

the length of the delay, it is unclear the degree of presumed

prejudice that the court weighed in balancing the factors.

Regarding actual prejudice, Kitchens does not argue in his

appellate brief that he suffered oppressive pretrial incarceration or

anxiety and concern “‘beyond that which necessarily attends

confinement in a penal institution.’” Nelson, 321 Ga. at 467 (citation

omitted).5 He does contend, however, that his defense was impaired

by the delay because the State was able to continue to build its case

against him and because an “eyewitness useful to [the] defense”

became unavailable during the delay. Kitchens cites no authority

(and we have identified none) showing that the State’s continued

5 Nor does Kitchens ask us to reconsider our precedent requiring a
defendant seeking to show oppressive pretrial incarceration or anxiety and
concern to introduce evidence that goes “‘beyond that which necessarily
attends confinement in a penal institution.’” Nelson, 321 Ga. at 467 (citation
omitted). See also id. at 473-475 (Peterson, CJ, concurring) (asserting that our
precedent has incorrectly required defendants to “show something more than
typical conditions of incarceration in order for their pre-trial incarceration to
be considered ‘oppressive’ for purposes of showing prejudice from pre-trial
delay” and arguing that we should reconsider this line of precedent in a case
where the issue is properly presented).
21
investigation and development of its case constitutes the sort of

impairment to the defense contemplated by the speedy-trial

framework. Cf. Doggett, 505 U.S. at 654 (explaining that

impairment to “the [accused’s] defense” is serious, “‘because the

inability of a defendant adequately to prepare his case skews the

fairness of the entire system’”) (quoting Barker, 407 U.S. at 532).

And as to the alleged eyewitness, the trial court correctly

determined that at the motion for new trial hearing, Kitchens

offered no evidence showing what she would have said, had she been

called to testify at trial. See, e.g., Redding, 318 Ga. at 231;

Henderson, 310 Ga. at 239. Thus, the record supports the trial

court’s finding that Kitchens failed to demonstrate actual prejudice.

As the trial court noted in its order, we have said that an

appellant “‘cannot rely solely on . . . presumptive prejudice.’” Rucker,

315 Ga. at 582 (citation omitted). But given the long delay in this

case and the increased presumed prejudice flowing from that delay,

the trial court might have weighed the prejudice factor less heavily

against Kitchens if it had properly calculated and considered the

22
length of the delay before assessing the degree of prejudice

presumed from the delay. See Williams, 277 Ga. at 601 (concluding

that “in light of the extraordinarily long delay in bringing [the

defendant’s] indictment to trial, [his] failure to make a

particularized showing of the oppressiveness of his lengthy pretrial

incarceration and of his decreased ability to present a defense at

trial must not be weighed heavily against him”).

(e) In sum, the trial court made a clearly erroneous finding

that was pivotal to the weight it assigned to the assertion-of-the-

right factor. The court also misapplied the law in several significant

ways: by failing to expressly calculate the length of the delay,

conflating the distinct analyses of presumptive prejudice and the

length of the delay, and failing to consider whether the length of the

delay was uncommonly long.

We cannot conclude that, if the trial court had not made the

clearly erroneous finding about Kitchens’s assertion of his right to a

speedy trial and had not substantially misapplied the law in the

ways discussed above, the court necessarily would have ruled that

23
there was no violation of the constitutional right to a speedy trial.

Because “it is ‘imperative’ that ‘the trial court enter findings of fact

and conclusions of law consistent with Barker,’” Goins v. State, 306

Ga. 55, 57-58 (829 SE2d 89) (2019) (citation omitted), and because

“‘[i]t is not the role of an appellate court to weigh the Barker factors

in the first instance,’” Nelson, 321 Ga. at 466 (citation omitted), we

vacate in part the trial court’s order denying Kitchens’s motion for

new trial and remand the case for the court to address the speedy-

trial claim in a manner consistent with this opinion. See id. at 469

(vacating the trial court’s order denying the appellant’s motion to

dismiss the indictment on constitutional speedy-trial grounds and

remanding the case “[b]ecause the trial court would not have been

compelled to deny [the a]ppellant’s motion to dismiss if it had used

the correct factual and legal analysis”); Redding, 318 Ga. at 227

(vacating and remanding because, “[w]hile the trial court may be

authorized to deny [the defendant’s] speedy-trial motion after

assigning weight and balancing anew the four factors in accordance

with the applicable law and directions outlined in this opinion, we

24
[could not] say the trial court [was] necessarily compelled to do so”)

(footnote omitted); Pickett, 288 Ga. at 680 (holding that the Court of

Appeals should have vacated the trial court’s judgment and

remanded where this Court could not conclude that, if the trial court

had not made factual and legal errors, it necessarily would have

ruled that the appellant’s right to a speedy trial was violated).6

Judgment vacated in part and case remanded with direction.
Peterson, CJ, and Bethel, Ellington, McMillian, LaGrua, Colvin, and
Pinson, JJ, concur.

6 We note that there was also a significant post-conviction delay in this

case, as more than eight years elapsed before the trial court ruled on Kitchens’s
motion for new trial. See Owens v. State, 303 Ga. 254, 259 (811 SE2d 420)
(2018) (explaining that “even if long-delayed appeals rarely result in outright
reversals of convictions or only retrials or resentencings, these extended and
unjustified delays in resolving criminal cases make our State’s criminal justice
system appear unfair and grossly inefficient”). Although Kitchens mentions
this post-conviction delay in his appellate brief, he does not contend that his
right to due process was violated. See Harper v. State, 318 Ga. 185, 188 (897
SE2d 818) (2024) (assessing an appellant’s claim that the delay between his
conviction and his direct appeal violated his right to due process); Chatman v.
Mancill, 280 Ga. 253, 257 (626 SE2d 102) (2006) (distinguishing speedy-trial
claims and speedy-appeal claims and explaining “that speedy appeal claims
arise under the Fifth Amendment and that many of the interests protected by
the Sixth Amendment are not implicated in the context of an appellate
proceeding where the defendant has already been convicted of an offense”)
(footnote omitted). But the trial court should promptly rule on Kitchens’s
speedy-trial claim on remand to avoid further delay in this case.
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