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Nusser v. State10/18/2005
trial.
On appeal, the State emphasizes that it has not objected to the admission of the medical records and goes on to explicitly concede that the diagnostic observations and conclusions contained in the medical records constitute admissible substantive evidence. Thus, the State has waived any objection to the admission of the records at trial. See, e.g., Isaacs v. Williams Bros., Inc., 195 Ga. App. 812, 814 (4) (395 SE2d 11) (1990); Watkins v. State, 191 Ga. App. 87, 91 (7) (381 SE2d 45) (1989). Accordingly, our inquiry is limited to analyzing the medical records to determine whether their content is adequate to stand in the place of live testimony from Dr. Stansby.
Significantly, however, the medical records were not included in the record on appeal in this case.
It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.
(Punctuation and citations omitted.) Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418) (1990). See also Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998). Therefore, we are constrained to conclude that the trial court properly found that Nusser's defense was not impaired by his inability to call Dr. Stansby as a live witness, in light of the medical records available to Nusser for use at trial.
Balancing of the four factors. In sum, the trial court weighed the first and second Barker factors in favor of Nusser, weighed the third and fourth factors in favor of the State, and then concluded that on balance the facts weighed in favor of the conclusion that Nusser's constitutional speedy trial right had not been violated. None of the four factors are "either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial," and the trial court is afforded discretion in how it balances and weighs the factors together. (Punctuation and citations omitted.) Nairon, 215 Ga. App. at 76 (1).
Given that Nusser waited until trial was imminent to assert his constitutional speedy trial right and failed to show any prejudice resulting from the 29-month delay between his arrest and trial date, we conclude that the trial court did not abuse its discretion in concluding that Nusser failed to show a constitutional violation. See Nelloms, 274 Ga. at 180-181 (although first two Barker factors weighed in favor of defendant, trial court was entitled to deny defendant's constitutional speedy trial claim when defendant delayed in asserting his right and could show no prejudice resulting from the delay); Johnson, 268 Ga. at 417-418 (2) (same). This is particularly true where, as here, there is no evidence that the delay was the result of a deliberate attempt by the State to hamper the defense. See id. Accordingly, we affirm the trial court's denial of Nusser's motion for discharge and acquittal.
Judgment affirmed. Blackburn, P. J., and Miller, J., concur.
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