☢ test - Í

obtaining a continuance between February and July 2014; by filing two motions, including her request for an independent blood test, in July 2014 (the second occasion on which the State announced ready for trial); by failing to obtain a ruling on her motion to suppress; and by waiting some indeterminate period between the time she learned that the blood sample had been destroyed and the filing of her plea in bar. … Thompson’s motion for an independent blood test lacked merit. We also note that delay resulting from ‘negligence and workloads’ is ‘weighed only lightly, or benignly, against the State.’ Porter, 288 Ga. at 527(2), 705 S.E.2d 636(c)(2), citing Sweatman v. State, 287 Ga. 872, 875(4), 700 S.E.2d 579 (2010). In light of our determination below that the trial court erred in failing to weigh Thompson’s delay in asserting her speedy trial right and in concluding that she suffered prejudice as a result of the destruction of the blood sample, we direct the trial court to recalculate whether this factor should continue to weigh against the State.” 2. Assertion of right. “There is no indication in the trial court’s order that it considered the delay in Thompson’s assertion of her speedy trial right in the balancing process. 3. Prejudice. “‘Anxiety and concern of the accused are always present to some extent, and thus absent some unusual showing are not likely to be determinative in [a] defendant’s favor.’ Mullinax v. State, 273 Ga. 756, 759(2), 545 S.E.2d 891 (2001) (citation and punctuation omitted). Thompson was incarcerated for only one day before posting bond, with the result that this factor cannot weigh in Thompson’s favor. See Bass [ v. State, 275 Ga.App. 259, 261–262(4), 620 S.E.2d 184 (2005)] ( no pretrial imprisonment meant that this factor could not weigh in a defendant’s favor ).” Defendant’s belated attempt to seek independent testing of her blood sample, which had already been destroyed per routine practice of the GBI Crime Lab, didn’t show prejudice, as defendant’s right to independent testing ended when not exercised at time of arrest and defendant had no other right to independent testing. “Indeed, OCGA § 17–5–56(a) provides that with exceptions not applicable here, ‘ [b]iological samples collected directly from any person for use as reference materials for testing or collected for the purpose of drug or alcohol testing shall not be preserved. ’ (Emphasis supplied.)” Defendant also failed to show “that ‘“the evidence [possessed] an exculpatory value that was apparent before it was destroyed[.]”’ Clay v. State, 290 Ga. 822, 841(5)(c), 725 S.E.2d 260 (2012), quoting Walker v. State, 264 Ga. 676, 680(3), 449 S.E.2d 845 (1994).” Vacated and remanded for proper weighing and balancing. York v. State, 334 Ga.App. 581, 780 S.E.2d 352 (November 17, 2015). Burglary conviction remanded for consideration of defendant’s constitutional speedy trial claim. 1. In considering the length of delay as part of the balancing test, trial court “concluded that ‘the disposition of this case has not been timely’ and caused prejudice to the defendant. This, however, is merely a rehash of the trial court’s finding that the delay was presumptively prejudicial. There is nothing in the trial court’s order indicating that it considered whether the pretrial delay was uncommonly long given the circumstances of the case.” 2. The trial court failed to assign reasons and fault for all parts of the pretrial period. “‘[W]hen there is no apparent reason for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.’ (Footnote omitted.) Goddard v. State, 315 Ga.App. 868, 872(2)(b) (729 S.E.2d 397) (2012).” And “although the trial court considered the delay after the case was initially called in March 2012, and concluded that the State and York were both responsible for the delay after this date, it erred because it failed to determine whether this factor was neutral or whether one party was more responsible for the delay, and it failed to assign weights to the different delays. See Culbreath v. State, 328 Ga.App. 153, 161(4)(b)(ii) (761 S.E.2d 557) (2014); Teasley v. State, 307 Ga.App. 153, 160(2)(b) (704 S.E.2d 248) (2010).” 3. Trial court erred by finding no prejudice to defendant based on death of alibi witness. “ If witnesses die or disappear during a delay, the prejudice is obvious, and the trial court erred in finding no prejudice. See State v. Redding, 274 Ga. 831, 834 (561 S.E.2d 79) (2002).” Accord, Hardeman (June 27, 2006), below (“the prejudice is obvious,” from witness’s death, “and the trial court abused its discretion by finding no prejudice.”). But compare Brock (May 20, 2013), Gay (March 29, 2013), and Johnson (February 3, 2012), below (no prejudice based on death of witnesses in various circumstances). Dillard v. State, 297 Ga. 756, 778 S.E.2d 184 (October 5, 2015). Malice murder conviction affirmed. Trial court properly found no constitutional speedy trial violation. Four-year delay between indictment and trial was presumptively prejudicial, and delay “occasioned by a lack of judicial resources and budgetary shortfalls” should have been weighed “lightly” against the State; but no prejudice shown. Prejudice. “Although one potential witness died before trial, appellant did not demonstrate what that witness’s testimony would have been. ‘A missing witness whose testimony cannot help a defendant constitutes a flimsy basis on which to claim prejudice.’ Torres v. State, 270 Ga. 79, 81 (508 S.E.2d 171) (1998) (citations and quotation marks omitted). Appellant’s claim that he suffered from a lack of mental health treatment and that his mental health deteriorated during his incarceration cannot sustain scrutiny. The trial court reasonably and properly found that appellant received regular, appropriate treatment during his incarceration, that his mental health was actually less stable before he was incarcerated, and that he could not point to any harm other than the incarceration itself.” Leopold v. State, 333 Ga.App. 777, 777 S.E.2d 254 (September 8, 2015). Drug convictions affirmed; trial court properly found no constitutional speedy trial violation. 1. Reason for delay. Contrary to defendant’s argument, State’s desire to