☢ test - Í

552, 722 S.E.2d 152 (January 12, 2012). 3. Trial court erroneously concluded that the strong presumption of actual prejudice here was “rebutted” by the defendant’s failure to assert his right until eve of trial. “‘[R]ebut is the wrong concept; as stated in Doggett [see above], to ‘rebut’ the presumption of actual prejudice means that the State must ‘affirmatively prove[ ] that the delay left [the defendant's] ability to defend himself unimpaired.’ Supra, 505 U.S. at 658(III)(B), fn. 4. The State presented no such evidence here.” Davis v. State, 301 Ga.App. 155, 687 S.E.2d 180 (November 19, 2009). Trial court erred by denying defendant’s motion for discharge and acquittal on burglary, aggravated assault, and related offenses, based on constitutional speedy trial violation. 1. Assertion of right. First motion to dismiss was filed 14 months after arrest; second motion to dismiss was filed 17 months later, the Friday before the trial calendar. “[T]aking into account the two lengthy periods during which Davis failed to pursue his right to a speedy trial, we weigh this factor against him, although we do not weigh it heavily against him because he first asserted his right prior to his case being placed on the trial calendar.” 2. Actual prejudice shown from inability to contact two witnesses : “two of the robbery victims, who were illegal immigrants and who no longer are in the country. When shown a photographic lineup containing Davis's picture, one of the victims identified another individual in the lineup, and the other victim stated that he did not recognize any of the individuals in the lineup.” Contrary to trial court’s holding, defendant is not precluded from showing prejudice by fact that defense counsel never attempted to interview the victims. “As Davis's attorney explained to the trial judge, the witnesses' current testimony was not really the issue, but merely the vehicle to introduce the prior statements in the event that their testimony as to Davis's identification changed over time.” “[R]egardless of whether Davis attempted to subpoena the witnesses earlier in the proceedings or whether he attempted to interview them prior to trial, he has shown that the witnesses' prior statements were material to his defense. [fn: Although the State does not so argue here, this Court previously has determined that a defendant can show prejudice from a missing witness even if the witness's statements could be introduced in some other way. See Hester v. State, 268 Ga.App. 94, 100(4) (601 S.E.2d 456) (2004) (holding that “[t]he undisputed evidence here showed that an exculpatory witness – who would have described a completely different person as having driven [the defendant's] car at the time of the accident – had died during the delay. In such circumstances, the United States Supreme Court has stated that ‘the prejudice is obvious.’ ”) (citing Barker, 407 U.S. at 532(IV)). ] Thus, he has met the required showing of Barker. [fn: 407 U.S. at 514. See Bazemore v. State, 249 Ga.App. 584, 586-587(1)(d) (549 S.E.2d 426) (2001) (upholding trial court's finding of prejudice to defendant because the defendant's ex-girlfriend, who was a witness to the incident, had since become hostile toward the defendant and could not be located for testimony); Yates v. State, 223 Ga.App. 403, 404(4) (477 S.E.2d 670) (1996) (upholding trial court's finding of prejudice to defendant because during the 27-month delay the defense's only witness died). Compare with Frazier, 277 Ga.App. at 883(1)(d) (holding that evidence of prejudice was not specific because the defendant did not explain how the missing witness's undisclosed testimony would have helped his defense); Nelloms v. State, 274 Ga. 179, 181 (549 S.E.2d 381) (2001) (holding that because the State stipulated to allow argument regarding testimony that would have been supplied by the missing witnesses, prejudice to the defendant from the delay was alleviated). ] Ditman v. State, 301 Ga.App. 187, 687 S.E.2d 155 (November 19, 2009). Trial court erred by denying defendant’s motion for discharge and acquittal on aggravated child molestation based on constitutional speedy trial violation. 1. Trial court erred in failing to weigh reason for delay against State. Defendant filed statutory speedy trial demand, but counsel waived it without defendant’s consent when prosecutor told counsel “that … discovery would be provided if the speedy trial demand was withdrawn.” “[W]e conclude that Ditman was denied his constitutional right to a speedy trial and to due process based on the State’s intentional act of trading discovery responses for a speedy trial right.” This “intentional misconduct” should have been “weighed more heavily against the State.” 2. Pretrial delay includes “the time it took the trial court to decide the defendant’s motion to dismiss the indictment for an alleged speedy trial violation,” here 16 months on top of the 20 months elapsed at time motion was filed. 3. Defendant’s letters to the court, “in which he inquired why his case had not been tried,” are not credited as assertion of his right to a speedy trial , and counsel’s withdrawal of the statutory speedy trial demand, even in the face of State’s misconduct demanding same, is weighed against defendant, though not heavily. 4. No prejudice from 20 months of pretrial detention absent “evidence of ‘sub- standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.’ (Punctuation omitted.) Jackson [ v. State, 272 Ga. 782, 785 (534 S.E.2d 796) (2000)].” 5. Prejudice shown from missing witness. Missing witness: mother of molestation victim, who “told former counsel that while she had custody of her son, M.C. had never disclosed to her that he was being sexually abused and that she never saw any physical signs or other indications that M.C. was being abused by Ditman. Former counsel also testified that Corl could corroborate Ditman's claim that he was not around M.C. for some of the time during which the indictment alleges M.C. was molested.” “Although the testimony that Ditman claimed [witness] Corl would have provided would not have completely exculpated Ditman, it would have lent credence to his claim that although he was around M.C. at times during his relationship with Corl, he did not sexually