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defendant, even though the State offered to allow the witness’s testimony by stipulation. “A written statement or stipulation does not always alleviate the prejudice associated with a witness’s death. See Hester [ v. State, 268 Ga.App. 94, 100(4) 601 S.E.2d 456 (2004)]. In Hester, we noted the difference between ‘the dry impact of ... written testimony’ and ‘the powerful impact of a live witness testifying from the stand.’ Id. We recognize that in several cases, the introduction of a statement or stipulation in lieu of live testimony has been found to cure prejudice caused by a witness’s death. See Brannen v. State, 274 Ga. 454, 457-458 (553 S.E.2d 813) (2001); Nelloms [ v. State, 274 Ga. 179, 549 S.E.2d 381 (2001)]. Under different facts, an offer by the prosecution to stipulate to a lost witness’s testimony might negate any prejudice. Here, however, the impact upon the jury of the testimony of the lost witness depended largely on that witness’s credibility and demeanor while testifying. A stipulation could not have the same effect. Here, as in Hester, supra, 268 Ga.App. at 100, ‘the prejudice is obvious,’ id., and the trial court abused its discretion by finding no prejudice.” See also Carr (June 28, 2004), below; Jones (March 1, 2007), above. Ingram v. State, 280 Ga.App. 467, 634 S.E.2d 430 (June 26, 2006). Trial court properly denied defendant’s claim of constitutional speedy trial violation. Forty-eight month delay between arrest and trial was presumptively prejudicial. Reason for delay is unclear; “‘Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.’ [Cit.] Reasons such as negligence and overcrowded courts should be weighed against the state because the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. [Cit.] However, these reasons are weighed less heavily against the state than a deliberate attempt to delay. [Cit.]” Defendant showed no harm in delay, however, and did not assert his right to a speedy trial until 45 months after charges were brought. Accord, Lambert v. State , 302 Ga.App. 573, 692 S.E.2d 15 (March 2, 2010) (delay caused by policy of trying jail cases ahead of bond cases is weighed against State, citing Ingram ). Holton v. State, 280 Ga. 843, 632 S.E.2d 90 (June 26, 2006). No due process violation where defendant’s murder prosecution was delayed 20 years, although she was immediately arrested at the time of the killing. (First grand jury declined to indict; DA’s office re-opened case 20 years later and obtained indictment. “Defendant claims she was denied her due process rights because the State delayed the prosecution for 20 years. In order to prevail on this claim, defendant must show (1) that the delay actually prejudiced the defense and (2) that the prosecution deliberately delayed the case in order to gain a tactical advantage. Jackson v. State, 279 Ga. 449, 450(2) (614 S.E.2d 781) (2005); Wooten v. State, 262 Ga. 876, 878(2) (426 S.E.2d 852) (1993). Defendant has not made either showing. True, several witnesses died in the intervening years [Cit.] and some pieces of evidence were missing. [Cit.] But this hindered the prosecution as much as defendant; it is the type of prejudice inherent in any extended delay. See Jackson v. State, supra; Roebuck v. State, 277 Ga. 200, 205 (586 S.E.2d 651) (2003). And even if defendant could show actual prejudice as a result of the delay, it cannot be said that the delay was the product of deliberate action by the State.” Note case uses due process analysis, not Speedy Trial clause analysis. Roberts v. State, 279 Ga.App. 434, 631 S.E.2d 480 (May 17, 2006). No constitutional speedy trial violation; four year delay was caused by appeal of defendant’s statutory speedy trial claim. State had no opportunity to try case on new accusation, because defendant’s plea in bar was filed before remittitur was returned to trial court. Frazier v. State, 277 Ga.App. 881, 627 S.E.2d 894 (March 3, 2006). No constitutional speedy trial violation despite 34 month delay in prosecution for robbery and theft. No evidence of bad faith by State; defendant did not assert right; no prejudice to defendant. “Frazier’s assertion that his defense was impaired by the delay was supported only by vague, conclusory statements, unsubstantiated by evidence, that he had been unable to locate unnamed witnesses who could provide undisclosed testimony establishing his innocence. Since ‘the defendant must offer specific evidence’ in order to establish prejudice, Jackson v. State, 272 Ga. 782, 783 (534 S.E.2d 796) (2000), the trial court did not err in determining that Frazier failed to show any impairment to his defense.” Accord, Simmons (March 14, 2008), above. Herndon v. State, 277 Ga.App. 374, 626 S.E.2d 579 (January 25, 2006). 1. Defendant’s constitutional speedy trial claim denied. “‘The right to a speedy trial attaches at the time of arrest or when formal charges are brought, whichever is earlier.’ (Citation and punctuation omitted),” quoting Scandrett v. State , 279 Ga. 632(1), 619 S.E.2d 603 (2005) (see below). The current charges were brought while defendant was serving a sentence on other charges. A hold was placed on his release, and upon completion of the earlier sentence, he was held for further prosecution on the new charges. For purposes of this analysis, defendant was not “arrested” for the current charges until the hold actually impeded his release. “[W]e must conclude that Herndon was not arrested for the [current] East Point offenses until he was discharged from the prison system on January 3, 2004 but was not released due to the hold placed by the East Point police. Between his arrest on February 25, 2000 and January 3, 2004, Herndon was confined for the purpose of serving prison sentences
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