☢ test - Í

Spradlin v State, 262 Ga.App. 897, 587 S.E.2d 155 (August 27, 2003). Applies Barker v. Wingo constitutional speedy trial deprivation analysis to defendant’s claim of denial of due process for trial court’s failure to consider motion for new trial for 13 years while defendant served time in state prison. Finds three of four criteria (excessive delay, not caused by defendant, defendant’s assertion of his rights) satisfied (including considering the inattentive public defender to be a State agent for purposes of this analysis), but not the last – prejudice to defendant. “Spradlin contends that he has been prejudiced because the victim, who, he represents, has recanted his testimony and moved to another state.... The fact that the victim currently resides outside of Georgia, standing alone, neither prevents Spradlin from presenting an adequate appeal or impairs a defense which would otherwise be available to him.” This lack of harm does not prevent a finding of due process violation, however, as “the United States Supreme Court regarded none of the four factors identified in Barker v. Wingo as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy appeal.” Finds that “Spradlin was not provided effective assistance of appellate counsel,” but concludes that “[u]nder our current system, there is no practical sanction for the failure of the courts to timely dispose of criminal cases.” Affirms denial of motion for new trial. Cited with approval in Jones v. State , 280 Ga.App. 287, 633 S.E.2d 806 (July 6, 2006) (denial of motion for new trial reversed for consideration of claim of ineffective assistance of appellate counsel based on eight-plus year delay in processing claim for post-conviction relief). D. SPEEDY ARREST/ SPEEDY INDICTMENT Hill v. State, 312 Ga.App. 12, 717 S.E.2d 523 (October 12, 2011). No due process violation where defendant failed to show actual prejudice from almost-four year delay between alleged crime and indictment. “Hill contends that he was prejudiced by the pre-indictment delay because his father, who was a potential defense witness, passed away during that period. The Supreme Court of Georgia has rejected the argument that the death of a witness automatically satisfies the actual prejudice requirement. See, e.g., Manley v. State, 281 Ga. 466, 467–468 (640 S.E.2d 9) (2007); Holton v. State, 280 Ga. 843, 845(2) (632 S.E.2d 90) (2006); Jackson v. State, 279 Ga. 449, 451(2) (614 S.E.2d 781) (2005). The possibility of prejudice, including prejudice due to an inaccessible witness, is inherent in any delay, and the applicable statute of limitation is the primary guarantee against bringing overly stale criminal charges. See United States v. Marion, 404 U.S. 307, 321–322(III) (92 S.Ct. 455, 30 L.Ed.2d 468) (1971); Billingslea v. State , 311 Ga.App. 490, 716 S.E.2d 555 (August 24, 2011). Furthermore, Hill did not demonstrate actual prejudice under the circumstances. At the hearing on his motion to dismiss, Hill proffered that his father could have given testimony on two topics that would have contradicted state's witnesses. First, he proffered that his father had been the president of a bank and could have testified about payments made in accounts held at that bank that were connected with the alleged offense. Second, Hill proffered that his father attended a meeting with one of Hill's co-defendants and could have testified about what had occurred. But Hill did not provide any further detail about the anticipated testimony of his father, did not provide any information about the anticipated testimony of the state's witnesses on these two topics, or explain how the testimony would have conflicted. His proffer did not establish that the absence of his father as a witness substantially prejudiced his defense. See Billingslea, 311 Ga.App. 490 (2) (mere existence of possibility that evidence would have assisted defense does not establish actual prejudice).” Accord, Hill v. State , 315 Ga.App. 833, 729 S.E.2d 1 (May 10, 2012) (death of potential witness, alone, didn’t establish prejudice. “While Hill generally proffered that his father was aware of the different issues underlying the criminal investigation and knew the people involved, Hill provided no further detail about what the anticipated testimony of his father would show nor did he establish how the testimony would have helped his defense.”). Jones v. State, 284 Ga. 320, 667 S.E.2d 49 (September 22, 2008). “‘The Sixth Amendment does not guarantee a right to a speedy arrest. However, an inordinate delay between the time a crime is committed and the time a defendant is arrested or indicted may violate due process guarantees under the Fifth and Fourteenth Amendments. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). To find a due process violation where a delay precedes arrest and indictment, courts must find 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage. [Cits.]’ (Emphasis in original.) Wooten v. State, 262 Ga. 876, 878(2), 426 S.E.2d 852 (1993).” Neither showing made here, despite four-year delay between the murder and defendant’s arrest. “‘“[I]nvestigative delay[ ]” ... is acceptable, [whereas] “delay undertaken by the Government solely ‘to gain tactical advantage over the accused [ ]’ (cit.)”... is not acceptable.’ Jackson v. State, 279 Ga. 449, 451(2), 614 S.E.2d 781 (2005). ‘[P]rosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt.’ United States v. Lovasco, 431 U.S. 783, 791(II), 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Thus, Jones ‘has failed to show a purposeful or oppressive delay by the [ S]tate which would substantiate his claim. [Cit.]’ Natson v. State, 242 Ga. 618, 621(2)(b), 250 S.E.2d 420 (1978).” Accord, Higgenbottom v. State , 291 Ga. 198, 719 S.E.2d 482 (November 29, 2011).