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Harris v. State, 667 S.E.2d 361, 284 Ga. 455, 2008 Fulton County D. Rep. 2979, 2008 Ga. LEXIS 750 (Ga. 2008).
Opinion
SEARS, Chief Justice.
The appellant, Juan Harris, appeals from the denial of his motion to dismiss his indictment on the ground that his constitutional right to a speedy trial had been violated. We conclude, however, that the trial court did not err in denying Harris’s motion, and we thus affirm the trial court’s judgment.
To begin the constitutional speedy trial analysis, we note that the approximately five and one-half years from the date of Harris’s arrest to the date the trial court denied Harris’s motion to bar his prosecution is “presumptively prejudicial”
1
and thus triggers the four-part balancing test initially set forth in
Barker v.
Wingo
2
for deciding constitutional speedy trial claims. Under the four-part balancing test, we must consider “ ‘[i] whether delay before trial was uncommonly long, [ii] whether the government or the criminal defendant is more to blame for that delay, [iii] whether, in due course, the defendant asserted [the] right to a speedy trial, and [iv] whether he [or she] suffered prejudice as the delay’s result.’ ”
3
The Supreme Court has stated that none of these four factors is
either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these
*456
factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.
4
The length of the delay in this case is significant, with most of it attributable to the State. Moreover, a large portion of the delay attributable to the State is due to the State’s negligence in bringing the case to trial. Thus, even though there is no evidence of the most serious abuse of a deliberate attempt to delay the trial in order to prejudice Harris,
5
the negligent delay must be weighed against the State.
6
The record, however, shows that Harris did not assert his right to a speedy trial from the time of his arrest in November 2001
7
until shortly before the hearing on his motion to bar his prosecution in May 2007.
8
We conclude that this delay in asserting his right must be weighed against Harris.
9
As for the final factor in our analysis, whether Harris suffered prejudice as a result of the delay, there are three factors to consider: whether there has been oppressive pre-trial incarceration; the anxiety and concern of the accused; and the possibility of harm to the accused’s defense.
10
“Of these forms of prejudice, The most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ”
11
Although Harris’s pre-trial incarceration was substantial, we conclude that Harris failed to establish the type of “oppressive pretrial incarceration or anxiety and concern beyond that which necessarily attends confinement in a penal institution.”
12
Moreover, Harris does not contend, and the record does not show, that there has been any actual prejudice to Harris’s defense. In addition, the presumptive prejudice that arises from the significant delay in
*457
Harris’s trial “ ‘cannot alone carry [his] Sixth Amendment claim without regard to the other
Barker
criteria.’ ”
13
Instead, “ ‘it is part of the mix of relevant facts, and its importance increases with the length of delay.’ ”
14
Decided September 22, 2008
Reconsideration denied October 27, 2008.
Bentley C. Adams III, Carl E Greenberg, Wayne H. Basford, Joyce L. Neal, Daryl W. Queen,
for appellant.
Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Bet-tieanne C. Hart, Fani L. Willis, Assistant District Attorneys, Thurbert E. Baker, Attorney General,
for appellee.
On balance, because there was no demonstrable prejudice to Harris’s defense and because Harris was dilatory in asserting his right to a speedy trial, we conclude that the presumptive prejudice that arises from the delay in Harris’s trial is insufficient for him to prevail on his speedy trial claim, and that the trial court did not err in denying Harris’s motion to dismiss.
For these reasons, we affirm the trial court’s judgment denying Harris’s motion to dismiss.
A defendant may invoke his right to a speedy trial any time after his arrest.
Ruffin,
284 Ga. at 63;
United States v. Marion,
404 U. S. 307, 321 (92 SC 455, 30 LE2d 468) (1971).
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SEARS, Chief Justice.
The appellant, Juan Harris, appeals from the denial of his motion to dismiss his indictment on the ground that his constitutional right to a speedy trial had been violated. We conclude, however, that the trial court did not err in denying Harris’s motion, and we thus affirm the trial court’s judgment.
To begin the constitutional speedy trial analysis, we note that the approximately five and one-half years from the date of Harris’s arrest to the date the trial court denied Harris’s motion to bar his prosecution is “presumptively prejudicial”
1
and thus triggers the four-part balancing test initially set forth in
Barker v.
Wingo
2
for deciding constitutional speedy trial claims. Under the four-part balancing test, we must consider “ ‘[i] whether delay before trial was uncommonly long, [ii] whether the government or the criminal defendant is more to blame for that delay, [iii] whether, in due course, the defendant asserted [the] right to a speedy trial, and [iv] whether he [or she] suffered prejudice as the delay’s result.’ ”
3
The Supreme Court has stated that none of these four factors is
either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these
*456
factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.
4
The length of the delay in this case is significant, with most of it attributable to the State. Moreover, a large portion of the delay attributable to the State is due to the State’s negligence in bringing the case to trial. Thus, even though there is no evidence of the most serious abuse of a deliberate attempt to delay the trial in order to prejudice Harris,
5
the negligent delay must be weighed against the State.
6
The record, however, shows that Harris did not assert his right to a speedy trial from the time of his arrest in November 2001
7
until shortly before the hearing on his motion to bar his prosecution in May 2007.
8
We conclude that this delay in asserting his right must be weighed against Harris.
9
As for the final factor in our analysis, whether Harris suffered prejudice as a result of the delay, there are three factors to consider: whether there has been oppressive pre-trial incarceration; the anxiety and concern of the accused; and the possibility of harm to the accused’s defense.
10
“Of these forms of prejudice, The most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ”
11
Although Harris’s pre-trial incarceration was substantial, we conclude that Harris failed to establish the type of “oppressive pretrial incarceration or anxiety and concern beyond that which necessarily attends confinement in a penal institution.”
12
Moreover, Harris does not contend, and the record does not show, that there has been any actual prejudice to Harris’s defense. In addition, the presumptive prejudice that arises from the significant delay in
*457
Harris’s trial “ ‘cannot alone carry [his] Sixth Amendment claim without regard to the other
Barker
criteria.’ ”
13
Instead, “ ‘it is part of the mix of relevant facts, and its importance increases with the length of delay.’ ”
14
Decided September 22, 2008
Reconsideration denied October 27, 2008.
Bentley C. Adams III, Carl E Greenberg, Wayne H. Basford, Joyce L. Neal, Daryl W. Queen,
for appellant.
Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Bet-tieanne C. Hart, Fani L. Willis, Assistant District Attorneys, Thurbert E. Baker, Attorney General,
for appellee.
On balance, because there was no demonstrable prejudice to Harris’s defense and because Harris was dilatory in asserting his right to a speedy trial, we conclude that the presumptive prejudice that arises from the delay in Harris’s trial is insufficient for him to prevail on his speedy trial claim, and that the trial court did not err in denying Harris’s motion to dismiss.
For these reasons, we affirm the trial court’s judgment denying Harris’s motion to dismiss.
A defendant may invoke his right to a speedy trial any time after his arrest.
Ruffin,
284 Ga. at 63;
United States v. Marion,
404 U. S. 307, 321 (92 SC 455, 30 LE2d 468) (1971).
Harris asserts that, because present defense counsel made an entry of appearance on March 16,2007, and filed a “Motion for Permission to File an Out-of-Time Demand for Speedy Trial” in April 2007, Harris has timely asserted his right to a speedy trial. The record, however, shows that Harris had counsel since at least the summer of 2002 and thus could have asserted his right to speedy trial earlier.
Brannen v. State,
274 Ga. 454,456 (553 SE2d 813) (2001);
Nelloms v. State,
274 Ga. 179, 181 (549 SE2d 381) (2001);
Thomas v. State,
274 Ga. 492, 494-495 (555 SE2d 693) (2001);
Jackson v. State,
272 Ga. 782, 785 (534 SE2d 796) (2000). In evaluating Harris’s delay in asserting his right, we assume without deciding that the approximately one year time frame during which Harris’s case was on the dead docket due to the State’s inability to locate a key witness should not be counted against Harris.
holding that the presumptive prejudice from a five-and-a-half-year delay was insufficient to “carry [his speedy trial claim] without regard to the other Barker criteria” (citation and punctuation omitted)
defendant could not prevail on speedy trial claim where, balancing all Barker factors, presumptive prejudice was outweighed by other considerations, particularly his lengthy delay in asserting the right and absence of demonstrable prejudice to his defense
where no showing of oppressive pre-trial incarceration or undue anxiety and no claim of actual prejudice to defense, presumed prejudice attending more than five-year delay insufficient to overcome defendant’s failure to assert speedy trial right in a timely fashion
no presumption of actual prejudice despite pretrial delay of 65 months where defendant waited to the 60th month to assert the right, despite being represented by counsel during that time
indicating that time during which defendant’s case was on dead-docket should not be counted against defendant when evaluating his assertion of right to speedy trial