In January of 2003, Ernesto Guitierrez was fatally shot during an armed robbery in Fulton County. A week later, Kevin Jones was arrested in connection with an armed robbery committed in DeKalb County and, in his post-arrest statement, he provided information regarding Mr. Guitierrez’s murder. Jones informed the police that he had been riding in a car with three other individuals and that, during a stop, one of the three left the automobile and shot Mr. Guitierrez. In September of 2005, Jones pled guilty to a lesser charge of robbery in DeKalb County, and he was sentenced to an eight-year term. In December of 2005, Jones was arrested and charged with the murder of Mr. Gutierrez and related crimes. In November of 2006, he pled guilty to yet another robbery committed in Fulton County. In January of 2007, Jones was indicted for Mr. Gutierrez’s murder and other offenses connected with the homicide. In October of 2007, he filed a motion to dismiss the indictment, asserting that the delay in bringing him to trial was a violation of his constitutional rights. After conducting a hearing, the trial court denied the motion. Jones appeals directly from that order of the trial court. Callaway v. State , 275 Ga. 332 567 SE2d 13 2002.
1. Two types of pre-trial delay have been recognized as possible violations of an accused’s constitutional rights, one of which is delay that precedes the arrest or the indictment.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 SC 455, 30 LE2d 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 SE2d 852 1993.
