Appellant David Wimberly was arrested on March 26, 2001, in connection with the September 2000 murders of Robert Van Allen and John Lavelle Lynn, and an indictment charging him with the offenses was filed March 28, 2001. The State filed notice of its intent to seek the death penalty on September 7, 2001. On June 2, 2004, Wimberly filed a motion to dismiss for failure to grant a speedy trial/plea in bar to prosecution in which he contended his constitutional right to a speedy trial had been violated. In its order denying the motion, the trial court found appellant had not been prejudiced by the delay in trying him and there was no bad faith on the part of the State in the exercise of its statutory right to elect to try appellant’s co-indictee first.1 Appellant timely filed a notice of appeal to this Court pursuant to our decision in Callaway v. State , 275 Ga. 332 567 SE2d 13 2002.2 On appeal, appellant argues the trial court erred by failing to apply the four-factor test of Barker v. Wingo , 407 U.S. 514, 530 92 SC 2182, 33 LE2d 101 1972, and maintains that application of said factors requires reversal of the trial court’s denial of the motion to dismiss/plea in bar. “A speedy trial is guaranteed an accused by the Sixth Amendment to the Constitution of the United States, and also . . .Art. I, Sec. I, Par. XIa of the 1983 Ga. Constitution. Cit.. These rights attach at the time of arrest or when formal charges are brought, whichever is earlier. Cit.” Boseman v. State , 263 Ga. 730 1 438 SE2d 626 1994. In determining whether an accused’s constitutional right to a speedy trial has been violated, the trial court must “engage in a difficult and sensitive balancing process” Barker v. Wingo , supra, 407 U.S. at 533 in which the court assesses the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant id., 407 U.S. at 530, together with such other circumstances as may be relevant. Id., 407 U.S. at 533. Wooten v. State , 262 Ga. 876 2 426 SE2d 852 1993.
The trial court’s engagement in the balancing process is contingent upon the defendant having shown the delay since his arrest or indictment is “presumptively prejudicial.” “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo , supra, 407 U.S. at 530.3 “To trigger a speedy trial analysis, an accused must allege that the interval between accusation or arrest and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay cit., since, by definition, he cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett v. United States , 505 U.S. 647, 651-52 112 SC 2686, 120 LE2d 520 1992. The assumption that a delay is presumptively prejudicial is improper as it can result in unnecessary judicial constitutional analysis. Salandre v. State , 806 P2d 562, 565 N.M. 1991.
