This case involves an alleged violation of an accused’s constitutional right to a speedy trial. Roger Nelloms was arrested on August 23, 1996 on charges arising out of the shooting death of Anthony Evans and indicted for murder and other crimes on August 29, 1997. Nelloms had earlier been indicted in December 1996 on a charge of influencing a witness based on a September 4, 1996 occurrence. In November 2000 Nelloms moved for discharge and acquittal on the indictments on the basis that his Sixth Amendment right to a speedy trial had been violated. A hearing was held during which the State agreed to make evidentiary stipulations in order to minimize or eliminate certain prejudicial consequences of the four-year delay. Thereafter, the trial court evaluated Nelloms’ claim under the balancing test set forth in Barker v. Wingo, 407 U.S. 514 92 SC 2182, 33 LE2d 101 1972 and denied the motion. Although we find the delay in this case egregious, we agree with the trial court that Nelloms’ constitutional right to a speedy trial was not violated and thus we affirm.
Applying the test in Barker v. Wingo, supra, we consider 1 the length of the delay, 2 the reason for the delay, 3 the defendant’s assertion of the right, and 4 the prejudice to the defendant. Id. See also Johnson v. State, 268 Ga. 416 2 490 SE2d 91 1997. As to the first factor, the 51 months between Nelloms’ arrest and the date he filed his motion to dismiss constituted an extraordinary delay which is presumptively prejudicial. See Doggett v. United States, 505 U. S. 647, 652 n.1 112 SC 2686, 120 LE2d 520 1992 delay approaching one year is generally deemed presumptively prejudicial; Perry v. Mitchell, 253 Ga. 593, 594 322 SE2d 273 1984 delay of more than two years is deplorable. See also Boseman v. State, 263 Ga. 730 1 a 438 SE2d 626 1994. As to the second Barker factor, a review of the State’s reasons for the delay reveals no valid explanation, such as a missing witness, which would justify the State’s failure to bring Nelloms to trial. Instead, it appears that this case was assigned to four different judges and passed from one assistant district attorney after another before the State was prepared to try the case in November 2000. However, there is nothing evidencing “that most serious abuse—’A deliberate attempt to delay the trial in order to hamper the defense. . . .’ Barker v. Wingo, supra, 407 U.S. at 531.” Perry, supra at 594-595. Rather, it appears that the defense shares some responsibility with the prosecution for the delay in this case. This is reflected in particular by the following items: the defense filed a motion for a psychiatric examination in December 1997, sixteen months after Nelloms’ arrest, with the report returned in late March 1998; in May 1998 the defense opted to proceed under the discovery procedures set forth in OCGA § 17-16-1et seq. with extensive discovery continuing throughout 1998 and filed at least one motion for a continuance; and, despite announcing ready at trial calendar dates in May, June, August,1 September and October 1998, the defense filed ex parte motions for investigative funds in June and October of 1998 and was granted funds for an investigator to locate witnesses in support of a justification defense in late October 1998. Finally, we note that defense counsel sought leaves of absence in 1999 for dates in April, May, June, August and October. These actions by the defense clearly contributed to the 51 month delay in bringing Nelloms to trial. “Thus, to the extent the reason for delay is attributable to the state, it is a relatively benign but definitely negative factor.” Perry, supra at 595.
