On August 3, 2010, Elliott Hill was indicted for distribution of methamphetamine, an offense that the indictment alleged had *13 occurred nearly four years earlier, on October 3, 2006. Subsequently, Hill was arrested for that offense. He moved to dismiss his indictment for “pre-indictment and prosecution delay,” citing the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and citing Ga. Const, of 1983, Art. I, Sec. I, Par. XI. The trial court denied Hill’s motion on March 28, 2011, and Hill appeals.
Two types of pre-trial delay have been recognized as possible violations of an accused’s constitutional rights: delay that precedes the arrest or the indictment, which may violate due process guarantees under the Fifth and Fourteenth Amendments of the United States Constitution,
Jones v. State,
1. To prevail on his claim that the delay between the time of the alleged offense and the time of his indictment violated his due process rights, Hill must prove “(1) that the delay caused actual prejudice to his defense, and (2) that the delay was the result of deliberate prosecutorial action to give the State a tactical advantage.” (Citation omitted.)
Bunn v. State,
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,
*14
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,
Because Hill failed to show that the pre-indictment delay caused actual prejudice to his defense, we need not consider whether the delay was the result of deliberate prosecutorial action to give the state a tactical advantage. See
Jackson,
2. “Only the pretrial delay which occurs
subsequent
to arrest or indictment is examined for a violation of the right to a speedy trial guaranteed by the Sixth Amendment.” (Citation omitted; emphasis in original.)
Moore v. State,
Hill’s right to a speedy trial attached on August 3, 2010, the date of his indictment for the offense in this case. His trial was specially set to commence five months from that date, and the trial court ruled on his motion to dismiss less than eight months from that date. Hill has not shown any evidence to support a finding of presumptive prejudicial delay, as required for a speedy trial violation under the analysis set forth in
Barker v. Wingo,
Judgment affirmed.