Aсcording to the trial court’s order and insofar as we can ascertain from the incomplete record before us, 1 it appears that appellee Dante Moses was arrested sometime around December 9, 2004 for the offenses of armed robbery, aggravated assault with intent to rob, possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon; he was indicted for those offenses on or about December 21, 2004. 2
Moses’ case was called for trial on June 12, 2006, 3 but dismissed for “want of prosecution” because the State declared it was not ready to proceed. Moses was re-indicted on June 30, 2006 and subsequently *316 re-arrested on August 12, 2006. He was released on bond September 11 or 12, 2006. A “Comрlex Criminal Case Management Order” was filed on September 13, 2006.
On November 14, 2008 Moses filed a motion to dismiss the indictment, asserting that his constitutional right to a speedy trial had been violated. In this motion, he asserted a demand for trial, noting that his case had not yet been placed on a trial calendar. Following a hearing, the trial court granted the motion on January 8, 2009, and the State timely filed the present appeal.
We review the trial court’s order granting the motion to dismiss the indictment under an abuse of discretion standard. On appeal, “[t]he question is whether the trial court abused its discretion in ruling that [Moses’] speedy trial rights were violated.”
State v. Redding,
The template for deciding all constitutional speedy trial claims under the Sixth Amendment and the Georgia Constitution is laid out in the 1972 case of Barker v. Wingo, [407 U. S. 514 , 530 (IV) (92 SC 2182, 33 LE2d 101) (1972)] and the 1992 decision in Daggett v. United States, [505 U. S. 647 , 651 (II) (112 SC 2686, 120 LE2d 520) (1992)]. ... The analysis has two stages. First, the court must determine whether the interval from the аccused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” If not, the speedy trial claim fails at the threshold. If, however, the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.
Ruffin v. State,
1.
Presumptive Prejudice.
Here, the time between the earlier of the date of the original arrest or the date of the original indictment and the January 8, 2009 order granting Moses’ motion to dismiss
*317
slightly exceeded four years.
4
This delay was presumptively prejudicial, as conceded by the State, thus triggering the analysis under the
Barker-Doggett
balancing test. See, e.g.,
Brannen v. State,
2.
Barker-Doggett Balancing Test.
The four factors that must be considered during the second stage of a constitutional speedy trial analysis are: “(i) whether [the] delay before trial was uncommonly long, (ii) whether the government or the [accused] is more to blame for that delay, (iii) whether, in due course, the [accused] asserted the right to a speedy trial, and (iv) whether he . . . suffered prejudice as the delay’s result.” (Punctuation omitted.)
Ruffin,
No one of these faсtors, standing alone, is either a necessary or sufficient condition to a finding of a deprivation of the right to a speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. Thus, the second stage of the constitutional speedy trial analysis requires courts to engage in a difficult and sensitive balancing process and necessarily compels them to approach speedy trial cases on an ad hoc basis.
(Citation and punctuation omitted.)
Hayes,
(a) Length of the Delay. Although the trial court properly found the length of the delay to be presumptively prejudicial, and therefore sufficient to trigger consideration of the Barker-Doggett factors, it failed to also weigh the length of the delay in conducting that analysis.
It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. Ruffin,284 Ga. at 56-57 (2) (b) (i). This is because uncom *318 monly long delays have a “tendency tо compromise the reliability of trials in ways that neither party can prove, or for that matter, identify.” . . . [Ruffin, 284 Ga.] at 56 (2) (b) (i). As a result, the weight accorded the other facts in the balancing test depends, to a large degree, on the length of the delay. See, e.g., Doggett, supra,505 U. S. at 657 (III) (B) (even where the delay in prosecution results from governmental negligence, “our toleration of such negligence varies inversely with its protractedness”) . . . Ruffin, supra,284 Ga. at 57 (2) (b) (i) (the longer the delay, the stronger the presumption that it has prejudiced the accused).
Hayes,
In this case, the slightly more than four-year delay far exceeds the one-year benchmark for presumptive prejudice; therefore this factor is weighed against the State.
Ruffin,
(b)
Whether the Government or thе Accused is More to Blame for the Delay.
The second factor in the
Barker-Doggett
analysis requires the court to examine both the reason for the delay and whether this is attributable to the defendant or to the State.
Johnson,
As stated above, the total delay here was slightly in excess of 48 months from the time of the first arrest/indictment to the time the trial court granted Moses’ motion to dismiss. When the case was first placed on a trial calendar after approximately 17-18 months, Moses appearеd and announced ready for trial. But the case was dismissed for want of prosecution after the State announced it was unprepared to try the case because the assigned prosecutor was no longer employed by the district attorney’s office. The case continued to go untried in the ensuing months as it apparently continued to be аssigned to different assistant district attorneys; further, both the trial court and the prosecution attributed the delay to an overcrowded docket. As we recently noted, echoing both our Supreme Court and the United States Supreme Court:
Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply *319 because the accused cannot demonstrate exactly how it has prejudiced him. . . .
Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness. . . . Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority. The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it. [Ruffin,284 Ga. at 60 (2) (b) (ii), quoting Doggett,505 U. S. at 656-657 .]
Arbegast v. State,
(c)
Timeliness of the Assertion of the Right to a Speedy Trial.
“Because a defendant may benefit by delaying a trial, this Court has recognized that a defendant has a responsibility to assert his right to a speedy trial.” (Punctuation omitted.)
Hester,
accused is not required to demand a speedy trial at the first available opportunity, for the Supreme Court has expressly rejected the demand-waiver approach to the constitutional speedy trial right. Ruffin,284 Ga. at 62 (2) (b) (iii) (analyzing the Barker-Doggett factor, in part, by balancing time it took defendant to assert right to a speedy trial against time it took trial court to decide whether right had been violated).
Hayes,
The trial court in this case found that Moses first asserted his right to a speedy trial when he appeared and announced ready for
*320
triаl in June 2006. But our Supreme Court has previously held that a defendant must specifically assert his Sixth Amendment right to a speedy trial, which Moses did not do until he filed his motion to dismiss.
Brannen,
Although the approximately 29-month delay between the time Moses was reindicted and the time he filed his motion to dismiss and asserted his constitutional speedy trial demand puts this case in line with previous cases which have held that this factor should be weighed agаinst the accused,
5
because mitigating circumstances also exist here we find that this factor should not be heavily weighed against Moses. We note in this regard that Moses had appeared and announced ready for trial and that the case was dismissed because the State was not ready to try it. Perhaps more importantly, Moses’ case had not yet been placed on a trial calendar at the time he asserted his right.
6
Thus, this case is distinguishable from those cases in which the accused waits until trial is imminent before seeking to dismiss an indictment on Sixth Amendment grounds.
Brannen,
(d)
Prejudice to the Defendant.
“[T]he issue of prejudice weighs ‘most heavily in determining whether a defendant’s constitutional rights hаve been violated.’”
Simmons v. State,
Here the trial court found that because of the length of the delay, actual prejudice was presumed, relieving Moses of the burden of making a specific showing in regard to this factor. However,
[t]he [forty-eight] month delay in this case falls [a full twelve months] shy of the five years we have previously held gives risе to a presumption of actual prejudice. See Moore v. State[,294 Ga. App. 570 , 574 (1) (d) (669 SE2d 498 ) (2008)] (the “category of cases that presumes actual prejudice . . . generally includes only those cases where the delay is five years or longer”).
Hayes,
[g]iven that the Barker-Doggett analysis is a balancing test, . . . requiring the trial court to analyze each case based upon its own unique facts, it necessarily forbids the aрplication of any “bright-line” rules. Thus, the fact that the delay in this case was less than five years does not automatically foreclose a presumption of actual prejudice. Rather, in determining whether a pre-trial delay gives rise to a presumption of actual prejudice, the trial court must examine the delay relative to all other factors, including the complexity of the case and the evidence existing on the date the State initiated the prosecution.
(Emphasis supplied.)
Hayes,
*322
In this case, the underlying crime was a “street” armed robbery, the crime was reported to police immediately and statements were taken from the victim and apparently a witness. The suspects were also immediately identified both by name and from a photographic lineup, and arrests were quickly made. It appears, therefore, that the investigation was mostly completed by the time indictments were returned several weeks after the crime was committed. But, even so, when the case was first placed on a trial calendar approximately 17 months aftеr the first indictment, the State was unprepared to try the case because of personnel changes. And while it appears that a trial would not be complicated or prolonged, the case apparently was still languishing at the time that Moses asserted his constitutional speedy trial rights. Thus, although the trial court erred by finding that the length of the delay аlone resulted in a presumption of actual prejudice to Moses, the fact of the 48-month delay coupled with the other circumstances such as those set forth above, could support such a finding. See
Hayes,
However, in addition to presumptive actual prejudice the trial court also found that Moses made a sufficient showing of prejudicе — specifically that his defense will be hampered in that any possible alibi witnesses
7
will be deemed less credible by a jury because they will assume memory issues due to the four years of delay. Although a generalized statement that the memories of witnesses have faded over time is not deemed sufficient, memory lapses that substantially relate to a material issue are deemed prejudicial.
Robinson,
3.
Balancing of the Four Factors.
Although the trial court here erred in several respects in its analysis under the
Barker-Doggett
test, we find these errors would cause only a slight shift in balancing the factors, since it does not appear that any of the factors weighed heavily against either the State or Moses. Thus, while the trial court’s analysis was somewhat flawed and therefore our deference to the trial court diminished, we nevertheless conclude that the State failed to show that the trial court abused its discretion by granting Moses’ motion to dismiss the indictment on constitutional speedy trial grounds. See, e.g.,
Williams,
Judgment affirmed.
Notes
We have been somewhat hampered in our consideration of this appeal by an incomplete record and further hampered by the fact that the State’s brief and Moses’ brief differ as to certain datеs. Moreover, the State has inconsistently recited several key dates in its brief, which we ordered it to recast and refile in hopes of resolving these discrepancies. However, since none of these discrepancies has materially affected our consideration of this appeal, we have strived to decide this case on the merits instead of dismissing it.
We note again that we cannot state with certainty that Moses was arrested on this date. Although an arrest warrant appears in the record with this date, other documents indicate that Moses’ co-defendant was arrested then but at that time Moses remained at large. Because it does appear that Moses was indicted in December 2004 within a few weeks of the stated arrest date, the lack of clarity as to his arrest date does not substantially alter our analysis.
Williams v. State,
The State says in its amended brief that the case was called for trial on June 30. Both the trial court’s order and Moses’ brief give that date as June 12.
Because the period between the dismissal of the original charges fоr want of prosecution and Moses’ reindictment was not a significant amount of time, we need not consider whether this time period should be omitted from our calculation.
Ruffin,
Again, we are hampered by an incomplete record in this case. However, in its amended brief, the State appears to acknowledge that the case had not yet been placed on a trial calendar at the time Moses filed his motion to dismiss.
Moses indicated at the hearing on his motion to dismiss that his intent was to call alibi witnesses to establish his whereabouts at the time the crime was committed.