dissenting.
The right to a speedy trial is a fundamental right guaranteed to an accused by the Sixth Amendment to the United States Constitution and applicable to the states by the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U. S. 514, 515 (92 SC 2182, 33 LE2d 101) (1972). It is a “slippery” right “generically different from any of the other rights enshrined in the Constitution for the protection of the accused,” it has an “amorphous quality,” and its violation results in the “unsatisfactorily severe remedy of dismissal of the indictment” with prejudice. Id. at 519, 522. Because it is a constitutional right the deprivation of which can work to the advantage of the defendant, a trial court’s ruling on the subject must be carefully scrutinized. Where, as here, the facts are not in dispute and witness credibility is not at issue, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review to determine whether the trial court abused its discretion. Vansant v. State, 264 Ga. 319 (1) (443 SE2d 474) (1994); Snow v. State, 229 Ga. App. 532 (494 SE2d 309) (1997). After reviewing the record, I conclude that the trial court did abuse its discretion when it concluded that the State was responsible for the delay in prosecuting defendant Johnson and that Johnson was prejudiced thereby to the point that her plea in bar had to be granted. Accordingly, I respectfully dissent to the majority opinion which holds otherwise.
Ms. Johnson’s right to a speedy trial attached July 9, 1993, the day she was arrested for aggravated assault,1 but she did not give voice to that right until she filed a plea in bar over seven years later, on September 25, 2000. In determining whether the delay denied the defendant her right to a speedy trial, the court makes four inquiries: “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted [her] right to a speedy trial, and whether [s]he suffered prejudice as the delay’s *516result.” Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992).
1. The seven-year delay is presumptively prejudicial under the first prong of the four-part balancing test set forth in Barker v. Wingo, and requires the Court to inquire into the other three prongs of the balancing test. Brannen v. State, 274 Ga. 454 (553 SE2d 813) (2001); Mullinax v. State, 273 Ga. 756, 759 (545 SE2d 891) (2001).
2. Accordingly, I turn first to the reasons for the delay. To a considerable extent, the delay is attributable to the defendant since she left the jurisdiction upon posting bond and did not inform the superior court clerk’s office of the address at which she could be reached. In addition, the bonding company that posted the bond for Johnson went out of business. The combination of defendant leaving the jurisdiction without leaving an address with the court and the business failure of the bonding company resulted in the fact that the defendant failed to appear at her January 1994 arraignment, presumably because she did not receive notice of it. Johnson was placed in “bond forfeiture status” and a bench warrant was issued for her arrest for failure to appear. A duplicate bench warrant was issued in December 1999 and, with the help of the FBI, she was located in Missouri and extradited to Georgia, where she was released on bail. After her case made several appearances on plea and arraignment calendars, some of which were reset so that plea negotiations could continue, a November 2000 trial date was set on September 25, the very day Johnson asserted her right to a speedy trial.
There is no evidence that the State intentionally delayed Johnson’s trial in order to impair her defense. Thompson v. State, 268 Ga. 416 (2) (490 SE2d 91) (1997); Boseman v. State, 263 Ga. 730 (2) (438 SE2d 626) (1994). Under these circumstances, any delay attributed to the negligence of the State is relatively “benign. . . .” Mullinax v. State, supra, 273 Ga. at 759; Perry v. Mitchell, 253 Ga. 593, 595 (322 SE2d 273) (1984). However, the majority charges the State with the delay caused by the defendant having left the jurisdiction because the entity responsible for pursuing bench warrants did not make Johnson’s recapture a high priority. Such a holding sends a clear message to those charged with crimes and released on bail — if you leave the jurisdiction for a long enough period of time, your case will be dismissed due to the State’s failure to give you a speedy trial.
3. Johnson did not assert her right to a speedy trial at any time from when she was arrested until she filed her plea in bar in which she finally asserted the right. In such a case, the assertion of the right to speedy trial is a factor “entitled to strong evidentiary weight against the defendant. . . .” Brannen v. State, 274 Ga. at 456; Nel-loms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001). See also Thomas v. State, 274 Ga. 492 (555 SE2d 693) (2001). Extensive delay *517in asserting the right is weighted against the defendant. Jackson v. State, 272 Ga. 782, 785 (534 SE2d 796) (2000). The defendant’s “failure to assert the right will make it difficult for [the] defendant to prove [s]he was denied a speedy trial.” Brannen v. State, supra at 456, quoting Barker v. Wingo. In fact, her delay in “making known [her] desire to bring the case to trial evinces instead a desire to avoid trial altogether or at least gain advantage from the delay.” Heinen v. State, 186 Ga. App. 373, 375 (2) (c) (367 SE2d 275) (1988).
4. The last factor is the prejudice prong, which requires an examination of the “three interests which the speedy trial right was designed to protect” — the prevention of oppressive pre-trial incarceration, the minimization of the defendant’s anxiety and concern, and the limitation of the possibility that the defense will be impaired. Boseman v. State, supra, 263 Ga. at 732. Ms. Johnson’s 23-day incarceration (11 days in 1993 and 12 days in 1999) is hardly oppressive. As for the second sub-factor, anxiety and concern are present to some extent in all cases and, “ ‘absent some unusual showing [are] not likely to be determinative in defendant’s favor.’ [Cit.]” Mullinax, supra; Boseman, supra. In support of the last sub-factor, defendant maintains her defense will be impaired because an audiocassette of emergency phone calls made to 911 during her altercation with the victim cannot be found. Since defendant was apparently planning to assert a justification defense, the loss of the audiotape was potentially harmful to her, and we must assess the extent of prejudice resulting from the missing evidence. Brannen v. State, supra; Nelloms v. State, 274 Ga. at 181. The State points out that it appears the audiotape was in the possession of defense counsel when it was lost, and that several persons, including defense counsel and the defendant’s mother, heard the audiotape prior to its loss and could testify to its contents. Thus, the absence of the audiotape does not constitute the prejudice necessary to grant defendant’s motion to dismiss based on the failure to afford her a speedy trial. See Brannen v. State, supra (affidavit from now-deceased witness alleviates prejudice arising from death of witness); Nelloms v. State, supra (defense counsel’s ability to argue victim’s prior acts of violence alleviates prejudice arising from inability to locate witnesses). The defendant’s loss of evidence which she contends materially prejudices her ability to defend may not serve as the basis for granting her plea in bar on speedy trial grounds since there is no evidence that the delay in trying defendant caused defendant to lose the tape. Nairon v. State, 215 Ga. App. 76 (1) (d) (449 SE2d 634) (1994). Furthermore, it appears that the loss of the tape was not the result of the passage of time. See Lynott v. State, 198 Ga. App. 688 (8) (402 SE2d 747) (1991) (defendant’s assertion of prejudice because of missing audiotape of no moment when audiotape was destroyed by State due to bad quality). “[I]f favorable *518defense evidence was lost it was because of defendant’s own neglect. . . .” Ould v. State, 186 Ga. App. 55 (2) (d) (366 SE2d 392) (1988). Since there was no evidence that either the State or the passage of time was responsible for the loss of the tape, defendant did not carry her burden of showing the prejudice necessary to support a dismissal of the murder indictment lodged against her, and the grant of her plea in bar should be reversed. State v. Story, 209 Ga. App. 404 (433 SE2d 599) (1993); State v. Lively, 155 Ga. App. 402 (1) (270 SE2d 812) (1980); State v. Weeks, 136 Ga. App. 637 (222 SE2d 117) (1975), where the appellate courts applied the Barker v. Wingo factors and reversed the trial courts’ grants of the pleas in bar. The majority’s affirmance of the trial court’s action sends yet another message to criminal defendants — lose material important to your defense and you can claim prejudice if you are not tried within a year of your arrest or indictment. See Doggett v. United States, supra (as the delay approaches one year, it generally is “presumptively prejudicial,” requiring an examination of the Barker v. Wingo factors). I disagree with both the result reached by the majority opinion and the messages it sends. Accordingly, I respectfully dissent, and I am authorized to state that Justice Thompson joins me in this dissent.
Decided November 28, 2001. Paul L. Howard, Jr., District Attorney, Michele T. McCutcheon, AlveraA. Wheeler, Assistant District Attorneys, for appellant. Jennifer L. Wheeler, for appellee.The charge was upgraded to murder upon the death of the victim from his injuries.