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Because a Willits instruction “ordinarily concerns physical evidence,” the inference may be given “if the state permits evidence within its control to be destroyed.”

Investigative delay does not impermissibly slow proceedings, and not filing charges immediately upon securing enough evidence to prove guilt beyond a reasonable doubt is not intentional harassment, see United States v. Lovasco, 431 U.S. 783, 792, 794–96 (1977); Lacy, 187 Ariz. at 346.

(“In essence, defendant’s argument amounts to nothing more than an assertion that some of the witnesses may have had diminished recollections by reason of the passage of time.

–98 (1988) (holding that prejudice requires a showing of more than mere speculation).

(delayed testing of a blade for blood and fingerprints did not constitute destruction of evidence supporting a Willits instruction).

–98 (1988) (holding that prejudice requires a showing of more than mere speculation); ¶ 14 (App. 2006) (holding that defendant could not show prejudice through speculation).

(finding the due process clause has a “limited” role in the case of pre- indictment delays as such matters are protected primarily by statutes of limitations).

“The primary guarantee against a stale prosecution”—taking too long to prosecute a defendant—“is the statute of limitations.”

Glissendorf II , , ¶ 8, (quoting State v. Smith , , 227, , 514 (1988) ); see also State v. Speer , , ¶ 40, ; State v. Broughton , , 399, , 488 (1988).

See, ¶¶ 34-36 (2004) (finding that while securing witness testimony by negotiating a "last-minute plea agreement affected Armstrong's trial strategy, such damage does not of itself signal prosecutorial bad faith"); (prejudice not demonstrated by speculation that witnesses' memories may have diminished or earlier testing of evidence could have been exculpatory).

“To establish that pre-indictment delay has denied a defendant due process, there must be a showing that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay.”

(citing United States v. Lovasco, 431 U.S. 783, 789 (1977), ).

“To establish that pre-indictment delay has denied a defendant due process, there must be a showing that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay.” accord Lacy, 187 Ariz. at 346, 929 P.2d at 1294

(“Moreover, even in cases where an accused experiences some prejudice from a lapse of time, prosecutions fol *422 lowing investigative delays do not necessarily offend due process.”); , -98 , -87 (1988); -93 , -02 (1981).

Rather, the State says, the trial court should have applied the more stringent due process standard which requires a showing that preindictment delay was intended by the State to gain a tactical advantage and that such delay caused “actual and substantial prejudice.”

2044, 2048 , 52 L.Ed.2d 752 (1977)

b. Prejudice “[A] defendant has a heavy burden to prove that pre-indictment delay caused actual prejudice; the proof must be definite and not speculative.” -98 , -87 (1988).