IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1999 July 23, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9808-CR-00346 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRANK G. CLEMENT, JR. DONALD MCKINNEY, ) JUDGE ) Appellee. ) (Direct Ap peal - D UI)
FOR THE APPELLANT: FOR THE APPELLEE:
HOLLIS I. MOORE, JR. PAUL G. SUMMERS Office of the Metro Public Defender Attorney General & Reporter 1202 Stahlman Building Nashville, TN 37201 MARVIN E. CLEMENTS Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
VICTOR S. JOHNSON District Attorney General
EDWARD S. RYAN Assistant District Attorney Washington Sq., Ste. 500 Nashville, TN 37201-1649
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE OPINION
On January 18, 1998, the Davidson County Grand Jury indicted Appellee
Donald McKinney for driving under the influen ce of an in toxicant, sixth offense.
On July 7, 1998, Ap pellee filed a mo tion to dismiss the ind ictment. The trial court
granted the motion o n July 16, 199 8. The State c hallen ges th e trial co urt’s
dismissal of the indictment, raising the following issue: whether the trial court
erred when it determ ined th at the in dictm ent sh ould be dismissed because
Appe llee’s right to a speedy trial had been violated. After a review of the record,
we find that neither Appellee’s rights to a speedy trial nor his rights to due
process of law were violated by the delay in brin ging him to trial. The judgment
of the trial cou rt must the refore be reversed and the case rem anded for trial.
FACTS
The alleged offense in this case occurred on March 29, 1995. Arrest
warran ts were issued on May 2, 1995, but for some reason the warrants
remain ed uns erved un til January 1 , 1998.
At the hearing on this issue, Appellee argued that the indictment should be
dismissed because the delay between the alleged offense and the serving of the
warran ts had violated his right to a speedy trial. Appellee contended that he was
prejudiced by the de lay beca use he was pre vented from obtaining the blood
sam ple taken at the time o f the alle ged o ffense so tha t indep ende nt tests could
be conducted.
-2- The trial court dismissed the indictment after finding that the delay between
the alleged offense and the serving of the warrants had violated Appellee’s right
to a speedy trial. However, the trial court made no finding as to whether Appellee
had been prejudiced by the delay.
ANALY SIS
The State contends that the trial court erred when it dismissed th e
indictment merely because of the delay betwee n the da te of the alleged offense
and the date on which the warrants were served. We must agree.
A. Right to a Speedy Trial
The United States and Tennessee Constitutions guarantee the criminal
defendant the right to a speed y trial. U.S. Co nst. am end. VI; T enn. C onst. art. I,
§ 9; State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997). The right to a speedy trial
is also statutory in Tennessee. See Tenn . Code Ann. § 4 0-14-10 1 (1997 ). In
addition, the Te nnes see R ules o f Crim inal Procedure provide for the dismissal
of an ind ictme nt, pres entm ent, info rmatio n or crim inal co mpla int “[i]f ther e is
unneces sary delay in presenting the charge to a grand jury against a defendant
who has been held to answer to the trial court, or if there is unnecessary delay
in bringing a defe ndant to trial . . . .” Tenn. R. Crim . P. 48(b).
The Tennessee Supreme Court has stated that “a warrant alone does not
trigger speedy trial analysis; to the contrary, a formal grand jury action or the
actual restraints of an arrest a re required.” Utley, 956 S.W .2d at 493 . This is
-3- because “it is at this stage of arrest and grand jury action that the significant
interests served by the rig ht to a s peed y trial are mos t directly im plicated: the
protection against oppressive pre-trial incarceration and the reduction of anxiety
and conc ern cause d by unreso lved charges .” Id.
Under Utley, it is clear that Appellee’s right to a sp eedy trial was not
implicated when the alleged offense occurred on March 29, 1995, or when the
warran ts were issued on May 2, 1995. Rather, Appellee’s right to a speedy trial
was not implica ted un til the warrants were served on January 1, 1998. Appellee
asserted that his right to a speedy trial was violated on July 7, 1998, and the trial
court dismissed the indictment on Ju ly 16, 19 98, ap proxim ately six a nd on e half
months after the warrants were served.
W hen an accused seeks the dismissal of a prosecution based upon the
denial of the constitutional right to a speedy trial, the accused must establish a
period of delay that is “presum ptively prejudicial.” State v. Jefferson, 938 S.W.2d
1, 12 (Tenn. Crim . App. 1996) (citing Doggett v. United States, 505 U.S. 647,
651, 112 S.Ct. 26 86, 2690, 12 0 L.Ed.2d 5 20 (1992)); Barker v. Wingo, 407 U.S.
514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The length of the delay
is dependent upon the peculiar circumstances of each case, and the delay that
can be tolerated for “an ord inary str eet crim e” is ge nerally much less than for a
serious, complex felony cha rge. Barker, 407 U.S. at 530–31, 92 S.Ct. at 2193.
A delay of one year or longer marks the point at which courts deem the delay
unrea sona ble enoug h to trigger fu rther inqu iry. Utley, 956 S.W .2d at 494;
Dogg ett, 505 U.S. at 652, n.1, 112 S.Ct. at 2691, n.1. If this threshold is crossed,
a balan cing te st dete rmine s the m erits of th e spe edy tria l issue. In State v.
-4- Bishop, 493 S.W .2d 81, 83–8 5 (Tenn. 1973), the Ten nessee S upreme Court
recognized and adopted the balancing test set forth in Barker in which four
factors must be balanced. The factors are (1) the length of the delay, (2) the
reasons for the delay, (3) the accused’s assertion of the right to speedy trial, and
(4) the prejud ice resulting from the delay. Barker, 407 U.S . 514, 531 , 92 S.Ct.
2182, 2 192; Bishop, 493 S.W.2d at 83–84.
Here, the length of time was not presumptively prejudicial. The warrants
were served on January 1, 1998, Appellee was indicted on January 18, 1998, and
the trial court dismissed the indictment on July 16, 1998. Because this period of
appro ximate ly six and one half months was less than one year, the period was
not presu mptive ly prejud icial. Th erefor e, without addressing the remaining
factors, we conclude that Appellee’s right to a speedy trial was not violated under
the United States or Tennessee Constitutions. Thus, the trial court erred when
it dismisse d the indic tment b ased o n a violation of this right.
B. Due Process
The Tennessee Supreme Court has stated that “[a] delay that does not
implicate the speedy trial right may still raise due pro cess concerns under the
Fifth and Fourteenth Amendments to the United States Constitution and Article
I, § 9 of the Tenn essee C onstitution.” Utley, 956 S.W .2d at 495. Ho wever,
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1999 July 23, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9808-CR-00346 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRANK G. CLEMENT, JR. DONALD MCKINNEY, ) JUDGE ) Appellee. ) (Direct Ap peal - D UI)
FOR THE APPELLANT: FOR THE APPELLEE:
HOLLIS I. MOORE, JR. PAUL G. SUMMERS Office of the Metro Public Defender Attorney General & Reporter 1202 Stahlman Building Nashville, TN 37201 MARVIN E. CLEMENTS Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
VICTOR S. JOHNSON District Attorney General
EDWARD S. RYAN Assistant District Attorney Washington Sq., Ste. 500 Nashville, TN 37201-1649
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE OPINION
On January 18, 1998, the Davidson County Grand Jury indicted Appellee
Donald McKinney for driving under the influen ce of an in toxicant, sixth offense.
On July 7, 1998, Ap pellee filed a mo tion to dismiss the ind ictment. The trial court
granted the motion o n July 16, 199 8. The State c hallen ges th e trial co urt’s
dismissal of the indictment, raising the following issue: whether the trial court
erred when it determ ined th at the in dictm ent sh ould be dismissed because
Appe llee’s right to a speedy trial had been violated. After a review of the record,
we find that neither Appellee’s rights to a speedy trial nor his rights to due
process of law were violated by the delay in brin ging him to trial. The judgment
of the trial cou rt must the refore be reversed and the case rem anded for trial.
FACTS
The alleged offense in this case occurred on March 29, 1995. Arrest
warran ts were issued on May 2, 1995, but for some reason the warrants
remain ed uns erved un til January 1 , 1998.
At the hearing on this issue, Appellee argued that the indictment should be
dismissed because the delay between the alleged offense and the serving of the
warran ts had violated his right to a speedy trial. Appellee contended that he was
prejudiced by the de lay beca use he was pre vented from obtaining the blood
sam ple taken at the time o f the alle ged o ffense so tha t indep ende nt tests could
be conducted.
-2- The trial court dismissed the indictment after finding that the delay between
the alleged offense and the serving of the warrants had violated Appellee’s right
to a speedy trial. However, the trial court made no finding as to whether Appellee
had been prejudiced by the delay.
ANALY SIS
The State contends that the trial court erred when it dismissed th e
indictment merely because of the delay betwee n the da te of the alleged offense
and the date on which the warrants were served. We must agree.
A. Right to a Speedy Trial
The United States and Tennessee Constitutions guarantee the criminal
defendant the right to a speed y trial. U.S. Co nst. am end. VI; T enn. C onst. art. I,
§ 9; State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997). The right to a speedy trial
is also statutory in Tennessee. See Tenn . Code Ann. § 4 0-14-10 1 (1997 ). In
addition, the Te nnes see R ules o f Crim inal Procedure provide for the dismissal
of an ind ictme nt, pres entm ent, info rmatio n or crim inal co mpla int “[i]f ther e is
unneces sary delay in presenting the charge to a grand jury against a defendant
who has been held to answer to the trial court, or if there is unnecessary delay
in bringing a defe ndant to trial . . . .” Tenn. R. Crim . P. 48(b).
The Tennessee Supreme Court has stated that “a warrant alone does not
trigger speedy trial analysis; to the contrary, a formal grand jury action or the
actual restraints of an arrest a re required.” Utley, 956 S.W .2d at 493 . This is
-3- because “it is at this stage of arrest and grand jury action that the significant
interests served by the rig ht to a s peed y trial are mos t directly im plicated: the
protection against oppressive pre-trial incarceration and the reduction of anxiety
and conc ern cause d by unreso lved charges .” Id.
Under Utley, it is clear that Appellee’s right to a sp eedy trial was not
implicated when the alleged offense occurred on March 29, 1995, or when the
warran ts were issued on May 2, 1995. Rather, Appellee’s right to a speedy trial
was not implica ted un til the warrants were served on January 1, 1998. Appellee
asserted that his right to a speedy trial was violated on July 7, 1998, and the trial
court dismissed the indictment on Ju ly 16, 19 98, ap proxim ately six a nd on e half
months after the warrants were served.
W hen an accused seeks the dismissal of a prosecution based upon the
denial of the constitutional right to a speedy trial, the accused must establish a
period of delay that is “presum ptively prejudicial.” State v. Jefferson, 938 S.W.2d
1, 12 (Tenn. Crim . App. 1996) (citing Doggett v. United States, 505 U.S. 647,
651, 112 S.Ct. 26 86, 2690, 12 0 L.Ed.2d 5 20 (1992)); Barker v. Wingo, 407 U.S.
514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The length of the delay
is dependent upon the peculiar circumstances of each case, and the delay that
can be tolerated for “an ord inary str eet crim e” is ge nerally much less than for a
serious, complex felony cha rge. Barker, 407 U.S. at 530–31, 92 S.Ct. at 2193.
A delay of one year or longer marks the point at which courts deem the delay
unrea sona ble enoug h to trigger fu rther inqu iry. Utley, 956 S.W .2d at 494;
Dogg ett, 505 U.S. at 652, n.1, 112 S.Ct. at 2691, n.1. If this threshold is crossed,
a balan cing te st dete rmine s the m erits of th e spe edy tria l issue. In State v.
-4- Bishop, 493 S.W .2d 81, 83–8 5 (Tenn. 1973), the Ten nessee S upreme Court
recognized and adopted the balancing test set forth in Barker in which four
factors must be balanced. The factors are (1) the length of the delay, (2) the
reasons for the delay, (3) the accused’s assertion of the right to speedy trial, and
(4) the prejud ice resulting from the delay. Barker, 407 U.S . 514, 531 , 92 S.Ct.
2182, 2 192; Bishop, 493 S.W.2d at 83–84.
Here, the length of time was not presumptively prejudicial. The warrants
were served on January 1, 1998, Appellee was indicted on January 18, 1998, and
the trial court dismissed the indictment on July 16, 1998. Because this period of
appro ximate ly six and one half months was less than one year, the period was
not presu mptive ly prejud icial. Th erefor e, without addressing the remaining
factors, we conclude that Appellee’s right to a speedy trial was not violated under
the United States or Tennessee Constitutions. Thus, the trial court erred when
it dismisse d the indic tment b ased o n a violation of this right.
B. Due Process
The Tennessee Supreme Court has stated that “[a] delay that does not
implicate the speedy trial right may still raise due pro cess concerns under the
Fifth and Fourteenth Amendments to the United States Constitution and Article
I, § 9 of the Tenn essee C onstitution.” Utley, 956 S.W .2d at 495. Ho wever,
[b]efore an accused is entitled to relief based upon the delay between the offense and the initiation of adversarial proceedings, the accused must prove that (a) there was a delay, (b) the accused sustained actual prejudice as a direct and proximate re sult of the d elay, and (c) the Sta te caused the delay in order to gain tactical advantage over or to harass the accuse d.
-5- Id. (citation omitted).
Obviously, Appelle e has d emon strated that the re was a dela y of sligh tly
less than thre e years b etween the date o f the allege d offense and the initiation
of adversarial proceedings against h im. Although Appellee contended during the
hearing that he was prejudiced by the delay in that he was thereby prevented
from obtaining the blood sam ple for in depe nden t testing , he did not introduce any
evidence to support this claim nor did he introduce any evidence that
independent testing would have yielded a result that wa s favorab le to him. In
addition, Appellee neither contended nor introduced any proof that the delay was
caused by the State for the purpose of gaining a tactical advantage. Under these
circumstances it appears that the delay in serving the arrest warrants was not so
egregious that Appellee’s rights to due process of law were violated.
According ly, the judgm ent of th e trial co urt is RE VER SED and th is case is
REM AND ED fo r trial.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ THOMAS T. WOODALL, JUDGE
___________________________________ NORMA MCGEE OGLE, JUDGE
-6-