IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY SESSION, 1999 FILED March 31, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9804-CR-00179 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. Frank G. Clement, Jr., Judge JAMES G. FRAZIER, ) ) (DUI) Appellee ) STATE APPEAL
For the Appellee: For the Appellant:
Glenn R. Funk John Knox Walkup Attorney at Law Attorney General and Reporter Suite 340-M, W ashington Sq. 222 Second Avenue North Daryl J. Brand Nashville, TN 37201 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
Victor S. (Torry) Johnson III District Attorney General
Edward S. Ryan Asst. District Attorney General Washington Sq., Suite 500 222-2nd Ave. North Nashville, TN 37201
OPINION FILED:
REVERSED WITH INDICTMENT REINSTATED
David G. Hayes Judge OPINION
The State appeals the dismissal of an indictment by the Davidson County
Probate Court. The trial court found that the prosecution’s delay following
indictment violated the appellee’s Sixth Amendment right to a speedy trial. In this
appeal, the State contends that the trial court committed error by failing to consider
factors relevant to a speedy trial claim.
After review, we reverse the judgment of the trial court and reinstate the
indictment.
BACKGROUND
The appellee, James G. Frazier, was arrested on February 10, 1996, for
driving under the influence. This charge was dismissed in General Sessions Court
on June 12, 1996. On December 4, 1996, the State presented this case to a
Davidson County grand jury. A true bill for DUI was returned and the appellee was
subsequently arrested for this offense on January 25, 1998.1 Following the
appellee’s arraignment for DUI in Probate Court, a motion to dismiss alleging denial
of a speedy trial was filed on March 12, 1998. The proof at the scheduled hearing
on the motion established that the appellee’s address, telephone number and
employment had not changed since his DUI arrest in February of 1996. The
appellee admitted that he had conducted no pre-trial investigation following his initial
charge for DUI. Also, he was unaware of any witness who was lost or unavailable or
any evidence that had been destroyed. Moreover, the appellee testified that the
indictment had not caused him any mental anguish or loss of sleep at night.
1 On this date, the appellee was initially cited by the police with soliciting prostitution when it was disc overed that a cap ias was outstand ing for his a rrest for D UI.
2 At the conclusion of the proof, the trial court found that:
[N]o efforts were made by the authorities to notify him [appellee] of the action of the Grand Jury that and [sic] indictment was returned. The defendant did not attempt to prove any prejudice resulting from the delay . . . [i.e.,] no witnesses had been lost, his memory had not dimmed, and . . . had not suffered any mental anguish. . . . Therefore, the Court finds no specific factual prejudice to the defendant from the delay. . . .
In dismissing the indictment, the trial court acknowledged that generally a showing
of prejudice is required upon a speedy trial violation, “[h]owever, the Court is
concerned that for a period of years it is clear that sealed indictments are not served
nor are any attempts made for their service unless and until the defendant is
stopped at a later date.”
ANALYSIS
Before embarking upon an examination of the appellee’s speedy trial claim, it
is first necessary to establish the starting point of his right to a speedy trial. The right
attaches at the time of the actual arrest or formal grand jury action, whichever
occurs first, and continues until the date of trial. State v. Utley, 956 S.W.2d 489,
493 (Tenn. 1997); see e.g., United States v. Loudhawk, 474 U.S. 302, 310-312, 102
S.Ct. 648, 653-654 (1986); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455
(1971). This right, however, does not apply during time periods when charges have
been dismissed. United States v. MacDonald, 456 U.S. 1, 8-9, 102 S.Ct. 1497,
1502 (1982). In this case, because the indictment occurred before the appellee’s
arrest in January of 1998, the starting point for delay is the date of the indictment,
December 4, 1996.
When a defendant contends that he was denied his right to a speedy trial, the
reviewing court must conduct a four part balancing test to determine if this right was,
indeed, abridged. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972).
3 This test includes consideration of (1) the length of the delay; (2) the reason for the
delay; (3) the defendant’s assertion of his right; and (4) the actual prejudice suffered
by the defendant because of the delay. Id.; see also State v. Bishop, 493 S.W.2d
81, 84 (Tenn. 1973).
The length of the delay between the warrant and trial is a threshold factor,
and, if that delay is not presumptively prejudicial, the other factors need not be
considered. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. A delay of one year or
longer “marks the point at which courts deem the delay unreasonable enough to
trigger the Barker inquiry.” Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct.
2686, 2691 n. 1 (1992); see also Utley, 956 S.W.2d at 494. In the present case, the
indictment was returned on December 4, 1996, and the delay continued until the
scheduled date of the appellee’s motion to dismiss the indictment which was heard
on March 26, 1998. This approximate sixteen month delay, while satisfying the
requirement of presumptive prejudice, however, weighs only slightly in favor of the
appellee. Thus, we proceed to the second prong of this analysis.
The second prong of the inquiry examines the reasons for the delay.
Possible reasons for the delay are said to fall within four identifiable categories: (1)
intentional delay to gain a tactical advantage over the defense or delay designed to
harass the defendant; (2) bureaucratic indifference or negligence; (3) delay
necessary to the fair and effective prosecution of the case; and (4) delay caused, or
acquiesced in, by the defense. State v. Wood, 924 S.W.2d 342, 346-347 (Tenn.
1996). In the instant case, the appellee related that his address, phone number,
and place of employment had remained the same since his initial arrest. The police
only arrested the appellee on the DUI charge following a subsequent unrelated
arrest. Because the State offered no valid reason for the delay in serving the
capias, this factor is weighed favorably for the appellee and against the State
although not as heavily as deliberate delay. See Wood, 924 S.W.2d at 347.
4 Next, we examine whether the appellee asserted his right to a speedy trial.
This factor was initially satisfied by the appellant’s motion to dismiss the indictment
for lack of a speedy trial on March 12, 1998, following his arraignment in Probate
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY SESSION, 1999 FILED March 31, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9804-CR-00179 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. Frank G. Clement, Jr., Judge JAMES G. FRAZIER, ) ) (DUI) Appellee ) STATE APPEAL
For the Appellee: For the Appellant:
Glenn R. Funk John Knox Walkup Attorney at Law Attorney General and Reporter Suite 340-M, W ashington Sq. 222 Second Avenue North Daryl J. Brand Nashville, TN 37201 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
Victor S. (Torry) Johnson III District Attorney General
Edward S. Ryan Asst. District Attorney General Washington Sq., Suite 500 222-2nd Ave. North Nashville, TN 37201
OPINION FILED:
REVERSED WITH INDICTMENT REINSTATED
David G. Hayes Judge OPINION
The State appeals the dismissal of an indictment by the Davidson County
Probate Court. The trial court found that the prosecution’s delay following
indictment violated the appellee’s Sixth Amendment right to a speedy trial. In this
appeal, the State contends that the trial court committed error by failing to consider
factors relevant to a speedy trial claim.
After review, we reverse the judgment of the trial court and reinstate the
indictment.
BACKGROUND
The appellee, James G. Frazier, was arrested on February 10, 1996, for
driving under the influence. This charge was dismissed in General Sessions Court
on June 12, 1996. On December 4, 1996, the State presented this case to a
Davidson County grand jury. A true bill for DUI was returned and the appellee was
subsequently arrested for this offense on January 25, 1998.1 Following the
appellee’s arraignment for DUI in Probate Court, a motion to dismiss alleging denial
of a speedy trial was filed on March 12, 1998. The proof at the scheduled hearing
on the motion established that the appellee’s address, telephone number and
employment had not changed since his DUI arrest in February of 1996. The
appellee admitted that he had conducted no pre-trial investigation following his initial
charge for DUI. Also, he was unaware of any witness who was lost or unavailable or
any evidence that had been destroyed. Moreover, the appellee testified that the
indictment had not caused him any mental anguish or loss of sleep at night.
1 On this date, the appellee was initially cited by the police with soliciting prostitution when it was disc overed that a cap ias was outstand ing for his a rrest for D UI.
2 At the conclusion of the proof, the trial court found that:
[N]o efforts were made by the authorities to notify him [appellee] of the action of the Grand Jury that and [sic] indictment was returned. The defendant did not attempt to prove any prejudice resulting from the delay . . . [i.e.,] no witnesses had been lost, his memory had not dimmed, and . . . had not suffered any mental anguish. . . . Therefore, the Court finds no specific factual prejudice to the defendant from the delay. . . .
In dismissing the indictment, the trial court acknowledged that generally a showing
of prejudice is required upon a speedy trial violation, “[h]owever, the Court is
concerned that for a period of years it is clear that sealed indictments are not served
nor are any attempts made for their service unless and until the defendant is
stopped at a later date.”
ANALYSIS
Before embarking upon an examination of the appellee’s speedy trial claim, it
is first necessary to establish the starting point of his right to a speedy trial. The right
attaches at the time of the actual arrest or formal grand jury action, whichever
occurs first, and continues until the date of trial. State v. Utley, 956 S.W.2d 489,
493 (Tenn. 1997); see e.g., United States v. Loudhawk, 474 U.S. 302, 310-312, 102
S.Ct. 648, 653-654 (1986); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455
(1971). This right, however, does not apply during time periods when charges have
been dismissed. United States v. MacDonald, 456 U.S. 1, 8-9, 102 S.Ct. 1497,
1502 (1982). In this case, because the indictment occurred before the appellee’s
arrest in January of 1998, the starting point for delay is the date of the indictment,
December 4, 1996.
When a defendant contends that he was denied his right to a speedy trial, the
reviewing court must conduct a four part balancing test to determine if this right was,
indeed, abridged. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972).
3 This test includes consideration of (1) the length of the delay; (2) the reason for the
delay; (3) the defendant’s assertion of his right; and (4) the actual prejudice suffered
by the defendant because of the delay. Id.; see also State v. Bishop, 493 S.W.2d
81, 84 (Tenn. 1973).
The length of the delay between the warrant and trial is a threshold factor,
and, if that delay is not presumptively prejudicial, the other factors need not be
considered. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. A delay of one year or
longer “marks the point at which courts deem the delay unreasonable enough to
trigger the Barker inquiry.” Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct.
2686, 2691 n. 1 (1992); see also Utley, 956 S.W.2d at 494. In the present case, the
indictment was returned on December 4, 1996, and the delay continued until the
scheduled date of the appellee’s motion to dismiss the indictment which was heard
on March 26, 1998. This approximate sixteen month delay, while satisfying the
requirement of presumptive prejudice, however, weighs only slightly in favor of the
appellee. Thus, we proceed to the second prong of this analysis.
The second prong of the inquiry examines the reasons for the delay.
Possible reasons for the delay are said to fall within four identifiable categories: (1)
intentional delay to gain a tactical advantage over the defense or delay designed to
harass the defendant; (2) bureaucratic indifference or negligence; (3) delay
necessary to the fair and effective prosecution of the case; and (4) delay caused, or
acquiesced in, by the defense. State v. Wood, 924 S.W.2d 342, 346-347 (Tenn.
1996). In the instant case, the appellee related that his address, phone number,
and place of employment had remained the same since his initial arrest. The police
only arrested the appellee on the DUI charge following a subsequent unrelated
arrest. Because the State offered no valid reason for the delay in serving the
capias, this factor is weighed favorably for the appellee and against the State
although not as heavily as deliberate delay. See Wood, 924 S.W.2d at 347.
4 Next, we examine whether the appellee asserted his right to a speedy trial.
This factor was initially satisfied by the appellant’s motion to dismiss the indictment
for lack of a speedy trial on March 12, 1998, following his arraignment in Probate
Court on February 19, 1998. The defendant’s assertion of this right weighs in favor
of his claim. Wood, 924 S.W.2d at 347 (citing Barker, 407 U.S. at 531-532, 92 S.Ct.
at 2192-2193; Bishop, 493 S.W.2d at 85).
We view the final factor as the most important in the balancing test, i.e.,
prejudice to the defendant resulting from the delay. Wood, 924 S.W.2d at 348;
Bishop, 493 S.W.2d at 85. In determining this remaining factor, we focus upon (1)
any undue and oppressive incarceration; (2) the anxiety accompanying a public
accusation; and (3) any impairment of the defendant’s ability to prepare his defense.
Bishop, 493 S.W.2d at 85; State v. Kolb, 755 S.W.2d 472, 475 (Tenn. Crim. App.
1988). It is undisputed, from the proof in the record, that the appellee was not
prejudiced as a result of the delay in this case. Indeed, the trial court found no
prejudice.
CONCLUSION
In sum, although the appellee has established a delay that is prima facie
unjustified, he has, however, failed to demonstrate prejudice resulting from the
delay. We acknowledge the trial court’s frustration over the police department’s
“systematic” indifference in the execution of outstanding arrest warrants;
nonetheless, we are unable to conclude, under the Barker v. Wingo balancing test,
that the appellee was denied his constitutional right to a speedy trial.
5 The judgment of the trial court is reversed and remanded to the trial court for
reinstatement of the indictment against the appellee for driving under the influence.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
____________________________________ JAMES CURWOOD WITT, JR., Judge
____________________________________ JOHN EVERETT W ILLIAMS, Judge