# FILED
March 31, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 01C01-9804-CR-00179 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. Frank G. Clement, Jr., Judge JAMES G. FRAZIER, ) ) (DUI) Appellee ) STAT E APP EAL For the Appellee : For the Appellant : Glenn R. Funk John Knox Walkup Attorne y at Law Attorney General and Repor ter Suite 340-M, W ashington Sq. 222 Second Avenue North Daryl J. Brand Nashville, TN 37201 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Victor S. (Torry

) Johnson III District Attorney General Edward S. Ryan Asst. District Attor

ney General Washington Sq., Suite 500 222-2nd Ave. North Nashville, TN 37201

OPINION FILED: REVERSED WITH INDICTMENT REINSTATED

David G. Hay

es Judge1 On this date, the appell ee was init iall y cited by the pol ice wit h soliciting prostituti on when it was disc overed that a cap ias was outstand ing for his a rrest for D UI. 2 OPINION

The State appeals the dismissal of an i ndictment by the Davids on County Probate Court. The trial c ourt found that the prosecution’s delay following indictment violated the appellee’s Sixth Amendment right to a speed y trial. In this appeal, the State contends that the tr ial court committed error by failing to consider factors rel evant to a s peedy tria l claim.

After review, we reverse the judgment of the t rial court and reinstate the indictment.

BACKGROUND

The appellee, James G. Frazi er, was arrested on Fe bruary 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 gr

and 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 D UI in Probate Court, a motio n to dismiss alleging denial of a speedy trial was fil ed on March 12, 1998. The proof at the s cheduled hearing on the motion established that the ap pellee’s address, telephone number and employment had not changed sinc e his DUI arrest in F

ebruary of 1996. The appellee admitted that he had conducted no pre-trial investigation following hi s initial charge for DUI. Also, he was unaware of any w itness who was los

t or unavailable or any evidence that had been des troyed. Moreover,the appellee testified that the indictment had not caused him any mental anguish or loss of sl eep at night.3 At the conclusion of the proof, the tr ial 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 w

itnesses had been lost, his memor y 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 indic

tment, the trial court acknow ledged that generally

a showing of prejudice is required upon a speedy trial violation, “[h]owever, the Court is concerned that for a period of year s it is clear that seal ed indictments are not serv ed nor are any attempts made for their service unless and until the def endant 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 ar rest or formal grand jur y action, whichev

er occurs first, and continues until the date of trial. State v. Utley , 956 S.W.2d 489, 493 (Tenn. 1997); see e.g. , United St ates v. Lo udhawk , 474 U.S. 302, 310-312, 102 S.Ct. 648, 653-654 (1986); United States v. Mari on , 404 U.S. 307, 92 S.Ct. 455 (1971). T his right, however, do es not ap ply during t ime perio ds when cha rges 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 ri ght to a speedy trial,the reviewing court must conduct a four part balancing test to determine if this right was, indeed, abridged. Barker v. Wi ngo , 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972).4

This test includes consider ation of (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s ass ertion 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 pre sumptively prejudic

ial, 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 del ay 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 o n 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 approx imate sixteen month delay, while satisfying the requirement of presumptive prejudice, however,weighs only sl ightly in favor of the appellee. Thus, we proceed to the second prong of this analy sis.

The second prong of the inquiry examines the reasons for the del ay. Possible reasons for the delay are said to fall withi n four identifiable categories : (1) intentional delay to gai n a tactical advantage ov er the defense or delay desig ned to harass the defendant; (2) bureaucr atic indifference or neglig ence; (3) delay necessary to the fair and effectiv e prosecution of the case; and (4) delay caused, or acquiesced in, by the de fense. State v. Wood , 924 S.W.2d 342, 346-347 (Tenn. 1996). In the instant case, the appellee related that h is address, phone number, and place of employment had remained the same since his initial arrest. The police only arrested the appell ee on the DUI charge follow ing a subsequent unrelated arrest. Because the State offered no v alid reason for the delay i n serving the capias , this factor is weig hed favorably for the appellee and against the State although not as heavily as deliberate delay. See Wood , 924 S.W.2d at 347.5 Next, we examine w

hether the appellee asserted hi s right to a speedy tr ial. This factor was initial ly satisfied by the appel lant’s motion to dismiss the indictment for lack of a speedy trial o n March 12, 1998, following his arraignment in Pro bate Court on February 19, 1998 . The defendant’s assertion of this r ight weighs in fav

or of his claim. Wood , 924 S.W .2d at 347 (citin g 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 import ant in the balancing test, i .e., prejudice to the defendant resulti ng from the delay. Wood , 924 S.W.2d at 348; Bishop , 493 S.W.2d at 85. In determining this remai ning factor, we focus upon ( 1) any undue and oppressive incarceration; (2) the anxiety accompanying a public accusation; and (3) any i mpairment 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 appel lee was not prejudiced as a result of the de lay in this case. Indee d, the trial court found no prejudice.

CONCLUSION

In sum, although the appellee has established a delay that is prima facie unjustified, he has, howev er, failed to demonstrate prejudi ce resulting from the delay. We acknowledge the trial court’s frustration over the police dep artment’s “systematic” indifference in the execution of outstanding arrest warrants;

nonetheless, we are unable t o conclude, under the Barker v. Wi ngo balancing test, that the appellee was denied his constitutional right to a speedy trial.6 The judgment of the trial court i s reversed and remanded to the trial court for reinstatement of the indictment aga inst the appellee for driv ing under the influence.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ JAMES CURW OOD WIT T, JR., Judge

____________________________________ JOHN EVERETT W ILLIAMS, Judge