### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE APRIL 2000 SESSION

STATE OF TENNESSEE v. ROBERT C. COPAS

Appeal as of Right from the Criminal Court for Sumner County

No. 10151998 Jane Wheatcraft, Judge

No. M1999-00841-CCA-R3-CD - Filed September 15, 2000

The defendant, Robe

rt C. Copas, was indicted by a Sumner County Grand Jury for onecount of aggravated rape. After

discovering that the recording of the defendant’s preliminary hearing was inaudible, the defendant mov ed to dismiss

the indictment and remand for a new preliminary hearing pursuant to rule 5.1 of the Rules of Criminal Procedure. Following a hearing, the trial court

did not dismiss the indict ment, but remanded for a new preliminar

y hearing . The state then mov ed to dismiss the indictment, ar guing that cas

e law requires d

is mis sal of the indictme

nt under these circumstances.

The court agreed and

dismissed the indict

ment but the state th

en brought this a

ppeal. Because the trial court’s dismissal of the indictment and remand for a new preliminary hearing was

an appropriate remedy for a violation of the Tenn. R. Crim. P. 5.1 (a) the judgment of the trial court is affirmed.

TENN.R. APP. R. 3 Appea l as of Right; Judgme

nt of the Criminal Court of Sumner County is Affirmed

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS , J., and R OBERT W. W EDEMEYER .J., joined.

Mark T. Smith, Galla

tin, Tennessee f

or the appellee,

Robert C. Copas.

Paul G. Summers, Attorney General and Reporter, Elizabeth T.Ryan, Assistant Attorney Generals for the appellant, State of Tennessee.

OPINION

Recording of Pre

liminary Hearing The state argues that the

trial court

erred when it granted the defendant’s motion to remand for a new preliminary hearing following the d efenda nt’s discovery that a tape-recording of the preliminary

hearing was ina udible. Rule 5.1(a) of the Tennessee Rules of Criminal Procedure

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provides, in rele

vant part: the proceedings shall be preserved by electronic recording or

its equivalent

and when the defendant is subsequently indicted such reco rding sh all be made available for listening to by the defendan t or defendan t's counsel to the end that they may be apprised of the evidence introduced upon the preliminary examination.

Tenn. R. C rim. P. 5.1(a). The state argues that because defense counsel was present a t the preliminary

hearing, the

purpose of therule, i.e., to apprise the defendant or the defendant’s counsel of the evidence introduced, was met in the present cas e . Accordingly, argues the state, no preliminary hearing is required. The state correctly notes that most of the cases addressing this issue have done

so in the posttrial context. See State v. Carter , 970 S.W.2d 509, 512 (T enn. Crim. App. 1997

); State v. Butts , 640 S.W.2d 37, 38 (Tenn. Crim. App. 1982); State v. McBee , 644 S.W.2d 425, 427 (Tenn. Crim. App. 1982)

. In those cases, however, this court applied a harmless error analy sis to a violation of the rule. This court

has addressed at least one case in the same procedural posture as the instant case. In State

v. M alvi n Louis Rushton , we affirmed a trial court’s dismissal of an indictment in similar circumstances.

No. 1260, 1 990 WL

60662 , at *4 (Tenn. Crim. App., Nashville, May 11, 19 90). In that case, however, one of the reasons that the trial court’s determination wa

s affirmed was be

cause the defendant’s tri

al a ttorney was not

present at the preliminary hearing. Id. at *3. Thus, the defendant’s trial att

orne y was not properly apprised of the evidence adduced at the preliminary hearing. This court opined, in dictum, that if the defendant’s trial attorney had been present at the preliminary

hearing, the

trial court could h

ave properly

overruled the de

fendant’s motion to

dismiss the indictment because the purpose of the rule would have been satisfied. Id. The court in that case reliedon State v. Roberson , 644 S.W.2d 696, 699 (T enn. Crim. App. 1982

), in which thiscourt held that no prejudice resulted from a failure to record a prel iminary hearing because the defendant’s attorney was pr esent at th e prelimin ary hearing. Although we are mindful that the purpose of a preliminary

hearing is to adj udicate

probable
cause, the rule itself is very clear. The word “shall” is use

d twice, and its

obligatory tone is clear. Furthermore, although the rule states no sanction for failure to prepa

re, preserve,

and make availab

le such a recording, in Carter we held that “[t]he proper remedy when an electronic recording of a preliminary

hearing is lost or unavailable would be to request the trial court to dismiss the indictment andremand to

the General Sessions Court for a second preliminary hearing. Carter 970 S.W.2d at 512. We are unwilling to condition a rememdy for a violation of rule 5.1(a) on whether the attorney in criminal court and at the preliminary hearing are one in the same. Fin all y, notwiths tanding Rushton ’s dictum, we are un willing to assume t

hat the error ca

nnot, under any circum

stances, work to t

he prejudice of t

he defendant.

We need not enga

ge in harmless

error analysis or speculate about the possible prejudice of a failure to abide by the mandates of

the rule when a case is presented in this procedural posture. This issue has no merit. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH

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