### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs N

ovember 14, 2000

Session

STATE OF TENNESSEE v. GLENN T. TIDWELL

Direct Appeal from the Criminal Court for Davidson County

No. 97-T-866 Frank G. Clement, Judge

No. M2000-00538-CCA-R3-CD - Filed July 9, 2001

The Stateof

Tennessee appeals from the trial court’s dismissal of an indictment for DUI aga inst the appellee, Glenn Tidwell. The trial court determined that the indictment should be dismissed because Tidwell’s right to a speedy trial had be en violated. After a review of the record, we find that the appellee’s right to a speedy trial was violated

by the delay

in bringing him to trial. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

J ERRY S MITH , J., delivered the opinion of the court, in which D AVID G. H AYES , J., and N OR M A M C G EE O GLE , J., joined.

Paul G. Summers, Attorne y General & Reporter; Mar

vin E. Clements, Jr., A

ssistant Att

orne y General; Victor S. Johnson, District Attorney General; James D. Sledge, Assistant Dis tri ct A tto rney, for appellant, State of Tennessee.

Paul Bennett Seusy

, Nashville, Tenne

ssee for appelle

e, Glenn T. Tidwe

ll.

OPINION

FACTS On February

16, 1997, the appe

llee was arrest

ed for DUI in

Davidson County. The case was scheduled for a preliminary hearing on three separate occasions, and

on each occasion the hearing

was continued at the request of the State. On August 21, 1997, the Honor able Will iam Faimon dismissed the case. In October of 1997, the appellee was indicted by the Davidson County

Grand Juryfor DUI. In September of 1999, the appe llee was involved in a one-car accident, and, sub seq uen tly, learned of the pending indictment for DUI. On September 30, 1999, the appellee was arraigned on the charges

i n the indictment, thirty-one months after his initial arrest and two yea rs after the indictment by the Grand Jury. On October 12, 1999, the appellee filed a motion to dismiss the indictment. Following a hearing on February 10, 2000 , the trial cou rt granted the motion and-2-

dismissed the indictment aft er finding that t

he appellee’s r

ight to a speedy

trial hadbeen violated.

ANALYS IS The State cont ends that the trial court erred in dismissing the indictment because the defendant was not prejudiced by the delay . We must disagree. The United States and Tennessee Cons titutions guarantee the criminal defendant the right
to a speedy tr

ial. U.S. AMEND

. VI; Tenn. Cons t. art. I, § 9; State v. Ut ley , 956 S.W.2d 489, 492 (Tenn.1997). The right to a speedy trial is also statuto

ry in Tennessee. See Tenn. Code Ann. § 40- 14-101 (1997). In addition, t he T ennessee Rules of Criminal Procedure provide for the dismissal of an indictment, pre

sentment, informat

ion or cri minal comp

laint “[i]f there is unneces sary delay in presenting the charge to

a grand jury against a defendant who ha s been held to answer to the trial court, or if there is unnecessary delay in bringing a defendant to trial. . . .” Tenn.R.Crim.P. 48(b). The Tennessee S upreme Cou rt has stat ed that “for mal gr and jury action or the actual restraints of an arrest are required” to trigger speedy trial analysis. Utley , 956 S.W.2d at 493. This is because “it is at this stage of ar rest and grand jury action that the significant interests serve d by the right to a speedy

trial are mo st directly implicated: the protection against oppressive pre-trial incarceration and the reduction of anxiety and concern ca used by unresolved charges.” Id

. Under Utley it

is clear that the appellee’s right to a speedy trial was implicated at a minimum when the Grand Jury

returned the indi

ctment in Octo

b er of 1997. H owever, form al proceedi ngs against the appellee began in February of 1997 a fter his arrest, and the appellee’s right to a speedy trial was triggered at that time. The trial court dismissed the indictment in February of 2000, a delay of approximately three years in bring ing the defendant to trial. When an accused seeks the dismissal of charges based upon the denial of

the constitutional right to a speedy trial, the accused must establish a p eriod of delay that is “presumptiv

ely 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. 2686, 2690, 120 L.Ed.2d 520 (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 ordinary street crime” is generally

much less than for

a serious, complex felony charge. Barker , 407 U.S. at 530-31, 92 S.Ct. at 2193. A delay of one year or long er marks the po in t at which courts deem the delay unreasonable

enough to

trigger further inquiry. Utley , 956 S.W.2d at 494; Doggett , 505 U.S. at 652,

n. 1, 112 S.Ct. At 2691, n. 1. If this threshold is

crossed, a balancing test determines the merits of the speedy

trial issue. In State v. Bishop , 493 S.W.2d 81, 83-85 (Tenn.1973), the Tennessee Supreme Court recognized and adopted the balancing test the United States Supreme Cour t set forth in Barker in which four factors mus tbe balanced. The factors are (1) the length of the delay , (2) the

reasons for the de la y, (3) the accused’s assertion of the right to speedy trial, and (4) the prejudice resulting from the delay. Barker , 407 U.S. at 531, 92 S.Ct. at 2192; Bishop , 493 S.W.2d at 83-84. This court also recognizes that findings of fact by the trial judge are presumed correct a nd may only be overcome by a pre ponderance of the evidence contrary to that finding. Tenn. R. App. P. 13(d). The Tennessee Su preme Court has he

ld that “[q]uestions of

credibility

of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted
to the trial judge as the trier of fact. ” State v. Odom , 928 S.W.3d 18, 23 (Te nn. 1996). The par

ty-3-

prevailing at the trial court level is entitled to the “s trongest legit

imate view of the e

vidence” as wel

l as “all reasonable and legitimate inferences that may be drawn from that evidence.” Id

. (1) The Length of the Delay As noted above, a delay of one yea r or longer “marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry. Doggett , 505 U.S. at 652 n. 1., 112 S.Ct. at 2691 n. 1.; see also Utley , 956 S.W.2d at 494. The State concedes th

at the delay

in this case is presumptively

prejudicial and meets the threshold for consideration of the other factors. We find that this factor weighs in the appellee’s favor. (2) The Reason for the Delay Reasons for

the delay of prosecution fall within four categories: (1) intentional delay

to gain

a tactical advant

age over the de

fense or delay

designed to har

ass the defenda

nt; (2) bureaucr

atic 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). The trial c

ourt clearly

found that the reason for delay in the instance case was bureaucratic indifference and we must agree. The trial court expressed great concern at

the current state of the Davidson County Warrant Office and that Division’s apparent inability to function with any degree

of s ucce ss. Spe cif ica lly, Lieutenant

Robert Womack, ch ief of the Davidson County Metropolitan Police Department’s Warrant Office stated that the office has between 35,000 and 50,000 unserved warrants and a staff of only five of

ficers at any

given time. Due t

o chronic unders

ta ffing, th

e Wa rrant Office a

lmost

never actively attempts to serve a warrant on a person unless that person is broug htinto custody for other charges. L

ieutenant Womack t

e st ified that less than one percent of the Warrant Office’s activities involve serving outstanding war

rants on at-larg

e defendants. L

ieutenant Womack a

lso discussed the Warrant Office’s mailing system that notifies misdemeanor defendants that they have warrants pending, but stated t

hat no such n otice would ever be given a DUI defendant. I t is clear from the testimony of Lieutenant Womack that the Davidson County Metropolitan Polic e Dep art men t do es n ot c ons ide r th e ser vic e of a n in dic tme nt o n a D UI de fend ant a pri ori ty. During t he h earing before the trial court, the prosecution attempted to rely on Lieutenant Womack’s testimony and the evidence of an understaffed and underf unded Warr ant Office as an explanation for the delay in bringing th

e ap pellee to trial. Such reliance is unfounded. The Tennessee Supreme Court held in State v. Bishop that “[t ]he la ck of financial r

esources for thi

s purpose on the part of the St

ate of Tennesse

e is not a legally

justifiable

reason to deny a defendant his constitutional right to a speedy trial.” State v. Bishop , 493 S.W.2d 81, 84 (Te nn. 1973). In f

act, in Bishop , the prosecuting attorney ma

de a diligent ef

fort to provid

e the de fendant with a speedy trial, but the cour

t held that the duty to bring the defendant to trial is “a duty

imposed on the State through all agencies and departments affecting the administration of justice.” Id

. The Bishop Court went on to quote the United States Supreme Court in Dickey v. Florida by stating that the “public officials responsible for the delay may not even be associated with law enforcement agencies or the courts”and a delay that springs from the “refusalby other bra nches of gover

nment to provide the

se agencies and the judiciary with the resources necessary for

speedy tria

ls” will be conside

red against
t he State. Bishop , 493 S.W.2d at 84, quoting Dickey v. Florida , 398 U.S. 30, 51, 90 S.Ct. 1564
, 1575, 26 L.Ed.2d 26 (Justice Brennan concurring).-4-

The evidence produc

ed at the hearing

clearly supports the trial judge’s finding that this factor should be weighed against the state and for the appellee.

(3) The Accused Assertion of the Right to a Speedy Trial The Tennessee and U

nited States Suprem

e Court have both recognized that “an accused who is unaware that charges are pending against him or her, as is oftenthe case where an indictment has been sealed and not served, cannot be penalized for his or her failure to assert the speedy trial rig ht.” State v. Wood, 924 S.W.2d 342, 351, n . 13 (Tenn. 1996); citing Doggett
, 505 U.S. at 652-654, 112 S.Ct at 2691. The appellee filed a motion to dismiss the indictment just two week s after he firs t became aware of the indictment. Both parties agree that the appellee timely asserted

his right to a speedy tria

l. (4) Prejudice The final factor to be reviewed in determining whether a defendant’s right to a speedy trial has been violated is whether the defendant has been prejudiced due to the delay

. Wood , 924 S.W.2d
at 348; Bishop , 493 S.W.2d at 84. This final factor is also the most important of the four balancing factors. I

d . In determining this remaining factor, we focus on (1) any undue and oppre ssiv e incarceration, (2) the anxiety accompany

ing a public acc

usation, and (3) a

ny imp airment 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). In applying the third of these c onsiderations, the impairment of defense, the Tennesse

e Supreme Court and the United States Supreme Court have acknowledged that im pairm ent

of one’s defens

e is the most diffic

ult form of speedy

trial prejudice t

o prove because time’s erosion of exculpatory evidence and testimony can r are ly be shown. . . . [E]xcessive delay presumptively compromises the reliability

of a trial in ways that neither party can prove or, for that matter, identify . While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard
to the other Barker criteria, it is part of the mix of relevant facts, and its importance inc reas es w ith the len gth o f th e del ay.

Wood
, 924 S.W.2d at 348; citing Doggett
, 505 U.S. at 655, 112 S.Ct. at 2692-93 (citations omitted). In this case, the trial court found that

the appellee wa

s prejudiced by

the delay of

the State in bringing him

to trial because the appellee could no longer remember the specifics of the

events surrounding his DUI arrest. The appellee could not even state with certainty whether he was alone in the car at the time of his arrest. The trial court a lso found that the appellee’s cognitive skills were impairedand would also

hinde r his d efens e. In addition to the trial court’s findings, a review of the record reveals that the State’s ch ief witness, the a

rresting offic

er, also exhibited a

n inability to remember some of the specifics of the case. Based on the record, we find the evidence supports the trial court’s finding that the defendant suffered preju

dice due to the Stat

e’s delay i

n bringing him to t

rial.

CONCLUSION Based on the f oregoing, we

find that the appe

llee was denied h

is right to a spee

dy trial in violation of the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Tennessee Constitution.-5- __________________________________ JERRY L. SMITH, JUDGE