IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 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 State of Tennessee appeals from the trial court’s dismissal of an indictment for DUI against the

appellee, Glenn Tidwell. The trial court determined that the indictment should be dismissed because

Tidwell’s right to a speedy trial had been 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 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

JERRY SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES, J., and NORMA

MCGEE OGLE, J., joined.

Paul G. Summers, Attorney General & Reporter; Marvin E. Clements, Jr., Assistant Attorney

General; Victor S. Johnson, District Attorney General; James D. Sledge, Assistant District Attorney,

for appellant, State of Tennessee.

Paul Bennett Seusy, Nashville, Tennessee for appellee, Glenn T. Tidwell.

OPINION

FACTS

On February 16, 1997, the appellee was arrested 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 Honorable William Faimon

dismissed the case. In October of 1997, the appellee was indicted by the Davidson County Grand

Jury for DUI. In September of 1999, the appellee was involved in a one-car accident, and,

subsequently, learned of the pending indictment for DUI. On September 30, 1999, the appellee was

arraigned on the charges in the indictment, thirty-one months after his initial arrest and two years

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 court granted the motion and
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dismissed the indictment after finding that the appellee’s right to a speedy trial had been violated.

ANALYSIS

The State contends 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 Constitutions guarantee the criminal defendant the right

to a speedy trial. U.S. AMEND. VI; Tenn. Const. 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. § 40-

14-101 (1997). In addition, the Tennessee Rules of Criminal Procedure provide for the dismissal

of an indictment, presentment, information or criminal complaint “[i]f there is unnecessary 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 defendant to trial. . . .” Tenn.R.Crim.P. 48(b).

The Tennessee Supreme Court has stated that “formal grand 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 arrest and grand jury action that the significant interests served by

the right to a speedy trial are most directly implicated: the protection against oppressive pre-trial

incarceration and the reduction of anxiety and concern caused 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 indictment in October of 1997. However, formal proceedings

against the appellee began in February of 1997 after 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 bringing 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 period of delay that is “presumptively

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 longer marks the point 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 Court 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 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 and

may only be overcome by a preponderance of the evidence contrary to that finding. Tenn. R. App.

P. 13(d). The Tennessee Supreme Court has held 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 (Tenn. 1996). The party
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prevailing at the trial court level is entitled to the “strongest legitimate view of the evidence” as well

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 year 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 that 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 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). The trial court 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 success. Specifically,

Lieutenant Robert Womack, chief 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 officers at any given time. Due to chronic understaffing, the Warrant Office almost

never actively attempts to serve a warrant on a person unless that person is brought into custody for

other charges. Lieutenant Womack testified that less than one percent of the Warrant Office’s

activities involve serving outstanding warrants on at-large defendants. Lieutenant Womack also

discussed the Warrant Office’s mailing system that notifies misdemeanor defendants that they have

warrants pending, but stated that no such notice would ever be given a DUI defendant. It is clear

from the testimony of Lieutenant Womack that the Davidson County Metropolitan Police

Department does not consider the service of an indictment on a DUI defendant a priority.

During the hearing before the trial court, the prosecution attempted to rely on Lieutenant

Womack’s testimony and the evidence of an understaffed and underfunded Warrant Office as an

explanation for the delay in bringing the appellee to trial. Such reliance is unfounded. The

Tennessee Supreme Court held in State v. Bishop that “[t]he lack of financial resources for this

purpose on the part of the State of Tennessee 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 (Tenn. 1973). In fact,

in Bishop, the prosecuting attorney made a diligent effort to provide the defendant with a speedy

trial, but the court 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 “refusal by other branches of government to provide these

agencies and the judiciary with the resources necessary for speedy trials” will be considered against

the 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).
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The evidence produced 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 United States Supreme Court have both recognized that “an accused who

is unaware that charges are pending against him or her, as is often the case where an indictment has

been sealed and not served, cannot be penalized for his or her failure to assert the speedy trial right.”

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 weeks after he first

became aware of the indictment. Both parties agree that the appellee timely asserted his right to a

speedy trial.

(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. Id. In determining this remaining factor, we focus on (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). In applying the third of these considerations, the impairment of

defense, the TennesseeSupremeCourt and the United States Supreme Court have acknowledged that

impairment of one’s defense is the most difficult form of speedy trial prejudice to

prove because time’s erosion of exculpatory evidence and testimony can rarely 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

increases with the length of the delay.

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 was 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 also found that the appellee’s cognitive skills were

impaired and would also hinder his defense. In addition to the trial court’s findings, a review of the

record reveals that the State’s chief witness, the arresting officer, also exhibited an 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 prejudice due to the State’s delay in bringing him to trial.

CONCLUSION

Based on the foregoing, we find that the appellee was denied his right to a speedy trial in

violation of the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the

Tennessee Constitution.
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__________________________________ 

JERRY L. SMITH, JUDGE