### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

une 27, 2001
STATE OF TENNESSEE v. TIMOTHY TILLERY
Appeal from the Circuit Court for Blount County No. C-6503 D. Kelly Thomas, Jr., Judge

No. E2000-01996-CCA-R3-CD August 16, 2001

J OSEPH M. T IPTON , J., concurring.

I concur in the results reached in the majority opinion, but I disagree with its view of when th e defendant’s speedy trial right began and with its view of the due process ana lysis, whic h indicates that the burden of proving the state’ s improper in tent is on the d efendant. On the other hand, I do not belie

ve that the recor

d justifies our awa

rding the defend

ant the relief he

seeks.
Regarding the d efendant’s right to a speedy trial, the record reflects that a detainer from Blount County was lodged with the Department of Correction based upon the probation violation warrant perhaps as ear

ly as November 199

9, if not earlie

r . Moreover, the defendant’s testimony indicates that his parole da te was negatively

affected by the detainer. Detainers have been officially recognized

to “obstruct programs of prisoner treatment and rehabilitation.” Tenn. Code Ann. § 40- 31-101. I believe that the defendant’s speedy trial right was triggered when the detainer resulting from his revocation warrant was lodged.

Relative to the due process analysis for the delay between the

commission of an offense and the formal commencement of adversarial proceedings, the majority opinion states that the defendant must prove (a) a dela

y, (b) actual p

rejudi ce resulting from the delay, and (c) the state caused the delay in order to gain tactical advantage over or to harass the accused. See State v. D ykes , 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990). The opinion states that our supreme court has indicated that the Dykes test is an appropriate test. I note that Dykes relies on United States v. Marion , 404 U.S. 307, 92 S. Ct. 455 (1971) to devise the test.
However, I question whether the defendant has the burden of proving the state’s intent and whether the state must be sho

wn to act intentiona

lly in order to gain tactical advantage. In United States v. Lovasco , 431 U.S. 783, 97 S. Ct. 2044 (1977), the defendant showed that hewas prejudiced by the more than eighteen-month delay in his indi ctment. Th e Court noted that there was-2-

“unfortunately, no evidence concerning the reasons for the delay in the record.” Id. at 796, 97 S. Ct. at 205 2. It stated, though, that the government explicitly represented to the court of appeals, and implicitly to the tria

l court, t hat the delay resulted from its awaiting results of additional investigation. Id. Much to Justice Stev ens’s chagrin as

express e d in his dissent, the Court determinedthat the govern ment’s representations on appeal reflected a legitimate explanation for the delay. In his dissent, Justice Stevens complained that the majority opinion was r elying on
unsworn sta temen ts of counsel on appeal which were not part of the record and which, therefore, should not be considered. He would have limited review to the record developed in the trial court and would have affirmed the dismissal of the case because the record reflected that the government offered no justification for the delay. Id. at 798-800, 97 S. Ct. at 2053-54. The important aspect of the majority and dissenting opinions is that both placed the burden upon the prosecution to justify the delay. Thus, I do not believe that f ederal due proc

ess analysis requires the defendant to prove the state’s intent regarding its actions and nonactions. Moreover, I note that in Lovasco , the Court noted that the government conceded t hat a due process violation might be shown, as well, by “prosecutorial delay incurre d in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the a bili ty to mount an effectivedefense.” 431 U.S. at 795 n.17; 97 S. Ct. at 251 n.17. Thus , I question w hether due processrequires only that the government not intentionally de lay for ta ctical or haras sment purposes.

In any event, reg ard less of whether we are considering the right to a speedy trial or a due processright, the d e fendant has not sh own any prejudice

caused by the del

ay. As the majority opinion notes, the defendant’s sentences were ordered to be served consecutively. The delay while he was serving his sentence from Knox County had no bearing on his revoc ation in this case. I concur in the results reached in the majority opinion.

_____________________________ JOSEPH M. TIPTON, JUDGE