IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 2000 Session

STATE OF TENNESSEE v. MARK ANTHONY GRIFFIN

Appeal from the Criminal Court for Knox County

No. 58944 Richard Baumgartner, Judge

No. E1999-00122-CCA-R3-CD 

August 29, 2000

The defendant appeals his convictions for aggravated robbery and attempted robbery, for which he

received an effective nine-year sentence. The defendant raises the following issues in this appeal:

1) whether evidence presented at trial was sufficient to sustain the guilty verdicts; 2) whether the trial

court erred by not suppressing his confession; and 3) whether the trial court erred by denying the

defendant’s motion for dismissal based upon a violation of due process and denial of a speedy trial.

We conclude the first two issues are without merit, but remand for another hearing on the due

process/speedy trial issue. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part;

Judgments Vacated; and Remanded

JOEG.RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS AND ROBERT

W. WEDEMEYER, JJ., joined.

Mark E. Stephens, District Public Defender; John R. Halstead (at trial) and Paula R. Voss (on

appeal), Assistant District Public Defenders, Knoxville, Tennessee, for the appellant, Mark Anthony

Griffin.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;

Randall Eugene Nichols, District Attorney General; and Scott Green, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant appeals his convictions for aggravated robbery and attempted robbery, for

which he received concurrent sentences of nine years and three years, respectively. The defendant

contends in this appeal: 1) the evidence presented at trial was insufficient to sustain the guilty

verdicts; 2) the trial court erred by not suppressing his confession; and 3) the trial court erred by

denying the defendant’s motion for dismissal based upon a violation of due process and denial of
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a speedy trial. After a thorough examination of the record, we conclude that the evidence is

sufficient to support the convictions and that the trial court properly overruled the motion to suppress

the confession. However, we remand for another hearing on the due process/speedy trial issue. 

FACTS

On February 16, 1993, there was a robbery at a video store in Knoxville. When the masked

perpetrator entered the store, he was carrying a gun. After entering the video store, the perpetrator

demanded that the clerk give him the money in the cash drawer. While waiting for the clerk to open

the cash drawer, the perpetrator put his gun in the face of a customer who was checking out at the

register. Already nervous, the perpetrator began to panic when the clerk started to fumble with the

cash drawer and could not get it open. In a state of panic, the perpetrator grabbed the customer’s

wallet and fled. 

On July 1, 1993, a Knox County detective interviewed the defendant. The defendant

admitted his participation in the robberies at the video store. He stated that he told the store clerk

to give him the money. When the clerk hit the cash drawer, the defendant stated that he got scared

and snatched the customer’s wallet from him. 

The defense offered no proof at trial.

The jury convicted the defendant of the aggravated robbery of the customer and the attempted

robbery of the store clerk.

SUFFICIENCY OF EVIDENCE

The defendant contends that evidence presented at trial was insufficient to support his

convictions for aggravated robbery and attempted robbery. We disagree.

A. Standard of Review

In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial

judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,

885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view

of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This

Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant

demonstrates that the facts contained in the record and the inferences which may be drawn therefrom

are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a

reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is

the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was
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sufficient for any rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789, 61 L. Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

B. Analysis

Robbery is the “intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). Aggravated robbery is a

robbery “[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead

the victim to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1).

One commits an attempted robbery when he acts with the intent to commit robbery, and his “conduct

constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-12-

101(a)(3).

The testimony, in a light most favorable to the state, reveals that the perpetrator took the

wallet from the customer, the taking being accomplished with a deadly weapon. Furthermore, it is

not determinative whether the perpetrator took the wallet out of the customer’s hand (as set forth in

the defendant’s confession), or from the counter in front of the customer (as set forth in the

customer’s testimony). Either constitutes a taking from the person of another. See State v. Nix, 922

S.W.2d 894, 900 (Tenn. Crim. App. 1995); State v. Howard, 693 S.W.2d 365, 368 (Tenn. Crim.

App. 1985). Finally, the defendant admitted he was the perpetrator. Thus, the evidence is sufficient

to support aggravated robbery. 

The testimony, in a light most favorable to the state, further reveals that the perpetrator

pointed a gun at the store clerk and demanded money. This clearly reflects an intent to commit

robbery and a substantial step towards its commission. Again, the defendant confessed to being the

perpetrator. Thus, the evidence is sufficient to support the conviction for attempted robbery.

SUPPRESSION OF THE DEFENDANT’S CONFESSION

The defendant contends that the trial court erred by not suppressing the confession the

defendant gave to the Knox County Sheriff’s Department. We disagree. 

A. Standard of Review

The findings of fact made by the trial court at the hearing on a motion to suppress are binding

upon this Court unless the evidence contained in the record preponderates against them. State v.

Carter, 988 S.W.2d 145, 149 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the

credibility of the witnesses, determine the weight and value to be afforded the evidence and resolves

any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this Court

is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.

1998). The defendant has the burden of establishing that the evidence contained in the record
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preponderates against the findings of fact made by the trial court. Braziel v. State, 529 S.W.2d 501,

506 (Tenn. Crim. App. 1975).

B. Factual Background

The defendant argues that the confession he gave to the Knox County Sheriff’s Department

should have been suppressed as a result of an alleged promise that was made to him by the detective.

The defendant alleges that he was told that if he cooperated with the Sheriff’s Department, the

detective would recommend that any sentence would run concurrently with federal charges he was

then facing. 

The defendant testified during the suppression hearing that he was told on June 29, 1993, that

“if he was willing to cooperate ... and give a statement, then possibly [the detective would] speak

with ... the D.A.” The defendant, however, decided not to answer any questions at that time. The

defendant also testified that on July 1, 1993, he agreed to talk to the detective who had approached

him two days earlier. The defendant testified that the detective again told him that “if [he] would

say anything [about the robberies, the detective] would speak to the D.A.’s office and possibly have

[the] sentences ran (sic) concurrently.” During the same hearing the detective testified that he did

not remember telling the defendant anything about concurrent sentences. He further stated that if

he did make a reference to concurrent sentencing, he was referring to other state charges since “[he]

can’t make any suggestions on federal issues.”

The trial court declined to make a finding as to whether or not the detective made any

representations about concurrent sentencing to the defendant; instead, the trial court assumed that

he did for purposes of the ruling. The trial court found that the defendant had considerable

experience in the criminal justice system and “decided he was in a position where he was going to

be better off if he cooperated with the detective and gave a statement [to] see what he could do.”

The trial court concluded that the defendant’s will was not “overborne” by the detective’s conduct

and denied suppression of the confession. 

C. Analysis

A confession must be “free and voluntary” to be admissible; thus, it must not be extracted

by threats, violence, direct or indirect promises, or improper influence. State v. Smith, 933 S.W.2d

450, 455 (Tenn. 1996) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187,

42 L. Ed. 568 (1897)). However, promises of leniency do not per se render a confession involuntary.

Smith, 933 S.W.2d at 455. Only those confessions “compelled” by promises of leniency are

considered involuntary. State v. Kelly, 603 S.W.2d 726, 729 (Tenn. 1980). The crucial issue is

whether the conduct of law enforcement officers was such as to overbear the defendant’s will to

resist and bring about confessions not freely self-determined. Smith, 933 S.W.2d at 455-56; Kelly,

603 S.W.2d at 728. 
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Clearly, no promises were made to the defendant that any sentence would in fact run

concurrently with any other sentence the defendant might receive in the federal system. At most, the

defendant was told that if he cooperated with the detective in this case, the detective would speak

to the prosecutor’s office about the possibility of concurrent sentences. The trial court’s conclusion

that the defendant’s will was not overborne by the detective’s conduct is amply supported by the

record. The confession was not compelled by promises of leniency and was properly admitted into

evidence. 

PROSECUTORIAL DELAY

A. State of the Record

The defendant contends the delay in his prosecution violated his due process rights and/or

his right to a speedy trial. Specifically, he alleges that prosecutorial delay has made it impossible

for him to receive sentences that would run concurrently with the federal sentence he received in July

1993. We conclude that this case must be remanded for another hearing on this issue. 

The material facts relating to the alleged delay are difficult to determine from the record

before the court. It is undisputed that the offenses were committed on February 16, 1993; the

defendant was interrogated on June 29 and July 1, 1993; the defendant was indicted on July 24,

1995; and the defendant was ultimately tried on August 17, 1999. Exactly what else occurred

between February 1993 and August 1999 is less clear. 

Our examination of the record reveals that no testimony or documentary evidence was

introduced by either party relating to prosecutorial delay. The record does contain transcripts of

hearings on the motion to dismiss which include arguments of counsel, but no evidence. The

technical record contains several defense motions relating to this issue which contain an alleged

chronology of events and have several uncertified documents attached, none of which is evidence.

Under the circumstances we deem it appropriate to remand for a new hearing on prosecutorial

delay. Nevertheless, we will address this issue based upon the record before us in order to assist the

trial court upon remand. 

B. Facts

Prior to June 29, 1993, the defendant and his accomplice were arrested and being held in the

Anderson County jail on charges unrelated to the subject robberies. On June 29, 1993, a Knox

County detective drove to Anderson County to question the defendant and his accomplice about

several video store robberies that had occurred in Knox County. The defendant initially agreed to

talk to the detective, but later decided not to give a statement. These facts appear undisputed.
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On July 1, 1993, the defendant and his accomplice were transferred to the Knox County jail.

It is unclear from the record why the defendant was transferred to the Knox County jail. The

defendant contends that it was because he was under “arrest” for the subject charges. Subsequent

to the first hearing on the motion to dismiss, the state apparently turned over certain documents to

defense counsel. Defense counsel filed a supplemental motion and attached uncertified documents

reflecting that warrants were issued on July 1, 1993, but not served on the defendant. An alleged

officer’s report attached to the motion indicates that the warrants were “served on the defendant at

the Knox County jail.” Regardless, it is undisputed that the defendant gave a taped statement on July

1, 1993, admitting his participation in the subject robberies.

It is undisputed that on July 15, 1993, the defendant received a four-year sentence on federal

charges. The defendant alleges that federal authorities sent Knox County a detainer letter in

September 1993. 

The state took no further action against the defendant until he was indicted on July 24, 1995.

Defendant alleges that on October 29, 1996, the defendant was paroled from the federal penitentiary

and released into the custody of officers from Knox County. On November 1, 1996, the defendant

was arraigned on the Knox County charges, and a trial date was set for February 24, 1997. Trial

dates were continued several times for reasons not set forth in the record. The defendant alleges that

one continuance was at his request, and that he was in federal custody at the time one or more trial

dates were set. He alleges that on June 27, 1997, the defendant was found to be in violation of his

federal parole and ordered to serve the remainder of his four-year sentence. The technical record

reveals a bond forfeiture in September 1997 based on the defendant’s failure to appear; however, the

forfeiture was later set aside. 

The defendant alleges that on May 1, 1998, he was released from the federal penitentiary after

serving the remainder of his sentence and transferred to Knox County. A new trial date was set for

October 5, 1998. In the meantime, however, the defendant’s bail was reduced, and the defendant

was released from custody. On October 5, 1998, the defendant failed to appear for trial. He was

allegedly arrested on February 26, 1999. 

On August 17, 1999, the defendant was convicted by a Knox County jury of aggravated

robbery and attempted robbery and sentenced to nine years for the aggravated robbery and three years

for the attempted robbery. Both sentences were set to run concurrently with each other and

concurrently “insofar as possible” with any time the defendant had remaining on his federal sentence.

C. Trial Court’s Ruling

The trial court found misconduct by the state and found the state delayed prosecution to gain

a tactical advantage. The trial court concluded, however, that any potential prejudice to the

defendant regarding the loss of possibility of concurrent sentencing could be remedied at sentencing.

The trial court denied the motion. At sentencing, the trial court ran the subject sentences
1

The trial court’s remarks indicate the difficulty which often arises in determining the impact of running a state

sentence concurrently with a federal sentence. The problem of concurrent/consecutive sentencing with federal charges

is a recurring o ne in this court, primarily bec ause this state and the U nited States ar e separate so vereigns. See Derrick

E. Means v . State, C.C.A. No. 02C01-9707 -CR-00248, Shelby County (Tenn. Crim. App. filed August 13, 1998, at

Jackson) (counsel was ineffective in failing to confirm tha t federal autho rities would tak e immedia te custody of inm ate

to serve sente nce orde red to run c oncurren tly with the federal se ntence). 

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concurrently with any time remaining on the federal sentence “insofar as possible.”1

 However, it

appears likely that the federal sentence had already expired. It is unclear from the sentencing hearing

transcript whether the trial court reduced the actual length of each sentence in recognition of

potential prejudice to the defendant as a result of prosecutorial delay. 

DUE PROCESS

We first examine the defendant’s claim that prosecutorial delay constituted a due process

violation.

A. Legal Standards

A delay between the commission of an offense and the initiation of adversarial proceedings

may raise due process concerns under the Fifth Amendment of the United States Constitution and

Article I, § 9 of the Tennessee Constitution. State v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997)

(citing United States v. Marion, 404 U.S. 307, 324-25, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971)).

To determine whether a due process violation has occurred when the state is aware that an offense

has been committed, the defendant must establish: (1) a delay has occurred; (2) the delay caused

prejudice to the defendant’s right to a fair trial; and (3) the state caused the delay to obtain a tactical

advantage or to harass the defendant. Marion, 404 U.S. at 324, Utley, 956 S.W.2d at 495 (citing

State v. Gray, 917 S.W.2d 668, 671 (Tenn. 1996)). The most important question, although not

determinative in every case, is whether the delay caused any prejudice to the defendant. State v.

Carico, 968 S.W.2d 280, 285 (Tenn. 1998). The time between the commission of the offense and

the commencement of prosecution will also be considered. Id. at 284. 

B. Analysis

Due to the nature of the record before us, it is unclear whether the defendant was actually

“arrested” on July 1, 1993. If there was an arrest on July 1, 1993, there will be no reason to conduct

a due process analysis upon remand. Rather, the trial court will conduct a speedy trial analysis from

the date of arrest until trial. However, if there was no arrest prior to the return of the indictment, the

trial court must conduct a due process analysis from the date of commission of the offense until the

date of indictment. Thus, the following due process analysis will apply only if the trial court finds

that there was no arrest prior to indictment. 
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Firstly, it must be determined whether there was a delay. The Knox County Sheriff’s

Department was aware of defendant’s involvement in the robberies at least by July 1, 1993. Thus,

it is undisputed that there was a delay from this time until the return of the indictment in July 1995.

Second, it must be determined whether the delay was intentional by the state in order to

obtain a tactical advantage over or to harass the defendant. No evidence was introduced concerning

this factor; however, the state offered no explanation for the delay. The trial court found the delay

was to obtain a tactical advantage. Upon remand, the trial court is not precluded from hearing

testimony concerning this issue. 

Finally, and most importantly, it must be determined whether the delay caused prejudice to

the defendant’s right to a fair trial. The primary prejudice the defendant asserts is that the delay

caused the loss of the possibility of having his state sentences run concurrently with his four-year

federal sentence imposed in July 1993. 

We recognize that one can be prejudiced by losing the opportunity for concurrent sentencing.

See Smith v. Hooey, 393 U.S. 374, 378, 89 S. Ct. 575, 577, 21 L. Ed. 2d 607 (1969); State v.

Wallace, 648 S.W.2d 264, 270 (Tenn. Crim. App. 1980). However, we find nothing which indicates

that loss of a mere possibility of concurrent sentences automatically requires dismissal of charges.

See State v. Michael Dewayne Simmons, CCA No. M1999-00099-CCA-R3-CD, Davidson County

(Tenn. Crim. App. filed February 29, 2000, at Nashville). This loss of opportunity must be examined

in the context of this case.

The Tennessee Rules of Criminal Procedure provide that “if the defendant has additional

sentences ... as a result of conviction in ... federal court, the sentence imposed shall be consecutive

thereto unless the court shall determine in the exercise of its discretion that good cause exists to run

the sentences concurrently ....” Tenn. R. Crim. P. 32(c)(2)(emphasis added). Thus, the subject

sentences could not run concurrently with the federal sentence unless the trial court found “good

cause” to do so. Upon remand it may be necessary for the trial court to address this issue. It would

appear that the trial court has in fact found “good cause” since it attempted to run the present

sentences concurrently with the federal sentence; however, it also appears likely that the federal

sentence had expired. Nevertheless, the trial court may re-examine this issue in light of further

evidence that may be introduced. 

Although not addressed by the parties, we note that the defendant alleges in one of his

memoranda that he was on “pre-trial release” from the federal charge at the time of commission of

the subject robberies in February 1993. We are unable to conclusively make this determination

based on the record before us. We do observe, however, that consecutive sentences are mandatory

when a defendant was on bail for another offense when he committed the subject felony, and he is

convicted of both offenses. Tenn. R. Crim. P. 32(c)(3)(C). As a result, the defendant must receive

consecutive sentences if he was on bail for the federal offense at the time he committed the instant

robberies. Thus, any argument that the delay prejudiced the defendant because he lost the possibility

to have his state sentence run concurrently with his federal sentence is totally without merit should

this be correct. The trial court should address this issue upon remand. 
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The defendant further alleges that the detective who interrogated him could not remember

the exact statement he made to the defendant about concurrent sentencing. Thus, the defendant

argues that the delay may have caused part of the detective’s lapse in memory. We have previously

affirmed the denial of the motion to suppress and, as did the trial court, assumed such representations

were made. Nevertheless, we concluded such representations did not render the confession

inadmissible. Therefore, the alleged lapse in memory was not prejudicial to the defendant’s right

to a fair trial. 

SPEEDY TRIAL

We now analyze the defendant’s contention that he was denied the right to a speedy trial.

A. Legal Standards

Without question, criminal defendants are constitutionally and statutorily entitled to a speedy

trial. U.S. Const. Amend. VI; Tenn. Const. Art. I, § 9; Tenn. Code Ann. § 40-14-101. There is no

set time limit within which the trial must commence; rather, consideration must be given to the

circumstances of each case. The Tennessee Supreme Court has adopted the balancing test set forth

in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) as the method for

determining whether a defendant's right to a speedy trial has been violated. State v. Wood, 924

S.W.2d 342, 346 (Tenn. 1996); State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981). If, after

conducting this balancing test, it is concluded that the defendant was in fact denied a speedy trial,

constitutional principles require that the conviction be reversed and the criminal charges dismissed.

State v. Bishop, 493 S.W.2d 81, 83 (Tenn. 1973).

In conducting this balancing test, we are required to examine the conduct of both the

prosecution and the defendant, focusing primarily on: (1) the length of the delay; (2) the reason for

the delay; (3) whether defendant asserted his right to a speedy trial; and (4) whether defendant was

prejudiced by the delay. Wood, 924 S.W. 2d at 346; Bishop, 493 S.W.2d at 84; State v. Jefferson,

938 S.W.2d 1, 12-13 (Tenn. Crim. App. 1996). The most important factor is whether the defendant

was prejudiced by the delay. State v. Vance, 888 S.W.2d 776, 778 (Tenn. Crim. App. 1994). The

most important inquiry with regard to prejudice is whether the delay impaired the defendant's ability

to prepare a defense. Id. A delay of as long as two years standing alone will not support a finding

of a speedy trial violation. Id. (citing Bishop, 493 S.W.2d at 84).

The triggering factor is the length of the delay. "Until there is some delay which is

presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the

balance." Barker, 407 U.S. at 530, 92 S. Ct. at 2192. In determining if there has been a violation

of the constitutional right to a speedy trial, only the time between the commencement of adversarial

proceedings and the commencement of the trial will be considered. Carico, 968 S.W.2d at 284. The

return of the indictment or actual restraint by arrest triggers the speedy trial analysis. Utley, 956

S.W.2d at 492. 
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B. Analysis

As previouslystated,the triggering date for the speedy trial analysis upon remand will depend

upon whether defendant was actually arrested on July 1, 1993. If so, that will be the triggering date.

Otherwise, the triggering date for the speedy trial analysis will be the date of indictment; namely,

July 24, 1995. 

The first factor that must be examined is the length of the delay. The delay in this case was

either four years or six years. Regardless, this delay is presumptively prejudicial to the defendant.

Barker, 407 U.S. at 530, 92 S. Ct. at 2192. This delay clearly triggers an evaluation of the other

Barker factors. This factor weighs in favor of the defendant. 

The court must next ascertain the reasons for the delay. The record is silent as to the reason

for the delay between July 1993 and July 1995. A review of the record shows that the defendant was

arraigned on the July 1995 indictment on November 1, 1996, allegedly after being released on parole

from his federal sentence. Subsequently, a trial date was set for February 24, 1997. Trial dates were

continued on several occasions, although the record is inconclusive as to the reasons. Defense

memoranda suggest reasons, some of which would not be the fault of the defendant. Some suggested

by the state would be the fault of the defendant. Although there does not appear to be any bad faith

on the part of the state from the date of indictment until trial, the trial court may re-examine this

issue upon remand.

The court must next examine whether the appellant asserted his right to a speedy trial.

Assertion of the right to a speedy trial is given great weight in the determination of whether the

defendant was denied this right. Barker, 407 U.S. at 531-32, 92 S. Ct. 2192-93. Failure to assert the

right implies a defendant does not actively seek a swift trial. State v. Wood, 924 S.W.2d 342, 348

(Tenn. 1996). However, when an accused is unaware of pending charges against him, failure to

assert the right cannot be weighed against him. Doggett v. United States, 505 U.S. 647, 653-54, 112

S. Ct. 2686, 2691, 120 L. Ed. 2d 520, 529 (1992). In this case the defendant was not arrested on the

capias until October 29, 1996. However, even after that date, the defendant did not assert his right

to a speedy trial until the filing of his motion on May 26, 1999, less than 3 months before trial. Thus,

it appears the defendant did not actively seek a swift trial. This factor weighs heavily in favor of the

state.

Finally, and most importantly, it must be determined whether the defendant was prejudiced

by the delay. The defendant has not established prejudice due to the alleged lapse in memory of the

detective relating to representations of concurrent sentencing. Thus, upon remand the defendant can

only establish prejudice based upon the loss of concurrent sentencing. As we discussed in the due

process portion of this opinion, this issue must be determined under the directions of Tenn. R. Crim.

P. 32(c)(3)(C) or 32(c)(2). 
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DUE PROCESS / SPEEDY TRIAL SUMMARY 

The most crucial issue upon remand will be whether defendant can establish prejudice

resulting from the alleged loss of concurrent sentencing. Prejudice is required to establish a due

process violation and is the most important factor in establishing a speedy trial violation. We further

conclude that in order to establish prejudice, the defendant must establish the loss of the reasonable

probability that his sentences would run concurrently with the federal sentence. 

DIRECTIONS UPON REMAND

Upon remand the trial court shall do the following: 

(1) The trial court should determine whether the defendant was under “arrest” by Knox

County in July 1993 in order to determine the appropriate dates for the due process/

speedy trial analysis. For purposes of review, the trial court shall make findings as

to the factors of any required due process analysis (prejudice and intentional delay

for tactical advantage or harassment) and all 4 factors of the speedy trial analysis

(length of delay, reasons for delay, the defendant’s assertion of his right to a speedy

trial, and prejudice). 

(2) The trial court should determine whether the defendant was on bail for the federal

offense at the time he committed the subject robberies. If so, concurrent sentencing

was not possible pursuant to Tenn. R. Crim. P. 32(c)(2)(C), and the defendant can not

establish prejudice. There can be no due process violation, and this factor will weigh

heavily against the defendant in conducting a speedy trial analysis. 

(3) If the defendant was not on bail for the federal offense at the time he committed the

subject robberies, a further inquiry will be required. The trial court should determine

whether concurrent sentencing was a reasonable probability pursuant to Tenn. R.

App. P. 32(c)(2) (“good cause”). 

(4) The trial court shall enter appropriate findings and an order. If the trial court

overrules the motion to dismiss, it shall reinstate the judgments of conviction. If the

trial court grants the motion to dismiss, it shall enter an order accordingly. Either

party may appeal the trial court’s ruling to this court. See Tenn. R. App. P. 3(b) and

(c). 
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CONCLUSION

We conclude that the evidence was sufficient to support the convictions, and further conclude

that the trial court did not err in denying the motion to suppress the confession. However, the matter

must be remanded for another hearing on the due process/speedy trial issue. Therefore, the judgment

of the trial court is vacated, and the case is remanded for another hearing on the motion to dismiss.

_____________________________________

JOE G. RILEY, JUDGE