### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 2000 Session STATE OF TEN

NESSEE v. MA

RK 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 appe

als his convictions for aggravated robbery a nd attemptedrobbery, for which he received an effective nine-year sentence. Thedefendant 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) whethe r the trial co urt erred by denying the defendant’s motion for dismissal based upon a violation of

due process and d

enial 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
J OE G. R ILEY , J., delivered the o pinion of the court

, in which J OHN E VERETT W ILLI AMS AND R OBERT W. W EDEMEYER , JJ., joined.
Mark E. Stephens, District Public Defend er; John R. Halstead (at trial) and Paula R. Voss (on appeal), AssistantDistrict Public Defenders, Knoxville, Tennessee, for the appellant, Mark Anthony Griffin.
Paul G. Summers, Attorney Ge neral and Report

er; Clinton J. Morga

n, Assistant Attorne

y General ; RandallEug ene 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 attempt e d robbery, for which he received

concurrent sen

tences of nine y

ears and three y

ears, respectively. The defendant contends in this appeal: 1) the evidence presented a t trial was insuffi

cient to sustain the

guilty verdicts; 2) the trial court erred by not suppressing his confession; and 3) the tri al court erred by denying the defendant’s

moti on for d ismissal based upon a violation of due process and denial of-2-

a s peedy trial. After a thorough examination of the record, we c onclude that the evi dence i s sufficient to supportthe convictions and that the trial court prope rly overru led the motion to supp

ress the confession. However, we remand for another hearing on the due proc ess/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 g

ive him the money

in the cash

drawer. While waiting for the clerk to open the cash drawer, the perpetrator put his gun in the faceof a customer who was checking out at the register. Already ne

rvous, the perpe

trator 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 perpe trator grabbed the customer’s wallet and fled.
On July 1, 1993, a K

nox County

d etective 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 off

ered no proof at

trial.
The jury convicted the def endant of the aggravated robbery of the customer and the attempted robbery of the store clerk.

SUFFICIENCY OF EVIDENCE
The defendant conte

nds that evidence

presented at tria

l was insufficien

t t o sup port 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. Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits

the state's witne

sses 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 Courtwill not disturb a verdict of guilt dueto the sufficienc y of the evid

ence unless

the defendant demonstrates that

the facts contained in the record and the inferences which may be drawn therefrom are ins uff ici ent , as a ma tte r oflaw , fo r a ra tio nal tri er of fact to f ind the accu sed guil ty be yo nd a reasonable

doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordin gly, it is the appellate court

's duty to a

ffirm the convict

ion if the evidence, viewed under these standards, was-3-

sufficient for any

rational trier of fact to have found the essential elements of the offense bey ond 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.2

d 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 wi

th a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly w eapon.” Tenn. Code Ann. § 39-13-4 02(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).
Th e t estimony, in a light most favorable to the state, reveals that the perpetrator took the wallet from the customer, thetaking being accomplished with a deadly

weapon. Furthe

rmore, it is notdeterminative whether the perpetrator took the wallet out of the customer’s hand (as set forth in the defend ant’s conf

ession), 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. Cri m. App. 199 5); State v. Howard , 693 S.W.2d 365, 368 (T enn. Crim. App. 1985). Finally, the defendant admitted he was the perpetrator. Thus, the evidence is sufficient to support aggravated robbery.
The testim ony, in a light most favorable to the state, further reveals that the perpe trator pointed a gun at the store clerk and deman

ded money. T

his clearly

reflects an inte

nt to commit robbery and a substantial step towards its commission. Again, the defendant confessed to being the perp etr ato r. T hus , th e evi den ce i s su ffi cie nt t o su ppo rt t he co nvi cti on f or at tem pte d ro bbe ry.

SUPPRESSION OF

THE DEFENDANT’S CON FESSION
T he defendant conte

nds that the trial c

ourt erred by

not suppressing th

e confess ion th e defendant gave to the Knox County Sheriff’s Department. We disagre e.
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 evidenc e contained i n the record preponderates against them. State v. Carter , 988 S.W.2d 145, 149 (T enn. 1999). The tr

ial court, as the tr

ier of fact, is ab

le to assess the credibility

of the witnesses, determine the weight and value to be afforded the evidence and re solves 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’sconclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). The defendant has the burden of establishing th at the evidence contained in the record-4-

preponderates against thefindings 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 wa s told that if he cooperated with the Sheriff’s Department, the detective would recommend that any sen

tence would

run concurrently with federal charge s 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 ... a nd give a statement, then possibly [the detective would] speak with ... the D.A.” The defendant, however, decided not to answer any que stions at that time. The defendant also testifiedthat on July 1, 19 93, he agreed

to talk to the detective who had approached him two days earlier. The defendant te stified that the de

tective again t

old him that “if [he] wo

uld 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 de

tective testified

that he did notremember telling

the defendant a

nything ab

out concurrent se

ntences. He fur

ther st at ed that if he did make a reference to concurrent sentencing, he was refe rring to other state charges since “[he] can’t make any suggestions on federa l issues.”
The trial court decl ined 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 o

f the ruling. The

trial court found

that the defenda

nt had considera

ble 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 stat ement [to] see what he could do.” The trial court

concluded that the defendant’s will was not “overborne” by the de tective’s conduct and denied suppression of the confession.
C. Analysis
A confession must be

“free and volun

tary” to be

admissible; thus, it mu

st not be extracted by threats, violence, direct or indirect promises, or improper influence. State v. Smith , 933 S.W.2d 450, 455 (Tenn. 1 996) (quot ing Bram v. United States , 168 U.S. 532, 542-4 3, 18 S. Ct. 183, 187, 42 L. Ed. 568 (1897)). However, promise s of leniency

do not per serend er a c onf ess ion inv olu nta ry. Smith , 933 S.W.2d at 455

. Only those confessions “compelled” by pr omises of leniency are considere d involuntary. State v. Kelly , 603 S.W.2d 726, 729 (T enn. 1980). The c

rucial issu

e i s whether the conduct of law enforcement officers was such as to overbear the de fendant’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.-5-

Cle arl y, no promises were made to the defen

dant t hat 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 over borne by the detective’s conduct is amply supported by the record. The confession was not compelled by promises of leniency a

nd was properly

admitted into evidence.
PROSECUTORIAL DELAY
A. State of the Record
The defendant conte

nds the delay

in his prosecution violated his due process rights and/or his right to a speedy

trial. Specifica

lly, he alle

ges that prosec

utorial delay

has made it impossibl

e for him to receive sentences that would run conc urrently wi

th the federal se

ntence he rece

ived in July 1993. We conclude that this case must be remanded for another hearing on this issue.
The material facts relat

in g to the alleged delay are difficult to deter mine from the record beforethe court. It i

s undisputed that the of

fenses were committed on February 16, 1993; the defendant was interroga

ted 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. Exa ctl y w hat else occurred between February 1993 and August 1999 is less clear

. Our examination of the r e cord reveals that no testimony or documentary evidence was introducedby either party relating to prosecutorial delay. The re c ord does contain transcripts of hearings on the motion to dismiss which include ar

guments of counsel , but no evidence. The techni cal record contains several defens

e motions relating

to this issue which c

ontain an alle

ge d chronology of events and have several uncertified documents attached, none of which is

evidence.
Under the circums tances we dee m it approp riate to rem and for a new h earing on prosecut orial del ay. 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 subjec t ro bberies. On June 29, 1993, a Knox County detective drove to Anderson County to que stio n the defendant and his accomplice about several video store robberies that had occurred in Knox County. T

he defendant init

ially agr eed to talk to the detective, but later decided not to give a statement. These facts appear undisputed.-6-

On July 1, 1993, thedefendant and his accomplice were transferred to the Knox County jail. It is unclear fro m the record why the defendant was transferre d 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 cer

tain documents to defense counsel. Defense counsel filed a supplemen

tal motion and attac

hed uncertified

documents reflecting that warran ts were iss ued 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 statemen

t on July 1, 1993, admitting

his participation i

n the subject robbe

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

federal charges. The defendant a lleges that fed

eral authoriti

es sent Knox County

a detainer lette

r 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 andreleased

into the custody of officers from Knox County. On November 1, 1996, the defendant was arraigned on the Knox County cha rges , 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 foundto be in violation of his federalparole and ordered to serve the remainde r of his four-year sentence. The technical rec ord reveals a bondforfeiture in September 1997 based on the defendant’s failure to appear; however, the forfeiture was later set aside.
The defendant al leges that on May 1, 1998, he was released from the fe deral penitentiary after serving the remainder of his sentence and transferred to Knox County. A new trial date was set for October 5, 1998 . In th e meantime, however, the defendant’s bail was reduced, and the defendant was released from custody. On October 5, 19 98, 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 Kn ox County jury of aggr

avated robbery and attemp ted robbery and sentenced t o nine years for t he aggr a vated robbery and three y ears f orth e attempted robbery. Both sentences were set to run c oncurrently with each other and concurrently

“insofar as possible” with any time the d efendant had remaining on his federal sentence.
C. Trial Court’s Ruling
The trial court foundmisconduct by the state and found the state delay

ed prosecution to g

ain a tac tic al a dva nta ge. T he t ria l co urt con clu ded , ho wev er, t hat any po tential 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 ra n the subject sentences1 The trial court’s remarks i ndicate the difficul

ty which often arises in determining the impact of running a state sentenceconcurrently with a federal s entence. The problem of concurrent/consecutive sentencing with federal charge s 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. C rim. App. fil ed August 13, 1998, at Jackson) (counsel was ineffecti ve 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). -7- concurrently

with any time

remain in g on the federal sentence “insofar as possible.” 1 However, it appears likely that the federal sentence had already expired. It is unclea r from the sentencing hearing transcript whethe r the trial court reduced the actual length of each sentence in recog nition of potential prejudice to the defendant as a result of prosecutorial delay.

DUE PROCESS
We first exam ine th e defendant’s c laim that prosecut

orial delay

constituted a due p

rocess violation.
A. Legal Standards
A delay between

the commission of an

offense and the ini tiation o f adversaria l proceedin gs 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 processviolation has occu rred when the sta

te is aware that a

n offense has been committed, the defendant must establish: (1) a de lay has occurr ed; (2) the delay caused prejudice to the defendant’s rig ht to a fair trial; and (3) the state caused the delay to obtain a tactica l 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 de fendant. State v. Carico , 968 S.W.2d 280, 285 (Tenn. 1998). The time between the commissionof the offense and the commencement of prosecution will also be considered. Id. at 284.
B. Analysis
Due to the nature of th

e record befor

e us, it is uncle ar whether the d efendant was ac

tually “arrested” on July 1, 1993. I f there was an a

rrest 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 analy sis 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 ana

lysis will apply only if the trial court finds that there was no arrest prior to indictment.-8-

Firs tly, it must be determined whe t her there was a delay. The Knox County Sher iff’s Department

was aware of defendant’sinvolvement in the r obberies at leas

t by July 1, 1993. Thus, it is undisputed that th

ere was a delay

from this time

until the return of the indictment in July 1995. Second, it must be determine d whether the del

ay was inte

ntional by the

state in order to obtain a tactical adva

ntage over or t

o harass the defe

ndant. 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 advan tage. Upon rem and, the trial court is not precluded from hearing testimony concerning this issue.
Fin all y, and most importantly , it must be determined wheth er the delay

caused prejudic

e to the defendant’s right to a fair trial. The primary prejudice the d efendant asser

ts 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 concurre nt sentenci ng. 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 , CCANo. M1999-00099-CCA-R3-CD, DavidsonCounty (Tenn. Crim. App. filed February 29, 2000,at Nashville). Th is loss of opportunity

must be examined in the context of this case.
The Te nne ssee Rules of Criminal Procedure provide that “if the defendant has additional sentences ... as a result of c onviction in ... fed

eral 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 conc

urrently .. ..” Tenn. R. Crim. P. 32 (c)(2)(emphasis added). Thus, the subject sentences could no t run con currently with the federal sentence unless the trial court found “ good cause” to do so. Up on rem and it may be n ecess ary for t he tri al cou rt to a ddres s thi s iss ue. It would appear that the tria

l court has in fact found “good cause” since it attempted to run the present sentences concurrently with the feder al sentence; however, it also appears likely that the federa l sentence had expired. Nevertheless, the trial court m ay re-examine this issue in light of further evidence that may be introduced. Although not addressed by the parties, we note that the defendant alleg es in one of hi s memoranda

that he was on “pre-trial release” from the federal charg e at the time of commission of the su bject robberies in February 1993. We are unable to conc lusively make this determina tio n basedon the record be

fore us. We do observe, however, that consecutive sentences are mandatory when a def end ant was on b ail for ano the r of fens e wh en h e com mit ted the sub jec t fe lon y, andhe is convictedof 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 off

ense 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 with

out merit should this be correct. The trial court should address this issue upon remand.-9-

The defendant further alleges that the detective who interrogated him could

not remember th e exact statement he made to the defendant about concurrent sentencing. Thus, the defendant argues that the delay may have caused part of th

e detective’s la

pse in memory . We have previous ly 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 th e confession inadmissible. Therefo re, the alleged lapse in memory was not prejudicial to the defendant’s r ight to a fair trial.

SPEEDY TRIAL We now analy

ze the defendant’ s contention that he was denied the ri

ght to a speedy

trial.
A. Legal Standards
Without question, crimin

al defen dants are constitutionally and statutorily entitled to a speedy trial. U.S. C onst. 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, considera tion must be given to the circumstances of each case. The Tennessee Supreme Court has adopted the bala

ncing test set forth in Barker v. Wi ngo , 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2

d 101 (1972) as t

he method fo r 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). I f, af ter conducting this balancingtest, it is concluded that the defendant was in fact denied a speedy tr

ial, 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 b

alancing test, we ar e required to examine the conduct of both the prosecution and the defenda nt, focusing prim

arily on: (1) the length of the delay; (2) the reason for the delay; (3)

whether defend

ant 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 de

lay impaire

d the defendant'

s ability to preparea defense. Id. A delay of as long as two y ears 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 d elay. "Un

til there is some de

lay which is presumptively

prejudicial, there is no necessity for inquiry i nto 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 betwe en the commencement of adversarial proceedings and the commencement of the trial will be considered. Carico , 968 S.W.2d at 284. The return of th e indictment or actual restraint by arrest triggers the speedy trial analysis. Utley , 956 S.W.2d at 492.-10-

B. Analysis
As previou sly stated, th e 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 triggerin

g date for the sp

eedy trial analysis wil

l be the date

of i ndi ctm ent ; na mel y, July 24, 1995.
The first factor that

must be examined is the length of the delay. The delay in this case wa s 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 trigg ers an evaluation of the oth er 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 par

ole from his federal sentence. Subsequently, a trial date was set for February 24, 1997. Trial dates were continuedon several occasions, although the record is inconclusive as to the reasons. De

fense 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 o n the part of the state from the dat e of indictment unti

l trial, the trial c

ourt may re

-examine this issue upon remand.
The court must next examine whether the appe

llant asserted his

right to a speedy tria

l. Assertion of the right to a speedy trial is given grea t weight in the determination of w he ther 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 charg es against him, f

ai lure 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 tr

ial until the filing of

his motion on May

26, 1999, less than 3

months before tria

l. Thus, it appears the def

endant did not acti

vely seek a

swift trial. This

factor weighs heavily in favor of the state.
Fin all y, 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 sen

tencing. Thus,

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

this opinion, this issue

must be determined

under the direct

ions of Tenn. R. Crim. P. 32(c)(3)(C) or 32(c)(2).-11- DUE PROCESS / SPEEDY TRIAL SUMMARY
The most crucial i s sue upon remand will be whether defendant can establish prejudice resulting from the allege

d loss of concurre

nt sentencing. Pr

eju dice is required to establish a due processviolation and is the most importantfactor in establishing a speedy trial violation. We further conclude that in order to es tablish prejudice

, the defendant mu

st establish the loss of

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

DIRECTIONS UPON REMAND Upon remand the tr

ial court shall do th

e following: (1) The trial court should determine whether the defendant was under “arrest” by Knox County in July 1993 in order to determin

e the appropriat

e dates for the du

e process/ speedy trial analysis. For purpose s of review, the trial court shall make findings as to the facto

rs of any required due process analy sis (prejudice and intentional delay for tactical advantage or harassment ) and all 4 factors

of the speedy

trial analy

sis (length of delay, reasons for

delay, the defendant’s assertion of his right to a speedy trial, and prejudice). (2) The tri al court should determine whether the defendant was on bail for the federal offense at the time he committedthe 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. Ther

e can be no due pr

ocess violatio n, and this factor will weigh heavily against the defendant in conducting a spee dy 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 sent en cing was a rea sonable probabili

ty pursuant t

o Tenn. R. App. P. 32(c)(2) (“good cause”). (4) The trial court shall enter appropriate findings and an order. If t he trial co urt 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 ord er accordingly. Either party may appeal the trial court’s ruling to this court. See Tenn. R. App. P. 3(b) and (c).-12- CONCLUSION
We conclude that the

evidence was suf

ficie nt to support th e 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 hearingon the motion to dismiss

.

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____ _ JOE G. RILEY, JUDGE