FILED

July 23, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9808-CR-00346

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. FRANK G. CLEMENT, JR.

DONALD MCKINNEY, ) JUDGE

)

Appellee. ) (Direct Appeal - DUI)

FOR THE APPELLANT: FOR THE APPELLEE:

HOLLIS I. MOORE, JR. PAUL G. SUMMERS

Office of the Metro Public Defender Attorney General & Reporter

1202 Stahlman Building

Nashville, TN 37201 MARVIN E. CLEMENTS

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

VICTOR S. JOHNSON

District Attorney General

EDWARD S. RYAN

Assistant District Attorney

Washington Sq., Ste. 500

Nashville, TN 37201-1649

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

On January 18, 1998, the Davidson County Grand Jury indicted Appellee

Donald McKinney for driving under the influence of an intoxicant, sixth offense.

On July 7, 1998, Appellee filed a motion to dismiss the indictment. The trial court

granted the motion on July 16, 1998. The State challenges the trial court’s

dismissal of the indictment, raising the following issue: whether the trial court

erred when it determ ined that the indictment should be dismissed because

Appellee’s right to a speedy trial had been violated. After a review of the record,

we find that neither Appellee’s rights to a speedy trial nor his rights to due

process of law were violated by the delay in bringing him to trial. The judgment

of the trial court must therefore be reversed and the case rem anded for trial. 

FACTS

The alleged offense in this case occurred on March 29, 1995. Arrest

warrants were issued on May 2, 1995, but for some reason the warrants

remained unserved until January 1, 1998. 

At the hearing on this issue, Appellee argued that the indictment should be

dismissed because the delay between the alleged offense and the serving of the

warrants had violated his right to a speedy trial. Appellee contended that he was

prejudiced by the delay because he was prevented from obtaining the blood

sample taken at the time of the alleged offense so that independent tests could

be conducted.
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The trial court dismissed the indictment after finding that the delay between

the alleged offense and the serving of the warrants had violated Appellee’s right

to a speedy trial. However, the trial court made no finding as to whether Appellee

had been prejudiced by the delay.

ANALYSIS

The State contends that the trial court erred when it dismissed the

indictment merely because of the delay between the date of the alleged offense

and the date on which the warrants were served. We must agree.

A. Right to a Speedy Trial

The United States and Tennessee Constitutions guarantee the criminal

defendant the right to a speedy trial. U.S. Const. 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 crim inal 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 “a warrant alone does not

trigger speedy trial analysis; to the contrary, a formal grand jury action or the

actual restraints of an arrest are required.” Utley, 956 S.W .2d at 493. This is
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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 im plicated: 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 Appellee’s right to a speedy trial was not

implicated when the alleged offense occurred on March 29, 1995, or when the

warrants were issued on May 2, 1995. Rather, Appellee’s right to a speedy trial

was not implicated until the warrants were served on January 1, 1998. Appellee

asserted that his right to a speedy trial was violated on July 7, 1998, and the trial

court dismissed the indictment on July 16, 1998, approximately six and one half

months after the warrants were served.

When an accused seeks the dismissal of a prosecution based upon the

denial of the constitutional right to a speedy trial, the accused must establish a

period of delay that is “presum ptively 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 crim e” 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.
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Bishop, 493 S.W.2d 81, 83–85 (Tenn. 1973), the Tennessee Supreme Court

recognized and adopted the balancing test 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. 514, 531, 92 S.Ct.

2182, 2192; Bishop, 493 S.W.2d at 83–84.

Here, the length of time was not presumptively prejudicial. The warrants

were served on January 1, 1998, Appellee was indicted on January 18, 1998, and

the trial court dismissed the indictment on July 16, 1998. Because this period of

approximately six and one half months was less than one year, the period was

not presumptively prejudicial. Therefore, without addressing the remaining

factors, we conclude that Appellee’s right to a speedy trial was not violated under

the United States or Tennessee Constitutions. Thus, the trial court erred when

it dismissed the indictment based on a violation of this right.

B. Due Process

The Tennessee Supreme Court has stated that “[a] delay that does not

implicate the speedy trial right may still raise due process concerns under the

Fifth and Fourteenth Amendments to the United States Constitution and Article

I, § 9 of the Tennessee Constitution.” Utley, 956 S.W.2d at 495. However,

[b]efore an accused is entitled to relief based upon the delay between the

offense and the initiation of adversarial proceedings, the accused must

prove that (a) there was a delay, (b) the accused sustained actual

prejudice as a direct and proximate result of the delay, and (c) the State

caused the delay in order to gain tactical advantage over or to harass the

accused. 
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Id. (citation omitted).

Obviously, Appellee has demonstrated that there was a delay of slightly

less than three years between the date of the alleged offense and the initiation

of adversarial proceedings against him. Although Appellee contended during the

hearing that he was prejudiced by the delay in that he was thereby prevented

from obtaining the blood sample for independent testing, he did not introduce any

evidence to support this claim nor did he introduce any evidence that

independent testing would have yielded a result that was favorable to him. In

addition, Appellee neither contended nor introduced any proof that the delay was

caused by the State for the purpose of gaining a tactical advantage. Under these

circumstances it appears that the delay in serving the arrest warrants was not so

egregious that Appellee’s rights to due process of law were violated.

Accordingly, the judgment of the trial court is REVERSED and this case is

REMANDED for trial.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

NORMA MCGEE OGLE, JUDGE