# FILED
February 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9612-CR-00456 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. L. T. LAFFERTY, Judge ) DANIEL M. BAILEY, ) ) (Aggrava

ted Rape; Appellant ) Aggra vate d Sex ual B atte ry)
For the Appellant : For the Appellee : Kathleen L. Caldwell Charles W. Burson Taylor, Halliburton, Ledbetter Attorney General and Repor ter and Caldwell 44 North Second, Suite 200 Deborah A. Tu llis Memphis, TN 38103 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
William L. Gibbons District Attorney General Charles Bell Asst. District Attor

ney General Criminal Justice Comple x, Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant alleges that on April

18, 1995 he fi led a motion t o dismiss the i ndictment upon grounds that

he was denied hi s right t o a speedy trial. Additi onally , he avers i n his bri ef that he opposed the Stat

e’s motions for

continuance. However, we note that no opposition, either orally or by wri tten motion, to the continuances are included in the record before u s. Moreover, the record cont

ains only

one motion to di smiss filed by the appell ant. This moti on was fil ed on March 4, 1996 which was the first day of t he appellant

’s scheduled t rial.Two motions to dismiss for lack of a speedy tri al are appended t o the appell ant’s bri ef. These motions ref lect t he dates of 2 O P I N I O N
The appellant, Daniel M. Bail ey, was convict ed by a Shelby County jury of one count of aggravated rape and one count of aggravated s exual battery. The tri al court imposed consecutive sentences of fifteen years and eight years respectiv ely to be served in the Department of Correction. The appellant appeal s as of right from these convictions rai sing as his sole iss ue the denial of his constitutio nal right to a speedy trial.

After review, we affirm the trial court’s judg ment.
Background The procedural background of the c ase is as follows: The appell ant was indicted on June 17, 1993 on one count of aggravated sexual battery in violati on of Tenn. Code Ann. § 39-13-502 and on one count of aggravated rape in v iolation of Tenn. Code Ann. § 39-13-504. The indictme nts, which involve separate victims, were consolidated for tri al. Trial was orig inally set for April 25, 1994 but on that date the trial was resche

duled. The record suggest s that this continuance w as granted so that the State and defense counsel cou ld explore the possibil ity of a plea agreement. The trial court rescheduled the trial for N ovember 7, 1994. The appellant did not object to the ne w trial date. On Nov

ember 7, 1994, the State requested a new trial

date because the State encountered pr oblems in returning the minor victims to Tennessee to testify. The record indicates that the children were living with their father in California and there were complications concerning the children’s travel arrangements due to a custody battle between the children’s parents. The trial date w as again rescheduled for Apr il 17, 1995. 1 On that date,April 18,1995 and January 30 , 1996. Al legati ons of fact cont ained in a brief may not be conside red as e vidence

. State v. Be nnett , 798 S.W .2d 783, 789 (Tenn. Crim . App. 1990) cert. denied , 500 U.S. 915, 111 S.Ct. 2009 ( 1991). Absent the necessary rel evant material in the record , an appe llate court ca nnot co nsider the merits of an issu e. See Tenn . R. App. P . 24(b). Thus, we are permitt ed to consider

only t he March 4, 1996 motion t o dismiss as being contem porane ously enter ed. See Tenn. R. App. P. 36(a). 3 the trial date was res

cheduled for November 1995. The record does not reflect the reason f or this po stponem ent of tr ial. In Nove mber 199 5, the tri al court o n its own motion rescheduled the trial for March 1996 due to scheduling conflicts in its November 1995 trial calendar. The appellant’s trial was then rescheduled f or March 4, 1996. The trial was hel d on March 4 and 5, 1996. In sum, the record reflects that the appellant’s trial date was rescheduled four times.
At trial, the appellant’s statement to the police admitting to various sexual assaults of both minor victims was introduced. The pr oof established that the appellant was the step-grandfather of both victims who were six and eight years old at the time of these offenses. The appellant’s charged criminal conduct was corroborated by the testi mony of both victims’ at t rial. The jury retur ned a verdict of guilty for both offenses. The appellant remained free

on bail duri ng the entir e time between indictment and trial . At the time of the offenses, the appellant w as married to the victims’ grandmother. At some point during the rescheduling of the ap pellant’s trial dates, his wife allegedly became hostil e toward him and filed for div orce.

ANAL YSIS
The appellant contends that he was denied his constitut ional and statutory right to a speedy tri al. See U.S. Const. amend. VI; Tenn. Const . art. I, sec. 9; Tenn. Code Ann. § 40-14-101 (1990); Tenn. R. Crim. P. 48. As a basi s for this contention, the appellant argues that he w as originally i ndicted on June 17, 1993 and his tr ial did not commence until March 4,1996, resulting in a lap se of thirty-three months. He contends that, due to this del ay of thirty-three months , he suffered undue2 In State v. Bishop , 493 S.W.2d 81 (Tenn. 1973), our supreme court i mplicitl y adopted t he Barker balancin g test to de termin e wheth er a defe ndant’s s tate cons titutional and s tatutory right to a speedy tr ial has beenviolat ed. 4 prejudice because he “lost a highly favorable witness [his wife] and one who would have contradicted the testi monies of [the minor victims] . . . .”
The spee dy trial gua rantee o f the Sixt h Amendm ent is des igned to “m inimize the possibility of leng

thy incarceration pri or to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an a ccused while released on bail, and to short en the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald , 465 U.S. 1, 8, 102 S.Ct. 1497, 1502 (1982). The r ight to a speedy trial

attaches at the time of arrest or indictment, w

hichever comes first, and c ontinues until the date of the tri al. United St ates v. Lo ud Hawk , 474 U.S. 302, 310-12, 106 S.Ct. 648, 653-54 (1986). When a defendant contends that he was denied his ri ght to a speedy trial,the reviewing court must conduct a four part balancing test to determine if this right was, indeed, abridged. Barker v. Wi ngo , 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972). This test includes consider ation of (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s ass ertion of his right; and ( 4) the actual prejudice suffered by the def endant b ecause o f the de lay. 2 Id.
The length of the delay between indictment and trial is a threshold f actor, and, if that delay is not pre sumptively prejudic

ial, the other factors need not be considered. Barker , 407 U.S. at 530, 92 S.Ct. at 2192.The delay in the present case was thirty-

three months. While the length of delay, in and of itself, does not constitute a denial of a speedy trial given the compl ex nature of the charges, a delay of one year or longer “marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry.” Doggett v. United States , 505 U.S. 647, 652 112 S.Ct. 2686, 2691 n. 1 (1992). Thus, the delay in this cas e requires further review.5 Next, we inquir

e as to the reasons for the delay. Possible reasons for the delay are said to fall w

ithin four identifiable categor ies: (1) intentional del ay to gain a tactical advantage ov

er the defense or delay desig ned to harass the defendant; (2) bureauc ratic ind iffere nce or neg ligence; (3) delay ne cessary to the fair and eff ective prosecution of the case; and (4) delay caused or acquies ced in, by the defense. State v. Wood , 924 S.W.2d 342, 34 6-47 (Tenn. 1996). A deliberate attempt to delay the trial in order to hamper the def ense should be weighted heav ily against the go

vernment. A more neutral reason such as negligen ce or overcrowded c ourts should be weight ed less heavily but nevertheless should be considered. . . . Finally, a valid reason, such as a missing witness, should serv

e to justify appropriate delay.
Barker , 407 US. at 531, 92 S.Ct. at 2192.
In the present case, the delay arose on two occasions because the State was unable to secure the attendance of tw o material witnesses at trial, the victi ms of the offenses. As noted in Barker , the loc ation of a

missin g witn ess ser

ves to j ustify appropriate delay. On anoth er occasion, a continuance w as necessitated due to scheduling conflicts in the court’s trial cale ndar. We conclude that these reasons for the delay were neutral and valid in nature and should be weighed less heavily against the State.
The third prong of the balancing test, the defendant’s assertion of hi s right to a speedy trial, was

not satisfied until the day his trial commenced. Agai n, as noted above, the record does not c ontain any other motions filed by the appellant nor does it contain the trial cour

t’s order dismissing

this motion. Therefore, we ar e limited to consideration of the motion filed on M arch 4, 1996. The appellant’s del ayed assertion of this right

weighs against hi s claim. Wood , 924 S.W.2d 347 (citing Barker , 407 U.S. at 531-32, 92 S.Ct. A t 2192-93; Bisho p, 493 S.W.2d at 85).

Our consideration of the remaini ng factor, whether the appel lant was prejudiced by the delay , focuses upon (1) any undue and opp ressive incarceration;6

(2) the anxiety acc

ompanying a public accus ation; and (3) any impair ment of the appellant’s ability t

o prepare his defense. State v. Kolb , 755 S.W.2d 472, 475 (Tenn. Crim. App. 1988). The rec ord does not demonstrate any oppr essive pretrial incarceration, as the appell ant was released on bail pending trial. Further more, there is no evidence that the appellant suffered undue anxiety and concern awaiting trial. However, the most important inquir y remains, whether th e delay impaired the defendant’s ability to prepar e a defense.
The appellant contends that he has been “ extremely prejudice

d” by the several continuances because his wife left him during the delay and he had lost “a favorable witness.” We find nothing in the record which s upports this allegation. Although mention of marital disc ord is alluded to in the appel lant’s brief, again, as previously noted, w

e are precluded from consideri ng as evidence factual all egations contained in the briefs. See Tenn. R. App. P. 24(b). M oreover, w e must assume that, had the wife testified at tr ial, her testimony w

ould have been motivated by her desire to tell the truth and not merely because she was married to the appellant. No prejudice has been shown. This issue is without merit.
The judgment of the trial court i s affirmed.

____________________________________ DAVID G. HAYES, Jud ge CONCUR:

________________________________ JOE B. JONES, Pres iding Judge

________________________________ JOE G. RILEY, Judge