# FILED July 23, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9808- CR-00346 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRA NK G. CLEMENT,JR. DONALD MCKINNEY, ) JUDGE ) Appellee. ) (Direct Ap peal - D UI)

FOR THE APPELLANT : FOR THE APPELLEE : HOLLIS I . MOORE, JR. PAUL G. SUM MERS Office of the Metro Publ ic Defender Attorney General& Reporter 1202 Stahlman Buildi ng Nashvill e, TN 37201 MARVIN E. CLEMENTS Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attorney General EDWARD S. RYAN Assistant Distri ct Attorney Washington Sq., Ste. 500 Nashvill e, TN 37201-1649
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

## OPINION On January 18, 1998, the Davidson Count y Grand Jury indi cted Appellee Donald McKinney for

drivi ng underthe influen ce of an in toxicant, sixth of fense. On July 7, 1998, Ap pellee filed a mo tion to dismiss the ind ictment. The trial court granted the motion o n July 16, 199 8. The State c hallen ges th e trial co urt’s dismissal of the indict ment, raising the fol lowing issu e: whether the trial court erred when it determ ined th at the in dictm ent sh ould be d ism i ssed because Appe llee’s right to a speedy trialhad been viol ated. After a revi ew of the recor d, we fin d that neither Appell ee’s rights to a speedy t rial nor his rights t o du e process of law were v iolated by the delay in brin ging him to trial . The judgment of the trial cou rt must the refore be reversed and the case rem anded for trial. FACTS
The alleged offense in t his case occurred on March 29, 1 995. Arrest warran ts were is sued on May 2, 1995, but for some r

eason the wa rrant s remain ed uns erved un til January 1 , 1998.
At the hearing on this i ssue, Appell ee argued that t he indict ment should be dismissed because the delay between the al leged offens e and the servi ng of the warran ts had violated his ri ght to a speedy trial . Appellee contended that he was prejudicedby the de lay beca use he was pre vente d fr om obtaining t he blood sam ple taken atthe time o f the alle ged o ffense so tha t indep ende nt tests could be conducted.-3- The trialcourt dis missed the indi ctment after findingthat the de lay between the alleged offense and t he serving of the warrants had viol ated Appellee’ s right to a speedy tri al. However, the tri al court made no f inding as to whether Appel lee had been prejudiced by the delay.
ANALY SIS
Th e State cont ends

that t he t ri al cour

t er red when it

dis mi ssed th e indict ment merely because of the delay

betwee n the da te of the alleged offense and the date on whi ch the warrants were served. We must agree. A. Right to a Speedy Trial
T he United States and Tennessee Constit utions guaran tee the cri minal defendantthe right to a speed y trial. U.S. Co nst. am end. VI; T enn. C onst. art. I, § 9; State v. Utley , 956 S.W.2d 489, 492 (Tenn. 1997). The right to a speedy tri al is also statutory

in Tennesse e. See Tenn . Code Ann. § 4 0-14-10 1 (1997 ). In addition, the Te nnes see R ules o f Crim inal Proc edure provi de for the di smissal of an ind ictme nt, pres entm ent, info rmatio n or crim inal co mpla int “[i]f ther e is unneces sary delay in presenting the charge to a grand j ury against a defendant who has been held to answer to the t rial cour t, or i f the re is u nnecessary del ay in bringing a defe ndant to trial . . . .” Tenn. R. Crim . P. 48(b).
The Tennessee Supreme Court has stated that “a war rant alone does not trigger speedy tri al analysi s; to t he contrary , a formal grand jury act ion or the act ual restraints of an arrest a re required.” Utley , 956 S.W .2d at 493
. This i s-4-

because “it is at thisstag e of arrest and grand jury

action t hat the si gnificant interests served by the rig ht to a s peed y trial are mos t directly im pli ca ted: the protecti on against oppr essive pre-trialincarcerat ion and thereduction of anxiety and conc ern cause d by unreso lved charges .” Id.
Under Utley , it is clear that Appellee’s right to a sp eedy tria l was not implicated when the alle g ed offense occur red on March 29, 1995, or when the warran ts were issued on May 2, 1995. Rather, Appel lee’s ri ght to a speedy trial was not implica ted un til the warrants were served on Jan uary 1, 1998. Appellee asserted that his

right to a speedy tri al was viol ated on July 7, 1998, and t he trial court dismissed the indict ment on Ju ly 16, 19 98, ap proxim ately six a nd on e half months after the warrants were served.
W hen an accused seeks the di smissal of a pr osecution based upon the denial of the con stitut ional ri ght to a speedy trial , the accused must establi sh 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. Uni ted States , 505 U.S. 647, 651, 112 S.Ct. 26 86, 2690, 12 0 L.Ed.2d 5 20 (1992)); Barker v. Wingo , 407 U. S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d101 (1972). The l ength of the delay is dependent upon t he peculiar circumstances of

each case, and the delay that can be tolerated for

“an ord inary str eet crim e” is ge nerally much less than for a serious, complex felony cha rge. Barker , 407 U.S. at 530–31, 92 S.Ct. at 2193. A delay of one year or l onger marks the poi nt at whic h cour ts deem the delay unrea sona ble enoug h to trigger fu rther inqu iry. Utley , 956 S.W .2d at 4 94; Dogg ett , 505 U.S. at 652, n.1, 112 S.Ct . at 2691, n.1. If thi s threshol d is crossed, a balan cing te st dete rmine s the m erits of th e spe edy tria l issu e. In State v.-5-

Bishop , 493 S.W .2d 81, 83–8 5 (T enn. 19 73), the Ten nessee S upreme Court recognized and adopted the bal ancing test set for th in B arker

in which four factors mus t be balance d. The factor s are (1) t he length of the delay, (2) the reasons for the del ay, (3) t he accused’s asser tion of t he right to speedy tri al, and (4) the prejud ice resulting from the delay. Barker , 407 U.S . 514, 531 , 9 2 S .Ct. 2182, 2 192; Bishop , 493 S.W.2d at 83–84.
Here, the length of time was not presumptively prejudi cial. The warrants were served on January 1, 1998 , Appellee was indicted on January 18, 1 998, and the trialcourt dis missed the indict ment on July 16, 1998. Because this period of appro ximate ly six and one hal f months was les s tha n one year, t he period was not presu mptive ly prejud icial. Th erefor e, wit h out addressi ng the remaini ng factors, we conclude that Appellee’s

right to a speedy tri al was not viol ated under the United States or Tennessee Const ituti ons. Thus, thetrialcourt err ed when it dismisse d the indic tment b ased o n a violation of this right.
B. Due Process
The Tenne ssee Supreme Court has stated that “[a] delay t hat does not implicate the speedy trialright may stil l raise due pro cess concerns under the Fifth and Fourteenth Amendments to the United States Constitut ion and Article I, § 9 of the Tenn essee C onstitution.” Utley , 956 S.W .2d at 495. Ho wever, [b]efore an accused is ent itled t o relief based upon the delay between the offense and the ini tiati on of adversarial proce e dings, the accused must prove that (a)there wa s a delay, ( b) the accused sust ained actual prejudice as a direct

and proxi mate re sult of the d elay, and (c) the Sta te caused the delay in order to gain tacticaladvantage over or to harassthe accuse d.-6-

Id. (citation omitted). Obviously, Appelle e has d emon strate d that the re was a dela y of sligh tly less than thre e years b etween the date o f the allege d off e nse and the ini tiati on of adversari al proceedi ngs against h im. Although Appell ee contended duri ng the hearing that he was prejudiced by the delay i n that he was t hereby prevented from obtaini ng the blood sam ple for in depe nden t testing , he did not intr oduce any evidence to s uppo rtthi s cl aim n or did he introduce any evidence t hat independenttestingwould have yi elde d a re sult that wa s favorab le to him. In addition, Appellee nei ther contended nor intr oduced any proof t hat the del ay was caused by the State for the purpose of gaining atactical advantage. Under these circumstancesit appears that the delay i n serving the arrest warrants was not so egregious that Appellee’ s rights to due process of law were vi olated. According ly, the judgm ent of th e trial co urt is RE VER SED and th is case is REM AND ED fo r trial.

____________________________________ JERRY L . SMI TH, J UDGE
CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE

___________________________________ NORMA MCGEE OGLE, JUDGE