# FILED May 6, 1996 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) ) For Publication Appellee ) ) Filed: May 6, 1996 vs. ) ) No. 01-S-01-9501-CC-00015 ) TERRY E. WOOD ) Williamson Circuit ) Appellant ) Donald P. Harris, Judge

FOR THE APPELLANT : FOR THE APPELLEE : John H. Henderson, Jr. Charles W. Burson Public Defender Attorney General and Reporter Maurine C. Hatchett Christina S. Shevalier Assistant Public Defender Assistant Attorney General Franklin, TN Nashville, TN Joseph D. Baugh District Attorney General Mark Puryear Assistant District Attorney General Franklin, TN

O P I N I O N

AFFIRMED Birch, J.1 For our purposes, "presentment" is synonymous with

"indictment."

2 407 U.S. 514 (1972).
3 493 S.W.2d 81 (Tenn. 1973). 2 W e granted the application of Terry E. Woo d, the defendant, for permissionto appeal in order to resolve an issue of first impression in Tennessee: whether the return of a sealed presentment 1 engages an accused person's speedy trial rights under the Sixth Amendment to the United States Constitution and Article I , § 9, of the Tennessee Constitution. After a thorough examination of the record and careful consideration of the issue,
w e conclude, for reasons appearing below, that the return of a presentment, whether sealed or unsealed, whether the accompanying
c apias is executed or unexecuted, is a formal accusationtha t engages constitutional speedy tr ial provisions. Thus, we must applythe criteria of Bark er v. Wingo 2 and State v. Bishop 3 to determine whether the thirteen-year delay inthis case deprived the appellant of his constitutional speedy trial rights. We find that there was no such deprivation and affirm the judgment of the Court of Criminal Appeals.

AWilliamson County grand jury in September 1979 returned a presentment charging the defendant with the murder of Joseph R. Henderson. The presentment as returned was sealed, and a capias
w a s i ssued for the defendant, who was then in the custody of Alabama authorities awai ting trial on a different murder charge.4 The defendant testified that in 1984 he learned of the

WilliamsonCounty charges when someone mailed copies of the “warrants” to him in Alabama.

5 Tennessee adopted the Compact in 1970. Tenn. Code Ann. § 40- 31-101 (1990). Alabama adopted the Compact in 1978. Ala. Code § 15-9-80 (1995). 3 The State knew the circumstances of th e defe ndant's detention in Alabama; however, the capias was not executed because the WilliamsonCounty authorities believed that Alabama would sentence the defendant to death by electrocution.

The defendant was convicted on the Alabama charge and sentenced to a prison term. Thus, in 1983, the defendant was alive and still in the custody of the Alabama authorities. In November 1983, the Circuit Court of Williamson County placed the cause on the "retired docket." For reasons not clearly shown in the record, t h e Will iamson County sheriff's department lodged a detainer against the defendant in March 1984. Although aware of the detainer, 4 the defendant did n ot p ursue a speedy trial under the Interstate Compact on Detainers 5 at that time.

I nJune 1989, Alabama offered the defendant parole. This parole was , however, conditioned on the defendant's agreement to submit to the Tennes see detainer. The defendant refused and continued serving the Alabama sentence.

I nMarch 1990, the defendant wrote the Williamson County court clerk inquiring about the detainer; the clerk did not6 This Court has held that under the Compact, the defendant has

the burden of giving notice to the receiving state of his or her request under Article III of the Compact for prompt disposition of the charges. State v. Moore , 774 S.W.2d 590 (Tenn. 1989). Strict compliance with the notice and certification procedures outlined in the Compact is required. State v. Grizzell , 584 S.W.2d 678 (Tenn. Crim. App. 1979). Since the defendant did not comply with the procedures outlined in the Compact, the p rovi sions of that statutory remedy did not apply. 4 respond. On September 4, 1990, the defendant filed a pro se motion for a speedy t rial. Th e trial court docketed this motion for hearing despite the fact that the defendant failed to follow the required procedure. 6

The trial court conducted a hearing on the motion on September 10, 1990. The defendant was not present, and no one has offered a clear recollection of those proceedings. In any event, the docket contains an entry: "detainer lifted."

Subsequently, the District Attorney General investigated further and determined that the case should be prosecuted. He then initiated procedures under the Interstate Compact Act to return the defendant to WilliamsonCounty for trial. Trial commenced February 9 , 1993, almost fourteen years after the return of the presentment.

A t trial, the victim's girlfriend testified that she and the victim had planned to meet the night the victim disappeared. Whenhe did not appear, she began searching for him. She drove first to a bar where he had been when he last s poke wit h her by telephone that afternoon. When she did not see his van there, she7 The fact that the females were raped was not admitted as

evidence in the trial of this cause. 5 pulled into a trailer park across the street. As she was pulling into the trail er park, the victim's van was pulling out. The victimwas driving, and a man she later identified as the defendant was in the passenger seat. She made eye contact with the victim; h e made a hand motion as though to wave her away. She tried to followthe van, but lost it. She never saw the victim alive again.

Later that eve ning, the defendant was observed in possessionof the victim's van and was wearing certain items of clothing known to belong to the victim . The def endant told his girlfriend that he had to "bust" someone. Within a day or so of the victim's disappearance, the defendant accosted and detained two females in Barren County, Kentucky. 7 During the encounter, the defendant bragge d to themthat he had killed the victim. The females assisted him in disposing of some of the victim's personal possessions. These items were recovered when they escaped from the defendant and took investigators to the site where the items had beenthrown. Several days later, the victim's girlfriend saw a newspaper article that included a photograph of the defendant. She immediatelycontacted the authorities and told them the photograph depi c t e d the man she had seen with the victim the night he disappeared. When the defendant was arrested on charges of rape
a n d kidn apping of the two females, the authorities confiscated a Colt .38 revolver. During questioning, the defendant gave Kentucky6

police two versions of how he had acquired the victim's van. First, he said he found the van on the side of the road near I-65 withthe keys inside. He said later that the victim had gone on a trip and had left the van with him. The victim's body was discovered in Williamson County ten days after his disappearance. H e had been shot three times--twice in the head and once in the abdomen.
Significantly, none of the State's witnesses had difficultyrecalling the facts surrounding the victim's disappearance; however, in the period between p r esentment and t r i al, one non-critical witness (a criminal investigator) died. Neither the Colt .38 revolver seized from the defendant at the time of his arrest in Kentucky nor the bullet fragments recovered from the victim's body could be located; nevertheless, the ballistic report from the Tennessee Bureau of Investigation was available.

The jury convicted the defendant of first-degree murder and possessionof a firearm in the commission of murder. In additionto life imprisonment for the murder conviction, the trial court imposed a five-year sentence for the firearm violation--to be
s e rved consecutively to the other Alabama and Tenne sse e convictions.

The defe ndant makes no challenge to the convicting evidence; rath er, he insists that the State, by permitting8 I nfir st-d egree murder cases the protection offered by a

statute of limitation does not exist since there is no statute of limitationfor that crime. See Tenn. Code Ann. § 40-2-101(a) 7 approximatelythirteen years to pass between presentment and trial, viol ated his Sixth Amendment right to a speedy trial. H e urge s further that the lengthy delay violated his due process rights and requires dismissal of the charges.

The State contends that because the presentm e n t was sealed, the period within which the defendant should have filed for
a speedy trial did not begin to run until the execution of the capias on October 9, 1992, thereby making the Barker balancing test inapplicable. The State reasons that because the speedy trial clause does not apply, the issues must be analyzed under due process criteria. To prevail under such criteria, the S tat e asserts, the defendant must pr ove that actual prejudice resulted fromthe delay. The rational e u nderlying this requirement, the State says, is that the purpose for the speedytrial provisions of
our state and federal constituti ons is to prevent oppressive pretri a l i ncarceration, protect a defendant from the humiliation and anxiety associated with a public accusation, and avo i d impairment of a defendant's defense caused by a lengthy delay. Hence, a defendant in a sealed presentment case is not exposed to oppressive pretrial incarcerationand, because he is unaware of the pending charges, is not subjec t to such anxiety and humiliation. Moreover, the State argues that the statutes of limitationprotect
a n accused from having to defend again st s tale charges. 8 The(1990): "A person may be prosecuted, tried and puni shed for a n

offense punishable with death or by imprisonment in the penitentiaryduring life, at any time aft er the offense is committed." 8 conclusion should be, the State asserts, that the conviction must be affirmed since actual prejudice was not proven.

W e first add ress the issue of whether a sealed presentment is sufficient to require a speedy trial analysis. In our view, the State's position conflicts with the Sixth Amendment t o the U.S. Constitution and with Article I, § 9, of the Tennessee Constitution. Both constitutional provisions apply, by their own terms, to persons "accused" in a "criminal prosecution." Clearly, t o be an "accused" one must be f aced with a "formal accusation." The United States Supreme Court has held that the Sixth Amendment guarantee to a speedy trial does not apply until the defendant becomes an "accused." United States v. Marion , 404 U.S. 307, 313 (1971). Specifically, "it is either a formal indictment o r information o r else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the SixthAmendment." 404 U.S. at 320 (emphasis added). This Court has also noted that
n o speedy trial rights arise until after formal accusation, either b y arrest or by grand juryaction . State v. Baker , 614 S.W.2d 352, 353 (1981). Moreover, Tenn. Code Ann. § 40-2-104 (1990) expressly provides that a prosecution is commenced by finding an indictment9

o r presentm ent . We have never distinguished between sealed and unsealed indictments.

Asealed indictment is no di ffer ent from an unsealed indictment except that it is not subject to inspection by, or disclosure to, the public until the defendant is arrested or makes bail. Tenn. Code Ann. §§ 40-13-111, -112. It still has the effect of formally charging the defendant with a crime.

Additionally, the ma jori ty of federal courts that have considered the issue have applied the speedy trial analysis to sealed indictment cases. See, e.g. , United States v. Shell , 961 F.2d 138, 143-45 (9th Cir. 1992); United States v. Lewis , 907 F.2d 773, 774 (8th Cir.), cert. denied , 498 U.S. 906 (1990); United States v. Mitchell , 769 F.2d 1544, 1547-48 (11th Cir. 1985), cert. denied , 474 U.S. 1066 (1986) ; Uni ted States v. Alo , 439 F.2d 751 (2nd Cir.), cert. denied, 404 U.S. 850 (1971); United States v. Shelton , 820 F. Supp. 461 (W.D. Mo. 1992); United States v. Rogers , 781 F. Supp. 1181 (S.D. Miss. 1991). But see United States v. Watson , 599 F.2d 1149, 1156, modified by United States v. Muse , 690 F.2d 15 (2nd Cir. 1979), cert. denied , 450 U.S. 984 (1981)(right to speedytrial attaches no t when sealed indictment filed, but when unsealed); United States v. Hay , 527 F.2d 990 (10th Cir. 1975), cert. denied , 425 U.S. 935, 994 n.4 (1976)(since indictment sealed defendant suffered nei ther restraint on his liberty nor public accusation before his arrest).9 407 U.S. 514 (1972) 

### . 1 0 I nour opinion, the better reasoned cases recognize that even though a defendant under a sealed indictment does not suffer restraint on his or her libertyor the anxiety and humiliation that accompanya public accusation, such a defendant still has a strong interest in preserving his or her ability to prepare for trial. Lengthydelays following the issuance of an indictment, whether sealed or not, may directly affect this ability to prepare for trial. Faded memories, erosion or loss of potentiallyexculpatory evidence, and loss of potentially favorable witnesses are all possible results of a lengthy delay.

W e conclude, accordingly, that the retur n of a presentment, whether sealed or not, is a "formal accusation" such as would engage an accused person's speedy trial rights.

I t remains for us to det ermine whether the defendant's speedytrial rights were violated. In Barker v. Wingo , 9 the United States Supreme Court adopted a balancing test to determine whether
a defendant' s right to a speedy trial had been denied under the SixthAmendment. This test involves the balancing of four factors: (1) the lengthof the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) the prejudice resulting to the defendant from the delay. We adopted1 0 Overcrowded court dockets or simple lack of diligence fall

into this category. 1 1 the Barker analysis in State v. Bishop , 493 S.W.2d 81, 83-85 (Tenn. 1973).
Regarding the first factor, leng th of the delay, the Barker Court noted that the length of the delay is the triggering mechanismthat will necessitate the cons ider ation of the other three factors. "'Until there is some delay which is presumptively prejudicial, th ere is no necessity for inquiry into the other fact ors that go into the balance.'" State v. Baker , 614 S.W.2 d 352, 355 (Tenn. 1981)(quoting Barker , 407 U.S. at 530). The reasonableness of the length of the delay depends on the complexity of the case. 407 U.S. at 530-31. More recently, the Court noted i n Doggett v. United States that "the presumpti on that pretrial delayhas prejudiced the accused intensifies over time." 112 S. Ct. 2686, 2691 (1992). In this case, the delay of thirteen years is, as the State concedes, clearly sufficient to require an analysis of the remaining thr ee factors. This factor weighs favorably for the defendant.

The second Barker factor, reason for the delay, generally falls into one of four categories: (1) intentional delay to gain a tactical advantage over the defense or delay designed to harass the defendant; (2) bu reaucratic indifference or negligence; 1 0 (3)1 1 Delays which fall into this category include those cases

where the complexity of the case reasonably requires more time to prepare for trial, or where the delay is necessary to perform further investigation or to locate a missing witness, for example.

1 2 G ood faith attempts to plea-bargain or repeated defen s e requests for continuances are examples of this category. See , e.g. , State v. Taylor , 771 S.W.2d 387 (Tenn. 1989), cert. denied 497 U.S. 1031 (1990); State v. Johnson , 781 S.W.2d 873 (Tenn. Crim. App. 1989), overruled on other gr ounds by , State v. Howington , 907 S.W.2d 403 (Tenn. 1995). 1 2 delaynecessary to the fair and effective prosecution of the case; 1 1 and (4) delay caused, or acquiesced in, by the defense. 1 2 The first type, intentional delay, is weighed heavily against the State. The second type, neglige nt delay, is also weighed against the State a l though not as heavily as deliberate delay. The third type of delayis, by definition, justifiable and is not we ighed against either party. The fourth typ e of del ay, which is caused or acquiesced in by the defendant, is weighed against the defendant.

The delay inthis case resulted from gross negligence by the State. The District Attorney General testified that he knew the defendant was in custodyin Alabama on another charge when the presentment was issued in September 1979. The case came up for docket call several times over the course of the years until it was retired in November 1983. During this entire period, the State knewthat the defendant was in the custody of Alabama authorities. N o explanation appears of record why the State failed to respond to the defendant's 1990 written request for a speedy trial. Not until the District Attorney General learned that the defendant might be granted parole in Alabama did the State begin to prepare for trial.1 3 Although there is no clear evidence of bad faith by the State, a delay based on the prediction that disposition of another
case in a foreign jurisdiction will serve to keep the defendant incarcerated will always risk dismissal if, in fact, the State ultimatelychooses to prosecute. See Arrowsmith v. State , 175 S.W. 545, 546-47 (Tenn. 1915); State v. Kolb , 755 S.W.2d 472 (Tenn. Crim. App. 1988); State v. Wallace , 648 S.W.2d 264 (Tenn. Crim. App. 1980). Not only does such a delay impinge upon an accused's abilityto defend himself, but it also affects his eligibility for concurrent sentencing, parole, and other rehabilitative programs. Here, there was no v alid reaso n for the delay; this factor must weigh in favor of the defendant.

The third factor, an accused person's asse rtion of his right to a speedy trial, may or may not play an important role in the ultimate determinationof whether that person has been deprived o f his right to a speedy trial. The Barker Court rejected an outright "demand" rule, whereby failure to seek a speedy trial would result in a waiver of that right. 407 U.S. at 529-30. This Court has likewise rejected such a rigid rule. Bishop , 493 S.W.2d a t 84. The primary burden, after all, is on the courts and prosecutors to assure that cases are brought to trial. Barker , 407 U.S. at 529. Nevertheless, a defendant's assertion or failure to assert the right to a speedytrial is one factor to consider in the overall balance in determining whether the right has been unconstitutionallydeprived. Id. at 528. A defendant's assertion1 3 However, anaccused who is unaware that charges are pending

against him or her, as is often the case where an indictment has beensealed and not served, cannot be penalized for h is o r her failure to assert the speedy trial right. Doggett , 112 S. Ct. at 2691; see also Wright v. State , 405 S.W.2d 177, 180 (Tenn. 1966); State v. Wallace , 648 S.W.2d 264, 267 (Tenn. Crim. App. 1980). 1 4 o f the speedy trial right is entitled to strong evidentiary weight i n determining whether the right has been denied, and failure to assert the right will make it difficul t to prove it was denied. Id. At 531-32; Bishop , 493 S.W.2d at 85.

Failure to assert the right implies a defendant does not activelyseek a swift trial. "[E]vidence that the defendant did not want a speedy tr ial would never warrant the finding of a constitutional violation except in 'extraordinary circumstances.'" Baker , 614 S.W.2d at 355. 1 3 In this case, the defendant learned in 1984 that there was a detainer against him. Thereafter, he did nothing until 1990. Evenafter he learned that his Alabama parole would be conditioned on his re turn to Tennessee for trial on the murder presentment, he waited several months before seeking legal assistance and demanding a speedy trial. Hence, we infer that the defendant did not necessarily want a speedy trial in Ten nes see. After all, had the Tennessee charge ul tim ately died of neglect, there would have been no impediment to an unconditional parole in Alabama. Asserting his right to trial would have prevented that, and it would have exposed the defendant to the risk of a Tennessee conviction. We find that the defendant acquiesced in the delay by1 5

failing to assert his right to a speedy trial. This factor must weigh in favor of the State.

W e view the fourth factor as the most important: whether the accused suffered prejudice by the delay. Baker , 614 S.W.2d at 355-56 ( citing Barker , 407 U.S. at 532; Bishop , 493 S.W.2d at 85); State v. Thomas , 818 S.W.2d 350, 363 (Tenn. Crim. App. 1991). Usually, it is relatively easy to determine whether a defendant has beenprejudiced by inordinately long pretrial incarcerat i on, or whether he or she has been subjected to the stress and anxiety that accompanya public accusation over an extremely long period of time. It is often extremely difficult, however, for a defendant to demonstrate specifically howthe delay has impaired his abilityto defend himself. Courts have recognized this difficulty and
c o n s equentlydo not necessarily require a defendant to affirmativelyprove particularized prejudice. Doggett , 112 S. Ct. at 2692; Moore v. Arizona , 419 U.S. 871 (1974). Furthermore,

[I]mpairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony"can rarely be shown."

. . . [E]xcessive delay presumptivelycompromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carrya Sixth Amendment claim without regard to the other Barker cri teri a , it is part of the mix of relevant facts, and its importance increases with the length of the delay.1 6

Doggett , 112 S. Ct. at 2692-93 (citations omitted).

Although we can assume that he experienced some anxiety and uncertaint y ab out the ultimate disposition of these charges, nothing in the record suggests that the defendant's ability to present his defense was impaired. Infact, the defendant does not claim specific prejudice resulting from the delay.

While "affirmative proof of particularized prejudice is not essential to every speedy trial claim," 112 S. Ct. at 2692, and "the presumptionthat pretrial delayhas prejudiced the accused intensifies over time," id. at 2691, we believe the facts in this case are distinguishable from those in Doggett .

The defendant in Doggett was charged with conspiracy to import and distribute cocaine. After his indic tment in 1980, Doggett, unaware of the charges pendi ng aga inst him, left the country. He was later arrested and imprisoned in Panama on another matter. The Drug Enforcement Agency (DEA) lear ned of Doggett's whereabouts and requested expulsion to the United States. The DEA did not pursue its request further until after Doggett had been released and apparently abandoned its search soon thereafter. In 1982, Doggett legally entered the United States and lived openly. I n 1988, the government conducted a routine credit check on fugitives. Consequently, Doggett was arrested. The Supreme Court1 7

held that Doggett had been deprived of his right to a speedy trial.

S i gnif icantly, while Doggett was in no way responsible for the delay in his case, Wood deliberately chose to f orgo a speedytrial request, hoping instead that the Tennessee charges would die of neglect. He acquiesced in the delay from the time he learned of the detainer in 1984 until 1990, after Alabama had offered conditional paro le. Any presumption of prejudice is weakened to some degree by the defendant's acquiescence in the delay. Therefore, the prejudice factor weighs in favor of the State.

W e find that the len gth o f the delay, on the one hand, and the lack of any justifiable reason for such delay, on the other hand, make this a close case. Nevertheless, balancing all of the Barker factors, we conclude that

1 . The length of the delay of thirteen years was presumptivelyprejudicial and weighs in favor of the defendant. 2 . The delay was caused by the State’s negligence and weighs in favor of the defendant. 3 . The defendant failed to assert his right to a speedy trial until eleven years had passed-- onlyafter he discovered the pending Tennessee charge was jeopardizing his parole in Alabama. This factor weighs in favor of the State.1 8 4 . The presumption of prejudice was weakened by the defendant's acquiescence in the delay. This factor weighs in favor of the State.

I nthe balancing analysis, the fourth factor is entitled t o the greatest weight. Accordi ngly, we conclude that the defendant was not deprived of his right to a speedy trial under federal or state constitutional principles.

We hold that the return of a sealed presentment engages
a n accused's right to a speedytrial. The fact that a defendant is incarcerated in another jurisdiction will not justify delay if the State knows his whereabouts. The St ate is primarily responsible for prosecuting an accused in a timely manner. For defendants who choose to risk that the State will ultimately decline to prosecute them, their acquiescence in the delay by failing to assert their right to a spe edy trial may serve to weaken any presumption of prejudice, depending, of course, on the nature of the case and the evidence presented. The judgment of the Court of Criminal Appeals is affirmed.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, C.J. Drowota, J. DISSENT: Reid, White, JJ.1 9