FILED

May 6, 1996

Cecil W. Crowson

Appellate Court 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 permission to 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 a pias is executed or unexecuted, is a formal accusation tha t

engages constitutional speedy tr ial provisions. Thus, we must

apply the criteria of Bark er v. Wingo 2

 and State v. Bishop 3 to

determine whether the thirteen-year delay in this 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.

A Williamson 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

Williamson County 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

Williamson County 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 n June 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 n March 1990, the defendant wrote the Williamson County

court clerk inquiring about the detainer; the clerk did not
6

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 com ply 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 Williamson County 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.

When he 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, she
7

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

victim was 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

follow the van, but lost it. She never saw the victim alive again.

Later that eve ning, the defendant was observed in

possession of 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 them that 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

been thrown. Several days later, the victim's girlfriend saw a

newspaper article that included a photograph of the defendant. She

immediately contacted 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 Kentucky
6

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

with the 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

difficulty recalling 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 possession of a firearm in the commission of murder. In

addition to 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 permitting
8

I n fir st-d egree murder cases the protection offered by a

statute of limitation does not exist since there is no statute of

limitation for that crime. See Tenn. Code Ann. § 40-2-101(a)

7

approximately thirteen 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

from the delay. The rational e u nderlying this requirement, the

State says, is that the purpose for the speedy trial 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 incarceration and, 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 limitation protect

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

penitentiary during 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 Sixth Amendment."

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 jury action . 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 indictment
9

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

unsealed indictments.

A sealed 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

speedy trial 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 n our opinion, the better reasoned cases recognize that

even though a defendant under a sealed indictment does not suffer

restraint on his or her liberty or the anxiety and humiliation that

accompany a public accusation, such a defendant still has a strong

interest in preserving his or her ability to prepare for trial.

Lengthy delays 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 potentially exculpatory

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

speedy trial 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

Sixth Amendment. This test involves the balancing of four factors:

(1) the length of 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 adopted
1 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

mechanism that 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

delay has 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

delay necessary 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

delay is, 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 in this case resulted from gross negligence by

the State. The District Attorney General testified that he knew

the defendant was in custody in 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

knew that 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

ultimately chooses 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

ability to 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 determination of 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 speedy trial is one factor to consider in the

overall balance in determining whether the right has been

unconstitutionally deprived. Id. at 528. A defendant's assertion
1 3 However, an accused who is unaware that charges are pending

against him or her, as is often the case where an indictment has

been sealed 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

actively seek 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. Even after 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 by
1 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

been prejudiced by inordinately long pretrial incarcerat i on, or

whether he or she has been subjected to the stress and anxiety that

accompany a public accusation over an extremely long period of

time. It is often extremely difficult, however, for a defendant to

demonstrate specifically how the delay has impaired his ability to

defend himself. Courts have recognized this difficulty and

c o n s equently do not necessarily require a defendant to

affirmatively prove 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

presumptively compromises the

reliability of a trial in ways that

neither party can prove or, for that

matter, identify. While such

presumptive prejudice cannot alone

carry a 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. In fact, 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 presumption that pretrial delay has 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 Court
1 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

speedy trial 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 presumptively prejudicial 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--

only after 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 n the 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 speedy trial. 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