### IN THE SUPREME COURT OF TENNESSEE
AT JACKSON November 5, 2014 Session

STATE OF TENNESSEE v. MARLO DAVIS

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County
No. 0701813 W. Mark Ward , Judge

No. W2011

- 01548

- SC

- R11

- C D

– Filed June 3, 2015

Sharon G. Lee, C.J., concurring.

I concur in the C ourt’s opinion ; however

, I write separately to express my

concerns about the delay in the trial of this case and the evidentiary problems caused by the delay

. Quincy Jones was shot to death on November 9, 2006

. The Defenda nt was arrested on November 13, 2006

, and a prelim inary hearing was held on January 17, 2007. At the hearing, Jarcquise Spencer testified about what he saw at the time of the murder, including his recoll ection of seeing the Defendant pull a gun, point it at the victim

, and
shoot him.

A Shelby County grand jury indicted the Defendant on March 8, 2007

, and he was arraigned twelve days later. Defense counsel filed motions, including those for discovery, witness statements, impeaching statements, and exculpatory info rmation

. Then, the case languished in Shelby County Criminal Court , Division III for over three

years

. On August 25, 2010, n early four years after the murder and the Defendant’s arrest,
the t rial judge recused himself

. The case had been reset thirty

- one times , but never tried

. 1

The c ase was transferred to Judge W. Mark Ward, Shelby County Criminal Court

, Division IX

. Judge Ward got the case back on track. The case was tried in April 2011

, and sentencing was completed on May 19, 2011. 2 But when the case went to trial, Spenc er did not testify as to what h e had seen the day of the crime

. He claimed to have
no recollection of giving a statement to the police, testifying at the preliminary h earing

,

1 This info rmation was obtained from handwritten notes on the case jacket.

2 In all, the case was in Division IX for 267 days, as compared to the 1,266 days it spent idling in Division III between arraignment and recusal.- 2

-

or the events surrounding the murder. Rather, he claimed only to remember seeing the victim lying in the driveway and getting his g randmother a towel . This testimony stood
in stark contrast to Spencer’s statement to police and his preliminary hea ring testimony

, both given soon after the murder. Thus arose the thorny evidentiary issue of the admission of his preliminary hearing te stimony and his statement to police.

This case illustrates the danger of allowing a case to lay dormant while the wh eels of justice grind to a halt. With the passage of time, memories fade and witnesses become intimidated, move, pass away, or simply want to forget the events they witnessed. Spenc er was a ten

- year

- old child when the crime occurred and was not hesitant to testify. By the time of trial, he was fifteen years old and

, for whatever reason, could not or would
not recall the events that he had witnessed. Perhaps he was afraid to become involved, or perhaps he genuinely suffered memory loss. A delay of f ive years , a lon g time in the life
of a child

, serves no valid interest.

T imely adjudication of criminal charges is a right guaranteed by the United States
Constitution and is a foundational principle of our criminal justice system. The Sixth
Amendment to the United States Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and publi c trial.” U.S. Const. amend

. VI

. 3

Trial judges have an obligation to manage their dockets in a timely manner

. Tenn. Sup. Ct. R. 10, RJC 2.5. Defense lawyers and prosecutors have an ethical obligation to make reasonable efforts to expedite litigation

. Tenn. Sup. Ct. R. 8, RPC 3.2. Unlike many other states, Tenne s see has not adopted time standards for the disposition of
crimin al cases. 4 Model standards a dopted by the NCSC provide that 75% of overall

3 Despite being firmly rooted, this righ t to a speedy trial does not make every delay violative of an accused person’s constitutional rights. Delays in a trial may be permissible and are examined by

courts on a case

- by

- case basis. Solem v. Helm , 463 U.S. 277, 294 (1983); see also State v. Bish op , 493 S.W.2d 81, 83

- 84 (Tenn. 1973) (adopting the four

- part balancing test from Barker v. Wingo , 407 U.S. 514, 530

- 34 (1972) , for analyzing whether a criminal defendant’s Sixth Amendment right to a speedy trial has been violated). Although “the failure to demand a speedy trial is not a waiver of the right,” Bishop

, 493 S.W.2d at 84, in this case, there is no indication that the Defendant alleged a violation of his right to a speedy trial at the trial court, and the Defendant did not raise this issue on a ppeal. T he record does not
contain an explanation as to the cause of the delays or who req uested the many continuances.

4 The National Center for State Courts (“NCSC”) is an organization specializing in the
administration of state courts. N C S C reports that at least thirty

- nine states and the District of Columbia have time standards for felony cases. Richard Van Duizend et al., National Center for State Courts, Model Time Standards for State Trial Courts 5 (2011), http://ncsc.contentdm.oclc.org/cdm/re f/ collection/ctadmin/id/1836 [perma.cc/2D3W

- 3WVP]. Time standards are important in that they : 1) “provi d[e] goals for judges and other key participants in the court process to meet in managing caseloads,” 2) “ provid e a yardstick for measuring court perf ormance and management effectiveness,” 3) “ serv[e] as benchmarks for determining whether the pace of court proceedings is acceptable,” 4) “provid e a starting point for developing practices and procedures to meet the goals they set forth,” and- 3

-

felony cases should be decided with in 90 days, 90% within 180 days, and 98% within 365 days

. Duizend, supra , at 3.

Timely resolution of criminal case s serves several purposes . F irst, it p rotect s the rights of accused persons to a speedy trial

. Second, it demonstrates to the public that our system of justice works as intended. Citizens lose respect for a court system that does not, without adequate explanation or reason, timely dispose of cases. Third, defendants, victims, w itnesses, families, and the community need the closure of criminal proceedings to begin to heal from the detrimental effects of violent crime. Defendants who are found guilty need to begin serving their sent ences and working toward rehabilitation. Defendants who are found not guilty need to get on with their lives. Finally

, t imely disposition a llow s for more effec tive use of our criminal justice resources , including time spent in court on repeated resets of cases and the cost s of holding inmates in pretrial
detention. For all of these reasons, the timely resolution of criminal cases is essential to the pursuit of justice

.

_________________________________ SHARON G. LEE, CHIEF JUSTICE

5) positivel y affect “the use of available resources and the level of resource needs for judges, prosecutors, public defenders, law enforcement and jail personnel, and administrative support personnel.” Id. at 35.