State v. Donald McKinney ( 1999 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE                FILED
    JULY SESSION, 1999               July 23, 1999
    Cecil W. Crowson
    STATE OF TENNESSEE,            )                     Appellate Court Clerk
    C.C.A. NO. 01C01-9808-CR-00346
    )
    Appe llant,              )
    )
    )      DAVIDSON COUNTY
    VS.                            )
    )      HON. FRANK G. CLEMENT, JR.
    DONALD MCKINNEY,               )      JUDGE
    )
    Appellee.                )      (Direct Ap peal - D UI)
    FOR THE APPELLANT:                    FOR THE APPELLEE:
    HOLLIS I. MOORE, JR.                  PAUL G. SUMMERS
    Office of the Metro Public Defender   Attorney General & Reporter
    1202 Stahlman Building
    Nashville, TN 37201                   MARVIN E. CLEMENTS
    Assistant Attorney General
    425 Fifth Avenu e North
    Nashville, TN 37243
    VICTOR S. JOHNSON
    District Attorney General
    EDWARD S. RYAN
    Assistant District Attorney
    Washington Sq., Ste. 500
    Nashville, TN 37201-1649
    OPINION FILED ________________________
    REVERSED AND REMANDED
    JERRY L. SMITH, JUDGE
    OPINION
    On January 18, 1998, the Davidson County Grand Jury indicted Appellee
    Donald McKinney for driving under the influen ce of an in toxicant, sixth offense.
    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 indictment, raising the following issue: whether the trial court
    erred when it determ ined th at the in dictm ent sh ould be dismissed because
    Appe llee’s right to a speedy trial had been violated. After a review of the record,
    we find that neither Appellee’s rights to a speedy trial nor his rights to due
    process of law were violated 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 this case occurred on March 29, 1995. Arrest
    warran ts were issued on May 2, 1995, but for some reason the warrants
    remain ed uns erved un til January 1 , 1998.
    At the hearing on this issue, Appellee argued that the indictment should be
    dismissed because the delay between the alleged offense and the serving of the
    warran ts had violated his right to a speedy trial. Appellee contended that he was
    prejudiced by the de lay beca use he was pre vented from obtaining the blood
    sam ple taken at the time o f the alle ged o ffense so tha t indep ende nt tests could
    be conducted.
    -2-
    The trial court dismissed the indictment after finding that the delay between
    the alleged offense and the serving of the warrants had violated Appellee’s right
    to a speedy trial. However, the trial court made no finding as to whether Appellee
    had been prejudiced by the delay.
    ANALY SIS
    The State contends that the trial court erred when it dismissed th e
    indictment merely because of the delay betwee n the da te of the alleged offense
    and the date on which the warrants were served. We must agree.
    A. Right to a Speedy Trial
    The United States and Tennessee Constitutions guarantee the criminal
    defendant the 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 trial
    is also statutory in Tennessee. See Tenn . Code Ann. § 4 0-14-10 1 (1997 ). In
    addition, the Te nnes see R ules o f Crim inal Procedure provide for the dismissal
    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 jury against a defendant
    who has been held to answer to the trial court, or if there is unnecessary delay
    in bringing a defe ndant to trial . . . .” Tenn. R. Crim . P. 48(b).
    The Tennessee Supreme Court has stated that “a warrant alone does not
    trigger speedy trial analysis; to the contrary, a formal grand jury action or the
    actual restraints of an arrest a re required.” Utley, 956 S.W .2d at 493 . This is
    -3-
    because “it is at this stage of arrest and grand jury action that the significant
    interests served by the rig ht to a s peed y trial are mos t directly im plicated: the
    protection against oppressive pre-trial incarceration and the reduction 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 trial was not
    implicated when the alleged offense occurred on March 29, 1995, or when the
    warran ts were issued on May 2, 1995. Rather, Appellee’s right to a speedy trial
    was not implica ted un til the warrants were served on January 1, 1998. Appellee
    asserted that his right to a speedy trial was violated on July 7, 1998, and the trial
    court dismissed the indictment 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 dismissal of a prosecution based upon the
    denial of the constitutional right to a speedy trial, the accused must establish 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. United 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. 2d 101
     (1972). The length of the delay
    is dependent upon the 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 longer marks the point at which courts deem the delay
    unrea sona ble enoug h to trigger fu rther inqu iry.   Utley, 956 S.W .2d at 494;
    Dogg ett, 505 U.S. at 652, n.1, 112 S.Ct. at 2691, n.1. If this threshold is crossed,
    a balan cing te st dete rmine s the m erits of th e spe edy tria l issue. In State v.
    -4-
    Bishop, 493 S.W .2d 81, 83–8 5 (Tenn. 1973), the Ten nessee S upreme Court
    recognized and adopted the balancing test set forth in Barker in which four
    factors must be balanced. The factors are (1) the length of the delay, (2) the
    reasons for the delay, (3) the accused’s assertion of the right to speedy trial, and
    (4) the prejud ice resulting from the delay. Barker, 407 U.S . 514, 531 , 
    92 S. Ct. 2182
    , 2 192; Bishop, 493 S.W.2d at 83–84.
    Here, the length of time was not presumptively prejudicial. The warrants
    were served on January 1, 1998, Appellee was indicted on January 18, 1998, and
    the trial court dismissed the indictment on July 16, 1998. Because this period of
    appro ximate ly six and one half months was less than one year, the period was
    not presu mptive ly prejud icial. Th erefor e, without addressing the remaining
    factors, we conclude that Appellee’s right to a speedy trial was not violated under
    the United States or Tennessee Constitutions. Thus, the trial court erred when
    it dismisse d the indic tment b ased o n a violation of this right.
    B. Due Process
    The Tennessee Supreme Court has stated that “[a] delay that does not
    implicate the speedy trial right may still raise due pro cess concerns under the
    Fifth and Fourteenth Amendments to the United States Constitution and Article
    I, § 9 of the Tenn essee C onstitution.” Utley, 956 S.W .2d at 495. Ho wever,
    [b]efore an accused is entitled to relief based upon the delay between the
    offense and the initiation of adversarial proceedings, the accused must
    prove that (a) there was a delay, (b) the accused sustained actual
    prejudice as a direct and proximate re sult of the d elay, and (c) the Sta te
    caused the delay in order to gain tactical advantage over or to harass the
    accuse d.
    -5-
    Id. (citation omitted).
    Obviously, Appelle e has d emon strated that the re was a dela y of sligh tly
    less than thre e years b etween the date o f the allege d offense and the initiation
    of adversarial proceedings against h im. Although Appellee contended during the
    hearing that he was prejudiced by the delay in that he was thereby prevented
    from obtaining the blood sam ple for in depe nden t testing , he did not introduce any
    evidence to support this claim nor did he introduce any evidence that
    independent testing would have yielded a result that wa s favorab le to him. In
    addition, Appellee neither contended nor introduced any proof that the delay was
    caused by the State for the purpose of gaining a tactical advantage. Under these
    circumstances it appears that the delay in serving the arrest warrants was not so
    egregious that Appellee’s rights to due process of law were violated.
    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. SMITH, JUDGE
    CONCUR:
    ___________________________________
    THOMAS T. WOODALL, JUDGE
    ___________________________________
    NORMA MCGEE OGLE, JUDGE
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Document Info

Docket Number: 01C01-9808-CR-00346

Filed Date: 7/23/1999

Precedential Status: Precedential

Modified Date: 10/30/2014