          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                          FEBRUARY SESS ION, 1999         May 25, 1999

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,                )   C.C.A. NO. 03C01-9803-CR-00099
                                   )
            Appe llant,            )
                                   )   ANDERSON COUNTY
V.                                 )
                                   )
                                   )   HON . JAME S B. SC OTT , JR.,
HOLLY RALSTON,                     )   JUDGE
                                   )
            Appe llee.             )   (STATE AP PEAL)



FOR THE APPELLEE:                      FOR THE APPELLANT:

J. THOMAS MARSHALL, JR.                JOHN KNOX WALKUP
District Public Defe nder              Attorney General & Reporter

KATHERINE J. KROEGER                   ELIZABETH B. MARNEY
Assistant Public Defender              Assistant Attorney General
101 South Main Street, Suite 450       2nd Floor, Cordell Hull Building
Clinton, TN 37716                      425 Fifth Avenue North
                                       Nashville, TN 37243

                                       JAMES N. RAMSEY
                                       District Attorney General

                                       JANICE G. HICKS
                                       Assistant District Attorney General
                                       127 Anderson County Courthouse
                                       Clinton, TN 37716




OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                  OPINION
             In this case , the State appeals as of right from the trial court’s dismissal

of the indictment charging the Defendant, Holly Ralston, with two (2) counts of

driving on a revoked license and two (2) counts of failure to appear in violation of

Tennessee Code Annotated section 39-16-609. The trial court granted dismissal of

the indictment because it found that the Defe ndant’s rig hts to a speedy trial and due

process had been violated by delay in prosecution. After review of the record and

the briefs filed on behalf of the parties, we reverse the judgment of the trial court and

remand this case for further proceedings.



             The indictment charging Defenda nt was filed on April 1, 1 997. In

Count 1, the Defendant was charged with driving on a revoked license on or about

March 24, 1993. In C ount 2, the De fendant was charged with failure to appe ar in

Anderson County General Sessions Court on that charge on Mar ch 29, 19 93. In

Count 3, Defendant was charged with driving on a revoked license on or about

March 26, 1993, and in Count 4, the Defendant was charged with failure to appear

in Ander son Co unty General Sessions Court on that charge on April 12, 1993. The

rather sparse record in this case reflects that Defendant was initially released on a

citation in lieu of arrest for the driving on revoked license charge allege d to have

occurred on Mar ch 24, 19 93. Doc umen ts in the record also indicate that she was

arrested on bo th drivin g on re voked license charg es on Marc h 26, 1 993. T here is

one appearance bond in the amount of $1,5 00.00 execu ted M arch 2 6, 199 3. This

bond was apparently for the offense pertaining to the March 26, 1993 incident and

indicated that she was to appear in court on April 12, 1993. Defendant was charged

by an arrest warran t with failure to appear for the scheduled court appearance on

                                           -2-
one driving on revoked license charge on March 29, 199 3. She was also charged

with failure to appear on April 12, 1993 on the other driving on revoked license

charge. On Janu ary 21, 1997, all four (4) charges were bound over to the Anderson

County gra nd jury.



             No testimony was presented by either the State or the Defendant at the

hearing on the motion to dismiss. Evidentiary portions of the record consist of

docum ents showing that Defendant was in jail and had court appearances in

Anderson County General Sessions Court on numerous occasions between March,

1993 and April, 1997. Records also show that Defendant was incarcerated in the

Ande rson C ounty Ja il for some periods o f time betw een the se pertine nt dates.



             There is no indica tion on eith er warran t charging failure to ap pear as to

when Defen dant wa s served with these warrants . However, it is noted on each one

that the public defender was appointed to represent Defendant on October 28, 1996.



             Our su preme court ha s recen tly noted tha t:

      Like the other courts that follow the majority view, this Court has
      determined 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 are required.


State v. Utley, 956 S.W .2d 489 , 493 (T enn. 19 97) [citation s omitted ].




             Even if Defendant was “arrested” on the failure to appear charges as

early as October, 1996, a delay of indictment by the grand jury until A pril 1, 199 7 is

not “presumptively prejudicial” requiring further inquiry into violation of a right to a


                                           -3-
speedy trial regardin g the two charge s of failure to a ppear. See State v. Wood , 924

S.W .2d 342, 346 (Tenn. 199 6).



              The State argues that only one (1) of the driving on revoked license

charges is subject to speedy trial violation analysis, that being the charge for which

Defendant made a bond in the am ount of $1 ,500.00 after arrest. Ho wever, bo th

warran ts charging driving on a revoked license reflect on the face of the document

that Defendant was “arrested” for the charge of driving on revoked license. Absent

some proof in the record, i.e. testimony, to contradict what is on the face of the

warran t, we will accept that Defendant was arrested for both charges of driving on

a revoked license in March, 1993. Therefore, the delay in prosecution of the driving

on revoke d licen se ca ses is s ubjec t to ana lysis of a poss ible viola tion of D efend ant’s

rights to a spe edy tria l.



              In Wood, our suprem e court recognized that the United States Supreme

Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),

adopted a balancing test to determine whether a defendant’s Sixth Amendment

rights to a speedy trial have been denied. The Barker analysis was adopted by the

Tennessee Supreme Court in State v. Bishop, 493 S.W.2d 81, 83-85 (T enn. 1973 ).

See Wood , 924 S.W .2d at 346 .




              The four (4) factors which must be balanced are as follows:

       (1)    The   leng th of the delay.
       (2)    The   reas on for the delay.
       (3)    The   defen dant’s asse rtion of [h er] right to a sp eedy tr ial.
       (4)    The   prejud ice resulting to the de fendant from the delay.



                                              -4-
Id.


              The delay of four (4) years from arrest in March, 1993 until indictment

in April, 1997 on the two (2) charges of driving on revo ked lice nse re quires analys is

of the remaining three (3) factors. The length of the delay weighs favorably for the

Defen dant.



              Our supreme court noted tha t the second fa ctor, reason for the d elay,

falls generally into one of four categories:

      (1)     Intentional delay to gain a tactical advantage over the defense or
              delay de signed to haras s the defe ndant.
      (2)     Bureaucratic indifference or negligence.
      (3)     Delay necessary to the fa ir and effective prosecution of the case.
      (4)     Delay caused, or acquiesced in, by the defense.


Wood, 924 S.W .2d at 346 -47.



              There is nothing in this record to indicate that the delay was intentional

to gain a tactical advantage over the Defendant or to harass the Defendant.

Likewise, there is absolutely nothing in the record to indicate that the delay was

necessa ry for the fair and eff ective prosecution of the case. However, it can be

inferred from this record that a portion of the delay was directly due to bure aucra tic

indifference or negligence. Likewise, it can be inferred that the delay was caused,

or acqu iesced in , by the De fendan t.



              Defendant was given a trial date on each charge of driving on a revoked

license. The trial date on each case was within one (1) month of her arrest on each

charge. From the rec ord, it is apparent that the Defend ant failed to appea r in court

for either charge.    We find from this partic ular rec ord, tha t the “bu reauc ratic

                                           -5-
indifference or negligence” cause for the delay is equaled by, or surpassed by,

Defe ndan t’s acquiescence and/or action in failing to appear which contributed to the

delay.



              From the record, it appears that the earliest Defen dant would h ave

asserted her righ t to a sp eedy tr ial on the charges of driving on a revoked license

was in October, 1996. The Defendant argues that she made appearances in the

General Sessions Court on unrelated charges on numerous occasions between

1993 and 1997, and that the State should have pursued the driving on revoked

license charges du ring any one o f these occas ions. Howe ver, Defe ndan t’s ana lysis

is a two-edged sword. On any of these occasions, she could have also asserted her

right to a speedy trial on th e cha rges o f driving on a re voked license .         Wh ile

Defendant does not automatically waive a right to a speedy trial by failing to assert

it, “[f]ailure to assert the right implies a defendant does not actively seek a swift trial.

‘[E]vidence that the defen dant d id not want a speedy trial would never warrant the

finding of a constitutional violation except in ‘extraordinary circumstances.’” (Quoting

from State v. Baker, 614 S.W .2d 352 , 355 (T enn. 19 81)). ( Wood, 924 S.W.2d at

347).



              Our supreme court in Wood, viewed the fourth factor, whether the

defendant has suffered p rejudice by delay, as the most im portant fa ctor. Id. at 348

(citations omitted). Defendant argues that she was prejudiced because she, as

allege d in the motion to dismiss, had lost the “po ssibility of con current s entenc es.”

In Wood , defendant was charged with murder in a presentment returned by the

Williamson Coun ty grand ju ry in Septe mber, 1 979. At the time of this indictm ent,

defendant was in custo dy in the State of Alabama awaiting trial on an unrelated

                                            -6-
murder charge. He was convicted in Alab ama. In Ma rch, 1984, a de tainer was

lodged against defendant and d efend ant be cam e awa re of this detain er sho rtly

thereafter. However, defendant did nothing regarding the de tainer a gains t him u ntil

six (6) yea rs later in 1990 . The o pinion in Wood , 924 S.W.2d at 348, reflects that

defendant did not seek legal assistance or demand a speedy trial on the Tennessee

charge until he found out tha t his pend ing pa role in Alabama would be conditioned

upon his return to Tennessee for trial on the murder charge in th is state. The

Tennessee Supreme Court in Wood noted as follows:

       Hence, we infer that the defendant did not necessarily want a speedy
       trial in Tennessee. After all, had the Tennessee charge ultimately died
       of neglect, there w ould have been no impediment to an unconditional
       parole in Alaba ma. As serting his right to trial would have prevented
       that, and it would have expose d the de fendan t to the risk of a
       Tenn essee conviction .


Wood, 924 S.W .2d at 348 .



              The supreme court in Wood found tha t the defen dant

       deliberately chose to forgo a speedy trial request, hoping instead that
       the Ten ness ee ch arges would die of n eglect. He acquiesced in the
       delay from the time he learned of the detainer in 1984 until 1990, after
       Alabama had offered conditional parole. 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.


 Wood, 924 S.W .2d at 348 -49.
           From this record, it appears that Defendant Holly Ralston acquiesced

in the delay, and we can infer that she, in essence, like the defendant in Wood ,

hoped that the charges would “die by neglect.” Since there is no proof in the record

of actual p rejudice, th is factor we ighs in favo r of the Sta te.




                                             -7-
              Analyzing the four (4) factors of Barker v. Wingo, we find tha t the length

of the delay weighs in favor of the Defendant, and of the other three (3) factors,

(a) the rea son fo r the de lay is neutral, (b) the D efenda nt’s asse rtion of her rig ht to

a speedy trial weigh s in favor of the State, and (c) the last, and most important

factor, prejudice resulting to the Defe ndant from the delay, weighs in favor of the

State. Therefore, we hold that Defendant’s constitutional rights to a speedy trial

were not denied in this case regarding the charges for driving on a revoked license.



              W hile we have held that the Defendant’s constitutional rights to a

speedy trial were not implicated on the charges of failure to appear, we mus t still

examine whether or not the Defendant was denied her right to due process because

of the delay in prosecuting these charges. We hold that her rights to due process

were no t violated. In addition, we conclude that Defendant’s rights to due process

were not violated by the delay in prosecution of the driving on revoked license

charges.



              In Utley, our supreme court quoted from its previous decision in State

v. Gray, 917 S.W.2d 668 (Te nn. 1996), and noted that for a defendant to show a

violation of the right to due process resulting from a delay in prosecution, the

defendant must prove:

       (1)    There wa s a delay.
       (2)    The accused sustained actual prejudice as a direct and
              proximate res ult of the delay.
       (3)    The State caused the delay in order to gain tactical advantage
              over or to harass the accused.

Utley, 956 S.W.2d at 495 (citing Gray, 917 S.W .2d at 671).




                                             -8-
The supreme court also recognized that while the need to show prejudice in relation

to a speedy trial claim may h ave be en rela xed, the need to sho w actu al preju dice in

relation to a due pro cess cla im is still requ ired. Id.



              Our review of the record re flects that the re is no pro of that the S tate

caused a delay in order to gain tactical advantage over or to harass the accused and

there is no proof of actual prejudice sustained by the Defendant as a “direct and

proxima te result” of the delay in pro secuting the case s. Therefore, we find that the

Defendant’s rights to due process as guaranteed by the United States and

Tenn essee Constitu tions have not bee n violated.



              As we have concluded that neither the Defendant’s rights to a speedy

trial or her rights to due process have been violated, we conclude that the indictment

shou ld not have been dismissed pursuant to Rule 48, Tennessee Rules of Criminal

Proced ure.




                                       C ONCLUSION



              For the reasons stated herein, the judgment of the trial court is

reversed, the indictme nt is reinstate d, and this matter is re mand ed to the trial court

for further proceedings.




                                             -9-
                         ____________________________________
                         THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
L. T. LAFFERTY, Senior Judge




                               -10-
