             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE               FILED
                              JUNE 1999 SESSION
                                                           September 10, 1999

                                                            Cecil Crowson, Jr.
                                                           Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )   C.C.A. No. 01C01-9809-CR-00359
      Appellant,                      )
                                      )   Davidson County
v.                                    )
                                      )   Honorable Frank G. Clement, Jr., Judge
JIMMY FERGUSON,                       )
                                      )   (State Appeal)
      Appellee.                       )




FOR THE APPELLANT:                        FOR THE APPELLEE:

PAUL G. SUMMERS                           JERRED A. CREASY
Attorney General & Reporter               176 Second Avenue North, Suite 500
                                          Nashville, TN 37201
ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493

VICTOR S. JOHNSON, III
District Attorney General

EDWARD S. RYAN
Assistant District Attorney General
222 Second Avenue North, Suite 500
Nashville, TN 37201-1649




OPINION FILED: ________________________________


REVERSED; INDICTMENT REINSTATED
ALAN E. GLENN, JUDGE
O P I N IO N


      On July 6, 1994, the defendant, Jimmy Ferguson, was involved in a one-car

accident. Warrants were issued that day, charging the defendant with driving under the

influence and driving on a revoked license. He was indicted for these charges on March

30, 1998. There is no indication in the record that the state attempted to serve these

warrants until March 30, 1998, when the defendant was arrested on other charges. The

defendant was arraigned and pleaded not guilty on May 14, 1998. The trial court held a

hearing on July 30, 1998, upon the defendant’s motion to dismiss the two-count

indictment on the grounds his right to a speedy trial and to due process of the law had

been violated and the delay between issuing the warrants and serving the warrants

constituted unjustifiable delay by the state. At the conclusion of the hearing, the trial

court dismissed the indictment, and the state appealed. Based upon our review of the

record and of applicable law, we reverse the decision of the trial court and reinstate the

indictment.



      The trial court held a thorough hearing in this matter, allowing attorneys for both

the state and the defense to present arguments in support of their respective positions.

Based upon statements of counsel during this hearing, it appears that the state’s proof

regarding the defendant’s alleged intoxication would not have included results from a

breath alcohol test.   As a result, eyewitness testimony of those who observed the

defendant at the time of the alleged offense would become important to both sides in

establishing their positions. However, defense counsel candidly admitted to the trial

court that the persons who were with his client shortly before the defendant operated

the vehicle and was arrested consisted of the defendant’s ex-wife and some of her

family members, persons described as “hostile” to the defendant. Thus, it appears that

the delay did not cause beneficial eyewitness testimony to be lost to the defense.



                                DISCUSSION OF LAW


      At the conclusion of the hearing, the trial court dismissed the indictment based on
the defendant’s claim that the almost four-year delay between the time he was charged

and the time he was indicted constituted a denial of his right to a speedy trial. The court

acknowledged that a strict application of the law required denial of the defendant’s

motion to dismiss. However, the court stated that the administrative delay and the

absence of victims involved in the charged offenses warranted dismissal of the

indictment. Despite the long delay, the existing law applicable to the Sixth Amendment

right to a speedy trial and the Fifth Amendment right to due process conflict with the trial

court’s decision to dismiss the charges against the defendant. For this reason, we

reverse the decision of the trial court and reinstate the indictment.



       In determining if there has been a violation of the constitutional right to a speedy

trial, only the time between the commencement of adversarial proceedings and the

commencement of the trial will be considered; while, in determining if there has been a

violation of constitutional due process, the time between the commission of the offense

and the commencement of prosecution will also be considered. State v. Carico, 968

S.W.2d 280, 284 (Tenn. 1998).



       Either a formal grand jury action or the restraints of arrest are required to trigger

the right to a speedy trial under the Sixth Amendment to the United States Constitution

and Article I, § 9 of the Tennessee Constitution. State v. Utley, 956 S.W.2d 489, 492

(Tenn. 1997) (citing United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30

L.Ed.2d 468 (1971)). Although the state did not indict the defendant for almost four

years after the offense, the delay between the indictment and the dismissal of the

charges against the defendant was only four months. These facts do not evidence a

violation of the right to a speedy trial.



       A delay between the commission of an offense and the initiation of adversarial

proceedings may raise due process concerns under the Fifth Amendment to the United

States Constitution and Article I, § 9 of the Tennessee Constitution. Utley, 956 S.W.2d

at 495. To determine whether a due process violation has occurred when the state is

                                                    3
aware that an offense has been committed, the defendant must establish: (1) a delay

has occurred; (2) the delay caused prejudice to the defendant's right to a fair trial; and,

(3) the state caused the delay to obtain a tactical advantage. Utley, 956 S.W.2d at 495

(citing State v. Gray, 917 S.W.2d 668, 671 (Tenn. 1996)).



       In the case sub judice, obviously a delay has occurred. The most important

question, although not determinative in every case, is whether the delay caused any

prejudice to the defendant. Carico, 968 S.W.2d at 285. The trial court specifically found

that no prejudice had resulted from the almost four-year delay. A review of the record

reveals nothing to alter this conclusion. Additionally, no evidence exists that the state

caused the delay to obtain a tactical advantage.1 Thus, the defendant was not deprived

of due process as a result of the almost four-year delay.



       For these reasons, we reverse the decision of the trial court and reinstate the

indictment.



________________________________________
                                ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JOSEPH M. TIPTON, JUDGE




____________________________________
JOE G. RILEY, JUDGE




       1
           Based upon statements made by the trial court in the hearing in this matter, it appears that

the initial warrants may not have been served upon the defendant beca use o f certa in bur eau cratic
prob lems which had occu rred in othe r case s as w ell.
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