                                                     FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE
                                                          May 28, 1998
                          FEBRUARY 1998 SESSION
                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )
             Appellee,                )    C.C.A. No. 01C01-9703-CC-00100
                                      )
vs.                                   )    Giles County
                                      )
WILLIAM RONALD JORDAN,                )    Hon. William B. Cain, Judge
                                      )
             Appellant.               )    (Attempted Robbery, DUI)



FOR THE APPELLANT:                         FOR THE APPELLEE:

SHARA ANN FLACY (at trial and on appeal)   JOHN KNOX WALKUP
District Public Defender                   Attorney General & Reporter

WILLIAM C. BRIGHT                          DARYL J. BRAND
Asst. District Public Defender             Asst. Attorney General
P.O. Box 1208                              425 Fifth Ave. North
Pulaski, TN 38478-1208                     Cordell Hull Bldg., 2d Floor
                                           Nashville, TN 37243-0493
GREGORY D. SMITH (on appeal)
Attorney at Law                            T. MICHAEL BOTTOMS
One Public Sq., Ste. 321                   District Attorney General
Clarksville, TN 37040
                                           RICHARD H. DUNAVANT
                                           Asst. District Attorney General
                                           P.O. Box 304
                                           Pulaski, TN 38478-0304



OPINION FILED:___________________

AFFIRMED

CURWOOD WITT, JUDGE
                                      OPINION

              The defendant, William Ronald Jordan, appeals following his

convictions of attempted robbery and driving under the influence. He received his

convictions in the Giles County Circuit Court after a jury trial. He is presently

incarcerated in the Department of Correction serving his effective six year sentence

consecutively to his sentence for a previous conviction. In this direct appeal, Jordan

claims that the trial court erroneously failed to instruct the jury on the affirmative

defense of renunciation and that he was denied a speedy trial. Having reviewed the

briefs and arguments of the parties, the record, and the applicable law, we find no

reversible error and affirm the judgment of the trial court.



              At trial, the state presented the testimony of Billy Kennedy, a loan

officer of the Bank of Frankewing. On May 23, 1994, one of the tellers escorted the

defendant to Kennedy's office. The defendant inquired about obtaining a loan, and

Kennedy filled out a loan application for the defendant and said he would have an

answer the following day. During his encounter with the defendant, Kennedy

smelled alcohol. The defendant left Kennedy's office and started across the bank

lobby Kennedy saw the defendant get a piece of paper out of his pocket then

proceed to a teller window. The defendant stood at the teller window for a few

minutes, then left the bank. Thereafter, Kennedy learned from the teller that the

defendant had given her “a holdup note” and observed the defendant drive away

in a blue Ford Escort station wagon. He obtained the license plate number and

provided this information to law enforcement. Kennedy found a piece of that note

where the defendant’s car had been parked.



              Sue Coggins testified the defendant came to her teller window and

gave her a folded up note. She opened the note, and it said the defendant wanted

money and would kill her if she did not cooperate. The note scared Coggins;

                                          2
nevertheless, she said she did not "have any." The defendant said, "Don't have any

what?" Coggins told the defendant he would have to see one of the loan officers.

She either gave the note back to the defendant or laid it down, and the defendant

took it and walked out of the bank. Coggins smelled alcohol on the defendant.



              Deputy Kyle Helton of the Giles County Sheriff's department

apprehended the defendant about 45 minutes after the attempted robbery. At the

time Helton stopped the defendant, Jordan was on a private road headed toward

a public roadway. Helton noticed a strong smell of alcohol on the defendant's

breath and observed that the defendant was unsteady on his feet. Jordan was

unable to successfully complete two field sobriety tests.     Thereafter, Jordan

registered .22 on an intoximeter test.



              Special Agent Robert Childs of the FBI and Investigator Michael

Chapman of the Giles County Sheriff's Department interviewed the defendant. On

May 24, 1994, Jordan told Agent Childs and Investigator Chapman that he had

attended a picnic at a rock quarry two days earlier. The next day, which was the

day of the attempted robbery, he returned to the rock quarry and drank whiskey and

beer with the quarry owner, Steve Houston. The defendant was "wild on booze"

and could not remember clearly. He claimed to be an alcoholic with memory loss.

However, he told Chapman and Childs that sometime in the afternoon he went to

the Bank of Frankewing and applied for a loan. He had no recollection of the

attempted robbery or the robbery note. He did not recall talking with anyone other

than a loan officer.



              Agent Childs spoke with the defendant a second time, on June 2,

1994. During the time between April 24 and May 2, the defendant conferred with

counsel but requested the conference with Agent Childs that occurred on May 2.

                                         3
Jordan claimed that he had known Steve Houston in his past. He and Houston

were becoming reacquainted around May 23. On the day of the attempted robbery

Houston and Jordan were drinking at the rock quarry. Jordan told Houston about

spending time in jail for bank robbery. Houston did not believe this, so Jordan went

to his car and wrote a note like the one he had used in robbing a bank in Nashville.

The note said, "This is a robbery. Give me all your bills. I don't want to see no dye

bomb or see you push no alarm or I'll kill you. You now have 15 seconds." Jordan

messed up while writing this note and threw it in the quarry. He borrowed a piece

of paper and wrote another note. He showed it to Houston then put it in his pocket.

Later a man and woman at the quarry whose names the defendant did not recall

went with the defendant to the bank. The man drove the defendant's car, and the

woman followed in another car. The man had something to do, and the couple left

the defendant and his car at the bank. The defendant went inside the bank and

talked with the loan officer. Afterwards, he approached a teller and asked her for

a roll of quarters. He had a $10 bill in the same pocket as the robbery note he had

shown Houston, and he mistakenly gave the teller the note instead of the $10 bill.

When the defendant realized what he had done, he snatched the note away from

the teller and left the bank. On his way back to the quarry, he tore up the note and

threw it out the window after he turned off the highway. The defendant claimed a

piece of the first robbery note must have fallen out of the car when he exited the car

at the bank.



               Agent Childs testified that he not been able to locate "Steve Houston."

He had, however, interviewed Houston Lewis Smith, the owner of the rock quarry.



               Investigator Michael Chapman recalled seeing the defendant in the

jail lobby sitting by the intoximeter machine on May 23. He could tell the defendant

had been drinking, although the defendant appeared coherent.

                                          4
                Houston Lewis Smith testified for the prosecution.      He saw the

defendant on the day of the attempted robbery and the two previous days. The

defendant was drinking on May 24. Smith noticed that the defendant left the rock

quarry in the afternoon in his vehicle, and he returned about 20 to 30 minutes later.

Smith heard that the bank had been robbed by an individual driving a car like the

defendant's, and he called the Sheriff's Department to report the defendant's

presence on his property. In stark contradiction to the defendant's statement, Smith

said the defendant never told him about a robbery in Nashville or showed him a

robbery note.



                The defendant did not testify and offered as his only witness Carolyn

Sue Watson, a teller at the Bank of Frankewing. She recalled the defendant

coming into the bank asking to speak with a loan officer. She could smell liquor on

his breath, and he was mumbling. She took him to Mr. Kennedy's office. Later,

when Jordan left Kennedy's office, W atson saw him stop and look for something in

his pocket or billfold. He took out something white. As he was standing at Coggins'

teller window, she heard him say "You don't have any what?" or something similar.

She did not hear Jordan ask Coggins for a roll of quarters. Watson also did not see

any physically threatening behavior from the defendant, such as display of a

weapon or grabbing Coggins.



                The court denied the defendant's requested instruction on the defense

of renunciation as to the attempted robbery charge. Thereafter, the jury returned

guilty verdicts on both the DUI and attempted robbery charges.



                                           I

                First, Jordan claims the trial court should have given his requested

instruction on renunciation. In support of his argument, he points to the fact that

                                          5
when Coggins told him she had no money, he "quietly left" the bank rather than

proceeding further. The state counters that Jordan failed to fairly raise the issue by

presenting any proof of renunciation and that, therefore, the court had no obligation

to submit a renunciation instruction. Specifically, the state claims the defendant's

act of leaving when he failed to complete the act of robbery is insufficient

renunciation of his crime.



              Renunciation is an affirmative defense. Tenn. Code Ann. § 39-12-104

(1997). In order for a defendant to avail himself of an affirmative defense at trial,

he must "fairly raise" it, Tenn. Code Ann. § 39-11-204(d) (1997), and he must

establish it by a preponderance of the evidence. Tenn. Code Ann. § 39-12-104,

Sentencing Comm'n Comments (1997). But see State v. Jackson, 946 S.W.2d 329,

332 (Tenn. Crim. App. 1996) (renunciation must be raised by a preponderance of

the evidence) (emphasis added) (Smith, J., concurring), perm. app. denied (Tenn.

1997).   In making its determination whether an affirmative defense such as

renunciation has been "fairly raised" by the evidence and therefore requires the

appropriate jury instructions, see Poe v. State, 212 Tenn. 413, 370 S.W.2d 488

(1963), the trial court "must assess the defendant's position without ascertaining its

truthfulness or the weight to which it might be entitled." State v. Ivy, 868 S.W.2d

724, 726 (Tenn. Crim. App. 1993) (citations omitted); see also State v. Shropshire,

874 S.W.2d 634, 639 (Tenn. Crim. App. 1993); State v. Dorie Miller Currin, No.

02C01-9201-CC-00018, slip op. at 7 (Tenn. Crim. App., Jackson, Aug. 26, 1992).



              In pertinent part, renunciation "is an affirmative defense to a charge

of criminal attempt. . . [where the defendant], after committing the criminal attempt

. . . prevented the successful commission of the offense attempted . . . under

circumstances manifesting a complete and voluntary renunciation of the

[defendant's] criminal purpose." Tenn. Code Ann. § 39-12-104 (1997). The

                                          6
Sentencing Commission Comments further illustrate the situation in which the

defense will apply: (1) the defendant must prevent successful completion of the

ultimate offense, and (2) he must voluntarily renounce the criminal purpose. Tenn.

Code Ann. § 39-12-104, Sentencing Comm'n Comments (1997).



              The defendant's second statement provides proof of each element of

renunciation. The defendant is charged with criminal attempt, one of the crimes to

which the defense applies.       There is evidence the defendant prevented the

successful completion of the crime attempted and that he did so under

circumstances manifesting his complete and voluntary renunciation of his criminal

purpose. According to Agent Childs's testimony, the defendant stated that he

accidentally gave Teller Coggins the robbery note instead of a $10 bill. When the

defendant realized what he had done, he panicked, snatched the note and left the

bank. Viewing this evidence without regard to its apparent veracity or its proper

weight, it fairly raises the defense of renunciation.1 Objectively, this evidence might

be used by a jury to determine that the defendant thwarted his attempted robbery

by grabbing the note and leaving, thereby preventing successful completion of the

offense, and further, his actions were voluntary in repudiating the attempted

robbery. Cf. Jackson, 946 S.W.2d at 332 (jury properly instructed on renunciation

where defendant stabbed his girlfriend and waited for her to die, but then changed

his course of action and summoned medical help for her) (Smith, J., concurring),

perm. app. denied (Tenn. 1997).



              We are not unmindful that the defendant's statement from which this


       1
        In so holding, we reject the state's argument that the defendant's act of
merely leaving because he failed to complete the offense was insufficient
renunciation. On the contrary, the evidence favoring the defendant is that he did
more than simply leave the bank. He claims he snatched the robbery note from
Teller Coggins, which in the light most favorable to him could be interpreted as
an affirmative disavowal of the crime.

                                          7
version of events comes is inconsistent with his previous statement, wherein he

claimed to have no memory of any events at the bank other than seeing the loan

officer. Further, the testimony of the witnesses is inconsistent with the defendant's

statement as recounted by Agent Childs. Nevertheless, we are bound to follow the

law and hold that the proof “fairly raised” the affirmative offense of renunciation.



              Additionally, although the issue was not addressed by the trial court

or raised by the parties on appeal, we notice that the facts presented at trial also

"fairly raise" the general defense of mistake of fact. Mistake of fact is a defense if

it "negates the culpable mental state of the charged offense." Tenn. Code Ann. §

39-11-502 (1997). In the case at bar, the defendant's evidence which we have held

"fairly raised" the defense of renunciation likewise fairly raises the defense of

mistake of fact. Specifically, Jordan claimed in his second statement to have

accidentally given the robbery note, rather than a $10 bill, to Teller Coggins. If the

facts are as he alleged, they would negate the culpable mental state necessary for

attempted robbery.



              When a general defense is "fairly raised," the state must disprove its

applicability beyond a reasonable doubt. Tenn. Code Ann. §§ 39-11-203(c), (d),

-201(a)(3) (1997); State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994).

The trial court has the duty to give the jury a complete charge of the applicable law

as to "every issue of fact raised by the evidence and material to [the] defense[.]"

State v. Stoddard, 909 S.W.2d 454, 460 (Tenn. Crim. App. 1994); see, e.g., Poe,

212 Tenn. at 420, 370 S.W.2d at 491.



              Having found error in the trial court’s failure to instruct the jury on

renunciation and the general defense of mistake, we turn to the issue of whether

these errors require reversal. We are convinced that no rational jury could conclude

                                          8
by a preponderance of the evidence that the defendant renounced his crime. See

Tenn. Code Ann. § 39-11-204(e) (1997). Further, we believe the only conclusion

a rational jury could draw from the totality of the proof is that the state disproved any

mistake of fact defense beyond a reasonable doubt. The defendant’s statement in

which he sets forth his version of events is inconsistent with his previous statement,

wherein he claimed to have no memory of any events at the bank other than seeing

the loan officer. The testimony of each and every witness is inconsistent in some

material respect to the defendant’s second statement. Moreover, the trial court’s

failure to instruct on either renunciation or mistake does not affirmatively appear to

have affected the result of the trial. As such, the trial court’s failure to give the

instructions was harmless error beyond a reasonable doubt. Tenn. R. App. P.

36(b); Tenn. R. Crim. P. 52(a); cf. State v. Manning, 500 S.W.2d 913 (Tenn. 1973)

(failure to give alibi instruction was, at worst, harmless error in face of the state’s

strong proof of defendant’s guilt as compared with defendant’s uncorroborated alibi

evidence).



                                           II

              In the remaining issue, Jordan claims he was denied his right to a

speedy trial. The United States and Tennessee constitutions guarantee the criminal

defendant the right to a speedy trial. U.S. Const. amends. XI and XIV; Tenn. Const.

art. I, § 9; State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997); State v. Jefferson, 938

S.W.2d 1, 11 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). The right to a

speedy trial is also statutory in Tennessee. See Tenn. Code Ann. § 40-14-101

(1997). In addition, the Tennessee Rules of Criminal Procedure provide for the

dismissal of an indictment, presentment, information or criminal complaint "[i]f there

is unnecessary delay in presenting the charge to a grand jury against a defendant

who as been held to answer to the trial court, or if there is unnecessary delay in

bringing a defendant to trial . . . ." Tenn. R. Crim. P. 48(b).

                                           9
              Neither the constitutional provisions, the statute nor the rule defines

the period of time in which the accused must be brought to trial or the case

dismissed, or the precise point at which the clock starts to run. The United States

Supreme Court has held that "no speedy trial rights arise until after formal

accusation, either by arrest or by grand jury action." United States v. Marion, 404

U.S. 307, 320, 92 S. Ct. 455, 463 (1971). Recently, the Tennessee Supreme Court

decided that the issuance of an arrest warrant, by itself, is not enough to trigger the

protection of the Sixth Amendment right to a speedy trial. Utley, 956 S.W.2d at 493.

Either a formal grand jury action or the actual restraints of an arrest are required.

Utley, 956 S.W.2d at 493.2



              When 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 "presumptively prejudicial."3 Jefferson, 938 S.W.2d at 12

(citing Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992));

Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). The length of the

delay is dependent upon the peculiar circumstances of each case, and the delay

that can be tolerated for "an ordinary street crime" is generally much less than for

a serious, complex felony charge. 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

unreasonable enough to trigger further inquiry. Utley, 956 S.W.2d at 494; Doggett,



       2
        Presumably, although it is not clear in Utley, an arrest alone will not
trigger an accused’s speedy trial rights. As we understand Utley, neither an
arrest nor an arrest warrant is sufficient by itself. An arrest warrant must issue
and the restraints of an arrest must be imposed before the speedy trial clock
begins to tick. See Utley, 956 S.W.2d at 494 (right triggered when accused was
served with the warrant and arrested).
       3
        The term "presumptively prejudicial" does not imply that the defendant is
automatically entitled to relief. Rather, it refers to a delay sufficiently egregious
to require analysis under the balancing test of Barker v. Wingo, 407 U.S. 524, 92
S. Ct. 2182 (1972). See Utley, 956 S.W.2d at 494.

                                          10
505 U.S. at 652, n.1, 112 S. Ct. at 2691, n.1; see also State v. Ernest Vickers, III,

No. 02C01-9609-CC-00313, slip op. at 7 (Tenn. Crim. App., Jackson, July 3, 1997),

perm. app. denied (Tenn. 1998); State v. Terron Bledsoe, No. 02C01-9508-CC-

00226, slip op. at 3 (Tenn. Crim. App., Jackson, July 3, 1997), perm. app. denied

(Tenn. 1998).



              If this threshold is crossed, a balancing test determines the merits of

the speedy trial issue. In State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973), our

supreme court recognized and adopted the balancing test set forth in Barker v.

Wingo. The four factors which must be balanced 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 prejudice resulting from the delay. Barker, 407 U.S. at 531, 92 S. Ct. at

2192; Bishop, 493 S.W.2d at 83-84.



              In the case before us, the offenses occurred on May 23, 1994. The

defendant was arrested on May 23, 1994 for DUI, and a second arrest warrant was

issued the following day, May 24. Indictments were filed on August 1, 1994. The

defendant filed a pro se motion for speedy trial on October 10, 1994.4 He filed a pro

se motion to dismiss based upon deprivation of his right to a speedy trial on March

13, 1995. Counsel was appointed shortly before arraignment in June 1995. The

motion to dismiss was denied following a hearing on July 24, 1995. The trial began

on August 8, 1995.



              The delay of more than one year between arrest and trial in this case

warrants application of the Barker balancing test. First, the length of the delay is



       4
       At the hearing on the motion to dismiss, the defendant contended there
was some delay in filing this motion. Through counsel, he claimed to have
mailed the motion in September 1994.

                                          11
long enough to trigger further analysis, but it is not egregious. We weigh this factor

in favor of the state. Second, we weigh the reason for the delay slightly in favor of

the defendant. The defendant claimed the delay was due to the state's negligence

but offered no proof. The state offered no explanation for the delay. We glean from

the record that the defendant was in state custody during the delay because his

parole on an earlier offense had been revoked. Nevertheless, there is nothing of

record except the delay itself which is probative of the state's negligence. Third, the

defendant made an early assertion of his right to a speedy trial. This factor weighs

in his favor. Finally, we decline to find prejudice from the delay. 5 The defendant

was incarcerated for another conviction prior to his trial in this case. He alleged in

his motions that he suffered administrative deprivations in the Department of

Correction because of his pending charges; however, he elected to present no proof

in that regard at the hearing. See Utley, 956 S.W.2d at 495. Further, he claimed

an allegedly exculpatory witness died during the delay.            According to the

defendant's pleadings, this witness died in December 1994. We note that the

defendant's crimes occurred approximately seven months earlier. Even if this case

had not been delayed slightly, the witness would have in all likelihood been dead

prior to trial. Additionally, Jordan presented no actual proof of this witness' death

or substance of his anticipated testimony. We assign significant weight to the fourth

Barker factor in favor of the state.



              On balance, we agree with the trial court that the defendant is not

entitled to dismissal of the charges against him due to a deprivation of his right to

a speedy trial.



              In summary, we affirm the judgment of the trial court.


       5
      This is the most important of the four factors. State v. Wood, 924
S.W.2d 342, 348 (Tenn. 1996) (citations omitted).

                                          12
                                 _______________________________
                                 CURWOOD WITT, JUDGE

CONCUR:



_____________________________
GARY R. WADE, PRESIDING JUDGE



_____________________________
WILLIAM M. BARKER, JUDGE




                                13
