            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1998


                                                                 FILED
STATE OF TENNESSEE,              )                          February 23, 1998
                                 )   No. 02C01-9612-CR-00456
      Appellee                   )                          Cecil Crowson, Jr.
                                 )   SHELBY COUNTY          Appellate C ourt Clerk
vs.                              )
                                 )   Hon. L. T. LAFFERTY, Judge
                                 )
DANIEL M. BAILEY,                )
                                 )   (Aggravated Rape;
      Appellant                  )   Aggravated Sexual Battery)



For the Appellant:                   For the Appellee:

Kathleen L. Caldwell                 Charles W. Burson
Taylor, Halliburton, Ledbetter       Attorney General and Reporter
and Caldwell
44 North Second, Suite 200           Deborah A. Tullis
Memphis, TN 38103                    Assistant Attorney General
                                     Criminal Justice Division
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493


                                     William L. Gibbons
                                     District Attorney General

                                     Charles Bell
                                     Asst. District Attorney General
                                     Criminal Justice Complex, Suite 301
                                     201 Poplar Street
                                     Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



        The appellant, Daniel M. Bailey, was convicted by a Shelby County jury of

one count of aggravated rape and one count of aggravated sexual battery. The trial

court imposed consecutive sentences of fifteen years and eight years respectively to

be served in the Department of Correction. The appellant appeals as of right from

these convictions raising as his sole issue the denial of his constitutional right to a

speedy trial.



        After review, we affirm the trial court’s judgment.



                                             Background

        The procedural background of the case is as follows: The appellant was

indicted on June 17, 1993 on one count of aggravated sexual battery in violation of

Tenn. Code Ann. § 39-13-502 and on one count of aggravated rape in violation of

Tenn. Code Ann. § 39-13-504. The indictments, which involve separate victims,

were consolidated for trial. Trial was originally set for April 25, 1994 but on that date

the trial was rescheduled. The record suggests that this continuance was granted

so that the State and defense counsel could explore the possibility of a plea

agreement. The trial court rescheduled the trial for November 7, 1994. The

appellant did not object to the new trial date. On November 7, 1994, the State

requested a new trial date because the State encountered problems in returning the

minor victims to Tennessee to testify. The record indicates that the children were

living with their father in California and there were complications concerning the

children’s travel arrangements due to a custody battle between the children’s

parents. The trial date was again rescheduled for April 17, 1995.1                   On that date,


        1
          The appellant alleges that on April 18, 1995 he filed a motion to dismiss the indictment
upon grounds that he was denied his right to a speedy trial. Additionally, he avers in his brief that
he opposed the State’s motions for continuance. However, we note that no opposition, either
orally or by written motion, to the continuances are included in the record before u s. Moreover,
the record contains only one motion to dismiss filed by the appellant. This motion was filed on
March 4, 1996 which was the first day of the appellant’s scheduled trial. Two motions to dismiss
for lack of a speedy trial are appended to the appellant’s brief. These motions reflect the dates of

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the trial date was rescheduled for November 1995. The record does not reflect the

reason for this postponement of trial. In November 1995, the trial court on its own

motion rescheduled the trial for March 1996 due to scheduling conflicts in its

November 1995 trial calendar. The appellant’s trial was then rescheduled for March

4, 1996. The trial was held on March 4 and 5, 1996. In sum, the record reflects

that the appellant’s trial date was rescheduled four times.



        At trial, the appellant’s statement to the police admitting to various sexual

assaults of both minor victims was introduced. The proof established that the

appellant was the step-grandfather of both victims who were six and eight years old

at the time of these offenses. The appellant’s charged criminal conduct was

corroborated by the testimony of both victims’ at trial. The jury returned a verdict of

guilty for both offenses. The appellant remained free on bail during the entire time

between indictment and trial. At the time of the offenses, the appellant was married

to the victims’ grandmother. At some point during the rescheduling of the appellant’s

trial dates, his wife allegedly became hostile toward him and filed for divorce.




                                               ANALYSIS



        The appellant contends that he was denied his constitutional and statutory

right to a speedy trial. See U.S. Const. amend. VI; Tenn. Const. art. I, sec. 9; Tenn.

Code Ann. § 40-14-101 (1990); Tenn. R. Crim. P. 48. As a basis for this contention,

the appellant argues that he was originally indicted on June 17, 1993 and his trial

did not commence until March 4, 1996, resulting in a lapse of thirty-three months.

He contends that, due to this delay of thirty-three months, he suffered undue



April 18, 1995 and January 30, 1996. Allegations of fact contained in a brief may not be
conside red as e vidence . State v. Be nnett, 798 S.W .2d 783, 789 (Tenn. Crim . App. 1990) cert.
denied, 500 U.S. 915, 111 S.Ct. 2009 (1991). Absent the necessary relevant material in the
record , an appe llate court ca nnot co nsider the merits of an issu e. See Tenn . R. App. P . 24(b).
Thus, we are permitted to consider only the March 4, 1996 motion to dismiss as being
contem porane ously enter ed. See Tenn. R. App. P. 36(a).

                                                   3
prejudice because he “lost a highly favorable witness [his wife] and one who would

have contradicted the testimonies of [the minor victims] . . . .”



         The speedy trial guarantee of the Sixth Amendment is designed to “minimize

the possibility of lengthy incarceration prior to trial, to reduce the lesser, but

nevertheless substantial, impairment of liberty imposed on an accused while

released on bail, and to shorten the disruption of life caused by arrest and the

presence of unresolved criminal charges.” United States v. MacDonald, 465 U.S. 1,

8, 102 S.Ct. 1497, 1502 (1982). The right to a speedy trial attaches at the time of

arrest or indictment, whichever comes first, and continues until the date of the trial.

United States v. Loud Hawk, 474 U.S. 302, 310-12, 106 S.Ct. 648, 653-54 (1986).

When a defendant contends that he was denied his right to a speedy trial, the

reviewing court must conduct a four part balancing test to determine if this right was,

indeed, abridged. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972).

This test includes consideration of (1) the length of the delay; (2) the reasons for the

delay; (3) the defendant’s assertion of his right; and (4) the actual prejudice suffered

by the defendant because of the delay.2 Id.



         The length of the delay between indictment and trial is a threshold factor,

and, if that delay is not presumptively prejudicial, the other factors need not be

considered. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The delay in the present

case was thirty-three months. While the length of delay, in and of itself, does not

constitute a denial of a speedy trial given the complex nature of the charges, a delay

of one year or longer “marks the point at which courts deem the delay unreasonable

enough to trigger the Barker inquiry.” Doggett v. United States, 505 U.S. 647, 652

112 S.Ct. 2686, 2691 n. 1 (1992). Thus, the delay in this case requires further

review.



         2
        In State v. Bishop, 493 S.W.2d 81 (Tenn. 1973), our supreme court implicitly adopted the
Barker balancin g test to de termin e wheth er a defe ndant’s s tate cons titutional and s tatutory right to
a speedy trial has been violated.

                                                     4
       Next, we inquire as to the reasons for the delay. Possible reasons for the

delay are said to fall within four identifiable categories: (1) intentional delay to gain a

tactical advantage over the defense or delay designed to harass the defendant; (2)

bureaucratic indifference or negligence; (3) delay necessary to the fair and effective

prosecution of the case; and (4) delay caused or acquiesced in, by the defense.

State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996).

       A deliberate attempt to delay the trial in order to hamper the defense
       should be weighted heavily against the government. A more neutral
       reason such as negligence or overcrowded courts should be weighted
       less heavily but nevertheless should be considered. . . . Finally, a valid
       reason, such as a missing witness, should serve to justify appropriate
       delay.


Barker, 407 US. at 531, 92 S.Ct. at 2192.



       In the present case, the delay arose on two occasions because the State was

unable to secure the attendance of two material witnesses at trial, the victims of the

offenses. As noted in Barker, the location of a missing witness serves to justify

appropriate delay. On another occasion, a continuance was necessitated due to

scheduling conflicts in the court’s trial calendar. We conclude that these reasons for

the delay were neutral and valid in nature and should be weighed less heavily

against the State.



       The third prong of the balancing test, the defendant’s assertion of his right to

a speedy trial, was not satisfied until the day his trial commenced. Again, as noted

above, the record does not contain any other motions filed by the appellant nor does

it contain the trial court’s order dismissing this motion. Therefore, we are limited to

consideration of the motion filed on March 4, 1996. The appellant’s delayed

assertion of this right weighs against his claim. Wood, 924 S.W.2d 347 (citing

Barker, 407 U.S. at 531-32, 92 S.Ct. At 2192-93; Bishop, 493 S.W.2d at 85).



       Our consideration of the remaining factor, whether the appellant was

prejudiced by the delay, focuses upon (1) any undue and oppressive incarceration;

                                           5
(2) the anxiety accompanying a public accusation; and (3) any impairment of the

appellant’s ability to prepare his defense. State v. Kolb, 755 S.W.2d 472, 475

(Tenn. Crim. App. 1988). The record does not demonstrate any oppressive pretrial

incarceration, as the appellant was released on bail pending trial. Furthermore,

there is no evidence that the appellant suffered undue anxiety and concern awaiting

trial. However, the most important inquiry remains, whether the delay impaired the

defendant’s ability to prepare a defense.



       The appellant contends that he has been “extremely prejudiced” by the

several continuances because his wife left him during the delay and he had lost “a

favorable witness.” We find nothing in the record which supports this allegation.

Although mention of marital discord is alluded to in the appellant’s brief, again, as

previously noted, we are precluded from considering as evidence factual allegations

contained in the briefs. See Tenn. R. App. P. 24(b). Moreover, we must assume

that, had the wife testified at trial, her testimony would have been motivated by her

desire to tell the truth and not merely because she was married to the appellant. No

prejudice has been shown. This issue is without merit.



       The judgment of the trial court is affirmed.




                            ____________________________________
                                 DAVID G. HAYES, Judge

CONCUR:


________________________________
JOE B. JONES, Presiding Judge



________________________________
JOE G. RILEY, Judge




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