        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 24, 2012 Session

          STATE OF TENNESSEE v. AHMAD R. MANNING, ALIAS

                   Appeal from the Criminal Court for Knox County
                     No. 95615      Mary Beth Leibowitz, Judge


                  No. E2011-01812-CCA-R3-CD - Filed March 4, 2013


On appeal, the State challenges the trial court’s dismissal of the Defendant’s indictment due
to pre-indictment delay. The State contends that the trial court abused its discretion in
dismissing the indictment because it misapplied the law in reaching its determination that the
delay caused the Defendant actual prejudice. Following our review, we reverse the judgment
of the trial court and remand the case to the trial court for further proceedings in accordance
with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and R OBERT W. W EDEMEYER, J., joined.


Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald,
Assistant District Attorney General, for the appellant, State of Tennessee.

Wade V. Davies and Anne E. Passino, Knoxville, Tennessee, for the appellee, Ahmad R.
Manning, alias.

                                         OPINION

                               FACTUAL BACKGROUND

       The record reflects that the Defendant, Ahmad R. Manning, alias, was indicted on
September 21, 2010. The indictment alleged that the Defendant committed the following
offenses on or about September 6, 2008: the second degree murder of Cortez Underwood;
two counts of aggravated burglary; two counts of aggravated assault; employing a firearm
during the commission of a dangerous felony; possessing a firearm during the commission
of a dangerous felony; employing a firearm during an attempt to commit a dangerous felony;
and possessing a firearm during an attempt to commit a dangerous felony. On March 3,
2011, the Defendant filed a motion to dismiss for pre-indictment delay and requested a
hearing. In the motion, the Defendant proffered two grounds on which the trial court could
dismiss the appeal: (1) on a constitutional ground, violation of the Defendant’s right to due
process; or (2) on a non-constitutional ground, pursuant to Tennessee Rule of Criminal
Procedure 48(b). A hearing on the motion was held on July 7, 2011, during which the
Defendant presented two witnesses in support of the motion: Knoxville Police Department
Investigators Joseph Huckleby and Charles Lee. The relevant facts from that hearing are as
follows.

        Inv. Huckleby testified that he did not remember much of anything regarding the
Defendant’s case. Inv. Huckleby explained that Inv. Lee was the lead investigator on the
Defendant’s case and that he was assigned to investigate a robbery involving people
acquainted with the Defendant that had occurred on August 30, 2008, in which the victim in
the instant case and a man named Deangelo Johnson were suspects. Inv. Huckleby testified
that he believed that he was present during an interview Inv. Lee conducted with the
Defendant; however, he could not remember any of the details.

        Inv. Lee testified that he was the lead investigator in the Defendant’s case. Inv. Lee
explained that he was present at the scene and that he identified and subsequently
interviewed several witnesses. His investigation revealed that shots were fired at the
Lonsdale Housing Complex, which resulted in the victim’s death; another man, Travis
Dickerson, was also shot during the incident. Inv. Lee spoke with Mr. Dickerson right after
the incident. Mr. Dickerson stated that he did not know who shot him or who was involved
in the shooting. That conversation was not recorded, and Mr. Dickerson has not responded
to investigators’ attempts to interview him further. Inv. Lee testified that the witnesses he
was able to speak with suggested that the Defendant was involved in the shooting.
According to Inv. Lee, Inv. Huckleby reached out to the Defendant, and he voluntarily came
in for an interview. During this interview, the Defendant stated that he shot the victim in
self-defense because the victim approached him, armed, demanding the return of some
money stolen from him. The Defendant explained that he had robbed the victim a few days
earlier in retaliation for a robbery the victim and Deangelo Johnson committed on August 30,
2008.1 Inv. Lee testified that the Defendant stated that he shot the victim because he believed
the victim was going to shoot him. Inv. Lee also testified that the Defendant mentioned that


1
 There is testimony that the victims of that robbery may have been related to or closely affiliated with the
Defendant.

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two other individuals were present during the shooting: Deangelo Johnson and Buck Rankin.

        During his testimony, Inv. Lee admitted that at least four additional witnesses had
been identified but that he had not interviewed them prior to the Defendant’s indictment:
Deangelo Johnson, Buck Rankin, “J.J.,” and Jimmy Cozart.2 Regarding Deangelo Johnson,
Inv. Lee explained that he was on the run from police and that investigators had been unable
to locate him for an interview; however, Inv. Lee did locate Mr. Johnson a few weeks prior
to the hearing in the state penitentiary and attempted to interview him. The conversation was
brief and unrecorded because Mr. Johnson denied being at the shooting and did not “seem
very interested in talking to [him] after that.” Regarding Buck Rankin, Inv. Lee testified that
he sought help from the Board of Probation and Parole to locate Rankin but that he had not
been able to locate him for an interview. Inv. Lee testified that he did not interview Mr.
Cozart or J. J. and still had not interviewed either of them at the time of the hearing.

          The trial court took the motion under advisement.

       On August 15, 2011, the Defendant filed a supplement to the motion to dismiss for
pre-indictment delay, responding to the State’s allegation at the motion hearing that the
Defendant had not been prejudiced by their delay in issuing his indictment. The
memorandum provided argument, legal authority, and additional documents3 supporting the
Defendant’s contention that the pre-indictment delay prejudiced him. The State did not file
a memorandum of law or other document in response to the Defendant’s motion to dismiss
for pre-indictment delay and memoranda in support of the motion.

       On August 17, 2011, the trial court granted the Defendant’s motion and dismissed the
indictment. Relevant portions of the order and opinion state as follows:

          F INDINGS   OF   F ACT

                 The undisputed facts in this case show that on the night of September
          8, 2008, investigators with the Knoxville Police Department interviewed [the
          Defendant] about a shooting that occurred on September 6, 2008. [The
          Defendant] cooperated with the investigators explaining his version of the
          events that occurred that night. The facts show that [the Defendant] was


2
    Other witnesses place “J. J.” and Jimmy Cozart at the scene of the incident.
3
  The Defendant included the death certificate of a potential witness for the defense who died prior to his
indictment. He also included police reports naming the victim as the suspect in a shooting involving this
witness.

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released and was not formally charged with a crime. Reports show that
investigators concluded their investigations as of May 2009. After [the
Defendant’s] interview about the 2008 shooting, [the Defendant] was in the
State’s custody seven different occasions as a result of non-violent offenses.
These offenses occurred sporadically over the two years following the
incident. The offenses included 6 occurrences of criminal trespass and
separate public intoxication occurrences. Witnesses were identified but not
interviewed. Now several are in prison and uncooperative, and at least one has
disappeared. The housing has been rehabilitated with a new facade and
evidence of bullet holes and slugs in the wall has been lost.

       Two years after the shooting and over a year after the investigation
concluded, a Knox County Grand Jury returned a 9 count Presentment against
[the Defendant] regarding the 2008 shooting. Before this court is the
[D]efendant’s motion, filed March 3, 2011, to dismiss the presentment for
prejudicial pre-indictment delay. For reasons that follow, the motion will be
granted.

F INDINGS   OF   L AW

....

. . . [I]f the State is aware that an offense has occurred, it becomes the
defendant’s burden to prove that the pre-indictment delay violates their right
to due process by proving that (1) the defendant suffered substantial prejudice
to his right to a fair trial as a result of the delay; and (2) the government
purposely delayed to gain a tactical advantage over the defendant. United
States v. Lovasco, 431 U.S. 783, 789 (1997); State v. Carico, 968 S.W.2d 280,
285 (Tenn. 1998). Accordingly, the acceptability of a pre-indictment delay
will be determined by the defendant’s prejudice to a fair trial and the
advantage the government may have received.

       I. Substantial Prejudice to Fair Trial

         It is true that “prejudice to the accused is the most important factor,” but
it is also known that it is not determinative in every case. State v. Carico, 968
S.W.2d 280, 285 (Tenn. 1998). To establish a case for pre-indictment delay,
counsel for [the Defendant] points out that the government had been on notice
of the allegations as of September 8, 2008, but took over two years before they
filed an indictment against him. Through counsel’s recitation of the events,

                                         -4-
the State was aware that Mr. Underwood had been shot, that Mr. Underwood
subsequently died as a result of the shooting, and that [the Defendant] was
involved. It would be premature for this court to only accept these facts in
determining whether there has been an act of prejudice against the
[D]efendant. The more relevant facts that led to this court’s outcome were (1)
the witness testimony that has faded away and has now become unavailable;
(2) evidence from the scene has been destroyed, due to no fault or act of either
party; and (3) the [D]efendant was in the State’s custody for multiple non-
violent offenses over the course of two years. The fact that the State had [the
Defendant] in their custody proves that they knew where he was and still failed
to charge him with a crime. More pressing is the fact that the investigation
into the death of [the victim] concluded in May 2009, which was around the
time [the Defendant’s] first non-violent offenses occurred and landed him in
the State’s custody.

       II. Advantage over the Defense

        There is no evidence that the State purposefully and intentionally
delayed the commencement of prosecution in order to gain a tactical advantage
over the defense. However, this factor alone is not dispositive in determining
whether a defendant’s right to a fair trial has been violated. Although, it may
not have been the intentions of the State to gain a tactical advantage over the
defense, it did. The State has eyewitnesses necessary to try the case, whereas
the defense’s witnesses are unknown and don’t recall the night in question.
The State has collected the evidence they needed from the crime scene,
whereas the defense is reduced to the evidence produced solely by the
investigators. The State knew about the offense two years prior to prosecution
giving them that amount of time to prepare, whereas the defense had no idea
that [the Defendant] was under investigation after the initial interview. Albeit
unintentional, the State does have an advantage over the defense in this case.

....

       [The Defendant] has shown that the delay in the indictment caused
substantial prejudice to his case, and that the government’s delay, although not
intentional, has provided a tactical advantage. Because the State waited so
long to charge [the Defendant] with the nine felonies in the presentment, had
him in custody on seven separate occasions, and failed to charge him with a
crime, it is evident that [the Defendant] was prejudiced in his right to a fair
trial.

                                      -5-
       The State filed a timely appeal.


                                          ANALYSIS

        The State contends that the trial court abused its discretion in dismissing the
Defendant’s indictment due to pre-indictment delay for the following reasons: (1) the trial
court’s factual findings are not supported by the record; (2) the Defendant failed to show that
the delay caused him actual prejudice; and (3) the trial court misapplied the law by
dismissing the indictment despite finding that the State did not intentionally cause the delay
to gain a tactical advantage. The Defendant responds that the trial court did not abuse its
discretion in dismissing the indictment and that there is substantial evidence to support the
trial court’s decision.

        The decision whether to dismiss an indictment lies within the discretion of the trial
court. State v. Benn, 713 S.W.2d 308, 311 (Tenn.1986). Appellate courts “may not interfere
with a ruling made within the discretionary powers of the trial court absent clear abuse.”
State v. Harris, 33 S.W.3d 767, 769-70 (Tenn. 2000) (quoting State v. Street, 768 S.W.2d
703, 709 (Tenn. Crim. App.1988)). Thus, we will only disturb the decision of the trial court
when there is no substantial evidence to support its conclusions. See State v. Shaffer, 45
S.W.3d 553, 554 (Tenn. 2001).

                                     Pre-Indictment Delay

        In State v. Marion, 404 U.S. 307 (1971), the United States Supreme Court explained
that “[t]he Due Process Clause of the Fifth Amendment would require dismissal of the
indictment if it were shown at trial that the pre-indictment delay . . . caused substantial
prejudice to the [defendant’s] rights to a fair trial and that the delay was an intentional device
to gain tactical advantage over the accused.” 404 U.S. at 324-25. Our supreme court adopted
the Marion approach to determining when a defendant is entitled to relief for pre-indictment
delay in State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App. 1990). The Dykes court held
that

       Before 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 result of the delay, and (c) the State caused the delay in order
       to gain tactical advantage over or to harass the accused.



                                               -6-
Dykes, 803 S.W.2d at 256 (citing United States v. Marion, 404 U.S. 307, 324 (1971)). Our
supreme court reaffirmed the applicability of the Marion-Dykes rule in State v. Utley, 956
S.W.2d 489 (Tenn. 1997), noting that in “cases involving a pre-arrest delay, the due process
inquiry continues to be guided by Marion.” Id. at 495. The Utley court held that prejudice
“cannot be presumed and instead must be substantiated by the defendant with evidence in the
record” and that “the due process inquiry under Marion also requires proof regarding the
State’s use of the delay to gain tactical advantage.” Id. A review of the applicable
authorities and the record indicates that we must follow our supreme court’s holding in
Dykes and Utley, requiring the Defendant to show that the State intentionally delayed the
indictment to gain an advantage over or to harass the accused. See Utley, 956 S.W.2d at 495;
Dykes, 803 S.W.2d at 255; see also State v. Carico, 968 S.W.2d 280, 284, 285 n.4 (Tenn.
1998); State v. Gilley, 297 S.W.3d 739, 755 (Tenn. Crim. App. 2008).

        In the instant case, the record reflects that the trial court based its decision to dismiss
the Defendant’s indictment on its erroneous interpretation of legal precedent and, therefore,
abused its discretion. As articulated above, the correct test for determining whether pre-
indictment delay violates the Defendant’s right to constitutional due process and necessitates
a dismissal of the indictment is whether the accused proved (1) that there was a delay, (2) that
the defendant sustained actual prejudice as a direct and proximate result of the delay, and (3)
that the State caused the delay in order to gain tactical advantage over or to harass the
accused. Here, the trial court found that the State did not intentionally cause the delay to gain
a tactical advantage over the Defendant. However, despite noting that it was required to find
the aforementioned factors to dismiss the indictment on constitutional grounds, the trial court
dismissed the indictment, reasoning “Although, it may not have been the intentions of the
State to gain a tactical advantage over the defense, it did.” The law in Tennessee is well-
settled that when a dismissal is based on constitutional grounds, the trial court must find that
the State intentionally delayed the proceedings in order to gain a tactical advantage or to
harass the accused. See State v. Carico, 968 S.W.2d 280, 284, 285 n.4 (Tenn. 1998); State
v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997); State v. Gilley, 297 S.W.3d 739, 755 (Tenn.
Crim. App. 2008); Dykes, 803 S.W.2d at 255. Thus, the trial court’s dismissal of the
indictment was in error.

         The State also argues that the trial court abused its discretion in dismissing the
indictment because its findings – that witnesses were identified but not interviewed and that
evidence from the scene had been lost when the housing complex was rehabilitated – are not
supported by the record. However, we conclude that there is evidence in the record to
support the trial court’s factual conclusions. Regarding the witnesses, there was testimony
that at least three witnesses were identified but not interviewed: Mr. Johnson, Buck Rankin,
and Jimmy Cozart. In his September 8, 2008 interview, the Defendant told Inv. Lee that Mr.
Johnson was present at the shooting, but he was not interviewed until after the Defendant was

                                                -7-
indicted. Although Inv. Lee testified that they were unable to locate Mr. Johnson because
he was on the run from the police, the Defendant presented documentation in his
supplemental memorandum illustrating that Mr. Johnson was, in fact, arrested and taken into
police custody on September 13, 2008, five days after the Defendant’s interview. The
Defendant also presented documentation that one witness died in December 2009, months
after the State had finished its investigation but before the Defendant’s indictment.
Regarding evidence from the housing complex being lost, Inv. Lee agreed that the housing
complex had been repaired and that, presently, the Defendant would not be able to go to the
scene and assess the damage for himself. We note that the State neither presented any
witnesses during the hearing on this motion nor submitted a memorandum to the trial court
in response to the Defendant’s initial or supplemental memorandum of law supporting his
motion to dismiss for pre-indictment delay.4

        Finally, the State argues that the trial court abused its discretion in dismissing the
indictment because the Defendant failed to show that he was prejudiced by the delay. The
Defendant presented the death certificate of a witness, who would have provided “powerful
first aggressor evidence,” but she died during the two-year pre-indictment delay. The trial
court also found that the evidence from the housing complex was lost and that “the defense
[wa]s reduced to the evidence produced solely by the State investigator.” Additionally, the
trial court found that the witnesses for the defense are largely unknown, uncooperative, and
do not recall the night in question, and the record supports this conclusion. In light of these
facts, we cannot conclude that the trial court abused its discretion in finding that the
Defendant suffered prejudice as a result of the delay because there is evidence to support that
conclusion.

        To justify dismissal of an indictment based on the Due Process Clause of the Fifth
Amendment, the defendant must prove not only that he suffered prejudice from the delay but
also that the state used the delay as a device to gain a tactical advantage. As found by the
trial court, “there is no evidence that the state purposefully and intentionally delayed the
commencement of the prosecution in order to gain a tactical advantage over the defense.”
Therefore, despite the trial court’s finding of prejudice, dismissal of the indictment was in
error.

        However, we feel constrained to note that we question whether in reality the Marion-
Dykes rule affords a defendant meaningful protection of his due process right to a fair trial
in the face of unreasonable and unjustified pre-indictment delay. When faced with a similar
issue regarding evidence lost by the state, our supreme court rejected the analysis in Arizona


4
 The trial court heard several motions in this case over a two-day period, and the witness testimony referred
to in this opinion is derived from previous hearings also included in the record for our review.

                                                    -8-
v. Youngblood, 488 U.S. 51, 58 (1988), which required a showing of bad faith on the part
of the government to establish a denial of the due process right to a fair trial. See State v.
Ferguson, 2 S.W.3d 912, 915-18 (Tenn. 1999). In Ferguson, our supreme court recognized
that proving bad faith on the part of the police would be extremely difficult. The court
continued by reasoning that such an analysis substantially increased the defendant’s burden
while decreasing the state’s burden at the expense of the defendant’s right to a fair trial. Id.
at 916. Instead, the Ferguson court elected to adopt a balancing approach regarding evidence
that the State had a duty to preserve. Once the proof demonstrates that the State failed in that
duty, the analysis moves to a consideration of the following factors in determining the
consequences of the breach: the degree of negligence involved; the significance of the
destroyed evidence; and the sufficiency of the other evidence used at trial to support the
conviction. Id. at 917. If after considering all the factors, the trial judge concludes that a
trial without the missing evidence would be fundamentally unfair, then the trial court may
dismiss the charges or craft orders it deems necessary to protect the defendant’s right to a fair
trial. Id.

       We do not see a meaningful difference in the difficulty of proving bad faith on the part
of the state regarding lost evidence, on the one hand, and proving that the pre-indictment
delay was a device used by the state to gain a tactical advantage on the other. We do not
believe that adopting a Ferguson-type analysis would invade the state’s power to determine
when and against whom to initiate prosecution nor would it result in wholesale dismissal of
indictments for pre-indictment delay.


                                       CONCLUSION

        The judgment of the trial court is reversed, and the case is remanded to the trial court
for further proceedings in accordance with this opinion.

                                                          _____________________________
                                                          D. KELLY THOMAS, JR., JUDGE




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