         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                     Assigned on Briefs November 14, 2000 Session

                 STATE OF TENNESSEE v. GLENN T. TIDWELL

                Direct Appeal from the Criminal Court for Davidson County
                         No. 97-T-866    Frank G. Clement, Judge



                      No. M2000-00538-CCA-R3-CD - Filed July 9, 2001


The State of Tennessee appeals from the trial court’s dismissal of an indictment for DUI against the
appellee, Glenn Tidwell. The trial court determined that the indictment should be dismissed because
Tidwell’s right to a speedy trial had been violated. After a review of the record, we find that the
appellee’s right to a speedy trial was violated by the delay in bringing him to trial. The judgment of
the trial court is affirmed.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

JERRY SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES, J., and NORMA
MCGEE OGLE , J., joined.

Paul G. Summers, Attorney General & Reporter; Marvin E. Clements, Jr., Assistant Attorney
General; Victor S. Johnson, District Attorney General; James D. Sledge, Assistant District Attorney,
for appellant, State of Tennessee.

Paul Bennett Seusy, Nashville, Tennessee for appellee, Glenn T. Tidwell.

                                             OPINION

                                             FACTS
        On February 16, 1997, the appellee was arrested for DUI in Davidson County. The case was
scheduled for a preliminary hearing on three separate occasions, and on each occasion the hearing
was continued at the request of the State. On August 21, 1997, the Honorable William Faimon
dismissed the case. In October of 1997, the appellee was indicted by the Davidson County Grand
Jury for DUI. In September of 1999, the appellee was involved in a one-car accident, and,
subsequently, learned of the pending indictment for DUI. On September 30, 1999, the appellee was
arraigned on the charges in the indictment, thirty-one months after his initial arrest and two years
after the indictment by the Grand Jury. On October 12, 1999, the appellee filed a motion to dismiss
the indictment. Following a hearing on February 10, 2000, the trial court granted the motion and
dismissed the indictment after finding that the appellee’s right to a speedy trial had been violated.

                                               ANALYSIS
        The State contends that the trial court erred in dismissing the indictment because the
defendant was not prejudiced by the delay. We must disagree.
        The United States and Tennessee Constitutions guarantee the criminal defendant the right
to a speedy trial. U.S. AMEND. VI; Tenn. Const. art. I, § 9; State v. Utley, 956 S.W.2d 489, 492
(Tenn.1997). 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 has 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).
        The Tennessee Supreme Court has stated that “formal grand jury action or the actual
restraints of an arrest are required” to trigger speedy trial analysis. Utley, 956 S.W.2d at 493. This
is because “it is at this stage of arrest and grand jury action that the significant interests served by
the right to a speedy trial are most directly implicated: the protection against oppressive pre-trial
incarceration and the reduction of anxiety and concern caused by unresolved charges.” Id.
        Under Utley it is clear that the appellee’s right to a speedy trial was implicated at a minimum
when the Grand Jury returned the indictment in October of 1997. However, formal proceedings
against the appellee began in February of 1997 after his arrest, and the appellee’s right to a speedy
trial was triggered at that time. The trial court dismissed the indictment in February of 2000, a delay
of approximately three years in bringing the defendant to trial.
        When an accused seeks the dismissal of charges based upon the denial of the constitutional
right to a speedy trial, the accused must establish a period of delay that is “presumptively
prejudicial.” State v. Jefferson, 938 S.W.2d 1, 12 (Tenn.Crim.App.1996) citing Doggett v. United
States, 505 U.S. 647, 651, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992); Barker v. Wingo, 407 U.S.
514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (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, 505 U.S. at 652,
n. 1, 112 S.Ct. At 2691, n. 1. 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), the Tennessee
Supreme Court recognized and adopted the balancing test the United States Supreme Court set forth
in Barker in which four factors must be balanced. The factors 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.
         This court also recognizes that findings of fact by the trial judge are presumed correct and
may only be overcome by a preponderance of the evidence contrary to that finding. Tenn. R. App.
P. 13(d). The Tennessee Supreme Court has held that “[q]uestions of credibility of the witnesses,
the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted
to the trial judge as the trier of fact.” State v. Odom, 928 S.W.3d 18, 23 (Tenn. 1996). The party



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prevailing at the trial court level is entitled to the “strongest legitimate view of the evidence” as well
as “all reasonable and legitimate inferences that may be drawn from that evidence.” Id.

                                      (1) The Length of the Delay
         As noted above, a delay of one year or longer “marks the point at which courts deem the
delay unreasonable enough to trigger the Barker inquiry. Doggett, 505 U.S. at 652 n. 1., 112 S.Ct.
at 2691 n. 1.; see also Utley, 956 S.W.2d at 494. The State concedes that the delay in this case is
presumptively prejudicial and meets the threshold for consideration of the other factors. We find
that this factor weighs in the appellee’s favor.
                                     (2) The Reason for the Delay
         Reasons for the delay of prosecution fall within four 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, 346-347 (Tenn.
1996). The trial court clearly found that the reason for delay in the instance case was bureaucratic
indifference and we must agree.
         The trial court expressed great concern at the current state of the Davidson County Warrant
Office and that Division’s apparent inability to function with any degree of success. Specifically,
Lieutenant Robert Womack, chief of the Davidson County Metropolitan Police Department’s
Warrant Office stated that the office has between 35,000 and 50,000 unserved warrants and a staff
of only five officers at any given time. Due to chronic understaffing, the Warrant Office almost
never actively attempts to serve a warrant on a person unless that person is brought into custody for
other charges. Lieutenant Womack testified that less than one percent of the Warrant Office’s
activities involve serving outstanding warrants on at-large defendants. Lieutenant Womack also
discussed the Warrant Office’s mailing system that notifies misdemeanor defendants that they have
warrants pending, but stated that no such notice would ever be given a DUI defendant. It is clear
from the testimony of Lieutenant Womack that the Davidson County Metropolitan Police
Department does not consider the service of an indictment on a DUI defendant a priority.
         During the hearing before the trial court, the prosecution attempted to rely on Lieutenant
Womack’s testimony and the evidence of an understaffed and underfunded Warrant Office as an
explanation for the delay in bringing the appellee to trial. Such reliance is unfounded. The
Tennessee Supreme Court held in State v. Bishop that “[t]he lack of financial resources for this
purpose on the part of the State of Tennessee is not a legally justifiable reason to deny a defendant
his constitutional right to a speedy trial.” State v. Bishop, 493 S.W.2d 81, 84 (Tenn. 1973). In fact,
in Bishop, the prosecuting attorney made a diligent effort to provide the defendant with a speedy
trial, but the court held that the duty to bring the defendant to trial is “a duty imposed on the State
through all agencies and departments affecting the administration of justice.” Id. The Bishop Court
went on to quote the United States Supreme Court in Dickey v. Florida by stating that the “public
officials responsible for the delay may not even be associated with law enforcement agencies or the
courts” and a delay that springs from the “refusal by other branches of government to provide these
agencies and the judiciary with the resources necessary for speedy trials” will be considered against
the State. Bishop, 493 S.W.2d at 84, quoting Dickey v. Florida, 398 U.S. 30, 51, 90 S.Ct. 1564,
1575, 26 L.Ed.2d 26 (Justice Brennan concurring).


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       The evidence produced at the hearing clearly supports the trial judge’s finding that this factor
should be weighed against the state and for the appellee.

                      (3) The Accused Assertion of the Right to a Speedy Trial
        The Tennessee and United States Supreme Court have both recognized that “an accused who
is unaware that charges are pending against him or her, as is often the case where an indictment has
been sealed and not served, cannot be penalized for his or her failure to assert the speedy trial right.”
State v. Wood, 924 S.W.2d 342, 351, n. 13 (Tenn. 1996); citing Doggett, 505 U.S. at 652-654, 112
S.Ct at 2691. The appellee filed a motion to dismiss the indictment just two weeks after he first
became aware of the indictment. Both parties agree that the appellee timely asserted his right to a
speedy trial.
                                               (4) Prejudice
        The final factor to be reviewed in determining whether a defendant’s right to a speedy trial
has been violated is whether the defendant has been prejudiced due to the delay. Wood, 924 S.W.2d
at 348; Bishop, 493 S.W.2d at 84. This final factor is also the most important of the four balancing
factors. Id. In determining this remaining factor, we focus on (1) any undue and oppressive
incarceration, (2) the anxiety accompanying a public accusation, and (3) any impairment of the
defendant’s ability to prepare his defense. Bishop, 493 S.W.2d at 85; State v. Kolb, 755 S.W.2d 472,
475 (Tenn.Crim.App. 1988). In applying the third of these considerations, the impairment of
defense, the Tennessee Supreme Court and the United States Supreme Court have acknowledged that
        impairment of one’s defense is the most difficult form of speedy trial prejudice to
        prove because time’s erosion of exculpatory evidence and testimony can rarely be
        shown. . . . [E]xcessive delay presumptively compromises the reliability of a trial in
        ways that neither party can prove or, for that matter, identify. While such
        presumptive prejudice cannot alone carry a Sixth Amendment claim without regard
        to the other Barker criteria, it is part of the mix of relevant facts, and its importance
         increases with the length of the delay.

Wood, 924 S.W.2d at 348; citing Doggett, 505 U.S. at 655, 112 S.Ct. at 2692-93 (citations omitted).
        In this case, the trial court found that the appellee was prejudiced by the delay of the State
in bringing him to trial because the appellee could no longer remember the specifics of the events
surrounding his DUI arrest. The appellee could not even state with certainty whether he was alone
in the car at the time of his arrest. The trial court also found that the appellee’s cognitive skills were
impaired and would also hinder his defense. In addition to the trial court’s findings, a review of the
record reveals that the State’s chief witness, the arresting officer, also exhibited an inability to
remember some of the specifics of the case.
        Based on the record, we find the evidence supports the trial court’s finding that the defendant
suffered prejudice due to the State’s delay in bringing him to trial.

                                        CONCLUSION
        Based on the foregoing, we find that the appellee was denied his right to a speedy trial in
violation of the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the
Tennessee Constitution.


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      __________________________________
      JERRY L. SMITH, JUDGE




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