                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                        (HEARD AT CHATTANOOGA)




                                                   FOR PUBLICATION

STATE OF TENNESSEE,                      )        Filed: November 17, 1997
                                         )
              Appellant,                 )
                                         )         DAVIDSON CRIMINAL
                                         )
Vs.                                      )
                                         )        HON. THOMAS H. SHRIVER,
                                         )               JUDGE
DEMETRIUS DEW AYNE UTLEY,                )
                                         )
              Appellee.                  )        No. 01-S-01-9604-CR-00120
                              FILED
                              November 17, 1997

For Appellant:           Cecil W. Crowson For Appellee:
                       Appellate Court Clerk
John Knox Walkup                           David Baker
Attorney General & Reporter                Assistant Public Defender
                                           Nashville, Tennessee
Michael E. Moore
Solicitor General

Gordon W. Smith
Associate Solicitor General

Darian B. Taylor
Assistant Attorney General
Nashville, Tennessee

Victor S. Johnson, III
District Attorney General

William R. Reed
Assistant District Attorney
Franklin, Tennessee




                                 OPINION


REVERSED AND REMANDED
TO THE TRIAL COURT                                           ANDERSON, C.J.
        The question to be decided in this appeal is whether the defendant was

denied his right to a speedy trial as required under the Sixth Amendment to the

United States Constitution and Article I, § 9 of the Tennessee Constitution. To

answer that question, we must determine the type of state action which will

engage the defendant’s right to a speedy trial. 1



        In this case, the trial court found that the speedy trial right was engaged

by the issuance of an arrest warrant against the defendant and that a delay of

five and one-half years from the issuance of the arrest warrant was a violation of

the defendant’s constitutional right to a speedy trial. As a result, the trial court

dismissed the armed robbery charge. The Court of Criminal Appeals affirmed.



        After a review of applicable federal and state authority, we conclude that

the issuance of an arrest warrant alone does not trigger a speedy trial analysis

and that the right to a speedy trial is not implicated until there is an arrest or a

formal grand jury accusation. In this case, there was a delay of eight months

from the service of the arrest warrant to the argument on the motion for speedy

trial. Because the delay is not presumptively prejudicial under Barker v. Wingo,

407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude that the

defendant’s right to a speedy trial was not violated under the United States or

Tennessee Constitutions.



        We also conclude, however, that the five-year delay from the commission

of the offense to the arrest, raises due process concerns under the United States

and Tennessee Constitutions, and that a due process analysis is required as to

whether the delay caused substantial prejudice to the defendant’s right to a fair

trial, and whether the delay was an intentional device to gain a tactical

        1
          Oral argument was heard in this case on April 15, 1997, in Chattanooga, Hamilton
Coun ty, Tenne ssee, a s part of th is Court’s S.C.A.L .E.S. (Supreme Court Advancing Legal
Education for Students ) project.



                                               -2-
advantage over the accused. Because this issue was not heard in the courts

below and no record was developed, we reverse the judgment and remand the

case to the trial court for further proceedings consistent with this Opinion.



                                  BACKGROUND

       On June 4, 1987, a criminal arrest warrant for armed robbery was issued

for the defendant, Demetrius Dewayne Utley, for an alleged offense committed

on May 27, 1987, in Davidson County, Tennessee. The defendant was not

served with the warrant until June of 1992, even though he had been in the

State’s custody for unrelated convictions for the majority of the five years. After

the return of an indictment in September of 1992, the defendant moved to

dismiss the charge because he had been denied his constitutional right to a

speedy trial. The motion was filed in December of 1992 and granted in February

of 1993.



       The trial court concluded that the speedy trial right was triggered by the

issuance of the arrest warrant in 1987, despite the fact that the defendant was

not arrested or indicted until 1992. The court found that the five and one-half

year period was “intolerable and egregious,” particularly since the defendant had

been in the custody of the state. After concluding that the defendant had been

prejudiced, the trial court dismissed the armed robbery charge. The Court of

Criminal Appeals agreed that the issuance of the arrest warrant triggered the

right to a speedy trial. After applying the four-factor analysis in Barker v. Wingo,

supra, the Court of Criminal Appeals concluded that the defendant’s right to a

speedy trial had been violated.



       The State argues that the speedy trial right is not implicated until a formal

grand jury accusation or the restraint provided by an actual arrest, and that prior

to these events, the defendant is protected by the statute of limitations and the


                                         -3-
right to due process. The defendant maintains that the lower courts correctly

determined that his right to a speedy trial had been violated. We granted the

State’s application to appeal to consider this important issue.



                                  SPEEDY TRIAL

       The Sixth Amendment to the United States Constitution provides in part

that “in all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial.” U.S. Const. amend. VI. This provision is applicable to the

states through the Fourteenth Amendment to the United States Constitution.

Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The

Tennessee Constitution also provides that “in prosecutions by indictment or

presentment [the accused has the right to] a speedy public trial.” Tenn. Const.

Art. I, § 9. The right to a speedy trial is also statutory in Tennessee: “In all

criminal prosecutions, the accused is entitled to a speedy trial. . . .” Tenn. Code

Ann. § 40-14-101 (1990).



       The purpose of the speedy trial guarantee is to protect the accused

against oppressive pre-trial incarceration, the anxiety and concern due to

unresolved criminal charges, and the risk that evidence will be lost or memories

diminished. Doggett v. United States, 505 U.S. 647, 654, 112 S.Ct. 2686, 2692,

120 L.Ed.2d 520 (1992). In Barker v. Wingo, supra, the Supreme Court

established four factors to consider in evaluating a speedy trial issue: the length

of the delay, the reason for the delay, the defendant’s assertion of the right, and

the prejudice suffered by the defendant from the delay. 404 U.S. at 530, 92

S.Ct. at 2192; see also State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973)

(adopting Barker analysis).



       The threshold question in this case is what state action triggers speedy

trial analysis. In United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463,


                                         -4-
30 L.Ed.2d 468 (1971), the United States Supreme Court said that “it is either a

formal indictment or information or else the actual restraint imposed by arrest

and holding to answer a criminal charge that engage the particular protections of

the speedy trial provisions. . . .” Although not confronted with the issue of an

arrest warrant, the Court said:


        [W]e decline to extend the reach of the amendment to the period
        prior to arrest. Until this event occurs, a citizen suffers no restraints
        on his liberty and is not the subject of public accusations: his
        situation does not compare with that of a defendant who has been
        arrested and held to answer. . . .


404 U.S. at 321-22, 92 S.Ct. at 463-64 (emphasis added); see also Doggett, 505

U.S. at 655, 112 S.Ct. at 2692 (“arrest, indictment or other official accusation”).



        From the time it was decided, the Tennessee Supreme Court has followed

Marion. In State v. Wood, 924 S.W.2d 342 (Tenn. 1996), we held that the

defendant, who was charged in a sealed grand jury presentment, was an

“accused” for purposes of the speedy trial provision because he was “faced with

a formal accusation.” We stressed that it is “either a formal indictment or

information or else the actual restraint imposed by arrest and holding to answer a

criminal charge” that triggers the speedy trial analysis. Likewise, in State v.

Baker, 614 S.W.2d 352, 354 (Tenn. 1981), we relied on Marion in holding that

“no speedy trial rights arise until after formal accusation, either by arrest or by

grand jury action.”2



        Although we have not specifically addressed the issue in this Court, other

state courts have. The majority view of other state and federal jurisdictions is

that the issuance of an arrest warrant or complaint does not invoke speedy trial




        2
            The Court of Criminal Appeals has likewise relied on Marion in requiring a formal grand
jury action or the actua l restraints o f an arres t and hold ing to ans wer a crim inal charg e. State v.
Northc utt, 568 S.W .2d 636 ( Tenn . Crim. A pp. 1978 ); Bosw ell v. State, 528 S.W.2d 825 (Tenn.
Crim . App. 197 5).

                                                   -5-
rights.3 For example, the Connecticut Supreme Court observed in State v.

Crawford:


        [With respect to an intermediate court’s decision,] we do not
        necessarily agree with the conclusion . . . that the issuance of an
        arrest warrant in and of itself triggers the sixth amendment right of
        a person not yet arrested to a speedy trial. This conclusion does
        not comport with the purpose of the sixth amendment. ‘The speedy
        trial guarantee is designed to minimize the possibility of lengthy
        incarceration prior to trial, to reduce the lesser, but nonetheless
        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 charges.’


521 A.2d at 1039, n. 13 (quoting in part United States v. MacDonald, 456 U.S. 1,

8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982)).



        On the other hand, some courts have held that an arrest warrant or

complaint does trigger speedy trial protection. In State v. Holtslander, 629 P.2d

702 (Idaho 1981), the court, applying its state constitutional right to a speedy

trial, held that an arrest warrant constitutes a formal charge and that the right to a

speedy trial engages upon the issuance of a formal charge or arrest, whichever

comes first.4



        Like the other courts that follow the majority view, this Court has

determined that a warrant alone does not trigger speedy trial analysis; to the

contrary, a formal grand jury action or the actual restraints of an arrest are

required. Wood, 924 S.W.2d at 345; Baker, 614 S.W .2d at 353. We have



        3
           Pharm v. Hatcher, 984 F.2 d 783 (7 th Cir.), cert. denied, 510 U.S. 841, 114 S.Ct. 125,
126 L.E d.2d. 89 (1 993); Arnold v. McCarthy, 566 F.2 d 1377 (9th Cir. 19 78); Coleman v. Lofton,
715 S.W .2d 435 ( Ark. 19 86); State v. Crawford, 521 A.2d 1034 (C onn. 198 7); Henson v. United
States, 287 A.2d 106 (D .C. App . 1972); Preston v. State , 338 A.2d 562 (D el. 1975); Dillard v.
State , 931 S.W .2d 157 ( Mo. Ap p. 1996) ; Rios v. S tate, 718 S.W .2d 730 (Tex. Crim . App. 1986).

        4
           See also State v. Cordova, 448 A.2d 848 (C onn. Su per. Ct. 19 82); W illiams v. D arr, 603
P.2d 10 21 (Kan . App. 197 9); State v. Bro uillette, 286 N.W .2d 702 ( Minn. 19 79); State v. Lemay,
455 N .W .2d 233 ( W is. 1990); but see Pharm v. Hatcher, 984 F.2d at 78 4 (W isco nsin rule
expressed in State v. Lemay “conflicts with federal case law.”). Still other courts hold that an
arrest wa rrant may trigger speedy trial rights if the defendant is “subject to be tried on that
docum ent.” State v. Gee, 471 A.2d 712, 716 (Md.), cert. denied, 467 U.S. 1244, 104 S.Ct. 3519,
82 L.Ed.2d 827 (1984).

                                                 -6-
followed Marion‘s lead, reasoning that 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. See

Marion, 404 U.S. at 321-22, 92 S.Ct. at 463-64. Moreover, as we and other

courts have recognized, a defendant has other protections during delays prior to

arrest, in particular, the applicable statute of limitations and the right to due

process. As we noted in Baker,


        prior to formal accusation, the defendant’s rights are protected by
        the statute of limitations. . . . [D]elay may [also] occur in such a
        manner that the defendant’s Fifth Amendment right to due process
        -- in contrast to the Sixth Amendment right to speedy trial -- is violated.


614 S.W.2d at 354 (citing, Marion, 404 U.S. at 322-25, 92 S.Ct. at 464, and

United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)).



        The defendant argues, however, that the Court of Criminal Appeals, in

deciding that the right to a speedy trial is triggered by the issuance of an arrest

warrant, properly relied upon Tenn. Code Ann. § 40-2-104 (1990), which states

in part that


        [a] prosecution is commenced, within the meaning of this chapter,
        by finding an indictment or presentment, the issuing of a warrant,
        binding over the offender, by the filing of an information as provided
        in chapter 3 of this title, or by making an appearance . . . .


(Emphasis added). But, we think the reliance is misplaced because this statute

specifically pertains to the statute of limitations governing offenses and when a

prosecution is commenced for that purpose.5 There is a completely separate

statute governing an accused’s right to speedy trial which does not contain a

specific triggering mechanism. See Tenn. Code Ann. § 40-14-101 (1990) (“In all



        5
         Although we cited to this statute in dealing with the speedy trial issue in Wood , supra,
we quoted only the portion regarding indictments and presentments. 924 S.W.2d at 345.

                                                -7-
criminal prosecutions, the accused is entitled to a speedy trial”). Still another

statute, which sets forth the methods of prosecution, states that


       [n]o person shall be put to answer any criminal charge, but by
       presentment, indictment or impeachment; provided, that in
       accordance with the provisions of this chapter, an accused
       represented by an attorney may waive his right to be tried upon
       presentment or indictment and consent to prosecution by
       information.


Tenn. Code Ann. § 40-3-101 (1990). Accordingly, it is clear that Tenn. Code

Ann. § 40-2-104 does not support the broad proposition advanced by the

defendant and the Court of Criminal Appeals. Similarly, because due process

rights also protect against unreasonable delays, we reject the contention that

allowing the issuance of a warrant to commence the prosecution for the purpose

of the statute of limitations but not trigger the right to a speedy trial is “manifestly

unfair.”



       The defendant also relies on the advisory commission comments to Rule

4 of the Tennessee Rules of Criminal Procedure, which governs arrest warrants

and summons:


       [T]he form of the arrest warrant, as set out in Rule 4(c)(1), makes
       no distinction between warrants issued for persons not yet arrested
       and those warrants issued for persons already arrested without a
       warrant. . . . Such a warrant serves a dual function, first, as the
       authority for an arrest (where an arrest has not already been
       lawfully made) and, secondly, as a statement of the charge which
       the accused is called upon to answer. . . . The command to arrest
       is obviously surplusage where the warrant is directed against one
       already in custody; but a warrant in such cases still serves as the
       official charging instrument, issued after a judicial finding of
       probable cause, and gives notice of the charge which must be
       answered.


(Emphasis added). Neither Rule 4 nor the advisory comments address the right

to a speedy trial. Moreover, in spite of the reference to an “official charging

instrument,” it is clear that the underlined passage pertains to an accused who




                                           -8-
has already been arrested, which is consistent with what has been held to trigger

the speedy trial right. See, e.g., State v. Baker, 614 S.W.2d at 353.



        Accordingly, in our view the defendant’s right to a speedy trial was

triggered when he was served with the arrest warrant and arrested in June of

1992,6 and not when the warrant was issued in June of 1987. Although the case

was dismissed before a trial date was set, the motion was argued in February of

1993; thus, the delay was between arrest and dismissal, approximately eight

months.



        While such a delay must approach one year to trigger the Barker v.

Wingo analysis, the line of demarcation depends on the nature of the case. The

presumption that pre-trial delay has prejudiced the accused intensifies over time.

Doggett, 505 U.S. at 652, 112 S.Ct. at 2691.



        Here, the length of time was not presumptively prejudicial within the

meaning of Barker v. Wingo. The defendant was arrested in June, indicted in

September, and arraigned in October of 1992. After asserting his right to a

speedy trial by moving to dismiss the charges in December of 1992, the motion

was granted in February of 1993. Compare State v. Wood, 924 S.W.2d at 346

(delay of thirteen years). There was no “presumptively prejudicial” delay under

the facts of this case. Therefore, without addressing the remaining factors, we

conclude that the defendant’s right to a speedy trial was not violated under the

United States or Tennessee Constitutions.




        6
          The State asserts that the defendant was not “arrested” in the traditional sense because
he was already in custody when served with the warrant and that, therefore, the speedy trial
analysis was not implicated until the indictment in September of 1992. We reject this contention;
as we have discussed, the interests protected by a speedy trial were certainly implicated when he
was se rved with th e arrest w arrants. See, e.g., Smith v. Hooey, 393 U.S. 374, 87 S.Ct. 575, 21
L.Ed.2d 607 (1969)(speedy trial interests apply to defendant already incarcerated on unrelated
charges).

                                               -9-
                                          DUE PROCESS

        A delay that does not implicate the speedy trial right may still raise due

process concerns under the Fifth and Fourteenth Amendments to the United

States Constitution and Article I, § 9 of the Tennessee Constitution. As the

United States Supreme Court said in Marion, “[t]he Due Process Clause of the

Fifth Amendment would require dismissal . . . 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, 92 S.Ct. at 465. Similarly, in State v.

Gray, 917 S.W.2d 668, 671 (Tenn. 1996), we noted:


        [b]efore 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.


(quoting, State v. Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990)). 7



        In State v. Gray, we held that a 42 year pre-accusatorial delay, which we

defined as the period between the offense and its disclosure to law enforcement

officers, violated the defendant’s right to due process. In so doing we found that

requiring the defendant to prove “not only that a delay has caused prejudice but

also that the State orchestrated the delay in order to obtain a tactical advantage”

as required under Marion-Dykes was “extremely one-sided” and “place[d] a

daunting, almost insurmountable [ ] burden on the accused.” Id. at 673. Thus,

given the unique facts in Gray, we held that in analyzing a pre-accusatorial delay

during which the state was unaware of the commission of the crime, the trial

court must consider only the length of the delay, the reason for the delay, and

the degree of prejudice to the accused. We indicated, however, that in other


        7
           This ap pears to be the pre vailing view in a majo rity of jurisdictions . See, e.g., LaFave &
Israel, Criminal Procedure , Vol. 2 § 18.5 at 429 (1984).

                                                  -10-
cases involving a pre-arrest delay, the due process inquiry continues to be

guided by Marion.



       In this case, neither the parties nor the trial court analyzed the delay

between the commission of the offense and the defendant’s arrest in June of

1992 as a due process issue under Marion, and there was no evidence offered

as to prejudice suffered by the defendant. Instead, the trial court, relying upon

Doggett, supra, in which the U.S. Supreme Court said that “affirmative proof of

particularized prejudice is not essential to every speedy trial issue,” mentioned

the possible loss by the State of a photographic line-up and the possible difficulty

the defendant would have in supporting an alibi defense. Similarly, the Court of

Criminal Appeals stressed the possibility that the defendant could have received

a sentence concurrent to the one he was serving on an unrelated conviction.

See Smith v. Hooey, 393 U.S. at 379, 89 S.Ct. at 577 (in discussing speedy trial

issue, Court noted possibility that defendant in prison might receive a sentence

at least partially concurrent with the one being served).



       Although Doggett may have relaxed the need for showing prejudice in

relation to a sixth amendment speedy trial claim, it did not change the need to

show actual prejudice in relation to a due process claim. See State v. Gray, 917

S.W.2d at 673; Pharm v. Hatcher, 984 F.2d at 786 n. 5. Thus, the factors cited

by the lower courts, while certainly potential forms of prejudice, cannot be

presumed and instead must be substantiated by the defendant with evidence in

the record. Dillard v. State, 931 S.W.2d at 163. Moreover, the due process

inquiry under Marion also requires proof regarding the State’s use of the delay

to gain tactical advantage.



       Accordingly, the case must be remanded to the trial court for further

proceedings on this issue. If the defendant shows that his right to due process


                                        -11-
was violated under the standard set forth in Marion, the trial court shall dismiss

the charge; otherwise, the trial should proceed.



                                            CONCLUSION

         In our view, the defendant’s constitutional right to a speedy trial was

triggered at the time of his arrest and not at the time of the issuance of the arrest

warrant, and the eight-month delay after the actual arrest did not deprive him of

his constitutional right to a speedy trial.



         We further conclude, however, that the five-year delay from the

commission of the offense to the defendant’s arrest raises due process concerns

and requires a due process analysis under the United States and Tennessee

Constitutions. Because this issue was not raised or heard in the courts below,

we reverse the judgment and remand the case to the trial court for further

proceedings consistent with this opinion.8



         Costs of this appeal are taxed to the defendant, Demetrius Dewayne

Utley, for which execution may issue.




                                             ____________________________________
                                             E. RILEY ANDERSON, CHIEF JUSTICE




Concur:

Drowota, Reid, Birch, and Holder, JJ.




         8
             Finally, we note that the C ourt of C riminal A ppeals e xpress ed con cern with regard to
the sufficiency of the indictment after determining that it was issued after the statute of limitations
but d id not allege facts indica ting w hen the p rose cutio n wa s co mm enc ed. W e sinc e hav e held in
State v. Messam ore, 937 S.W .2d 9 16 (T enn . 199 6), tha t an ind ictm ent is sue d afte r the a pplica ble
statu te of lim itation s nee d not allege facts to es tablis h tha t the p rose cutio n wa s tim ely
commenced by another method.

                                                    -12-
