           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                       FEBRUARY SESSION, 1999       FILED
                                                        March 31, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,            )
                                                Appellate Court Clerk
                               )   No. 01C01-9804-CR-00179
      Appellant                )
                               )   DAVIDSON COUNTY
vs.                            )
                               )   Hon. Frank G. Clement, Jr., Judge
JAMES G. FRAZIER,              )
                               )   (DUI)
      Appellee                 )
                                   STATE APPEAL


For the Appellee:                  For the Appellant:

Glenn R. Funk                      John Knox Walkup
Attorney at Law                    Attorney General and Reporter
Suite 340-M, W ashington Sq.
222 Second Avenue North            Daryl J. Brand
Nashville, TN 37201                Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   Victor S. (Torry) Johnson III
                                   District Attorney General

                                   Edward S. Ryan
                                   Asst. District Attorney General
                                   Washington Sq., Suite 500
                                   222-2nd Ave. North
                                   Nashville, TN 37201



OPINION FILED:

REVERSED WITH INDICTMENT REINSTATED



David G. Hayes
Judge
                                                OPINION



        The State appeals the dismissal of an indictment by the Davidson County

Probate Court. The trial court found that the prosecution’s delay following

indictment violated the appellee’s Sixth Amendment right to a speedy trial. In this

appeal, the State contends that the trial court committed error by failing to consider

factors relevant to a speedy trial claim.



        After review, we reverse the judgment of the trial court and reinstate the

indictment.



                                            BACKGROUND



        The appellee, James G. Frazier, was arrested on February 10, 1996, for

driving under the influence. This charge was dismissed in General Sessions Court

on June 12, 1996. On December 4, 1996, the State presented this case to a

Davidson County grand jury. A true bill for DUI was returned and the appellee was

subsequently arrested for this offense on January 25, 1998.1 Following the

appellee’s arraignment for DUI in Probate Court, a motion to dismiss alleging denial

of a speedy trial was filed on March 12, 1998. The proof at the scheduled hearing

on the motion established that the appellee’s address, telephone number and

employment had not changed since his DUI arrest in February of 1996. The

appellee admitted that he had conducted no pre-trial investigation following his initial

charge for DUI. Also, he was unaware of any witness who was lost or unavailable or

any evidence that had been destroyed. Moreover, the appellee testified that the

indictment had not caused him any mental anguish or loss of sleep at night.




        1
          On this date, the appellee was initially cited by the police with soliciting prostitution when
it was disc overed that a cap ias was outstand ing for his a rrest for D UI.

                                                    2
       At the conclusion of the proof, the trial court found that:

       [N]o efforts were made by the authorities to notify him [appellee] of the
       action of the Grand Jury that and [sic] indictment was returned. The
       defendant did not attempt to prove any prejudice resulting from the
       delay . . . [i.e.,] no witnesses had been lost, his memory had not
       dimmed, and . . . had not suffered any mental anguish. . . . Therefore,
       the Court finds no specific factual prejudice to the defendant from the
       delay. . . .



In dismissing the indictment, the trial court acknowledged that generally a showing

of prejudice is required upon a speedy trial violation, “[h]owever, the Court is

concerned that for a period of years it is clear that sealed indictments are not served

nor are any attempts made for their service unless and until the defendant is

stopped at a later date.”



                                        ANALYSIS



       Before embarking upon an examination of the appellee’s speedy trial claim, it

is first necessary to establish the starting point of his right to a speedy trial. The right

attaches at the time of the actual arrest or formal grand jury action, whichever

occurs first, and continues until the date of trial. State v. Utley, 956 S.W.2d 489,

493 (Tenn. 1997); see e.g., United States v. Loudhawk, 474 U.S. 302, 310-312, 102

S.Ct. 648, 653-654 (1986); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455

(1971). This right, however, does not apply during time periods when charges have

been dismissed. United States v. MacDonald, 456 U.S. 1, 8-9, 102 S.Ct. 1497,

1502 (1982). In this case, because the indictment occurred before the appellee’s

arrest in January of 1998, the starting point for delay is the date of the indictment,

December 4, 1996.



       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).


                                           3
This test includes consideration of (1) the length of the delay; (2) the reason for the

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

by the defendant because of the delay. Id.; see also State v. Bishop, 493 S.W.2d

81, 84 (Tenn. 1973).



       The length of the delay between the warrant 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. 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); see also Utley, 956 S.W.2d at 494. In the present case, the

indictment was returned on December 4, 1996, and the delay continued until the

scheduled date of the appellee’s motion to dismiss the indictment which was heard

on March 26, 1998. This approximate sixteen month delay, while satisfying the

requirement of presumptive prejudice, however, weighs only slightly in favor of the

appellee. Thus, we proceed to the second prong of this analysis.



       The second prong of the inquiry examines 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, 346-347 (Tenn.

1996). In the instant case, the appellee related that his address, phone number,

and place of employment had remained the same since his initial arrest. The police

only arrested the appellee on the DUI charge following a subsequent unrelated

arrest. Because the State offered no valid reason for the delay in serving the

capias, this factor is weighed favorably for the appellee and against the State

although not as heavily as deliberate delay. See Wood, 924 S.W.2d at 347.


                                          4
       Next, we examine whether the appellee asserted his right to a speedy trial.

This factor was initially satisfied by the appellant’s motion to dismiss the indictment

for lack of a speedy trial on March 12, 1998, following his arraignment in Probate

Court on February 19, 1998. The defendant’s assertion of this right weighs in favor

of his claim. Wood, 924 S.W.2d at 347 (citing Barker, 407 U.S. at 531-532, 92 S.Ct.

at 2192-2193; Bishop, 493 S.W.2d at 85).



       We view the final factor as the most important in the balancing test, i.e.,

prejudice to the defendant resulting from the delay. Wood, 924 S.W.2d at 348;

Bishop, 493 S.W.2d at 85. In determining this remaining factor, we focus upon (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). It is undisputed, from the proof in the record, that the appellee was not

prejudiced as a result of the delay in this case. Indeed, the trial court found no

prejudice.




                                    CONCLUSION



       In sum, although the appellee has established a delay that is prima facie

unjustified, he has, however, failed to demonstrate prejudice resulting from the

delay. We acknowledge the trial court’s frustration over the police department’s

“systematic” indifference in the execution of outstanding arrest warrants;



nonetheless, we are unable to conclude, under the Barker v. Wingo balancing test,

that the appellee was denied his constitutional right to a speedy trial.




                                          5
      The judgment of the trial court is reversed and remanded to the trial court for

reinstatement of the indictment against the appellee for driving under the influence.




                                  ____________________________________
                                  DAVID G. HAYES, Judge



CONCUR:



____________________________________
JAMES CURWOOD WITT, JR., Judge



____________________________________
JOHN EVERETT W ILLIAMS, Judge




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