         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 10, 2009

              STATE OF TENNESSEE v. CARLOUS LEON CLARK

               Direct Appeal from the Circuit Court for Madison County
                       No. 06-486    Roy B. Morgan, Jr., Judge




                 No. W2009-00025-CCA-R3-CD - Filed March 18, 2010


A Madison County grand jury indicted the Defendant, Carlous Leon Clark, for attempted first degree
murder, two counts of aggravated assault, aggravated burglary, and assault. The Defendant moved
to dismiss the charges, claiming that a trial would not comply with the speedy trial provisions of the
United States and Tennessee constitutions. The trial court denied the Defendant’s motion to dismiss,
and a Madison County jury convicted the Defendant of attempted first degree murder, assault, two
counts of aggravated assault, and aggravated criminal trespass. On appeal, the Defendant contends
that the trial court erred when it denied his motion to dismiss based on a violation of his right to a
speedy trial. After a thorough review of the record and the applicable law, we affirm the trial court’s
judgment.


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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J.C. M CL IN, JJ., joined.

Susan D. Korsnes, Jackson, Tennessee, for the appellant, Carlous Leon Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
David H. Findley, Assistant Attorney General; James G. Woodall, District Attorney General;
Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION
                                          I. Background

                                     A. Factual Background

       A Madison County grand jury, in October 2006, indicted the Defendant on one count of
attempted first degree murder, two counts of aggravated assault, one count of assault, and one count
of aggravated burglary. Following the October 2008 trial on these charges, the jury convicted the
Defendant of attempted first degree murder, assault, aggravated assault, and aggravated criminal
trespass.

        At trial, the following evidence was presented: Sholanda Buchanan testified that in April
2006 she dated the Defendant. She described the relationship as “a little shaky” and “an off and on
thing.” Buchanan testified that, in April 2006, she was living at 322 Hatton Street (“Hatton Street”)
in Jackson, Tennessee, with her four children. On April 7, 2006, Buchanan and the Defendant
argued, and she broke off their romantic relationship. Buchanan recalled that later that evening she
was at her house preparing to go out with her friend, William Peters. Peters arrived at Buchanan’s
house, and she and Peters were standing outside talking when the Defendant drove up in a gray rental
car. The Defendant became angry and said, “What you and this bitch got going on? You f’ing this
bitch[?] This my woman.” Peters then left.

        Buchanan testified the Defendant then ran toward her, she fled into her house, and the
Defendant followed. Eric Chandler, Buchanan’s brother, called Buchanan’s phone, but the
Defendant snatched the phone from her and put it in his pocket. Buchanan attempted to retrieve the
phone, which lead to a physical altercation between the two. Buchanan testified that, frightened and
trying to get the Defendant out of her house, she picked up a Crown Royal bottle and hit the
Defendant in the head. The altercation then moved outside Buchanan’s house. Buchanan recalled
that Chandler appeared during the altercation, grabbed the Defendant’s shirt collar, and swung him
from one side of the Defendant’s car to the other and told the Defendant to leave. The Defendant
replied “I’m gonna kill that bitch.” Buchanan described the Defendant’s state as “a bad rage.” The
Defendant left in his car.

        Buchanan testified she did not call the police because she did not want to see the Defendant
go back to jail and that Chandler remained at the house with her. Buchanan recalled that she heard
a car honk outside her home and that she advised her brother not to go outside. Chandler went
outside anyway, and the Defendant was standing outside of his car with a gun aimed at Buchanan
and Chandler. The Defendant proceeded to fire the weapon and shot Chandler, who fell to the
ground. The Defendant repeatedly said, “I’m gonna kill you, bitch.” Buchanan testified she feared
for her life and ran back into the house to her bedroom with Chandler following. She recalled
hearing two more gunshots outside her house. Chandler fell against her bedroom door and asked
Buchanan to open the door but she was too afraid to open the door. After she heard the Defendant
and Chandler leave the house, Buchanan came out of her bedroom. Chandler was gone, and
Buchanan watched the Defendant leave in his car. Buchanan testified that she had not seen the
Defendant since that night but that the Defendant had called her repeatedly attempting to see her.

         On cross-examination, Buchanan admitted that she had also placed calls to the Defendant,
but she insisted she did so only to ensure the Defendant did not leave Jackson. Buchanan further
acknowledged Chandler was on probation at the time of the shooting and could have gone to prison
if in possession of a gun, but she reiterated that the Defendant, not Chandler, had the gun. Buchanan


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agreed that she had no cuts, bruises, or abrasions as a result of the April 7 altercation with the
Defendant. Buchanan confirmed that, when the Defendant returned to her home, Chandler walked
out the front door, and she followed, standing in the doorway. Buchanan testified that she did not
remember stating at the preliminary hearing on these charges that she walked out the front door first,
and Chandler followed. Buchanan also explained her statement at the preliminary hearing that she
told her brother the Defendant was in the house and was “jumping” on her: She said that, although
the Defendant snatched her phone from her, Chandler was able to overhear their conversation
because the cell phone was still on. Buchanan testified that “her head [was] really not together
because she had been through a lot, but she insisted her testimony at trial was true.

        On redirect examination, Buchanan was asked to read a portion of the preliminary hearing
transcript where she testified that, upon the Defendant’s return to her home, Chandler walked out
the front door first, and she followed him.

         William Peters, Buchanan’s friend, testified that he was at Buchanan’s house on April 7,
2006, to take her out to a club. When Peters arrived at Buchanan’s house, he saw the Defendant
knocking on the front door. Peters called Buchanan and told her someone was knocking on her door,
and she told Peters to leave and come back later. Peters drove around the block until Buchanan
confirmed that the Defendant was gone, and Peters returned to her house. Peters exited his vehicle
when he saw the Defendant walking toward the house. Peters described the Defendant’s demeanor
as irate and angry, and he recalled that, because the Defendant approached him in a hostile manner,
he decided to leave. Peters recalled Buchanan telling the Defendant to leave, but the Defendant
forced his way into her house. Peters again drove around the block and attempted to call Buchanan.
He heard her say, “call 911,” and then the phone was cut off. Peters decided to return to Buchanan’s
home, and police were there when he arrived.

        On cross-examination, Peters could not explain why the police report prepared in this case
did not mention his phone call to Buchanan that night. Also, Peters explained he did not call 911
as Buchanan requested because he did not want to call unnecessarily; rather he returned to
Buchanan’s home and saw that the police were already there.

        Demetrius Golden testified that in April 2006 he was a crime scene technician with the
Jackson Police Department. Golden stated that he reported to Hatton Street and photographed the
outside of the house, blood spatter in the house and at the curb, a spent bullet, damage to the front
door, and a marking made by the bullet in the house. Golden also collected a bullet casing from the
front of the house, near the curb.

       The State entered into evidence Chandler’s death certificate, which indicated he died on April
7, 2007, of causes unrelated to these charges. Sergeant Tyreece Miller, employed in the violent
crimes unit, read into evidence Chandler’s testimony at the preliminary hearing on this matter.
Chandler testified that on April 7, 2006, on his way to Buchanan’s house, Buchanan called him. She
told him the Defendant was at her house and attacking her. Chandler testified that, because the
phone did not get hung up, he continued to hear the altercation between the Defendant and


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Buchanan. When Chandler arrived at Buchanan’s house, he saw the Defendant with his hands at
Buchanan’s neck. Chandler testified that he grabbed the Defendant’s shirt collar and put him at the
back end of the Defendant’s car. When he let the Defendant go, Buchanan hit the Defendant on the
head with a bottle. The Defendant got in his car and left but returned shortly thereafter. Chandler
came out of Buchanan’s house, and the Defendant began shooting, hitting Chandler in the shoulder
and then the arm, fracturing his arm. Chandler ran back into the house, and the Defendant continued
to shoot the gun. Chandler leaned up against Buchanan’s bedroom door and watched the Defendant
enter the house looking for Buchanan. When the Defendant entered one of the children’s bedrooms,
Chandler ran out the door and around the back of the house into the alley. Chandler called his wife
to take him to the hospital and left with her to seek treatment for his gunshot wounds. Chandler
denied having a weapon on him when he approached the Defendant outside Buchanan’s home.

        Dr. Jim Craig testified that, on April 7, 2006, he worked as an emergency room physician at
Jackson-Madison County General Hospital where he initially treated Chandler. Dr. Craig recalled
that Chandler had two gunshot wounds, one to the left arm that fractured Chandler’s upper arm and
the other to the left shoulder.

         Officer Allen Randolph, with the Jackson Police Department, testified that on April 9, 2006,
he reported to a hotel to help locate the Defendant. After police took the Defendant into custody,
Officer Randolph searched a silver Toyota Avalon the Defendant had rented. Officer Randolph
testified that, from inside the vehicle’s glove box, he recovered a five-shot .38 caliber revolver with
all five chambers loaded with ammunition. The gun was dusted for prints, but police were unable
to develop any latent prints.

        Shelly Betts worked for the Tennessee Bureau of Investigation in the firearms identification
unit and testified as an expert in the field of ballistics and firearms identification. Betts examined
the .38 caliber revolver recovered from the Defendant’s vehicle and determined that the five rounds
recovered in the .38 caliber revolver were the same type and design as the discharged bullet
recovered at Hatton Street. Betts also determined that the discharged bullet had the same class
characteristics as, and similar individual characteristics to, the bullets test fired at the lab. Due to
damage to the discharged bullet, Betts could say only that it was likely the bullet was discharged
from the .38 caliber revolver.

       Tracy Davidson testified that she was with the Defendant at the hotel when he was arrested
on April 9, 2006, for these crimes. Davidson testified that the Defendant showed up at her hotel
room bleeding. The Defendant told her that Buchanan and Chandler attacked him and that Buchanan
hit him with a Crown Royal bottle. The Defendant further stated that he “just snapped” and shot
Chandler but hoped he had not killed Chandler. Davidson said that the Defendant told her that he
would have shot Buchanan but could not find her. Davidson acknowledged that she had a substance
abuse problem. On cross-examination, Davidson admitted that, when the Defendant was arrested,
she was charged with possession of a crack pipe.

       The Defendant testified that he dated Buchanan for approximately a year-and-a-half. The


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Defendant recalled that Buchanan called him on April 7, 2006, and asked him to come to her house.
The Defendant agreed, although he planned to go to Nashville for the weekend with another female
who was with him at his house. The Defendant said his plans changed, however, and he went to
Buchanan’s house around 10:00 p.m. The Defendant and Buchanan began arguing over the female
the Defendant had been with, and he decided to leave. He testified he went to a convenience store
and then returned to Buchanan’s house. He said that, when he arrived, Buchanan again began to
argue with him, and Peters pulled up in his car in front of Buchanan’s house. Peters called
Buchanan, and the Defendant snatched the phone from her and put it in his pocket. He walked
outside and asked Peters what was going on between Peters and Buchanan. Peters responded that
the Defendant should ask Buchanan, and the Defendant turned to leave. As he was leaving,
Buchanan asked for her phone back, but he refused because he had purchased the phone. The
Defendant recalled that ,when he reached the back end of his car, Chandler grabbed him and pinned
him against the car. Buchanan hit the Defendant with a Crown Royal bottle and blood began to run
into his eyes, which obscured his vision. He told Chandler he could not see, but Chandler slung the
Defendant to the front of the car, causing the Defendant to fall to the ground. According to the
Defendant, as Chandler reached down for the Defendant, a gun fell to the ground. The Defendant
said he picked up the gun and shot at Chandler, but the Defendant did not know whether he hit
Chandler or not. After firing the gun, the Defendant got in his car and left. The Defendant denied
entering Buchanan’s house without permission.

        On cross-examination, the Defendant explained the discrepancies in the testimonies of the
other witnesses by stating that Buchanan, Chandler, Peters, and the police had all lied. He admitted
that he did not go to the hospital for his injuries because he knew police would be looking for him.
He also agreed that he never called police to report that he was attacked and that he never told
anyone the version of the shooting to which he testified at trial. The Defendant stated that he fired
three shots and took the gun with him when he left Hatton Street. The Defendant could not explain
how the gun was reloaded after firing it three times. The Defendant admitted that he had previous
convictions for aggravated kidnapping, assault with intent to commit robbery, and armed robbery.

      A jury found the Defendant guilty beyond a reasonable doubt of attempted first degree
murder, assault, aggravated assault, and aggravated criminal trespass.

                                   B. Procedural Background

        In January 2007, the Defendant filed a motion for a speedy trial, which was granted, and the
trial court set a trial date of April 3, 2007. On March 19, 2007, the trial court became aware the
Defendant was in federal custody on related charges and would not be relinquished from federal
custody until the conclusion of the Defendant’s federal case. All parties agreed to remove the case
from the trial docket and to set a March 28, 2007, status check. Another agreed order continuing the
case was entered on March 30, 2007, due to the Defendant’s being in federal custody. Status checks
were held monthly and ultimately the Defendant’s federal trial was set for December 2007, and his
sentencing was set for March 25, 2008. A transport order for April 7, 2008, was issued based upon
the federal sentencing date. The order, however, was not honored, and the Defendant was not


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present. A transport order was not issued for the April 29, 2008, status check, but the Defendant was
present in court on July 7, 2008. The case was continued for a week to allow the Defendant to
consult with his attorney. The Defendant then filed a motion to dismiss for lack of a speedy trial.
After a hearing, the trial court denied the motion, finding both parties agreed to continue the trial
from the original date, the State was diligent in its attempts to have the Defendant returned from
federal custody, and the Defendant was not prejudiced by the delay.

                                             II. Analysis

         The Defendant contends that the trial court erred by denying his motion to dismiss for denial
of his right to a speedy trial. We conclude that the trial court properly denied the Defendant’s motion
because the reasons for the delay were neutral, the Defendant agreed to the continuances, and the
Defendant did not suffer actual prejudice from the delays.

       The Sixth Amendment to the United States Constitution and the Tennessee Constitution
provides a defendant with the right to a speedy trial. U.S. Const. Amend. VI; Tenn. Const. Art. I,
§ 9. The purpose of the right to a speedy trial is to protect defendants from harm, such as,
“oppressive pre-trial incarceration, anxiety and concern of the accused, and the possibility that the
[accused’s] defense will be impaired by dimming memories and loss of exculpatory evidence.”
Doggett v. United States, 505 U.S. 647, 654 (1992).

        In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court developed a four-
prong balancing test to determine whether a defendant has been deprived of the right to a speedy
trial. The four factors considered are the length of the delay, the reasons for the delay, the
defendant’s assertion of the right, and the prejudice suffered by the defendant. Id. at 530. The
“triggering mechanism” for the presumption of a speedy trial violation is one year; however, the
specific circumstances of each case must also be considered. State v. Utley, 956 S.W.2d 489, 494
(Tenn. 1997). In this case, the Defendant was indicted in October 2006, and the Defendant’s trial
was in October 2008. This delay warrants a further examination of the specific circumstances of this
particular case in light of the remaining three Barker factors. We would note, however, that this
factor should not weigh heavily against the State, as a two-year delay from indictment to trial is not
excessive in light of other cases. See State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001); compare
Doggett, 505 U.S. at 647 (six-year delay); State v. Wood, 924 S.W.2d 342 (Tenn. 1996) (thirteen-
year delay); State v. Hutchings, No. M2008-00814-CCA-R3-CD, 2009 WL 1676057, at *5 (Tenn.
Crim. App., Nashville, Feb. 10, 2009) (eight-year delay).

       The next factor to be considered is the reason or reasons for the delay which should be
“neutral.” Barker, 407 U.S. at 531. In State v. Wood, our Supreme Court identified four possible
reasons for delay, they include:

       (1) Intentional delay for tactical advantage or to harass the defendant;
       (2) bureaucratic indifference or negligence;
       (3) necessary delay for the fair and effective prosecution of the case; and


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        (4) delay agreed to or caused by the defendant.

State v. Wood, 924 S.W.2d 342 (Tenn. 1996). In this case, the Defendant does not contend that the
delay was due to the State’s intentional act to gain advantage or harass him. We, likewise, do not
find that the record indicates such action by the State. The Defendant asserts instead that
bureaucratic indifference has deprived him of his right to a speedy trial. Our review of the record
reveals that the State requested and obtained transport orders, but the orders were not recognized.
Both parties agreed to move the trial date due to the Defendant’s federal custody, and, thereafter,
monthly hearings were held to track the status of the Defendant’s federal cases. A transport order
was issued four days after the conclusion of the Defendant’s cases, but the order was not honored.
In April 2008, the trial court failed to issue a transport order, but the Defendant appeared in court
in July 2008, and the trial was set and held in October 2008. The record does not demonstrate that
the State was indifferent to the Defendant’s right to a speedy trial. In fact, the record reveals that the
State diligently requested transport orders and followed the Defendant’s federal status. The State
did so in anticipation of promptly disposing of its charges against the Defendant upon his release
from federal custody. We do not find that these circumstances rise to the level of bureaucratic
indifference or negligence by the State.

        The State does not contend that the delay was necessary for the fair and effective prosecution
of the Defendant’s charges. As for the Defendant’s role in the continuances, the Defendant, through
defense counsel, twice agreed to continue his trial after the original trial date was set at the hearing
on the motion for speedy trial. Because the Defendant agreed to the continuances, the reason for the
delay is neutral.

        A defendant’s assertion of the right, while not required, is “entitled to strong evidentiary
weight.” A defendant’s agreement to continuances after a speedy trial request, however, will
diminish the weight given this factor. Barker, 407 U.S. at 521; State v. Hugh Peter Bondurant, Jr.,
No. M1998-00494CCA-R10CD, 1999 WL 1209514, at *6 (Tenn. Crim. App., Nashville, Dec. 17,
1999). The Defendant asserted his right to a speedy trial in February 2007, and the trial court granted
the motion, setting the trial date within sixty days. However, because the Defendant agreed to
continue the case after he asserted his speedy trial right, his agreement negated his assertion of his
right to a speedy trial. See State v. Lewis, No. M2005-02279-CCA-R3-CD, 2006 WL 2738160, at
*3 (Tenn. Crim. App., Nashville, Sept 26, 2006) Tenn. R. App. P. 11 application denied (Tenn. Jan.
29, 2007).

        Finally, we consider the prejudice to the Defendant caused by the delay in light of the
interests protected by the speedy trial right. Barker, 407 U.S. at 532. The Defendant asserts that the
delay impaired his defense because the victim in the attempted first degree murder charge, Eric
Chandler, before trial. Chandler died April 7, 2007, of causes unrelated to these charges. Chandler
did, however, testify at the May 4, 2006, preliminary hearing in this case and was cross-examined
by the defense.

        Although Chandler is clearly significant to the case, the Defendant has not shown any actual


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prejudice from the lack of Chandler’s testimony at trial. Chandler’s preliminary hearing testimony
was presented at trial. Further, Chandler’s testimony likely would have harmed the Defendant’s case
as Chandler could clearly identify the Defendant as the perpetrator of the crimes. Chandler’s
testimony was consistent with Buchanan and Peter’s testimony as well as the testimony about the
gun recovered in the Defendant’s vehicle. The Defendant argues that the jury was unable to
determine Chandler’s credibility as a witness since he was not in court. Even assuming that the jury
found Chandler’s testimony not truthful, they apparently did credit Buchanan, Peters, and the
testimony of various law enforcement officers at the trial, which was consistent with Chandler’s
preliminary hearing testimony.

        While the delay was sufficient to trigger a Barker inquiry, the Defendant has failed to
establish a meritorious claim for a speedy trial violation. Accordingly, we conclude that the trial
court did not abuse its discretion when it denied the Defendant’s motion to dismiss for lack of a
speedy trial.

                                          III. Conclusion

        After a thorough review of the record and the applicable law, we conclude that the trial court
did not err when it denied the Defendant’s motion to dismiss for lack of a speedy trial. As such, we
affirm the trial court’s judgment.




                                                       _________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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