        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                FILED
                           JULY SESSION, 1999               July 23, 1999

                                                       Cecil W. Crowson
STATE OF TENNESSEE,            )                     Appellate Court Clerk
                                      C.C.A. NO. 01C01-9808-CR-00346
                               )
      Appe llant,              )
                               )
                               )      DAVIDSON COUNTY
VS.                            )
                               )      HON. FRANK G. CLEMENT, JR.
DONALD MCKINNEY,               )      JUDGE
                               )
      Appellee.                )      (Direct Ap peal - D UI)




FOR THE APPELLANT:                    FOR THE APPELLEE:

HOLLIS I. MOORE, JR.                  PAUL G. SUMMERS
Office of the Metro Public Defender   Attorney General & Reporter
1202 Stahlman Building
Nashville, TN 37201                   MARVIN E. CLEMENTS
                                      Assistant Attorney General
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      VICTOR S. JOHNSON
                                      District Attorney General

                                      EDWARD S. RYAN
                                      Assistant District Attorney
                                      Washington Sq., Ste. 500
                                      Nashville, TN 37201-1649



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                   OPINION

      On January 18, 1998, the Davidson County Grand Jury indicted Appellee

Donald McKinney for driving under the influen ce of an in toxicant, sixth offense.

On July 7, 1998, Ap pellee filed a mo tion to dismiss the ind ictment. The trial court

granted the motion o n July 16, 199 8. The State c hallen ges th e trial co urt’s

dismissal of the indictment, raising the following issue: whether the trial court

erred when it determ ined th at the in dictm ent sh ould be dismissed because

Appe llee’s right to a speedy trial had been violated. After a review of the record,

we find that neither Appellee’s rights to a speedy trial nor his rights to due

process of law were violated by the delay in brin ging him to trial. The judgment

of the trial cou rt must the refore be reversed and the case rem anded for trial.

                                       FACTS




      The alleged offense in this case occurred on March 29, 1995. Arrest

warran ts were issued on May 2, 1995, but for some reason the warrants

remain ed uns erved un til January 1 , 1998.



      At the hearing on this issue, Appellee argued that the indictment should be

dismissed because the delay between the alleged offense and the serving of the

warran ts had violated his right to a speedy trial. Appellee contended that he was

prejudiced by the de lay beca use he was pre vented from obtaining the blood

sam ple taken at the time o f the alle ged o ffense so tha t indep ende nt tests could

be conducted.




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       The trial court dismissed the indictment after finding that the delay between

the alleged offense and the serving of the warrants had violated Appellee’s right

to a speedy trial. However, the trial court made no finding as to whether Appellee

had been prejudiced by the delay.



                                      ANALY SIS




       The State contends that the trial court erred when it dismissed th e

indictment merely because of the delay betwee n the da te of the alleged offense

and the date on which the warrants were served. We must agree.



                            A. Right to a Speedy Trial




       The United States and Tennessee Constitutions guarantee the criminal

defendant the right to a speed y trial. U.S. Co nst. am end. VI; T enn. C onst. 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. § 4 0-14-10 1 (1997 ). In

addition, the Te nnes see R ules o f Crim inal Procedure provide for the dismissal

of an ind ictme nt, pres entm ent, info rmatio n or crim inal co mpla int “[i]f ther e is

unneces sary 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 defe ndant to trial . . . .” Tenn. R. Crim . P. 48(b).



       The Tennessee Supreme Court has stated 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 a re required.” Utley, 956 S.W .2d at 493 . This is

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because “it is at this stage of arrest and grand jury action that the significant

interests served by the rig ht to a s peed y trial are mos t directly im plicated: the

protection against oppressive pre-trial incarceration and the reduction of anxiety

and conc ern cause d by unreso lved charges .” Id.



      Under Utley, it is clear that Appellee’s right to a sp eedy trial was not

implicated when the alleged offense occurred on March 29, 1995, or when the

warran ts were issued on May 2, 1995. Rather, Appellee’s right to a speedy trial

was not implica ted un til the warrants were served on January 1, 1998. Appellee

asserted that his right to a speedy trial was violated on July 7, 1998, and the trial

court dismissed the indictment on Ju ly 16, 19 98, ap proxim ately six a nd on e half

months after the warrants were served.



      W hen an accused seeks the dismissal of a prosecution based upon the

denial of the constitutional right to a speedy trial, the accused must establish a

period of delay that is “presum ptively 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. 26 86, 2690, 12 0 L.Ed.2d 5 20 (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 ord inary str eet crim e” is ge nerally much less than for a

serious, complex felony cha rge. 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

unrea sona ble enoug h to trigger fu rther inqu iry.   Utley, 956 S.W .2d at 494;

Dogg ett, 505 U.S. at 652, n.1, 112 S.Ct. at 2691, n.1. If this threshold is crossed,

a balan cing te st dete rmine s the m erits of th e spe edy tria l issue. In State v.

                                         -4-
Bishop, 493 S.W .2d 81, 83–8 5 (Tenn. 1973), the Ten nessee S upreme Court

recognized and adopted the balancing test 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 prejud ice resulting from the delay. Barker, 407 U.S . 514, 531 , 92 S.Ct.

2182, 2 192; Bishop, 493 S.W.2d at 83–84.



       Here, the length of time was not presumptively prejudicial. The warrants

were served on January 1, 1998, Appellee was indicted on January 18, 1998, and

the trial court dismissed the indictment on July 16, 1998. Because this period of

appro ximate ly six and one half months was less than one year, the period was

not presu mptive ly prejud icial. Th erefor e, without addressing the remaining

factors, we conclude that Appellee’s right to a speedy trial was not violated under

the United States or Tennessee Constitutions. Thus, the trial court erred when

it dismisse d the indic tment b ased o n a violation of this right.



                                  B. Due Process




       The Tennessee Supreme Court has stated that “[a] delay that does not

implicate the speedy trial right may still raise due pro cess concerns under the

Fifth and Fourteenth Amendments to the United States Constitution and Article

I, § 9 of the Tenn essee C onstitution.” Utley, 956 S.W .2d at 495. Ho wever,


       [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 re sult of the d elay, and (c) the Sta te
       caused the delay in order to gain tactical advantage over or to harass the
       accuse d.

                                          -5-
Id. (citation omitted).

       Obviously, Appelle e has d emon strated that the re was a dela y of sligh tly

less than thre e years b etween the date o f the allege d offense and the initiation

of adversarial proceedings against h im. Although Appellee contended during the

hearing that he was prejudiced by the delay in that he was thereby prevented

from obtaining the blood sam ple for in depe nden t testing , he did not introduce any

evidence to support this claim nor did he introduce any evidence that

independent testing would have yielded a result that wa s favorab le to him. In

addition, Appellee neither contended nor introduced any proof that the delay was

caused by the State for the purpose of gaining a tactical advantage. Under these

circumstances it appears that the delay in serving the arrest warrants was not so

egregious that Appellee’s rights to due process of law were violated.



       According ly, the judgm ent of th e trial co urt is RE VER SED and th is case is

REM AND ED fo r trial.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




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