State of Tennessee v. Douglas Edward Christian ( 2019 )

08/21/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 18, 2019 Session
STATE OF TENNESSEE v. DOUGLAS EDWARD CHRISTIAN
Appeal from the Circuit Court for Coffee County
No. 41726-F Vanessa Jackson, Judge
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No. M2018-00320-CCA-R3-CD
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Defendant, Douglas Edward Christian, was convicted of Class B felony possession of .5
grams or more of methamphetamine, a Schedule II controlled substance, with the intent
to sell or deliver (Count 1); Class B felony possession of .5 grams or more of cocaine, a
Schedule II controlled substance, with the intent to sell or deliver (Count 2); Class D
felony possession of a Schedule III controlled substance, Bu[p]reno[r]phine, with the
intent to sell or deliver (Count 3); and Class A misdemeanor possession of marijuana, a
Schedule VI controlled substance (Count 4). The trial court sentenced Defendant to an
effective term of twenty-years as a Range II offender. On appeal, Defendant claims that
the trial court “erroneously used foreign judgments” to sentence him as a Range II
offender, considered unsubstantiated information in sentencing him, wrongly denied
pretrial jail credits, and erred by denying Defendant his right to a speedy trial. After a
thorough review of the record and briefs, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.
Drew Justice (on appeal), Murfreesboro, Tennessee, and Bud L. Sharp (at trial)
McMinnville, Tennessee, for the appellant, Douglas Edward Christian.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Craig Northcott, District Attorney General; and Joshua C. Powell,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural Background
Because Defendant claims that he was denied his right to a speedy trial, we will
include numerous dates in the procedural background section of this opinion.
In March 2015, the Coffee County Grand Jury returned a four-count indictment in
Case No. 41,726F charging Defendant with Class B felony possession of .5 grams or
more of methamphetamine, a Schedule II controlled substance, with the intent to sell or
deliver (Count 1); Class B felony possession of .5 grams or more of cocaine, a Schedule
II controlled substance, with the intent to sell or deliver (Count 2); Class D felony
possession of a Schedule III controlled substance, Bu[p]reno[r]phine, with the intent to
sell or deliver (Count 3); and Class A misdemeanor possession of marijuana, a Schedule
VI controlled substance (Count 4). After being released on bond, Defendant failed to
appear for arraignment and was rearrested on May 11, 2015. Although he was denied
bond, he was mistakenly released from custody. On August 8, 2015, Defendant was
arrested on new charges.
On January 5, 2016, Defendant’s retained counsel filed a pretrial motion to
suppress, a motion for medical care, and a motion to set or lower bond. The State
responded to the motions on February 8. After numerous discussions with the State,
retained counsel filed amended motions on February 23, 2016. Because of the expected
time required to argue the motions, the parties agreed to a special setting. On May 27,
2016, Defendant filed a motion to suppress statements and a motion to suppress text
messages. On June 1, 2016, the parties appeared in court, and the motions were set for
argument. On July 14, 2016, the motions were argued.
On July 20, 2016, retained counsel moved to withdraw. On August 1, the trial
court entered orders setting a $250,000 “blanket bond” for this case and three other cases
pending against Defendant, granting Defendant’s motion to be provided with proper
diabetic care, and denying the other motions. New counsel entered an appearance on
September 7, 2016, and filed a motion to reduce bond and a “Motion for a Fast and
Speedy Trial” on September 13, 2016.
On April 5, 2017, the trial court heard Defendant’s “Motion for a Fast and Speedy
Trial” in this case before starting the jury trial in Case No. 42,4567F. After argument of
counsel, the trial court found that because the case had been pending for over a year,
there was “a presumption of prejudice which triggers examination of the next factors.”
After argument, the court denied the motion, finding:
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If you look at the reasons for the delay, there’s absolutely no
showing of any intent by the State to delay this matter to the prejudice of
the defendant or for any tactical advantage. That’s no showing of any
bureaucratic indifference.
Quite frankly, most of the delay in this matter was acquiesced to by
the defense or was a result of waiting on the defense to amend certain --
their motions to suppress. It appears that [the Assistant District Attorney]
was very diligent in communicating with defense counsel in trying to get
those motions in a position where they could be heard, so that factor weighs
against the defense in this case.
Again, the delay I believe was necessary for a fair prosecution of the
case because it was necessary to hear those motions to suppress.1
On September 25, 2017, Defendant moved to sever his offenses in the instant case,
alleging that there were two separate incidents. On September 27, 2017, Defendant filed
another motion to dismiss for failure to grant a speedy trial. On October 16, the State
moved to amend the indictment to remove the word “sell” from Counts 1, 2, and 3. The
motion was granted the same day.
Jury Trial
Because Defendant does not contest the sufficiency of the evidence, we will limit
our summary of the evidence presented at the jury trial to that necessary to give context
to the issues raised.
The case was tried by jury on October 17, 2017. Manchester Police Department
(MPD) Investigator Butch Stewart testified that he received multiple text messages
concerning Defendant on November 2, 2014. The author of the text messages said that
Defendant was in a white Chevrolet Equinox but that she did not know his location.
Investigator Stewart was unable to locate the vehicle. On November 3, 2014,
Investigator Stewart received additional text messages from a different person stating that
Defendant was at the Ambassador Motel in Manchester to deliver drugs. Investigator
Stewart and two other MPD officers went to the motel to investigate. Defendant was
standing beside the Equinox when they arrived, but he hurried into a motel room when he
saw the officers. Investigator Stewart and the MPD officers knocked on the door.
Defendant opened the door, was courteous to the officers, and upon request gave officers
1
The written order denying Defendant’s “Motion for a Fast and Speedy Trial” was entered on
November 13, 2017.
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permission to search his motel room and the Equinox located in the parking lot. Inside
the motel room, officers found empty plastic bags in the toilet. Inside the vehicle,
Investigator Stewart found a pill bottle containing cocaine. Defendant was arrested at
that time. Two days later, a motel maintenance employee notified MPD that he found a
bag of drugs clogging up the toilet in the room Defendant had rented.
Investigator Stewart testified in detail concerning the drugs found in the bag
recovered from the toilet. He also testified about telephone calls made by Defendant
from jail that were recorded. The recordings were played for the jury. Investigator
Stewart stated that, in one recording, Defendant said that he “flushed everything,” and all
the police found was little plastic bags. Defendant stated, “I lost five or six thousand.”
Numerous texts between Defendant and other individuals before Defendant arrived in
Manchester were introduced. Defendant sent a text message stating that he had various
drugs, including “clear” which is crystal methamphetamine, “girl” which is cocaine, pain
pills, and “loud” which is marijuana. Defendant asked one person, who wanted to buy
drugs, if she could get a ride to Ambassador Inn. Defendant responded, “[C]ome to exit
110 Ambassador Inn go thru front its building on right go behind u will see white van
room 120.” Shortly before Defendant was arrested, he texted that he “was missing a pill
bottle with my girl and clear[.]”
The jury found Defendant guilty of the charged offenses.
Sentencing Hearing
The trial court conducted a sentencing hearing on November 29, 2017. At the
beginning of the sentencing hearing, the State announced that it would be relying on two
previous out-of-state convictions to establish that Defendant was a Range II offender.
Defense counsel “agree[d] that the conviction in 1987 of a federal crime was
[Defendant], and there’s another conviction from 1977 that [Defendant] received a
sentence for, but it’s not real[ly] clear to me as to what he was actually pleading guilty
to.”
The State introduced, as Exhibit 1, several Fulton Superior Court (Georgia)
documents related to Case No. A-34238. The documents included a certified copy of an
indictment dated September 13, 1976, charging Defendant with rape, and a certified copy
of a “Felony Sentence” signed by the judge of the Superior Court on August 22, 1977,
sentencing Defendant to three years. Immediately below the title “Felony Sentence,”
appeared the word “Charge” followed by a blank in which “Rape” was handwritten. The
State argued that the definition of rape in Georgia in 1976 was almost “word-for-word”
the same as the statute in Tennessee in effect at that time.
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Defendant’s counsel argued that because there was “no order attached” to the
“Felony Sentence” document, it was unclear what Defendant “pled to.” Counsel stated
that Defendant “received a three-year sentence, so I find it hard to believe that’s a rape
conviction unless the sentences were a lot more lenient back then.” Counsel stated that
Defendant claimed that the three-year sentence in the Georgia case was for a plea to
“mischievous conduct.” However, Defendant presented no testimony or documentary
evidence to show that he pled to an offense other than rape.
The second conviction on which the State relied was a 1987 conviction for
“conspiracy to possess with intent to distribute and to distribute cocaine, in violation of
Title 21, U.S.C. section 846” from United States District Court of Florida. Defendant
was sentenced to seven years. The State argued that the federal statute under which
Defendant was convicted was similar to the statute in effect in Tennessee at the time and
would have been a Class D felony if committed in Tennessee. Defendant did not contest
this conviction at the sentencing hearing.
Jenna Miller, a former employee for the Tennessee Department of Correction,
testified that she prepared two presentence reports. Ms. Miller stated that she went over
the first presentence report with the Defendant while he was incarcerated. In regards to
Defendant’s prior record of criminal convictions, she said Defendant “raised a question
about one of them -- I believe it was a dismissed case -- but everything else he agreed to.”
After reviewing the report with Defendant, Ms. Miller prepared a second report that had a
new statement of Defendant attached. The second presentence report was entered as
Exhibit 4. On cross-examination, Ms. Miller stated that the report contains “the
convictions that I got from calling Georgia, Florida, Alabama, all of those cases. They
have sent me copies of stuff of where there’s convictions[.]’”
Coffee County Sheriff Department Investigator James Sherrill testified that he had
been approached by two Clayton County, Georgia, district attorney investigators
concerning a pending homicide. Over the objection of Defendant, Investigator Sherrill
testified about his meeting with the Georgia investigators. A certified copy of a true bill
from Clayton County was admitted as an exhibit through Investigator Sherrill. In Count
1 of the twelve-count true bill, Defendant was charged with “the offense of malice
murder.” Count 1 stated that “on or about the 3rd day of March, 2015, [Defendant] did
unlawfully, with malice aforethought, cause the death of Makenzie Puyear, a human
being, by providing her with Methamphetamine, Morphine, Fentanyl, and Ethylone, and
knowing that she would consume them[.]” Investigator Sherrill stated that the Georgia
investigators wanted to talk to witnesses in Coffee County about “an individual that
overdosed in a KOA campground in Coffee County.” According to Investigator Sherrill,
the victim in Coffee County had been raped by Defendant. The victim was later flown to
Vanderbilt where she was treated and ultimately released.
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Sentencing Order
The trial court took the matter under advisement and, on December 19, 2017,
entered “Sentencing Findings of Fact for Offenses Committed on or after June 7, 2005,”
(Sentencing Order) in which the court stated:
In determining the appropriate sentence for this offense, this Court
has considered the evidence presented at the trial and the sentencing
hearing, the pre-sentence report, the principles of sentencing and arguments
made as to sentencing alternatives, the nature and characteristics of the
criminal conduct involved, the evidence and information offered by the
parties on the mitigating and enhancement factors, any statistical
information provided by the administrative office of the Court . . . , any
statement the Defendant made, if any, on his own behalf about sentencing,
and the Defendant’s potential for rehabilitation or treatment.
....
The Defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate
range. Defendant’s extensive criminal history spans over forty (40) years
and at least four (4) states. His criminal history is well documented in the
pre-sentence Investigation Report (Exhibit 4) and the certified copies of
convictions entered into evidence (Exhibit 3). Defendant’s history includes
convictions for rape, possession of controlled substances, violation of the
sex offender registration act, assault, battery, and burglary.
In addition to these numerous convictions, Defendant has been
indicted in Clayton County, Georgia, in Case No. CR026285, in a twelve
(12) count indictment for Malice Murder, three (3) counts of Felony
Murder, three (3) counts of Possession of a Controlled Substance with
Intent to Distribute, Criminal Attempt to Commit Rape and Tampering with
Evidence. He has been indicted in Spalding County, Georgia for
Possession of a Firearm by a Felon. The Defendant also has been indicted
in Coffee County, Tennessee, in two additional cases. In Case No. 42749,
the Defendant is charged with Violation of the Sex Offender Registration
Act, and in Case No. 42024, he is charged with Failure to Appear.
The Defendant had no hesitation about committing a crime when the
risk to human life was high. The evidence at trial established that
Defendant was transporting dangerous illegal drugs from Georgia to
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Tennessee for sale. The drugs included heroin, cocaine, methamphetamine
and marijuana. In the pending case in Clayton[,] Georgia, it is alleged that
Defendant supplied drugs to a woman in a motel room who later overdosed
and died. There was also testimony from Investigator James Sherrill with
the Coffee County Sheriff’s Department that Defendant had supplied drugs
to a woman at the KOA campground in Manchester, Tennessee. This
woman also overdosed and was taken to a hospital. She fortunately
survived. The Defendant is a dangerous felon, who uses illegal drugs to
prey on addicts and prostitutes.
The court found that Defendant had “a minimum of two (2) but not more than four
(4) prior felony convictions within the conviction class, a higher class, or within the next
two (2) lower felony classes” and was therefore a Range II multiple offender pursuant to
Tennessee Code Annotated section 40-35-106. Defendant was sentenced as a Range II
offender to twenty years’ incarceration in Counts 1 and 2 and to six years’ incarceration
in Count 3. Defendant was sentenced to 11 months and 29 days’ incarceration in Count
4. The four sentences were ordered to be served concurrently.
After the trial court denied his motion for new trial, Defendant timely appealed.
Analysis
On appeal, Defendant claims that the trial court “erroneously used foreign
judgments” to sentence him as a Range II offender, considered unsubstantiated
information in sentencing him, wrongly denied pretrial jail credits, and erred by denying
Defendant his right to a speedy trial. The State argues that the trial court properly
sentenced Defendant and properly denied the speedy trial motions and that the pretrial
jail credit issue is waived because it was not raised in the trial court. We agree with the
State.
Sentence Range
A defendant may appeal from the length, range, manner of service, or consecutive
alignment of a sentence imposed by the trial court. Tenn. Code Ann. § 40-35-401 (2017).
On appeal, a defendant bears the burden of showing that the sentence is improper. Tenn.
Code Ann. § 40-35-401 (2017), Sent’g Comm’n Cmts.
Defendant claims that the trial court erred in finding that he was a Range II
multiple offender. The standard of review applicable to the length of sentences adopted
in State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012), has now been applied to the trial
court’s determination of an offender’s range classification. State v. Laylon Ward, Jr., No.
-7-
W2017-00736-CCA-R3-CD, 2018 WL 1091792, at *2 (Tenn. Crim. App. Feb. 23, 2018)
(citing State v. Joseph Cordell Brewer, III, No. W2014-01347-CCA-R3-CD, 2015 WL
4060103, at *7-8 (Tenn. Crim. App. June 1, 2015)). If the trial court’s determination that
Defendant was a Range II multiple offender is supported by the record and reflects that
the trial court properly applied the purposes and principles of sentencing, the trial court’s
decision is reviewed for an abuse of discretion, with a presumption of reasonableness.
“The State bears the burden of establishing beyond a reasonable doubt that the
defendant possesses the requisite number of prior felonies to qualify for a particular
range.” Id. at *7 (citing State v. Jones, 901 S.W.2d 393, 397 (Tenn. Crim. App. 1995)).
Pursuant to Tennessee Code Annotated section 40-35-106(a)(1), to properly sentence
Defendant as a Range II multiple offender for his two Class B felony convictions, the
State would have to prove beyond a reasonable doubt that Defendant had two but not
more than four prior Class D, C, or B felony convictions, or pursuant to section 40-35-
106(a)(2), that he had one prior Class A felony conviction. Pursuant to section 40-35-
106(a)(1), to properly sentence Defendant as a Range II multiple offender for his Class D
felony conviction, the State would have to prove beyond a reasonable doubt that
Defendant had two but not more than four prior Class E, D, C, B or A felony convictions.
Tennessee Code Annotated section 40-35-106(b)(5) provides:
Prior convictions include convictions under the laws of any other
state, government or country that, if committed in this state, would have
constituted an offense cognizable by the laws of this state. In the event that
a felony from a jurisdiction other than Tennessee is not a named felony in
this state, the elements of the offense shall be used by the Tennessee court
to determine what classification the offense is given.
Exhibit 1 to the sentencing hearing included a certified copy of a January 18,
1977, Fulton County, Georgia Grand Jury true bill charging Defendant with rape in Case
No. A-34238. The true bill states that Defendant “did have carnal knowledge of [victim],
a female, forcibly and against her will[.]” See Ga. Code Ann. § 26-2001 (1977). At the
time of the offense, “Georgia Code Ann[otated] s[ection] 26-2001 permit[ted] a sentence
of death, life imprisonment or a term not less than one nor more than twenty years upon
conviction for rape.” Maddox v. Seay, 256 S.E.2d 904, 906 (Ga. 1979). Exhibit 1 to the
sentencing hearing also included a certified copy of a “Felony Sentence” document
showing that Defendant pled guilty, that the charge was rape, and that Defendant was
sentenced to three years. The Felony Sentence document was executed by the Superior
Court Judge on August 22, 1977, and entered by the clerk on the same day.
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“The original or certified copy of the court record of any prior felony conviction .
. . is prima facie evidence that the defendant named in the record is the same defendant
before the court, and is prima facie evidence of the facts set out in the record.” Tenn.
Code Ann. § 40-35-202(a); see Joseph Cordell Brewer, III, 2015 WL 4060103, at *7.
The Felony Sentence document provided prima facie evidence for the State to
prove that Defendant was convicted of rape in Georgia in 1977. Defendant offered no
testimonial or documentary evidence to show otherwise.
At the time Defendant was charged and convicted of rape in Georgia, the offense
of rape in this state was codified at Tennessee Code Annotated section 39-3701 (1977),
and provided in pertinent part that “[r]ape is the unlawful carnal knowledge of a woman,
forcibly and against her will.” Although the statutory elements of rape were substantially
the same in Georgia as they were in Tennessee, there is no need to conduct an analysis of
the elements of the offense because rape was a named offense in both states. See State v.
Vick, 242 S.W.3d 792, 794 (Tenn. Crim. App. 2007) (recognizing that an elements test is
only necessary when the out-of-state conviction does not correspond with a named
Tennessee offense).
The current classification of felony offenses was enacted as part of the 1989
Criminal Code. When a Tennessee conviction predates the 1989 Criminal Code, courts
must look to the conversion chart of Tennessee Code Annotated section 40-35-118 to
determine what felony class to assign to the pre-1989 conviction. The assigned felony
class can then be used to determine if the pre-1989 conviction is a qualifying felony for
determining range classification. A rape that occurred in Tennessee before the effective
date of the 1989 Criminal Code is classified in the conversion chart as a Class B felony.
Pursuant to Tennessee Code Annotated section 40-35-106(b)(5) (2017), we determine
that the trial court properly found that Defendant’s 1977 conviction for rape in Georgia
was a qualifying felony for purposes of classifying Defendant as a Range II Offender.
The second conviction on which the State relied was a 1987 conviction from
United States District Court of Florida for conspiracy to possess with intent to distribute
and to distribute cocaine. The criminal complaint alleged that Defendant did “knowingly,
willfully, and intentionally combine, conspire, and confederate to possess with intent to
distribute cocaine, a Schedule I controlled substance.” The Florida District Court
sentenced Defendant to seven years’ incarceration. The State argued that the federal
statute under which Defendant was convicted was similar to the statute in effect in
Tennessee at the time and that it would have been a Class D felony if committed in
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Tennessee;2 Defendant did not contest the trial court’s use of this conviction. The 1987
conviction for conspiracy “to possess with intent to distribute and to distribute cocaine”
was a qualifying felony for purposes of classifying Defendant as a Range II Offender.
The trial court properly determined that Defendant had the requisite number of
qualifying felony convictions to be sentenced as a Range II multiple offender.
Length of Sentence
The sentence range for a Range II, multiple offender, convicted of a Class B
felony, is not less than twelve nor more than twenty years. See Tenn. Code Ann. § 40-
35-112(b)(2) (2017). Within-range sentences that are supported by the record and reflect
that the trial court properly applied the purposes and principles of sentencing are
reviewed for an abuse of discretion, with a presumption of reasonableness. Bise, 380
S.W.3d at 707-08.
In the Sentencing Order, the trial court stated that it had
considered the evidence presented at the trial and the sentencing hearing,
the pre-sentence report, the principles of sentencing and arguments made as
to sentencing alternatives, the nature and characteristics of the criminal
conduct involved, the evidence and information offered by the parties on
the mitigating and enhancement factors, any statistical information
provided by the administrative office of the Court . . . , any statement the
Defendant made, if any, on his own behalf about sentencing, and the
Defendant’s potential for rehabilitation or treatment.
2
Although the State did not specify the Tennessee statute, the conversion chart of Tennessee
Code Annotated section 40-35-118 classifies manufacture, delivery, sale or possession of Schedule II
controlled substances pursuant § 39-6-417(a)(1)(B)(repealed) as a Class C felony. Cocaine is a Schedule
II controlled substance. The offense and penalties for “manufacture, delivery, sale or possession of
Schedule II controlled substances” are now codified at § 39-17-417. Pursuant to Tennessee Code
Annotated section § 39-12-107(c), conspiracy is graded one classification lower than the offense which a
defendant conspired to commit, except as provided in § 39-17-417(i) and (j). Subsection 417(i)(6) deals
with cocaine in the amount of twenty-six grams or more. Because the judgment of the United States
District Court of Florida does not state the amount of cocaine Defendant conspired to possess with the
intent to distribute, the State’s assertion that the offense was a Class D felony is supported by the
judgment, even though the complaint alleges the amount of cocaine was four to four and one half ounces.
In any event, whether the offense is a Class C or Class D felony is immaterial because both grades are
qualifying offenses for the purpose of determining range.
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We determine that the trial court properly applied the purposes and principles of
sentencing. We will, therefore, review Defendant’s within range twenty-year sentence
under an abuse of discretion standard with a presumption of reasonableness.
Defendant contends that the trial court wrongly considered “allegations from
Georgia for which no evidence was presented of guilt” and an “allegation” that a woman
in Coffee County overdosed on drugs sold to her by Defendant to enhance Defendant’s
sentence to twenty years.3 Defendant argues that the trial court erred in considering
inadmissible evidence to support its finding that Defendant was a dangerous felon and
that Defendant had no hesitation about committing a crime when the risk to human life
was high.
In its Sentencing Order, the trial court found two enhancement factors provided in
Tennessee Code Annotated section 40-35-114 to be applicable in sentencing Defendant:
(1) Defendant has a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range, and (10) Defendant had no
hesitation about committing a crime when the risk to human life was high. Even if the
trial court erred in applying an enhancement factor, that misapplication “does not
invalidate the sentence imposed unless the trial court wholly departed from the 1989 Act,
as amended in 2005.” Bise, 380 S.W.3d at 706. Enhancement and mitigating factors are
advisory only. See Tenn. Code Ann. § 40-35-114 (2017); see also Bise, 380 S.W.3d at
698 n. 33, 704; State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).
The trial court did not wholly depart from the 1989 Act. To the contrary, the trial
court properly applied the purposes and principles of sentencing set forth in the 1989 Act.
The sentence imposed by the trial court is supported by the record, and Defendant has
failed to show that the trial court abused its discretion in imposing the maximum Range II
sentence for a Class B felony.
Pretrial Jail Credits
Defendant is entitled to pretrial jail credits “for any period of time for which
[Defendant] was committed and held in the . . . county jail or workhouse, pending
arraignment and trial.” Tenn. Code Ann. § 40-23-101 (2017). The judgment of
conviction in Count 1 was entered on February 14, 2018, and provided pretrial jail credits
for the period from March 22, 2016 to December 19, 2017, the date the sentence was
imposed. Defendant’s appellate argument, which relates to how many days Defendant
3
The presentence report showed that Defendant had been indicted in Georgia for malice murder,
three counts of felony murder, three counts of possession of controlled substance with intent to deliver as
the underlying felony for felony murder, criminal attempt to commit rape, and three counts of tampering
with evidence.
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actually served prior to sentencing, cannot be adjudicated for the first time on appeal
without some evidence in the record regarding Defendant’s pretrial jail service.
Defendant has a duty to prepare a record that conveys “a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of appeal.”
Tenn. R. App. P. 24(b). The scope of appellate review is limited to the facts established
in the record. Tenn. R. App. P. 13(c). “In the absence of an adequate record on appeal,
we must presume that the trial court’s ruling was supported by the evidence.” State v.
Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d
811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim.
App. 1979)). Relief may be sought in the trial court under Rule 36 Tennessee Rules of
Criminal Procedure. State v. Hopper, 695 S.W.2d 530, 537 (Tenn. Crim. App. 1985);
State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Defendant is not
entitled to relief in this court on this issue.
Speedy Trial
The right to a speedy trial is protected under the Sixth Amendment to the United
States Constitution and article I, section 9 of the Tennessee Constitution. A trial court’s
determination that Defendant’s right to a speedy trial was or was not violated is reviewed
under an abuse of discretion standard. State v. Hudgins, 188 S.W.3d 663, 667 (Tenn.
Crim. App. 2005) (citing State v. Jefferson, 938 S.W.2d 1, 14 (Tenn. Crim. App. 1996));
State v. Easterly, 77 S.W.3d 226, 236 (Tenn. Crim. App. 2001).
In addressing a motion to dismiss for lack of a speedy trial, trial courts must first
determine the length of delay. State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001). A
delay approaching one year will trigger a speedy trial analysis, and the presumption that
delay has prejudiced the defendant intensifies over time. Doggett v. United States, 505
U.S. 647, 652 (1992); State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997). However,
courts take into account the complexity of the case in evaluating the reasonableness of the
length of delay. State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); Easterly, 77 S.W.3d
at 235. Further, the reason for the delay may justify it, and different reasons are assigned
different weight in the balancing analysis. Barker v. Wingo, 407 U.S. 514, 531 (1972).
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 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. Wood,
924 S.W.2d at 346-47. The State’s deliberate attempt to delay trial to hamper the defense
must be weighed heavily against the State. Barker, 407 U.S. at 531. However, “a valid
reason, such as a missing witness, should serve to justify appropriate delay.” Id. Finally,
Barker listed three areas in which a defendant could suffer prejudice due to a delay: (1)
oppressive pre-trial incarceration; (2) anxiety and concern of the accused; and (3)
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impairment of the defense. Id. at 532. Of the three, impairment of the defense is the
most serious way in which a defendant can be prejudiced. Id.
In this case, the trial court properly determined that the delay was presumptively
unreasonable and undertook the four-part balancing test set forth in Barker. See State v.
Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1977) (adopting the Barker test).
Following the hearing on Defendant’s motion to dismiss, the trial court found: (1)
that there was “absolutely no showing of any intent by the State to delay this matter to the
prejudice of Defendant or for any tactical advantage,” (2) that “most of the delay . . . was
acquiesced to by [Defendant] or was a result of waiting on the defense to amend . . . their
motions to suppress,” and (3) that the State “was very diligent in communicating with
defense counsel in trying to get those motions in a position where they could be heard.”
For the reasons below, we determine that these three findings were fully supported by the
record.
Defendant was indicted in March 2015, but he failed to appear for arraignment and
was rearrested on May 11, 2015. Although Defendant was denied bond, he was
mistakenly released from custody, and he was not apprehended until August 8, 2015,
when Defendant was arrested on new charges. This five- to six-month delay was caused
entirely by Defendant.
In January 2016, Defendant’s retained counsel filed several pretrial motions. The
State promptly responded to the motions on February 8. After numerous discussions with
the State, retained counsel filed amended motions on February 23, 2016, and the parties
agreed to a special setting. On May 27, 2016, Defendant filed additional motions. The
parties agreed to argue the motions on July 14, 2016. Defendant acquiesced in this delay
so that he could get his motions ready for argument.
On July 20, 2016, retained counsel moved to withdraw. New counsel entered an
appearance on September 7, 2016, and filed a motion to reduce bond and a “Motion for a
Fast and Speedy Trial” on September 13, 2016. This delay was the result of Defendant’s
changing trial counsel and new counsel having to become familiar with the case so that
he could prepare and file appropriate motions.
The State elected to try Case No. 42,456F, not this case, on April 5, 2017. It is not
the State’s fault that Defendant had several other cases pending. The State was not at
fault in this delay.
On September 25, 2017, Defendant moved to sever his offenses in the instant case,
alleging that there were two separate incidents. On September 27, 2017, Defendant filed
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another motion to dismiss for failure to grant a speedy trial. The reason for the delay
from April 5, 2017, to September 25, 2017, is not known. However, Defendant
obviously had not completed filing pretrial motions on September 25.
The case was tried by jury on October 17, 2017.
We determine that the trial court did not abuse its discretion in denying
Defendant’s motion to dismiss for failure to grant a speedy trial.
Conclusion
For the aforementioned reasons, the judgments of the trial court are affirmed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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