State of Tennessee v. John Steven Hernandez

05/15/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 14, 2018 Session

STATE OF TENNESSEE v. JOHN STEVEN HERNANDEZ

Appeal from the Criminal Court for Davidson County

No. 2013-C-2028 Steve Dozier, Judge

No. M2016-02511-CCA-R3-CD

_____________________________

In 2013, a Davidson County jury convicted the Defendant, John Steven Hernandez, of

first degree premeditated murder for a killing that occurred in 1993, for which the trial

court imposed a sentence of life in prison. On appeal, the Defendant contends that the

trial court erred when it: (1) did not dismiss the charge against him based on pre-

indictment delay; (2) did not dismiss the charge against him based on post-indictment

delay; (3) denied his motion to suppress evidence; (4) made several erroneous evidentiary

rulings; and that (5) the evidence is insufficient to sustain his conviction; and that (6) the

Defendant is entitled to a new trial based upon the cumulative effect of the errors. After

review, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which D. KELLEY

THOMAS, JR., and J. ROSS DYER, JJ., joined.

Jeffrey A. DeVasher (on appeal), Georgia Sims and Kevin J. Griffith (at trial), Assistant

Public Defenders, Nashville, Tennessee; Angela L. Bergman and David R. Esquivel (on

appeal), Nashville, Tennessee, for the appellant, John Steven Hernandez.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Stacy L. Rebecca and

Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

I. Facts

This case arises from the murder of Annis Szekely, which occurred in her home in

East Nashville on March 7, 1993. On July 23, 2013, a Davison County grand jury

indicted the Defendant, who was the estranged husband of the victim’s daughter, for first

degree premeditated murder. The Defendant filed an affidavit of indigence and the trial

court appointed him counsel.

A. Pre-Indictment and Post-Indictment Delay

On April 23, 2014, the Defendant entered a plea of not guilty to the charge against

him, and the trial court set a hearing for May 22, 2014. On January 21, 2015, the State

moved the trial court to reset the case, which at the time of the motion was set for June 8,

2015. On February 6, 2015, the Defendant’s attorney informed the trial court the State

had requested the case be reset and that the Defendant was “not opposed” to the case

being reset. The parties agreed to reset the trial for August 17, 2015.

On August 5, 2015, the Defendant filed a motion seeking a continuance of the trial

because his counsel had learned there was DNA evidence remaining from scrapings taken

from underneath the victim’s fingernails that could be independently tested. The trial

court granted the motion and reset the trial for April 4, 2016.

On February 2, 2016, the Defendant filed a pro se motion asking the trial court to

appoint him as co-counsel because his current counsel had not been responsive. The trial

court denied this motion.

On March 30, 2016, the Defendant filed a motion to dismiss the case for speedy

trial violation or, in the alternative, be granted a continuance. The Defendant noted there

had been a twenty-year delay between the crime and the State’s filing of the indictment,

which he asserted violated his right to due process. The motion stated further that

Defendant’s counsel was still unprepared for trial two years after being appointed, so the

Defendant would have to give up his right to a speedy trial in order to obtain competent

counsel. The motion argued that the pre-indictment delay violated the Defendant’s due

process right and that the post-indictment delay violated his right to a speedy trial. The

State countered that the Defendant had not shown that it had intentionally caused the

delay or that he was prejudiced by the delay.

The parties then referenced a motion that the Defendant’s counsel (“Counsel”), an

assistant public defender, had filed the day before the March 31 hearing. Counsel

acknowledged that even though the Defendant’s trial was scheduled for the following

Monday, she was unsure whether she could be prepared to argue the motion at the present

time. Counsel then discussed the pre-indictment and post-indictment delay, saying that

she considered herself a State actor for purposes of determining whether the Defendant’s

speedy trial rights had been violated. She asserted that her unpreparedness should be

imputed to the State because she was paid by the State, who did not adequately fund her

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office. Insufficient funding caused her caseload to be “excessive” and thus she was

unable to adequately prepare for the Defendant’s trial. She noted the Defendant had

waited nine months before being extradited and had endured a three-year delay. She

further noted that it had been two years since the Defendant had been arraigned. The

Defendant’s counsel noted that there had been “delays on both sides,” and said that while

she had thought she would be prepared for trial, she was not. She further informed the

trial court that her unpreparedness put the Defendant in the untenable position of having

to either waive his right to a speedy trial or, in the alternative, to represent himself.

The Defendant’s counsel asked that the trial court dismiss the indictment or, in the

alternative, release the Defendant on his own recognizance. The Defendant’s counsel

reiterated that it was the Defendant’s desire not to continue the case. He wanted to

proceed, even if it meant moving forward pro se because he had been incarcerated for

more than two years. The State said that it was ready to proceed on the set trial date of

April 4, 2016.

The trial court set a hearing for April 11, 2016, during which it tasked the parties

to present evidence about the pre and post indictment delays.

At the April 11, 2016 hearing, the Defendant’s counsel informed the trial court

that she was prepared to move forward with presenting proof on the pre-indictment delay

but that she needed at least a month to prepare evidence on the post-indictment delay

issue.

The Defendant’s counsel asked that the trial court appoint outside counsel to

litigate the issue of the post-indictment delay. The trial court set a hearing for that

particular issue for May 9, 2016, and the hearing then proceeded on the pre-indictment

delay issue.

1. Pre-Indictment Delay

Glenn Arnold testified that he was an investigator for the Public Defender’s office

and had investigated this case. He said he had visited the police property room on two

occasions, and reviewed and photographed the items displayed to him on both occasions.

Mr. Arnold testified that when he first viewed the evidence in January 2015, some of the

items were stored in plastic bags with tears or holes in them and that some of the bags

were empty. Mr. Arnold agreed that there were a “number” of evidence bags that were

torn, ripped, or damaged in some way. He photographed those bags.

Mr. Arnold testified that he saw two test tubes: a human blood sample and a saliva

sample. The property tag had a different defendant’s name, different incident number,

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and different victim’s name. On his second trip to the property room in April 2016, Mr.

Arnold noticed some of the evidence had been re-bagged. He took additional pictures of

that evidence. Mr. Arnold testified that he never encountered anything that was

identified as the Defendant’s blood.

Mr. Arnold testified that when he viewed the evidence the week before the

hearing, the evidence that included a different defendant’s name and a different victim’s

name was no longer included.

Mr. Arnold testified that several of the witnesses in this case were now deceased.

One of the witnesses was Dr. Charles Harlan, the medical examiner who conducted the

autopsy, and the other was Detective E. J. Bernard, who investigated the case. He also

believed that a civilian witness, Andrew Saicasson, was deceased.

During cross-examination, Mr. Arnold agreed that Mr. Saicasson was one of the

victim’s sons and that he was not in town when the homicide occurred. Mr. Arnold

agreed that Dr. Harlan’s report was contained in the discovery and that another medical

examiner could review the doctor’s findings and testify about the report.

Mr. Arnold agreed that the victim had been found with her hands tied and bound

to a bed with a plastic bag over her head. While he was unsure whether the items missing

from the property room would have been helpful to the defense, he said that it would

have been helpful if the defense could have seen the items law enforcement gathered,

which included chains, straps, a book called “Slave Mistress,” a black mask, a leather

mouth part, clamps, hooking tightener, bullets, and a pistol. Mr. Arnold also agreed that

the Defendant’s DNA had been taken by swab while he was incarcerated in Texas on an

unrelated matter, and sent to Tennessee for testing. The Defendant’s DNA was not taken

from a vial of blood contained in evidence.

Amber Elaine Treat, a private investigator, testified that the Public Defender’s

office hired her to assist in this investigation. She read the discovery report and

investigated potential alibi witnesses. She recounted that the Defendant said he had been

working at Labor Source on March 6 before the murder, so she contacted the owner of

Labor Source, Michael Dodson. She said Mr. Dodson told her he was unable to retrieve

the “punch-in, punch-out” records for 1993 because the computer software only kept

track of payments made and not the time records of his employees. He also said he was

only required to keep time records for seven years, so the Defendant’s time records no

longer existed.

Ms. Treat said she listened to an audio recording of an interview with Kalon

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Radovich, the son of the Defendant’s ex-wife, Victoria Ramsey1, and the grandson of the

victim. Mr. Radovich had found the victim’s body. Ms. Treat said that the statement was

a thirty-seven-minute audio file, but that the audio cut off after the three-minute mark.

Ms. Treat said she traveled to the crime scene in this case. She said the house had

been completely “gutted and remodeled.” In 1993, the house was a divided duplex, with

two families living in the home. At the time of her investigation, the house was a single-

family house and the dividing walls had been removed.

During cross-examination, Ms. Treat acknowledged that the State alleged the

crime occurred on March 7, not March 6, when the Defendant had said he was working.

She said, however, that there were discrepancies in the time frame, and proof the

Defendant was working on March 6 would still have aided the defense because they

could have argued that the murder actually occurred on March 6 while he was working.

The State called Mike Smith, who testified that he was a detective for

Metropolitan Nashville Police Department (“Metro PD”) at the time of this crime in

1993, but had since retired. Detective Smith acted as the lead detective in this

investigation, working with several other investigators. Detective Smith testified that he

was working on March 7, 1993, when he got a call that the victim’s body had been found.

He went to the scene, where he found present two other detectives, Detectives Mann and

Fowler. The detectives had different assignments to document the crime scene.

Detectives Mann and Fowler and Sergeants Moore and McElroy all interviewed

witnesses and the victim’s relatives. Detective Smith said he prepared a report, which he

supplemented for the last time on March 30, 1993.

Detective Smith testified that he took evidence from the property room to the

Tennessee Bureau of Investigations (“TBI”) crime laboratory for testing. Detective

Smith reviewed the file and testified that Detective Larry Flare supplemented the file on

February 3, 1998; Detective Ray Ellum supplemented the file on August 13, 2001;

Detective Terry McElroy, who was deceased at the time of the hearing, supplemented the

file on August 14, 2001; and Detective Lee Freeman supplemented the file on February

24, 2006.

During cross-examination, Detective Smith testified that he was involved in

executing a search warrant at the Defendant’s home on March 8, 1993, at 5:00 a.m.

Detective Smith said that he spoke with Victoria Ramsey later that day on the evening of

March 8, 1993. He also interviewed several witnesses, including Judy Crabtree on March

1

Ms. Treat called the Defendant’s ex-wife “Victoria Hernandez.” The Defendant’s ex-wife testified later, and gave

her name as “Victoria Ramsey.” For clarity, we will refer throughout this opinion to the Defendant’s ex-wife as

“Victoria Ramsey”.

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11, 1993, and Kevin and Pam Bush on March 15, 1993. Detective Smith said that he had

recorded audio from his interview with Ms. Bush. On March 16, 1993, Detective Smith

again spoke with Ms. Ramsey. During that interview, Ms. Ramsey said she had spoken

with the Defendant about how the victim had died. The detective recalled that Ms.

Ramsey had also given him a recording of a phone conversation between Ms. Ramsey

and the Defendant.

Detective Smith testified that the investigation notes revealed that on March 23,

1993, Officer Blackwood told him that the fingertip of a latex glove stuck to Scotch tape

had been found around the victim’s neck. On March 30, Ms. Singleton, the woman with

whom the Defendant lived at the time of this offense, called to inform Detective Smith

about conversations she had had with the Defendant.

Detective Smith said that he wrote a memo to Lieutenant Jay Cobbs on May 6,

1993, informing the lieutenant that the TBI had determined the DNA sample under the

victim’s fingernails was too small for testing.

Detective Smith identified a report from 2001, after he had been reassigned to

another division, which documented discussion with the Kentucky State Police as to

whether Ms. Ramsey would be willing to be wired to speak with the Defendant, who was

then in their custody.

During redirect examination by the State, the detective testified that the evidence

he brought to the crime laboratory did not provide a physical link between the Defendant

and the crime scene.

James Adendall, a detective with the Metro PD cold case unit, testified that his

unit reviewed this case in January 2010. He looked at the evidence, reviewed the

interviews, and attempted to locate witnesses involved in the case. He also resubmitted

some evidence for testing in 2010 and in 2012. Detective Adendall testified that he

located the victim’s fingernail scrapings and sent them to the Orchid Cellmark forensic

laboratory (hereinafter “Cellmark”) in Dallas, Texas for testing. The detective said that

in 2011, Detective Silfress of the Kentucky State Police informed him that he was

working on a case in Kentucky involving the Defendant and that he had DNA from a

water bottle used by the Defendant. Also around that time, Detective Adendall sent the

clear tape and latex glove evidence to Cellmark for testing. In February 2012, Detective

Adendall obtained a search warrant and obtained a sample of the Defendant’s DNA by

travelling to Texas, where the Defendant was incarcerated on an unrelated case, and

executing the warrant for the Defendant’s DNA. Detective Adendall then submitted the

sample to Cellmark for analysis.

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Detective Adendall testified that in June 2013, he received results from Cellmark

that physically linked the Defendant to the victim’s murder, and he presented the case to

the Davidson County grand jury. The Defendant was indicted in 2013. The Defendant

was extradited from Texas to face charges in Tennessee on April 4, 2014.

During cross-examination, Detective Adendall testified that his unit investigated

unsolved cases at least a year old. He agreed that when he received the case file in

January 2010, it was well-documented. Detective Adendall agreed the interview with

Kaylin Radovich ended abruptly because the recording equipment malfunctioned. He

also agreed that many of the interviews were difficult to hear because of the equipment in

use at the time.

Detective Adendall said that as part of his investigation, he re-interviewed Shirley

Singleton, Victoria Ramsey, and two other witnesses.

Detective Adendall testified that he originally sent items to the TBI to be tested,

but the TBI informed him that it did not have the technology to test those items and that

they would need to be tested privately. He then contacted Cellmark and sent the items to

them for testing. He sent them swabs from the victim, nail clippings, and the Defendant’s

watch. In September 2010, Ms. Leile at Cellmark advised him that a male’s DNA had

been found under the victim’s fingernails. In October 2010, he learned that law

enforcement did not have a known DNA profile for the Defendant. Detective Adendall

said he then contacted the Kentucky State Police, who responded in February 2011

saying that they had a DNA profile for the Defendant. Cellmark, however, needed an

actual sample from the Defendant, not just the DNA profile, so Detective Adendall met

with the Kentucky State Police who gave him a cup and water bottle used by the

Defendant. He sent those items to Cellmark in April 2011. In May 2011 Cellmark did

testing of the nail clippings and the water bottle and prepared a report.

Detective Adendall said that, in July 2011, he asked Cellmark if they could test the

latex glove tip and the clear tape. He received a report on the analysis of these items at

the end of October 2011.

The detective said that in January 2012, he reviewed and summarized a taped

phone conversation between the Defendant and Ms. Ramsey. Later that month, he sought

a search warrant to obtain the Defendant’s DNA, who was then in Texas. He went to

Texas, collected a buccal swab with the Defendant’s DNA and subsequently sent the

sample to Cellmark. Ms. Leile emailed him a final report on February 28, 2012. The

report included the Defendant as a possible contributor of the DNA found under the

victim’s fingernails. Shortly thereafter, Detective Adendall gave a copy of this report to

Tom Thurman with the District Attorney’s Office. On March 14, 2013, the detective

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received an email from Ms. Leile asking permission to discuss the case with Mr.

Thurman. He granted her permission and, in July 2013, forwarded witnesses names and

phone numbers to the District Attorney’s Office. The Defendant was indicted in June or

July 2013.

Detective Adendall testified that in January 2015 he contacted Cellmark to ask if it

had returned the evidence to the property room, and discovered the evidence had not yet

been returned. At the State’s instruction he asked Cellmark to hold the property for

potential further testing. In May 2015, he contacted Ms. Leile to inform her that he was

sending her buccal swabs from Mr. Radovich, the victim’s grandson, for comparison.

Cellmark returned the property to the property room in August 2015.

2. Post-Indictment Delay

The parties reconvened on May 9, 2016, and presented evidence regarding the

post-indictment delay. Counsel informed the trial court that she was still not ready to

proceed on the issue of whether the Public Defender’s Office’s underfunding and

understaffing denied the Defendant his right to a speedy trial. She said she was

attempting to secure outside counsel to present the issue properly. Counsel argued that,

while the trial court could set a trial date, she could not and would not guarantee she

would be ready for trial.

The State responded and asked that the Public Defender’s Office be removed from

the case because they were going to put the case off indefinitely. The State asked the trial

court to appoint an attorney that could prepare the case and proceed with a trial. Defense

counsel responded that the Defendant was entitled to consistent, effective representation

and a speedy trial, which were in conflict by the caseload at the Public Defender’s Office.

On May 25, 2016, the parties reconvened and Defendant’s counsel informed the

trial court that it had likely secured an outside firm to present the issue regarding the post-

indictment delay. The State again asked that the Public Defender’s Office be removed

from the case so that they could set a trial date.

On June 1, 2016, at another hearing, the Defendant’s counsel informed the trial

court that the law firm of Bass, Berry and Sims had agreed to take the case pro bono for

the purpose of presenting evidence about the post-indictment delay. The Defendant’s

counsel then said that she could be ready for trial before late November 2016. The

parties agreed to a hearing date and to a trial date of October 17, 2016. The trial date was

later moved to September 19, 2016.

The State expressed concern that, if the trial court allowed the assistant public

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defender’s argument to stand, every public defender could continue a case for long

enough to have the case dismissed. The State asked for supplemental discovery to cover

eight points so that it could adequately discuss whether a first degree murder indictment

should be dismissed because of the workload of the Public Defender’s Office. The State

opined that the Public Defender’s Office should not be successful in their argument when

they had not informed the trial court before or since that they could not take additional

cases until they resolved some of their pending cases. The State wanted the time records

for the attorneys at the Public Defender’s Office. Ms. Bergman, the Bass Barry and Sims

attorney representing the Defendant on this limited matter (hereinafter “Private

Counsel”), posited that the State was not entitled to the time records or any of the other

requested information. She further stated that the information relied upon by her expert

had been provided as an exhibit.

The trial court asked Private Counsel if the expert had looked at the time sheets of

every public defender who had worked on the case during the year-and-one-half that they

represented the Defendant. The expert had not viewed their time sheets but had asked the

public defenders about their schedules. She said that the expert had not viewed the

schedules for paid leave time or vacation leave or the number and nature of out of office

activities undertaken by the assistant public defenders during normal office hours.

Private Counsel further noted that the State was the opposing party on all cases handled

by the Public Defender’s Office and could compile its own list of cases.

The trial court asked Private Counsel to have the expert share his notes with the

State before the hearing. The trial court ordered the Public Defender’s Office to provide

the time records related to the Defendant’s case and ordered that those be filed under seal.

When the parties reconvened on September 1, 2016, Private Counsel gave opening

remarks summarizing the Defendant’s position on this matter. She said that he was

indicted July 23, 2013, and the case was currently set for trial September 19, 2016.

Private Counsel said that during the three-year delay, the Defendant was forced to choose

between his constitutional right to a speedy trial and his constitutional right to effective

assistance of counsel. Private Counsel opined that the factors considered in determining

whether the Defendant’s speedy trial rights had been violated weighed in favor of the

Defendant. Private Counsel acknowledged that delays requested by defense counsel are

generally attributable to the defendant, but that the United States Supreme Court had

made an exception to that rule when there is a systemic breakdown of the public defense.

Private Counsel said that the Defendant had a good relationship with his public defenders

but their workloads inhibited their ability to prepare for his trial. The State disagreed

with Private Counsel on each of these arguments, saying that the delay was not

unreasonable given the severity of the offense and the fact that the Defendant’s counsel

asked for many of the delays. The State further posited that there was not a systemic

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breakdown of the Public Defender’s Office.

Carol Dawn Deaner, the Public Defender for Metro Nashville Davidson County

whose mission is to serve citizens of Davison County who have been charged with a

crime and cannot afford an attorney, testified that tension existed within her office

because her office had more work than they had time to complete. Currently on staff,

Ms. Deaner had forty-eight full-time employees, with a forty-ninth position unfilled

because there was no funding. Ms. Deaner said that two of her employees were funded

by the county and ran an education rights program, so they did not have active caseloads,

leaving forty-six employees. Two other employees were “half-time” employees, leaving

forty-four and a half attorney positions. She no longer carried a full-active caseload. Ms.

Deaner testified that twenty-one of the attorneys in her office had less than five years’

experience, which meant they required more supervision and did not have the skills or

experience to handle more serious cases.

Ms. Deaner said her office had seven investigators and that they were currently

attempting to hire two more investigators to fill vacancies. She said her office also had

thirteen legal secretaries and several other paralegal-type support staff, totaling sixteen

support staff. Ms. Deaner testified her office did not have sufficient support staff or

attorneys to service every client, noting that her office closed 30,000 cases annually. She

said there was simply not enough time to provide what she termed “reasonably effective

representation” to all clients based upon her office’s staffing numbers. Ms. Deaner

testified she could not hire more attorneys because she did not have funding, which came

from both Metropolitan Government of Nashville, Davidson County (“Metro”)

government and the State of Tennessee. Ms. Deaner presented evidence showing that the

State had funded each of the other districts at significantly increased rates since 1993, but

that funding for the 20th judicial district containing the city of Nashville remained

relatively “flat,” which she opined was contrary to the then-enacted Tennessee Code

Annotated section 8-14-210.

Ms. Deaner testified about the actions she took in an attempt to increase her

office’s funding. In 2012, Ms. Deaner attempted to increase awareness within the

Governor’s office and the Department of Finance and Administration (“F&A”), as well

as the Davidson County delegation to the Legislature, about this issue. She met with

David Thurman, the head of F&A, who was the budget director at the time, along with

others to inform them that she did not think that they had been “collating our annual

increases consistent with the statutory language.” She asked for a two million dollar

increase, which was the amount that would be equal to the percentage increase in the

other judicial districts. Ms. Deaner identified a letter she wrote to Mr. Thurman that

explained her calculations and provided numerous documents to support the need for

additional funding. As a result, Mr. Thurman and F&A began a study (“Spangenberg

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Study”) and made a request to Davidson County for additional information.

The Spangenberg Study progressed through the end of 2012 and the beginning of

2013. The Governor’s office then issued a short letter characterizing the Public

Defender’s Office position as an argument that the State’s funding for Davidson County

Public Defender’s Office had not kept pace with inflation. The letter indicated that the

Governor’s office agreed with this contention and appropriated an additional $500,000

for the Public Defender’s office in Davidson County. The letter also recommended a

change in the statute. The statute was, in fact, later amended to reflect that the increase or

decrease in the Davidson County Public Defender’s Office’s funding should reflect

inflation, a relationship which Ms. Deaner observed had no relevance to her office’s

caseload.

Ms. Deaner further explained that in addition to her office’s funding from the

State, it also received funding from Metro. She offered evidence showing the share of

her office’s budget that Metro had increased over the last twenty-three years. In 1993,

half of her office’s budget was paid by the State and half was paid by Metro. By 2011,

twenty-five percent of her budget was paid by the State and seventy-five percent was paid

by Metro. The increased funding from Metro did not, however, make up for stagnant

funding from the State. She explained that, by statute, in districts where local

governments provided funding for their District Attorney General’s Office (“DA’s

Office”), when the district increased their funding to the DA’s office, the district also had

to increase the funding to the Public Defender’s Office in an amount at least seventy-five

percent of the increase to the DA’s Office. The statute was designed to “keep

equilibrium” between the DA’s office and the Public Defender’s office.

Ms. Deaner then discussed her office’s workload using information from their case

management system, JIS. She noted that, in 2014, her office closed 29,617 cases and in

2015, it closed 29,834. The data compiled, however, relied upon human entry from her

staff, which she said often fell by the wayside when her staff were “running tight for

time.” She said the database did a reasonably good job in keeping her office’s annual

numbers, but she discussed concerns about the accuracy of the tracking of caseloads.

Ms. Deaner testified that the legislature had commissioned a study to determine

how many cases any one state attorney could handle, which served as the basis of the

Spangenberg Study caseload standards. That study found that no public defender should

handle more than 500 misdemeanor cases in a year, if that is the only type of case

handled. It further found that a public defender should not handle more than 233 felony

cases. She noted, however, that the study was done in 1999, when the practice of

criminal defense was significantly different in that there were not nearly as many expert

issues. Further, these numbers were the highest in the country. Ms. Deaner said that, on

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average, in her office the lawyers were handling well more than the Spangenberg Study

standards said that they should.

Ms. Deaner testified that the Spangenberg Study found that no public defender

should handle more than five first degree murder cases in a year and that, if they had five

such cases, they should have no other cases. In 2014, her office closed twenty-two first

degree murder cases, meaning that 4.4 of her twenty-two attorneys should have handled

only those twenty-two cases. To be in line with the Spangenberg Study, her office would

need sixty-seven attorneys, or 22.5 more than the office actually had. Ms. Deaner said

that in 2015, her office would have needed 73.8 attorneys, roughly thirty more than she

had, to comply with the Spangenberg findings.

Ms. Deaner testified that, while there were no specific strategies she used to help

her attorneys handle a caseload beyond the Spangenberg Study guidelines, her office did

encourage “meet an[d] plea” practices when applicable. That included resolving a case

within a few hours of meeting a client through a plea bargain agreement. Additionally,

she encouraged a “tag team” approach in general sessions where the lawyer covering the

docket that day would represent any public defender clients facing charges that day. She

noted that the impact of this type of representation was that it was in some ways

ineffective, because that same lawyer did not follow the case and a new lawyer had to get

acquainted with it. It also caused “the ball” to “get[] drop[ped] a lot easier,” making it

harder to meet performance standards, because there was less time for investigation, to

conduct appropriate interviews, or do any legal research.

Ms. Deaner testified that, recently, she had tried to implement some practices to

improve their performance standards, such as implementing workload controls and

workload caps on the jail docket so that lawyers who were getting new cases each

morning were not getting more than ten new misdemeanor cases (class A), more than

eight felony cases, or more than six domestic violence cases in any one day. Ms. Deaner

said that her office continued to represent every individual charged with a class B or C

misdemeanor, except in the cases of conflicts, and this could be an additional fifteen to

twenty-five clients per docket. Each case required the attorney to meet with the

prosecuting attorney, communicate with the client, convey any offer and discuss legal

options and decide how to proceed, and then return to the clerk’s office to convey the

information. Ms. Deaner said that her attorneys should do more, including interviewing

their clients, trying to obtain releases for those individuals if possible, and investigating

legal issues.

Ms. Deaner testified that her office began declining cases in 2014 as having a

“workload conflict.” In the first twelve-month period, her office declined 2,000 cases.

Her office declined approximately 2,300 cases the following year in general sessions

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court alone. She said her office was not keeping track of how many cases it had declined

in criminal court on the same basis. In cases her office declined to take, the private bar

was responsible for representing the clients, and they were paid $40 per out-of-court hour

and $50 per in-court hour, not to exceed $500 per misdemeanor case. These attorneys

were not supervised, and there was no oversight to their performance. Ms. Deaner agreed

that no one reviewed the private attorney’s caseloads.

Ms. Deaner opined that if her office reduced their caseload consistent with the

standards, a reduction of 10,000 cases, it would be difficult to find private attorneys to

handle that many cases. She further opined that the Administrative Office the Courts

(“AOC”) could not afford to pay all of those private lawyers their fees.

Ms. Deaner testified that her office was appointed to represent the Defendant in

April 2014, and his case was set for trial in September 2016. She agreed that this was a

reasonable amount of time to prepare his case and she anticipated that the attorneys

representing him would be ready for trial. She said that she had had to restrict them from

taking any new cases and to shift their supervisory duties to give them time to prepare.

The trial court asked Ms. Deaner why she did not shift Counsel’s duties the first

time that the defense attorneys requested a continuance. She acknowledged that it was a

good question and one for which she did not have an explanation. Ms. Deaner explained

that, when these attorneys were six months out from trial, they probably had every

intention of being prepared but got busy. Further, the culture of her office meant that

everyone was busy and everyone had a lot of cases so no one attorney wanted to shift

their caseload onto another attorney.

Ms. Deaner testified the changes she had to make to the defense attorneys’

workloads meant that something for another client was not being done. The Deputy

Public Defender, who typically did not handle cases because of her administrative

responsibilities, had been doing jail dockets for the two defense attorneys who were

primarily responsible for the Defendant’s case, Ms. Sims and Mr. Griffith. Further, she

suspected that Mr. Griffith and Ms. Sim’s other clients were not receiving an appropriate

amount of attention. Ms. Deaner said that, in the last three years, her attorneys did not

have adequate time to spend with each client. She read from some of the standards

expected of defense attorneys, which included meeting with each client, advising them

fully about all their rights and options, interacting with their family members, etcetera,

and said the attorneys in Nashville Public Defender’s office did not have time to meet

those standards.

Ms. Deaner opined that a number of the Nashville Public Defender’s Office’s

clients got “reasonably effective representation” consistent with Constitutional

13

requirements, but that there were clients who did not.

During cross-examination, Ms. Deaner testified that between 1996 and 1997, her

summary of her office records showed her office handled 31,645 charges. That number

varied slightly but increased to 44,232 charges over the next nine years. When she took

office, and shortly thereafter, they began tracking cases and not charges, and cleaned up

their database, so she could not say whether her office handled significantly more cases

than in 2005. Ms. Deaner said she had never filed a lawsuit against the State or asked

Metro to file a lawsuit against the State to address her workload concerns, but she said

she had discussed the possibility with the legal department at the mayor’s office.

Ms. Deaner agreed that she met with the mayor for the budget for fiscal 2017. She

requested funding for eight additional positions, six of which were lawyer positions. She

informed the mayor at that meeting that what her office needed most was a data analyst.

She agreed she did not inform the mayor that her office needed 29.3 additional attorneys

or that her office was having a systemic breakdown. The trial court asked Ms. Deaner

why she did not present the issue to the mayor’s office, and Ms. Deaner responded that

the reason that her office was not meeting standards was because of underfunding by the

State, not Metro. Metro exceeded its statutory obligation to her office, so she did not ask

Metro for the difference. Additionally, the amount of help her office needed far exceeded

what Metro could provide, so she decided to not ask for more.

Ms. Deaner agreed that, as part of implementing her office’s workload controls,

she sent a letter to the general sessions judges saying assistant public defenders would not

accept new clients if the client had not come to her office prior to three days before their

court appearance, so her office would have adequate time to prepare. This and other

workload controls reduced her office’s caseload by about fifty cases per week, or seven

percent.

Ms. Deaner agreed that the lawyers in her office could generally come to her with

a problem at any time. During her tenure, three assistant public defenders had informed

her that they were overloaded. Ms. Sims had never come to her and said she was

overloaded. Ms. Sims did not inform Ms. Deaner that the Defendant filed a motion in

February to act as co-counsel. Ms. Deaner learned in March or April that the Defendant

wanted to go forward with his trial pro se regardless of whether his counsel was prepared.

After she learned of this, she did not look into the case to see what had been done. Ms.

Deaner said she was aware that Ms. Sims had co-counsel, the use of her office’s

investigator, and the use of a second investigator for whom the trial court had approved

funding. Ms. Deaner was unsure whether all the witnesses had been interviewed in

preparation of the case. She did, however, take Ms. Sims at her word that she was not

ready to proceed with the case.

14

Ms. Deaner testified that Ms. Sims’ caseload included four murder cases, eight

felony cases, and twenty-two post judgment matters, too many in light of the

Spangenberg Study. She stated that an attorney may not be able to handle more than two

jury trials in a twenty-month period because it takes just as much time to prepare a case

to plea on the morning of trial as it does to try the case, so it was unfair to parse out an

adequate caseload for a lawyer based on cases tried. Ms. Deaner agreed that Ms. Sims

had twelve open cases and that she had tried one case in 2015 and one case in 2016.

Norman Lefstein, a professor of law and Dean Emeritus of the Indiana School of

Law, testified as an expert in the area of public defense services. He offered the opinion

that the caseload of the Metro Public Defender’s Office in Nashville was extremely high

and put the lawyers at risk of failing to provide their clients with competent, timely, and

effective representation. Professor Lefstein testified he had reviewed the Spangenberg

Study and that the numbers contained therein regarding lawyer caseloads were the

highest he had seen anywhere. He said the Spangenberg numbers were 233 felonies or

550 misdemeanors that a lawyer could handle over the course of a rolling twelve-month

period. Professor Lefstein felt these numbers were inflated based on an inherently flawed

methodology in the study.

Professor Lefstein opined that the lawyers in Ms. Deaner’s office would not have

time to adequately handle their caseloads. He said further that the forty-four lawyers in

the office had seven investigators, which was a six to one ratio. When he worked as a

public defender in the past, it was a one to one ratio for lawyers to investigators, in part

because prosecutors used the investigative services of the police who gave them the case

and defense attorneys had a very different starting position. Professor Lefstein agreed

that he thought that there had been a systemic breakdown of the Metro Nashville Public

Defender’s Office.

During cross-examination, Professor Lefstein testified that he only reviewed the

numbers given to him by the lawyers in this case and did not verify those numbers. He

also only spoke to the three attorneys involved in this litigation and did not speak with

any other public defenders, prosecutors, judges, or clerks, and he never came to court to

observe before he formed the opinion that there had been a systemic breakdown of

services from the Nashville Public Defender’s Office. Professor Lefstein agreed that he

was given a list of cases to review, but did not know how many of those were civil

habitual motor vehicle offender cases, or general sessions cases, or indigence motions.

He also did not ask the attorneys how much time a post-judgment case would take. He

further agreed that he did not inspect the timesheet from the Public Defender’s Office in

Nashville, and had never researched the specifics of the Defendant’s case or the

representation he received.

15

Professor Lefstein said he did not know how long the Defendant’s trial was

expected to take, how many motions had been filed in his case, how many witnesses were

anticipated, or if there were interns working on the case. He agreed that most public

defenders in the office where he had worked handled more than twelve cases at a time.

Nevertheless, Professor Lefstein said he was comfortable giving his opinion based on the

information that he had reviewed, that he believed the Nashville Public Defender’s Office

needed to be adequately “resourced,” and also that there needed to be private attorneys

involved to handle the additional work.

Professor Lefstein clarified that his use of the term “systemic breakdown” did not

mean that every single defendant was inadequately represented, but rather that defendants

were at constant risk of not being adequately defended. He did not offer a specific

number of attorneys needed to adequately staff a public defender’s office and said that

the study under way should provide more guidance.

Ms. Sims testified that she was an assistant public defender and that she strived to

provide the type of representation to her clients that they would receive at a high quality

law firm. She said that while she was very proud of some of the work that she had done

for some of her clients, she could not do everything necessary for most of her clients.

She offered that she provided “effective” representation to most of her clients, but that

there were some clients that she did not think that she represented effectively due to her

excessive workload.

Ms. Sims said that, before she was assigned to the Defendant’s case around 20132

she was a “line” public defender in Division I court. Other than her team leader, she was

the most experienced on her team, so her caseload tended to be heavier and include more

serious felonies. At the time, she did not have any supervisory duties. In 2014, Ms. Sims

was promoted to team leader for Division I, and she assumed formal supervisory duties

for two other attorneys, which included case assignments, scheduling, and personnel

management. She did not reduce her caseload at the time of her promotion, and she

estimated that her supervisory duties took about fifteen percent of her time.

Ms. Sims testified that in 2014, she had 157 open cases, which included one

murder case, eighty-one felony cases, five misdemeanors, and forty-seven post-judgment

matters. This number, she said, did not include any of the cases that carried over from

previous fiscal years or that were opened before July 1, 2013. It also did not include any

cases for which she sat as second chair. Therefore, she concluded that the number of

cases that she had at the time was higher than that figure. In 2015, Ms. Sims opened one

2

It appears that Ms. Sims was actually appointed to represent the Defendant beginning at his arraignment in April

2014.

16

murder case, thirty-four felony cases, eight misdemeanor cases, 111 post-judgment

matters, and 108 general sessions cases. For the same reason, these numbers were also

lower than the actual number of cases she had worked on. Further, by the end of 2015,

she was supervising five other attorneys, taking upwards of twenty-five percent of her

time.

In 2016, Ms. Sims had two additional murder cases, twenty felony cases, two

misdemeanor cases, 191 post-judgment matters, and 223 general sessions cases. Ms.

Sims testified that, also in 2016, the experience level of the attorneys she supervised

dropped significantly, so she had to increase the amount of time she spent formally

training and supervising the attorneys on her team.

Ms. Sims said that during the pendency of the Defendant’s case she had the same

investigator assigned to her. The investigator positions, however, had significant

turnover and Ms. Sims’s investigator was asked to absorb responsibilities for vacant

positions. This caused Ms. Sims to be more hesitant about her investigation requests and

she would do some of the investigation herself, leaving less time for actual legal

representation work. Ms. Sims estimated that in 2016, she worked between forty and

fifty hours per week, not including time that could not be tracked. She still only spent

about four hours per client, which she believed was not an adequate amount of time. Ms.

Sims said her performance did not meet the attorney’s performance standards of her

office.

Ms. Sims spoke directly about her representation of the Defendant, which began in

April 2014. Ms. Sims agreed the Defendant was indicted in July 2013, but said he was in

custody in Texas and there was a lengthy process to extradite him. Ms. Sims said she

brought on Mr. Griffith as second chair to split the duties of representing the Defendant

evenly. Ms. Sims said that, because of the inadequacy of her investigative staff, very

little investigation occurred on the Defendant’s case for a “long period of time.” She

requested funds for an additional outside private investigator from the trial court, which

granted her request.

Ms. Sims said that the Defendant’s first trial date was in June 2015, but the State

had some issues with witnesses being present so, because she was also not ready for trial,

Ms. Sims agreed to continue the case. The case was reset for August 2015. At that time,

Ms. Sims filed a motion to continue because there was some DNA evidence they had

learned was still in existence a few weeks before trial, so she needed time to deal with

this late-disclosed evidence. She said that, but for that evidence, she was ready to

proceed to trial. The trial was scheduled for April 2016. In February 2016, the

Defendant filed a motion asking to be appointed as co-counsel and also asking that his

April 2016 trial date not be delayed. Ms. Sims said that between the August 2015 date

17

when she was prepared for trial and the April 2016 rescheduled trial date, Ms. Sims was

unable to prepare for trial because of her workload. At that time, Ms. Sims filed a motion

to dismiss for speedy trial violation and in the alternative a motion for a continuance.

Ms. Sims testified that since April of 2016, her workload had shifted so that she

could prepare for the Defendant’s upcoming trial on September 19. She stopped

accepting or assigning herself new cases, instead assigning those cases to her team. She

also decreased her appearance on the general sessions docket schedule. Ms. Deaner and

the Deputy Public Defender, Ms. Manning, had been required to cover some of the

general sessions dockets. Ms. Sims said that she had not done this before because

everyone in the office was busy, so it was just a shifting of work, making her colleagues’

workload less bearable.

Ms. Sims testified that in the three years since the Defendant’s indictment, Dr.

Charles Harlan, the medical examiner who performed the autopsy in the case, had passed

away. Ms. Sims identified the final order revoking Dr. Harlan’s medical license based

upon a number of misdeeds that were investigated, which included issues with Dr.

Harlan’s investigating cases and forming conclusions. Anyone from the medical

examiner’s office who testified in place of Dr. Harlan could not testify about the facts

related to his misconduct and whether that was present in this case.

Ms. Sims detailed ways in which it was difficult for the Defendant to review,

maintain, and discuss the evidence in the case against him with his counsel. Ms. Sims

reiterated that the primary cause of the Defendant’s case being delayed was her workload,

and that his representation was the responsibility of the State.

During cross-examination, Ms. Sims testified that she thought she had provided

deficient representation to some of her clients. She said she could not answer whether

she had offered the Defendant deficient representation because his case had not yet been

tried but that, had the case had gone to trial in April, her representation would have been

deficient. Ms. Sims said her inability to be prepared for trial in August 2015 represented

an ethical lapse by her office toward the Defendant.

Ms. Sims testified that in 2015, she conducted two jury trials: one in Division III,

for which she sat second chair and was, therefore, not reflected in her numbers; and the

other in Division I. Ms. Sims testified that in 2016, she had tried a rape of a child case

only, and that since then, she had not conducted any jury trials. The State then

questioned Ms. Sims regarding each week of her work and whether she had a trial

scheduled, and she did not have any trials scheduled between January and June of 2016.

Ms. Sims noted that she had a first degree murder trial set for August 21, for which she

was first chair. Ms. Sims said that, as her affidavit reflected, she had opened twelve cases

18

in criminal court during the fiscal year of 2016. Ms. Sims stated that, because of carry-

over cases and the data issue, twelve open cases was not the sum total of her caseload.

Ms. Sims could not offer testimony regarding the sum total of her open cases, but she

said it was closer to fifteen.

Ms. Sims agreed that several investigators, social workers, and interns from her

office visited the Defendant in jail. She agreed that a total of 760 hours had been

submitted into the public defender’s database as going toward the Defendant’s defense.

Ms. Sims agreed that starting in December 2015, she had two investigators

working on this case. Ms. Sims agreed the defense did not make a request for personnel

or experts to assist the defense. Ms. Sims said the Defendant never asked that she be

removed from the case. Further, she had never asked to withdraw from his case. She

said, however, the Defendant understood how much work she had done on the case and

that he would have to start over again with a new attorney. He was, therefore, making a

“calculated and rational decision” to keep Ms. Sims as his attorney but that the choice

was not necessarily totally free and voluntary.

Ms. Sims agreed that, at the March 31 hearing on the speedy trial motion, the

Defendant said he would be happy to agree to any continuance if he was removed from

the care of DCSO and placed in the custody of TDOC, because he believed he would

receive better treatment. He did not object to the continuance otherwise, but he was

never moved to TDOC custody.

Kevin Griffith testified that he began working at the Public Defender’s office in

2010 after he graduated from law school. He felt he was unable to provide the

representation that he would like for clients, because of his workload. Mr. Griffith said it

was impossible to have the time that he needed for every client on every case. Mr.

Griffith said that in the fiscal year 2014, he was assigned fifty-seven felony cases, eleven

misdemeanor cases, thirty-six post-judgment matters, and 129 general sessions cases.

This, however, did not convey the full number of his cases because the number did not

include any cases that were not assigned to him within the computer system or any cases

that he opened prior to 2014 that were not settled as of 2014. For example, the

Defendant’s case was not reflected in his numbers, because he was not the lead attorney,

despite the fact that he had spent a significant amount of time on the case.

Mr. Griffith said that, in 2015, he was assigned one murder case, twenty-four

felony cases, twelve misdemeanor cases, fifty-three post-judgment matters, and 118

general sessions cases. During that time, while he did not have any formal supervisory

duties, he was responsible for maintaining the complicated general sessions schedule. In

March 2016, Mr. Griffith was made the team leader of Division V Criminal Court, and

19

his supervisory duties took 15 to 20% of his time. In 2016, he was assigned thirty-five

felony cases, six misdemeanor cases, fifty-four post-judgment matters, and 325 general

sessions cases. Again, he clarified that this was not an accurate representation of his

cases due to inadequacies in office recording of caseload. He noted that the post-

judgment matters number was significantly low based on the failure to reassign the case

in the database. Mr. Griffith said that, based on the numbers, he had 3.5 hours to spend

on each case and that this number could be significantly less depending on the actual

number of cases that he carried at any given time, based on cases lasting into another year

than the year they were assigned, and cases for which he sat second chair. Mr. Griffith

opined that he did not have time to adequately represent each of his clients.

About the Defendant’s case, Mr. Griffith said that he and Ms. Sims were not

prepared for the August 2015 trial because they did not have time to devote to the case

given their large workloads. They further were not prepared in April 2016. Mr. Griffith

had three trials between August 2015 and April 2016 and had three other very serious

cases that settled within weeks of their scheduled trial, so he had to prepare for trial in all

three of those cases. Mr. Griffith said they would be prepared for trial by the current

September trial date because the workload had been shifted to other attorneys, putting a

strain on their team. Mr. Griffith said that he and Ms. Sims never went to Ms. Deaner

with the issue of their inability to be prepared for the trial dates.

Mr. Griffith said that he felt that his workload had prevented him from meeting the

performance standards expected of him for each client he represented. He agreed that he

had met the standards with respect to some of his clients but not all.

During cross-examination, Mr. Griffith agreed that post-judgment matters

assigned to him included probation violations, petitions to declare indigency, and a

petition for a suspended sentence, which did not take nearly as much time as a trial. Mr.

Griffith testified that he had spent more than an hour on some of these issues but said that

they did take significantly less time than other types of cases.

Diana Latiolia, a statistical research analyst with the Metro Nashville criminal

justice planning department, testified that her department gathered information upon

which to base relevant statistics. She created a report entitled “number of cases by

criminal court divisions,” which she offered in her testimony. Her information contained

the number of defendants represented by the entire Public Defender’s Office from 2011

to 2015. She clarified that the report showed the number of cases pending as of a specific

day in each of the relevant years.

Ms. Latiolia testified that in 2011, 830 defendants were represented by the Public

Defender’s Office. In 2012, that number was 907. In 2013, the number of defendants

20

was 823; in 2014, 893; and in 2015, 700. Ms. Latiolia testified that she looked at the

percentage of defendants represented by the Public Defender’s Office in each of the

criminal court divisions and how that percentage had changed over time. In Division I,

the Public Defender’s Office represented 54% fewer defendants in 2015 than in 2012.

Ms. Latiolia examined the number of general sessions cases handled by the Public

Defender’s Office. In 2011 there were 2,622 cases; in 2012, 2,355; in 2013, 2,263; in

2014, 2,025; and in 2015, 2,182. The number of defendants represented by the Public

Defender’s Office was much fewer, explaining that defendants may face multiple

indictments. In 2011 there were 439 defendants; in 2012, 339 defendants; in 2013, 375

defendants; in 2014, 315; and in 2015, 415. These numbers included all pending matters,

regardless of the year that the case was initiated.

During cross-examination, Ms. Latiolia agreed that the numbers in the reports

were based on entries by the clerk’s office and the numbers were dependent on the clerk

entering those numbers correctly. She said she had never spoken with the Public

Defender’s Office about the report or requested search perimeters to ensure the accuracy

of the numbers. Ms. Latiolia agreed there were a number of categories not contained in

the report, including: community corrections violations; final forfeit; or motions/petitions

or review status to report. Ms. Latiolia explained that the report was prepared to include

cases that have a pending status and also a future court date. She said she was unable to

determine from this information how many cases were closed in any given year. She

mentioned there were limitations such as retrial dates of the same defendant, which may

cause underreporting of the number of jury trial settings. Based upon this, her office

manually looked at the clerk’s entries and believed their report was as close to accurate as

possible. Mistrials were also not counted in her report, as it only included cases disposed

of by trial.

Tom Davis, the Director of Records and Offender Information with the Davidson

County Sheriff’s Office (“DCSO”), testified and identified the Defendant’s visitation

history from April 2014 to August 2016. He said that the DCSO tried to accommodate

every attorney visit, even if a defendant is in a “[s]pecial management unit.” He then

identified the Defendant’s disciplinary reports, which contained reports of six incidents.

During cross-examination, Mr. Davis testified he had no personal knowledge of

whether the visits listed in the visitor log were accurate. He also did not have personal

information about the incidents in the disciplinary reports. Mr. Davis also agreed the

report did not contain any grievances lodged by the Defendant.

The State offered recordings of the Metro Counsel Budget Hearing for the years

2013 through 2016, the period Ms. Deaner testified about her office. It also offered her

21

testimony for the mayor in fiscal year 2017. Ms. Deaner was recalled and testified that

the testimony that she gave was in response to the question of whether the PD’s office

could function on the amount allotted with the mayor’s budget. She agreed that she told

the office that in the fiscal year 2015, her office handled in the vicinity of 30,000 cases.

She maintained that this number accurately conveyed the status of her office.

Ms. Deaner took issue with the statistics presented by Ms. Latiola. She said the

snapshot of those statistics from an arbitrary day in each year in no way offered any

insight into how many cases her office closed each year. She said she had not looked at

the search parameters but questioned the reliability of information input into CJIS about

who the assigned counsel of a case was. She also did not think this data was a good

comparison to the data that she had offered. Upon questioning from the trial court, Ms.

Deaner agreed that if the Defendant’s case was dismissed, her request with the

Legislature for more funds potentially held more weight.

Based upon this evidence, and the arguments of counsel, the trial court denied the

Defendant’s motion by written order, making findings summarized below.

B. Pretrial Motions

1. Motion to Suppress 1993 Search Warrant and Evidence

The Defendant filed a pretrial motion to suppress evidence obtained as the result

of the search of his home in 1993, and on appeal maintains the trial court erred in denying

that motion. At the hearing on the motion to suppress, the parties presented the following

evidence: Mike Smith, a retired detective with the Metropolitan Nashville Police

Department (MPD), testified that he was working as a detective in 1993 and was lead

investigator in this murder case. He executed a search warrant on March 8, 1993, at the

Defendant’s home located in Davidson County. Before Clifford Mann, who was another

detective working the case, applied for the search warrant, the Defendant spoke with

police, giving them a description of clothing he was wearing the day of the murder.

During the interview, the Defendant stated that he had received military training on tying

specific knots. Detective Mann then filed for a search warrant, the main purpose of

which was to search for clothing, and upon the warrant’s execution, the detectives found

the sought-after clothing.

Detective Smith testified that during the execution of the warrant, the officers also

found evidence they believed was relevant to the murder, including items typically used

for sexual bondage acts, including ropes. They deemed these potentially relevant because

the victim had been found bound with ligature and a plastic bag covering her face.

Detective Mann testified that his inventory list was missing a hammer that officers also

found at the Defendant’s home.

22

During cross-examination, Detective Smith agreed that officers had spoken with

the Defendant’s live-in girlfriend at the time, Shirley Singleton. Ms. Singleton told

officers the Defendant had washed the clothes the officers were looking for, and that she

had hung them to dry. The detective agreed that Ms. Singleton was home when officers

executed the search warrant at 5:00 a.m. on March 8, 1993. The detective said his notes

indicated the clothing was found on a clothesline in the second bedroom. Officers

continued their search and collected several items from the closet of that bedroom,

including guns, ammunition, and pornography books on bondage. On a shelf in the same

bedroom, officers found a large knife. Detective Smith agreed that, at the time he

executed the search warrant, he had no information that the victim had been shot or

stabbed, and the search warrant did not include a listing that officers intended to search

for weapons.

Detective Smith further agreed that, even after officers had found the clothing they

sought, they searched a second bedroom and the closet in that bedroom. Officers found

and collected a nylon bag in that closet which contained some bondage items including

chains, clasps, locks, and straps. Detective Smith agreed that, at the time, there was no

evidence that the victim had been sexually assaulted.

Detective Smith testified that officers collected a hammer, which was listed in a

supplemental report. The detective was unsure where the hammer was found. He agreed

that the hammer was the only tool he collected from the house. The detective agreed that,

as his report indicated officers gathered hair samples from the washing machine, the

officers must have searched the washing machine. He had no independent recollection of

this.

During redirect examination, Detective Smith testified that, while officers found

some clothing on the line in the bedroom, they also looked in the closets because they

were not sure exactly what clothing would become relevant. He further stated that

officers knew the telephone cords used to bind the victim had been cut with a sharp

instrument, such as a knife.

The State then informed the trial court that it was not seeking to introduce the guns

or ammunition. They were seeking to introduce the book, which included the term

“bondage” in its title, because the victim was bound at the time of her death.

The trial court denied the Defendant’s motion to suppress, finding the items

additional to the clothing were within plain view.

2. Motion to Exclude DNA

23

The Defendant filed a motion to exclude the DNA evidence obtained pursuant to a

search warrant issued in February 2012. He challenged the relevancy of the evidence

pursuant to Tennessee Rules of Evidence 401 and 403. The Defendant argued that, while

this evidence was circumstantial, it was still subject to rules 401 and 403. The Defendant

contended that the prejudice of introducing the DNA evidence from the tape outweighed

its probative value because 2,258 of 4,114 individuals in the database could have

contributed the DNA on the tape, and 878 of 1,601 Hispanic individuals could have

contributed it. That meant that the chance of testing another unrelated male and being

able to exclude him as a contributor was only around 45%, and thus over half of the

males in this ethnic group were included in the result. The pre-concentrated nail

clippings weighed a little more heavily, with a 63% chance that a Hispanic male could be

excluded as a contributor. The post-concentrated nail clipping testing increased the

percentages of being able to exclude a Hispanic male to 93%, meaning six possible

contributors out of 1,600, but the Defendant argued that those calculations did not rise to

the level typically seen in DNA calculations.

The State countered that it was relevant that male DNA was found on the tape and

under the victim’s fingernails, and that the evidence was further relevant because while

the type of DNA testing used, Y-STR, may not have the high statistics of other DNA

testing it did serve by process of elimination to increase the probability of identification.

The weight assigned to such evidence was for the jury to decide. The State further

posited that the statistical numbers here were not far from others allowed by courts across

Tennessee, and said this evidence was an important “brick” in the “wall” of

circumstantial evidence it must build to convict the Defendant.

The trial court denied the motion to suppress the DNA evidence. The findings

will be discussed below.

C. Trial

The case proceeded to trial on September 19, 2016, and the parties presented the

following evidence: Kem Kalon Radovich testified that, at the time of the murder, he

was fifteen years old and living in a two-bedroom duplex on Woodland Street with his

mother, eight-year-old brother, and the victim, who was his grandmother. Mr. Radovich

noted that the home was usually unlocked. Mr. Radovich knew the Defendant because

the Defendant had previously been married to his mother, and Mr. Radovich still

considered the Defendant his stepfather. Mr. Radovich described his relationship with

the Defendant as “very good,” saying that he still visited the Defendant at his house even

after the divorce.

24

Mr. Radovich recalled the events of the day his grandmother was murdered.

Earlier in the day he had been at the home that the Defendant shared with Shirley

Singleton, who was the mother of Mr. Radovich’s friend Larry Singleton, and with whom

the Defendant resided after the divorce. Mr. Radovich said that he and his brother,

Joseph, spent the weekend at the Defendant’s home but that Ms. Singleton was working

that weekend, so she was home very little.

On that Sunday afternoon, Mr. Radovich and his friend Larry had returned to the

Defendant’s house from a fun house, and the two were playing a game. It began getting

dark, so Mr. Radovich decided to return home to finish his homework before school. The

Defendant encouraged Mr. Radovich to stay and take the school bus from the

Defendant’s house the next morning, but Mr. Radovich insisted on making the twenty to

thirty-minute walk home because of his homework. Mr. Radovich said that, when he

returned home about 5:00 or 6:00 p.m., he noticed the door was locked and he did not

have a key. He looked through the window and saw the television was on a channel his

grandmother never watched, and the volume was very loud, which he found odd. Mr.

Radovich knocked on the door several times and checked all the windows, which he

found tightly shut. He went to the nearest gas station where he used a pay phone to call

the Defendant and tell him there was something wrong. Mr. Radovich then returned to

his house, found a heavy metal jack, and beat down the back door. Upon entering, he

found his grandmother lying on the ground with a bag over her head, so Mr. Radovich

pulled it off. His grandmother’s mouth was open and Mr. Radovich remembered that he

started screaming.

Mr. Radovich said he left the house shortly thereafter, incoherent and screaming

for help. He did not remember much of what happened until he recalled sitting inside a

police car, numb and shaking. Mr. Radovich said his memory from that point was vague,

and he was unsure whether the Defendant came to the home.

Mr. Radovich said he knew a man named Nathan Allen Smith, who was a year his

senior. Mr. Smith was related to Mr. Radovich’s neighbors and came to stay with them

infrequently. Mr. Radovich said that he and Mr. Smith sometimes got into trouble

together but that he was unaware of any issue between Mr. Smith and the victim.

During cross-examination, Mr. Radovich testified that he could not recall all the

statements he had made to police in 1993. He did not recall telling them that, upon his

return from the fun house, the Defendant said he had been trying to reach his

grandmother by phone and that Mr. Radovich should return home. Mr. Radovich said he

did not recall telling detectives that the Defendant told him to call him when he returned

home so that the Defendant knew he got home safely.

25

Mr. Radovich said he and the Defendant had a good relationship in 1993, and it

was not unusual for Mr. Radovich to spend the weekend with the Defendant. Mr.

Radovich said he trusted the Defendant at the time, and he told detectives that the

Defendant had never shown signs of violence and would never hurt his grandmother. Mr.

Radovich said he was not afraid of the Defendant but “kn[e]w his anger,” having seen

him get angry many times.

Mr. Radovich said he had not spoken with the Defendant since the murder. He

and his mother moved to Wisconsin, where he currently resided.

On redirect examination, Mr. Radovich testified that detectives had swabbed his

mouth for testing.

Erin Wilson, a 911 operator, identified an audio recording of the 911 call about the

murder. Greta McClain testified that she was a first responder to the call about the murder

in this case. When she arrived, the victim’s grandson was present and appeared to be

crying and possibly in shock. Ms. McClain went into the home where she found the

victim tied to the bed. During cross-examination, Ms. McClain said that, shortly after she

arrived at 7:32 p.m., several detectives arrived.

EMT Ken Hollis responded to the scene at 7:40 p.m. When he arrived, the victim

was in the bedroom lying on the floor, and tied to the bed with a bag over her head. Mr.

Hollis said that he and his partner removed the bag and assessed whether the victim could

be revived. They also lifted her shirt to attach an EKG and detect any heart activity.

These efforts were unsuccessful, as rigor mortis had already set in. Mr. Hollis agreed that

there was a student driver with him that evening. He also said the bag over the victim’s

head was bloody and that he wore latex gloves for the duration of the time he was at the

scene.

Tom Jones, a crime scene investigator with the Metro PD, testified that he

responded to the crime scene. When he arrived, he first did a walk-through with a video

camera recording anything that caught his eye. That video recording was admitted into

evidence. Mr. Jones also attempted to lift some latent fingerprints at the scene, including

from a telephone. Those fingerprints were submitted to the latent print examiners at the

police department. Mr. Jones took some photographs at the scene, including one of a

phone cord that had been cut from a phone in the victim’s bedroom, and said the cord

appeared to have been cut by a sharp instrument.

Mr. Jones identified photographs that he took of the victim’s left arm tied with the

cut telephone cord to the frame of the hospital bed located in her bedroom. Mr. Jones

photographed a knot tied in the cord, and he sent that knot with the victim’s body to the

26

morgue for the autopsy. Mr. Jones subsequently went to the morgue and gathered the

victim’s clothing and the ligature. While there, he took fingernail scrapings from under

the victim’s fingernails. Mr. Jones saw a bruise on the back of the victim’s left hand and

also a ring on that hand.

Charles Ray Blackwood was a crime scene investigator with the Metro PD at the

time of these events, and this case was his last full-time assignment. Mr. Blackwood

responded to the call in this case and collected and documented evidence at the crime

scene. Mr. Blackwood identified photographs that he took of the crime scene, which

included pictures of the victim on the floor with a plastic bag over her head, bedding, and

a pillow on the floor. He said that a fingernail was broken on the victim’s left hand and

there was blood under her nail. Mr. Blackwood testified that there was tape on the plastic

bag and that, when he removed the tape from the bag, he found what appeared to be a

piece of latex glove.

During cross-examination, Mr. Blackwood testified that latent print analysis did

not reveal how long a fingerprint had been on a piece of evidence. Mr. Blackwood said

that he collected a clump of hair from beneath a splintered floorboard and some hair and

fiber around the victim’s body. He unsuccessfully searched trash cans and other areas for

the murder weapon. He agreed there were other people present at the scene, such as the

EMTs who evaluated the victim, and he could not be certain that every one of them wore

gloves.

Randall Fowler, a retired Metro PD officer, testified that he was a homicide

detective in 1993 and participated in this investigation. He interviewed the Defendant at

around 7:00 p.m. while the Defendant was in Detective Fowler’s police vehicle, parked at

the crime scene. The detective explained that when he arrived at the scene there was a

young man present and, shortly thereafter, the Defendant arrived. The young man

introduced the Defendant as his stepfather. Detective Fowler took the Defendant to the

vehicle to ask him what he might know about the crime. The Defendant explained that

the victim was his mother-in-law and that he had seen her last on the day before the

homicide, which was a Saturday, when he asked to borrow $20.

The Defendant told the detective that when he came to the victim’s home on

Saturday at around 6:00 p.m., the victim greeted him. He told her that he wanted money,

and he could see that she had packed clothing he had stored at the victim’s home. The

Defendant said it appeared she wanted him to take the clothing and some papers out of

the house. The Defendant said he did not want to take the clothing because he could not

carry it along with groceries, and he needed to stop at the grocery store. The Defendant

told the detective that he was wearing tennis shoes, blue jeans, and a shirt at the time but

that he had fallen in a “mud hole,” so he had washed all the clothing and also his shoes.

27

When the detective asked the Defendant where the “mud hole” was located, the

Defendant told him it was in an alley.

During cross-examination, Detective Fowler testified that the television was on

when he arrived at the victim’s home. The first person he spoke with was the victim’s

grandson, Mr. Radovich, and he then spoke with the Defendant. The detective spoke

with Jonathan Brock, a neighbor, and asked if Mr. Brock had seen anything related to the

murder. He also asked Mr. Brock his opinion about the Defendant. Mr. Brock told the

Detective that his younger brother, Nathan Allen Smith, “hated” the victim. Mr. Brock’s

mother, Silenda Crosby, was present and confirmed that Mr. Smith hated the victim.

Detectives followed up on that lead and learned that Mr. Smith was not in the area at the

time of the murder. Detective Fowler testified that he had also interviewed another

potential witness, Judy Crabtree, on March 10, 1993, to ask her about this homicide.

Robin Wolf Howard testified she dated Mr. Brock around the time of the murder,

and that she lived in a duplex with Mr. Brock and his mother, who were musicians. Ms.

Howard said that at the time, she worked at a restaurant. She recalled that their neighbors

were the victim, Ms. Ramsey, and Ms. Ramsey’s two sons. She knew the Defendant as

Ms. Ramsey’s husband and said that the Defendant would occasionally come to their

home to ask for a ride to different locations.

Ms. Howard recalled that on the day she learned that the victim had been

murdered, she was watching Mr. Brock perform with his band. Earlier that day, at

around noon or 1:00 p.m., she heard a “bunch of commotion” on the other side of the

duplex. She heard a man’s voice, which she described as “southern . . . angry . . . [and]

[e]xcited.” She also heard what sounded like a child’s whimper. Ms. Howard said that

she did not call the police because there were two male children who lived in the home,

so it was not uncommon for there to be a ruckus on that side of the duplex.

When Ms. Howard heard that the victim had been killed, she became emotional

because she knew the commotion she had heard was likely surrounding her death. Ms.

Howard said that Mr. Smith was a teenager at the time of this murder but was not living

with them.

Thomas Simpkins, a retired Metro PD officer, testified that, at the direction of

Detective Smith, he went to the Defendant’s house on the day of the search and retrieved

from police several bags of evidence, including a wooden-handled hammer, clothing

including a pair of pants and tennis shoes and a jacket, a hair sample. Officer Simpkins

turned those items into the property section.

During cross-examination, Officer Simpkins agreed that the property had been re-

28

bagged over the years. A note on the bags said that the property had been “re[-]bagged

due to the deterioration of the brown bags.”

During redirect examination, Officer Simpkins testified that he photographed the

items before he placed them in bags. He recalled the tennis shoes had been found

hanging on a clothesline in one of the bedrooms, along with the pants and other clothing

items. He was unsure whether the jacket was also on the clothesline. The officers found

the hair samples in the washing machine.

Mike Smith testified that he was a detective for Metro PD assigned to the murder

squad at the time of this murder, and acted as lead detective in this case. Several other

officers assisted him, some of whom were now deceased. When Detective Smith arrived

at the scene, he noted the only sign of forced entry was to the back door. The damage

appeared to have been caused by a “bumper jack.” The detective identified photographs

from the crime scene that depicted how it looked that day. There were photographs of

the victim’s purse, which included her wallet and approximately $43 in cash. Another

photograph showed the victim was wearing a diamond ring on her left hand at the time of

her death. Detective Smith did not see anything that appeared to be missing from the

home.

Detective Smith testified that Detective Clifford Mann conducted the Defendant’s

interview and assisted in this investigation. Detective Smith personally executed the

search warrant of the Defendant’s residence. He asked Officer Simpkins to gather the

evidence found during the search.

Detective Smith said that he also interviewed Ms. Ramsey, whom he provided

with a tape recorder, which she later returned. Detective Smith also interviewed Ms.

Singleton.

During cross-examination, Detective Smith said that no charges were brought

against the Defendant in 1993. Detective Smith remained the lead detective until he

transferred out of the unit. He agreed that the only suspect that he developed in this case

was the Defendant and that he did not investigate anyone else. Detective Smith agreed

that there were dishes in the kitchen sink at the time of his initial investigation, but he did

not gather those for testing. Detective Smith agreed that damage to the back door was

caused by Mr. Radovich, when he gained entry into the home. The detective agreed that

there were no other signs of struggle in the home. He found a bag of the Defendant’s

clothing by the door, and he also found a “beeper.” Detective Smith documented several

observations of the crime scene, and then he went back to the police department where

other officers were already interviewing the Defendant. He joined that interview while it

was in progress but did not have much independent recollection of what happened during

29

the interview. He agreed that, by that time, the Defendant was already a suspect.

Detective Smith agreed that the Defendant told officers what specific clothing he

was wearing earlier that day, and the officers found clothing matching that description

hanging on a clothesline in the room where he lived. Detective Smith submitted several

requests for examination of pieces of evidence submitted to the TBI. The detective

agreed that much of his investigation included asking each witness about the Defendant.

Detective Smith agreed that he interviewed Mr. Radovich and that they likely

attempted to record the interview. During that interview Mr. Radovich told him that he

had been at the Great Escape for most of the day of the murder, and that he had taken a

bus home and run into the Defendant and Ms. Singleton on Gallatin Road. The

Defendant sent him home because he had school the next day. The detective agreed that

Mr. Radovich also told him the Defendant said he had been trying to contact the victim

during that day, and Ms. Singleton was concerned that the victim had fallen. Detective

Smith agreed that, despite the Defendant being a suspect almost immediately, his house

being searched within twelve hours of finding the victim, and witnesses being questioned

about him, law enforcement officers still did not charge him with a crime at that time.

On redirect examination, Detective Smith testified that Mr. Radovich’s entire

statement included that Ms. Singleton told him that she was scared that the victim had

fallen on the telephone cord and could not get up.

Jacqueline Cockrill, a civilian employee of the Metro PD crime laboratory,

testified as an expert in latent fingerprint examination. She said she found multiple

identifications of the Defendant’s fingerprints on the telephone and headset. There were

additional fingerprints taken from the residence that were not attributable to the

Defendant.

During cross-examination, Ms. Cockrill agreed that she was not the first person to

attempt to compare the latent fingerprints. Ms. Cockrill testified that none of the other

latent fingerprints submitted matched the Defendant’s fingerprints.

The parties then stipulated that several items gathered from the victim’s home and

body were turned into the Metro PD evidence and property room and that several pieces

of evidence were submitted to the TBI for testing. Special Agent Floyd Phillips did not

find any latent fingerprints on the items submitted.

Bradley Everett, a TBI special agent forensic scientist, testified as an expert in the

field of serology and DNA analysis. He said that one of the reports was from testing

done in July 1993 and that it included information such as blood type and whether the

30

blood present was of human origin. Multiple items were tested, including samples of

both the Defendant’s and the victim’s blood. Agent Everett said that TBI tested

scrapings from underneath the Defendant’s and the victim’s nails and blood spots from

items found in the home. Testing was unable to reveal a DNA profile for the contributors

and the test results were inconclusive.

During cross-examination, Agent Everett testified his office first began DNA

testing in the mid-1990s and then began a more detailed type of testing called PCR-based

testing in the late-1990s. His office was not asked to do DNA testing in this case until

2010. He said that the only items that he developed a partial profile from were the clear

tape and two blood spots found on the floor. The victim could not be excluded as the

contributor to that profile.

Agent Everett testified that he tested a piece of a latex glove tip and he found the

victim’s DNA on both sides and also a minor contributor on one of the sides. He could

not, however, further identify the contributor because there was insufficient DNA for

testing.

Huma Nasir testified as an expert in forensic DNA and that she was a senior

forensic DNA analyst with Cellmark Forensics at the time the DNA testing involved in

this case was performed. She explained the test used in this case, the Y-STR test, saying

that it was unique in that it was designed to test for the male DNA only in a sample. The

advantage of such a test was that it could target the male DNA in the sample and ignore

the female DNA. This helped when dealing with a very small quantity of male DNA.

The limitations of this test were that the Y chromosome was not unique to an individual

but was passed down from one generation to another. Therefore, the Y chromosome

profile would be shared by all of the male’s relatives and none of them could be excluded

as the contributor. Ms. Nasir said that this type of testing did not become available until

around 2000.

Ms. Nasir identified her report dated May 28, 2015, which was her final report and

contained all her Y-STR results. Ms. Nasir said that she used half of two swab samples

from evidence taken from the victim, returning the other half of both samples to the

police department for future testing if necessary. Ms. Nasir said that two independent

analysts inputted the evidence into a genetic analyzer. She then personally reviewed all

the material and drew her own conclusions.

Ms. Nasir discussed her conclusions, saying that concentrating the sample of DNA

taken from underneath the victim’s left fingernails resulted in finding seven allele

locations. The Defendant’s known DNA profile was consistent with each of those allele

locations. Because his DNA was consistent with the nail clipping profile, he could not be

31

excluded as the contributor of the DNA. His male paternal relatives could also not be

excluded as the contributor. Ms. Nasir further concluded that the known DNA profile for

Mr. Radovich excluded him as the contributor of the DNA found under the victim’s

fingernails. To offer statistical significance to these numbers, Ms. Nasir testified that the

allele locations combination found under the victim’s fingernails were seen only six times

in 1,601 of the database of men of known Hispanic origin. More specifically, 99.3% of

Hispanic men would be excluded as a contributor. Ms. Nasir testified that her testing of

the tape indicated the presence of DNA from two, possibly three, different men.

During cross-examination, Ms. Nassir testified that, if during the concentration

process there was contamination, then the concentration process would make the

contamination appear more pronounced. She further agreed the DNA from the clear tape

showed the presence of potentially three male contributors. Ms. Nassir agreed that, based

on Mr. Radovich’s known Y-STR genetic profile, she could neither include nor exclude

Mr. Radovich as the contributor of the DNA found under the victim’s left fingernails or

on the tape. Ms. Nassir agreed that she did not know the source of the DNA present

under the fingernails or on the tape, meaning it could have come from contact, or saliva,

or some other transfer.

James Adendall a retired officer with Metro, testified that he was assigned this

case in 2010 as a “cold case.” After reviewing what had been done when the case was

first investigated, he sent some items to be tested at the TBI laboratory. TBI informed

him that they did not have the proper equipment to test the evidence, so Officer Arendall

forwarded the evidence to Orchid Cellmark for retesting. Officer Arendall said that as

part of his investigation he located the Defendant, who declined to voluntarily give him a

DNA sample. Officer Arendall obtained a search warrant allowing him to retrieve the

Defendant’s DNA by buccal swab. He also obtained a sample of Mr. Radovich’s DNA

by buccal swab and sent both swabs for testing.

During cross-examination, Officer Arendall testified that the Defendant was a

suspect when this case was first investigated. He said he wanted to locate some of the

witnesses and re-interview them because their recorded interviews were of poor quality.

He recalled interviewing Ms. Singleton and said her statement was substantially similar

to the statement she gave originally. He also interviewed Ms. Singleton’s son, Larry

Singleton, Ms. Ramsey, and Robin Wolf. There were some witnesses who had been

interviewed in 1993 whom he was unable to locate at the time of his cold case

investigation. Officer Arendall agreed that he did not seek DNA testing comparing Mr.

Radovich to the male contributor on the DNA submitted in this case until after the

Defendant had already been indicted for the murder.

Officer Arendall said he interviewed both Ms. Ramsey and Mr. Radovich in 2012

32

but his tape recorder did not work at the time, so those interviews were not recorded. He

agreed that he did not develop a single new witness or suspect as part of his investigation.

Clifford Mann, a retired officer with Metro PD, testified that he was one of the

detectives that investigated this case in 1993. Detective Mann interviewed the Defendant

at the police station, and he was the only detective present for the duration of the

interview. Detective Mann said he allowed Ms. Singleton to go into the room with the

Defendant after the interview, in an attempt to get information from the Defendant.

Detective Mann said he took pictures of portions of the Defendant’s body, including

small scratches or abrasions on his upper shoulder, lower shoulder, and hand. He

transported the Defendant to the hospital where they collected the Defendant’s fingernail

clippings. Detective Mann also confiscated the Defendant’s watch, which he turned into

evidence.

During cross-examination, Detective Mann testified he had not been involved in

this case since March 13, 1993. Detective Mann agreed the Defendant told him the

victim and a man named Nathaniel Smith had gotten into an argument at the Super X

Drugstore on Gallatin Pike. He said he never interviewed Mr. Smith and made no

attempt to investigate this alleged argument. Detective Mann testified he found a

witness, Steve Bartlett, who told him he had been working in the neighborhood March 6,

1993, and had seen a white male teenager standing across the street looking at him while

appearing distressed. Detective Mann testified that, while he put this information in his

report, he made no effort to follow up on that information. The detective agreed he did

not ask Ms. Bush to record a telephone conversation with anyone other than the

Defendant.

During redirect examination, Detective Mann testified he attempted to locate Mr.

Smith in follow up to the Defendant’s claim, but he and other officers were unable to do

so. Detective Mann said that Mr. Bartlett’s claim about a distressed teenager was

regarding a different address, so he did not think that it was connected to the victim’s

murder.

The State then played a video recording of the Defendant’s 1993 interview.

During the recording, the Defendant offered to help the investigation in any way he could

and that he would kill anyone who had murdered the victim. He said he was not a violent

person, but he could be when provoked. The Defendant said that he had gone into the

army, which had made a “killer” out of him, by teaching him to break necks or use a

garrote knot to inflict injury or death.

The Defendant said during his interview that he went to the victim’s house after

Mr. Radovich called. On his way, he called 911 and asked for police assistance,

33

assuming that he would need to break in the door when he arrived. Before he arrived,

Mr. Radovich kicked in the door. When police arrived, they did not allow him to enter

the residence. The Defendant said that someone told him that the victim had a bag over

her head and that she had been strangled but that he did not know what had happened.

The Defendant told officers that he had gone to the victim’s home earlier in the

day, at around 3:00 p.m., but that no one was home when he arrived. He said that on his

way back to Ms. Singleton’s house, he fell into some mud that was on the shoulder of the

sidewalk. At the time he was wearing a Star Trek t-shirt, blue cords, and dark shoes. He

told the officers that the shoes he was wearing at the time of the interview were identical

to the shoes that he was wearing that day. He washed his clothes because of the mud but

also washed his shoes as “an afterthought.”

The Defendant said that he had seen the victim the night before at around 6:00

p.m., when he asked her for $20 so he could buy groceries. At that time, the victim told

the Defendant she had some mail for him and a “bag” of items that belonged to him. He

did not take them with him at the time, and told her that he would come back later and

retrieve them, which was part of his intention in stopping by her house on the day she

was found murdered.

The Defendant told officers that Mr. Smith had been into an argument with the

victim, he had a violent nature, and he had been in trouble before.

Law enforcement officers then allowed Ms. Singleton to enter into the room. She

told the Defendant that she let law enforcement officers have his clothing, and he said

that was fine. She asked him directly if he had done this, and he said no and that if he

ever found out who had done it, he would “kill the bastard.” The Defendant repeatedly

and adamantly denied that he had any involvement in the crime. The Defendant

expressed outrage that someone would get away with this crime because the police were

investigating him.

The Defendant offered to give the police his clothing, and he said that police

would not find any blood on his clothing. The Defendant expressed distrust and distain

for law enforcement and the trial court system.

Detective Mann said that he gave Pam Bush, a family friend, a tape recorder to

record the Defendant admitting involvement in this offense. That recording was offered

into evidence. In the recording, the Defendant asked Ms. Bush if Ms. Ramsey had ever

returned. Ms. Bush said that she had bad dreams the night before. The Defendant said

that he had also had an unusual dream about the victim. He said that he witnessed the

victim being beaten to death by an assailant. He said that, in his dream, he saw the

34

murder from the point of view of the killer and that the victim told the person who killed

her that she forgave them. Then she pulled the Defendant close and uttered a riddle about

one end being cut and one end being broken and then mentioned something about a

biblical measurement. The Defendant said he thought that maybe the victim was trying

to communicate with him from the grave. The Defendant said that he dreamed that he

took the hammer away from the assailant and started beating the assailant with it and then

the individual changed into the victim, so he was beating the victim.

During further cross-examination after the recording was played, Detective Mann

testified that the video was a short excerpt of the time the Defendant spent at the police

station. The detective found relevant that the Defendant had been in the Army, and he

agreed that he did not make an attempt to verify this information. The detective also did

not attempt to verify that the Defendant had fallen into a mud puddle by going to look at

the area where he said he fell.

Victoria Ramsey testified that she was the Defendant’s ex-wife. The two had

married in 1986 and became separated in the summer of 1992. Before they separated, the

two lived together with her two sons, Kalon and Joseph. Ms. Ramsey’s mother also

stayed with them intermittently. After their separation, Ms. Ramsey moved with her two

sons into the home of her mother, the victim in this case. Ms. Ramsey recalled that, at

the time of this murder, her sons were fifteen and nine, respectively.

Ms. Ramsey recalled that the victim was seventy-two and having difficulty with

her knees. Accordingly, Ms. Ramsey had purchased a used hospital bed in order to

elevate her mother’s legs in anticipation of her having surgery. Ms. Ramsey said her

mother received monthly checks from Social Security and a small check from an

investment that Ms. Ramsey’s father had made for her mother, which paid for the

victim’s rent.

Ms. Ramsey testified the Defendant never lived in the victim’s home and did not

have a key to their home. He did, however, have some items in boxes and bags at the

residence, as not all of their property had been divided. Ms. Ramsey said that a musician

and her two sons and one of her son’s girlfriends lived on the other side of the duplex

from her mother.

Ms. Ramsey said that on March 4, 1993, she went to Wisconsin in an effort to

prepare to move there. She took her youngest son with her. Ms. Ramsey said her

separation from the Defendant was “amicable” and that, while Mr. Radovich was staying

behind with the victim, it would not have been unusual for him to visit the Defendant,

who had been in his life for six years. At the time, the Defendant was living with Shirley

Singleton.

35

Ms. Ramsey recalled that the duplex where the victim lived had locks, and she

opined that the victim would not have let the Defendant come visit her while she was

alone. Ms. Ramsey said that after learning of the victim’s death a day after the murder,

she flew home. Upon her return, she spoke with the Defendant whom she asked to take

her to find something to bury her mother in. While the two were driving, the Defendant

told her about a dream he had had about her mother. He told her that he dreamed that he

saw a man with a hammer in his hand beating her mother in the head. He said, in the

dream, he walked up to the man, took the hammer, and began beating the man with the

hammer. The man then became her mother, and the Defendant was beating her mother in

the head with the hammer.

Ms. Ramsey said that she relayed what the Defendant had told her to police, who

gave her recording equipment in an attempt to record the Defendant. Ms. Ramsey then

identified the voices on a recording of the telephone conversation between Ms. Bush and

the Defendant in which the Defendant discussed his dream. She also identified a

recording between her and the Defendant in which the Defendant discussed his dream.

His recount was similar to the version of the dream that he gave Ms. Bush. The

Defendant said that he saw a Caucasian male hitting the victim in with a hammer. In the

dream, the Defendant became enraged at the assailant, grabbed him, and spun him

around, and then it was almost as if the assailant handed the Defendant the hammer. The

Defendant said that he then began beating the assailant with the hammer, and as the

assailant’s face came into focus, he saw that it was actually the victim that he was

beating. He said he felt fear and then calm. The victim motioned him down and

whispered a riddle to him.

Ms. Ramsey said that she lived with Ms. Bush for seven months after this murder.

Ms. Ramsey clarified that nothing was taken from the home.

Ms. Ramsey identified a picture of the telephone line that was tied with knots and

used to bind her mother. She said that, during their marriage, she had seen the Defendant

tie knots similar to the ones depicted in the photograph.

During cross-examination, Ms. Ramsey testified that she and the Defendant were

married for about six years at the time of the murder, but they had been separated for

approximately nine months. She identified her marital dissolution agreement (“MDA”)

with the Defendant and stated that she and her mother jointly owned some property with

the Defendant. The MDA contemplated the parties would divide the nineteen-acre

property. The agreement had to be amended upon her mother’s death and her mother’s

interest in the property went to Ms. Ramsey and Ms. Ramsey’s brother. Ms. Ramsey

agreed that, while she had modified the MDA after her mother’s death, she did not

36

restrict the Defendant’s visitation with her two children. She agreed that after her

mother’s death, she still met with the Defendant and rode in the car alone with him.

Ms. Ramsey agreed that the Defendant’s name was on the lease of her mother’s

home, even though he did not live there. She explained that she and her mother needed

the Defendant to co-sign on the lease to meet the income requirements for the rental.

Some of the Defendant’s things were at the home in boxes by the front door for the

Defendant to retrieve at his convenience. The Defendant also visited her sons, so it was

not unusual for him to be at the home.

Ms. Ramsey testified she had told police about a light switch that appeared broken

near the front door. She said that the switch was not broken before she left to go out of

town but that it was broken after her mother’s murder. Ms. Ramsey agreed that, while

she had spoken with the police, she refused to speak with the Defendant’s investigators.

Ms. Singleton testified that she met the Defendant when her son Larry and the

Defendant’s step-son became friends. The Defendant was, at the time, married to Ms.

Ramsey. Ms. Singleton said that at the time of this murder, the Defendant was living

with her and her son. Ms. Singleton recalled that on March 7, 1993, the day that the

victim was found murdered, she had gone to church. After church, she took a bus to the

hospital to visit her mother and then one of her brothers brought her home at around 3:00

p.m. When she got home, she called a friend that had expressed interest in her mother’s

health.

Ms. Singleton said that while she was on the telephone with her friend, the

Defendant came into the house. He waved in greeting to her and then walked away while

she remained on the telephone. Ms. Singleton recalled that when she finished her

conversation, she saw that the Defendant was sitting at the kitchen table. She noted that

the washing machine was running and she had never known him to do laundry before.

The Defendant told her that he had fallen and gotten mud on a brand new shirt, so he was

laundering it in hopes it would not stain. The Defendant washed his shirt, his pants, and

his shoes.

Ms. Singleton said that she noticed that the Defendant had a scrape near his elbow

and she asked him how he had hurt his arm. He told her that he hurt it when he fell, and

then he went to the bathroom and washed that area of his arm. Ms. Singleton said that

the Defendant was not wearing a shirt, and she also noticed that he had some scratches on

his back. Ms. Singleton said that she never noticed any mud on the Defendant.

Ms. Singleton said that while it did not immediately occur to her, she recalled that

the weather was sunny that day. There was no rain while she waited for her bus to go see

37

her mother. Further, there had not been any rain for several days, so she was unsure

where the Defendant found mud.

That afternoon, the Defendant attempted to call the victim. He said he was getting

worried because the victim was not answering her phone. Ms. Singleton suggested to the

Defendant that, because it was a beautiful day, perhaps the victim was taking a short

walk. Ms. Singleton testified that the Defendant wanted a newspaper, so the two of them

walked to get a newspaper during which time they ran into Mr. Radovich and Larry

Singleton. The four went back to her house and she prepared dinner. After dinner, Ms.

Singleton reminded them it was a school day the following day, and the Defendant told

Mr. Radovich that he needed to go home.

Shortly after Mr. Radovich left, the Defendant got a telephone call. After the

phone call, the Defendant told Ms. Singleton that Mr. Radovich could not get into his

house. Ms. Singleton suggested that they call 911 because the victim may have fallen

and hurt herself. The Defendant told her not to call 911. The Defendant eventually

called 911 and then walked to the victim’s house. Before leaving, the Defendant made a

comment referring to the victim in the past tense, which Ms. Singleton found odd.

Ms. Singleton said that the police took all of them to the police station. She was,

at one point, in a room with the Defendant and asked him what had happened. The

Defendant pointed to a tape recorder and then turned the tape recorder off. Police

eventually took her home and then later came back and searched her home. They

confiscated the Defendant’s clothing, a hammer, and several other items. When the

Defendant was released by police and returned home, she told him what police had taken.

He went to their hallway and looked for his hammer and then said, laughing, “[T]hey

took your hammer, they didn’t take mine.”

Ms. Singleton testified that she asked the Defendant about the scratches on his

back, and he told her that he had an itch on his back and that he had used his hammer to

scratch the itch.

During cross-examination, Ms. Singleton agreed that when she spoke with police

in 1993 she was unsure whether the substance on the Defendant’s elbow was mud or

blood. She agreed that she was still uncertain whether it was blood or mud. She said

that, before they left to get the newspaper, the Defendant took his clothing and shoes out

of the washing machine and hung them on an indoor clothesline. She agreed the

Defendant asked Mr. Radovich to call him when he got home. When Mr. Radovich

called because he could not get into the home, the Defendant said he needed to go there

in case something had happened to the victim. Ms. Singleton agreed she had told the

police that the scratches on the Defendant’s back looked like fingernail scratches.

38

Ms. Singleton answered some questions regarding when she first arrived at the

victim’s home after Mr. Radovich had called. She said the police were present when she

arrived, and that Mr. Radovich was in the backseat of a police cruiser. Officers let Mr.

Radovich go and sit with Ms. Singleton and the Defendant, and the Defendant put his

arms around Mr. Radovich’s shoulders. Ms. Singleton did not recall any blood on Mr.

Radovich’s clothing.

Ms. Singleton said that she and the Defendant were taken in separate police cars to

the police station, where they were interviewed separately. Officers then placed Ms.

Singleton in the same room with the Defendant, in hopes she could get him to talk about

what had happened. Eventually, officers took her home while the Defendant remained at

the station, and, early the next morning, officers executed a search warrant of her house.

The Defendant arrived home later in the morning after the search was complete.

Ms. Singleton agreed that the Defendant never confessed to her that he committed

this murder.

Linda Littlejohn, an agent with the TBI crime laboratory, testified as an expert in

the field of microanalysis. She said that she examined some of the evidence in this case,

including the Defendant’s and the victim’s clothing. She attempted to catch and analyze

any debris she found on the clothing. She found fibers consistent with the victim’s

clothing on the Defendant’s clothing, including his jacket.

During cross-examination, Agent Littlejohn agreed that it was possible to have

fiber transfer from a secondary source, meaning that if someone sat in a chair, then left,

the next person to sit in the chair could have fibers from the first person’s clothing on

their own clothing. The agent agreed that the fibers that she found on the Defendant’s

shoe were not consistent with the victim’s clothing. In addition to the fibers consistent

with the victim’s clothing, Agent Littlejohn also found other fibers on the Defendant’s

pants. Agent Littlejohn said that none of the fibers on the victim’s clothing was

consistent with the Defendant’s clothing.

Adele Lewis, the Deputy State Chief Medical Examiner for the Tennessee

Department of Health, testified as an expert in forensic pathology. Dr. Lewis testified

that she did not perform the victim’s autopsy, but that Dr. Harlan, who was medical

examiner at the time of the victim’s death but since had died, performed the autopsy. Dr.

Lewis identified Dr. Harlan’s report, which the trial court admitted into evidence. Dr.

Lewis said she reviewed Dr. Harlan’s report, photographs of the victim’s injuries, Dr.

Harlan’s written notes, as well as his diagrams of the victim’s injuries. From all this

information, Dr. Lewis determined that the victim’s cause of death was blunt force

39

trauma to the head, suffocation by a plastic bag, suffocation by ligature strangulation, and

blunt force trauma to the chest. Dr. Lewis identified photographs of the victim’s injuries.

Dr. Lewis agreed that the victim’s injuries were consistent with a hammer. Dr. Lewis

testified that the victim had multiple broken ribs on both sides of her body and that her

spine had become separated, injuries which in themselves could have caused her death.

Her injuries were consistent with either a hammer or a foot. Dr. Lewis said that the

victim was in a state of rigor mortis at the time of autopsy, meaning that her death

occurred approximately not less than thirty minutes and not more than thirty-six hours

before the exam.

During cross-examination, Dr. Lewis conceded that there was no way to recreate

Dr. Harlan’s actual examination of the victim’s body and the resulting report and

photographs. Dr. Lewis agreed that in 2005, Dr. Harlan’s medical license was revoked

by the State of Tennessee. Dr. Lewis agreed that Dr. Harlan listed four causes of death

and that she could not say which of those was the actual cause of death. Dr. Lewis

agreed that she could not identify what object caused the victim’s blunt force trauma. Dr.

Lewis agreed that the victim could have died either March 6 or March 7, 1993, according

to the findings in Dr. Harlan’s report.

Glen Arnold, a criminal investigator with the Public Defender’s Office, testified

for the defense that he visited the police property room on January 6, 2015 and April 7,

2016. He identified photographs that he took on both occasions. Those photographs

supported his testimony that some of the evidence bags related to the case were torn and

not resealed. Mr. Arnold noted that, when he viewed the evidence on January 6, 2015

one piece of evidence, the Defendant’s pants, had some fibers on the knee area, which he

photographed. Mr. Arnold said that, when he returned to reexamine the property on

April 7, 2016, some of the evidence had been re-bagged.

Mr. Arnold testified that when he viewed evidence on January 6, there appeared to

be samples from a separate case. He saw vials of blood and a vial of saliva that both had

a different complaint number from a different year. The biological evidence was missing

when he viewed the evidence on April 7.

During cross-examination, Mr. Arnold testified that he did not have a photograph

of the biological evidence that had gone missing. He said that he took a photograph of

the evidence but that he did not have it with him at trial.

William Watson, a molecular biologist who testified as an expert in forensic DNA

analysis and forensic serology, said that the type of testing performed by Cellmark in this

case was more susceptible to contamination. He further explained that not all

laboratories calculate statistics using the same method. Dr. Watson said he would not

40

have calculated the statistics the same as Ms. Nassir because of the presence of the

additional peak, which indicated that there was an additional contributor. Reviewing the

data, Dr. Watson explained that Cellmark only had the equivalent of the amount of DNA

that you would find in two cells, or a miniscule amount of DNA to test. The tape had an

even smaller amount of DNA to test.

Dr. Watson testified that, even if the DNA under the victim’s fingernails came

from the Defendant, that evidence only showed the victim’s fingernails at some point

came into contact with something that had the Defendant’s DNA on it. He said studies

show that it is not uncommon to find foreign DNA on a person and it is usually

contributed by someone with whom they cohabitate.

Dr. Watson testified that the DNA on the tape showed the presence of at least

three male contributors. Dr. Watson said it was possible for the DNA to be contaminated

without Cellmark knowing, depending on how the crime scene had been processed. The

precautions in 1993 for processing a crime scene were not as focused on preventing

contamination.

Dr. Watson testified that a person sheds millions of skill cells onto their clothing.

If someone else handled their clothing, they may have come into contact with that DNA.

During cross-examination, Dr. Watson testified that Cellmark was an accredited

lab and that Y-STR testing was an appropriate technique to use when there was a low

quantity of DNA. He said that DNA can be found under someone’s fingernails if they

scratch another person. Dr. Watson agreed that Ms. Nassir had a more extensive

background in Y-STR testing than he did, in addition to more hands-on experience.

Based upon this evidence, the jury found the Defendant guilty of first degree

premeditated murder. It is from this judgment that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that the trial court erred when it: (1) did not

dismiss the charge against him based on pre-indictment delay; (2) did not dismiss the

charge against him based on post-indictment delay; (3) denied his motion to suppress

evidence; (4) made several erroneous evidentiary rulings; and that, (5) the evidence is

insufficient to sustain his conviction; and, (6) he is entitled to a new trial based upon the

cumulative effect of the errors.

A. Pre-Indictment Delay

41

The Defendant contends that the delay of more than twenty years between the

commission of the offense and the issuance of the indictment in this case violated his

right to due process of law. He asks this court to dismiss his indictment. The State

counters that the Defendant is not entitled to relief because he failed to establish either

that he was prejudiced by the delay or that the State caused the delay to gain a tactical

advantage.

Regarding the pre-indictment delay, the trial court found:

The offense was committed in March 1993. An investigation by

Metro Police ensued thereafter. Detective James Arendall from the cold

case unit began investigating the crime in 2010 and DNA testing was

initiated based on his investigation. The DNA testing identified the

Defendant in 2012 as a potential source. The indictment was returned on

July 23, 2013.

The Court agrees with the [D]efendant that sufficient delay occurred

in this case to trigger due process inquiry. State v. Carico, 968 S.W.2d 280

(Tenn. 1998). Indeed, the approximate twenty (20) year delay was lengthy.

The Court agrees that the passage of this many years may be prejudicial to

the defense, but it also appears to be more disadvantageous to the State in

this matter. To show prejudice, the [D]efendant points to the death of the

Medical Examiner, Dr. Harlan, the retirement of multiple police officers,

neighborhood changes, fading memories, and incomplete recordings.

However, no actual prejudice was shown at the hearing, and there is no

indication that the tangible evidence, mentioned by the [D]efendant as

incomplete, will be admissible at trial. Additionally, the Court finds that

the State did not intentionally delay the prosecution in order to obtain a

tactical advantage. While there does appear to be gaps in time, the record

reflects that the police continued to investigate the crime through the cold

case unit and advances in DNA technology eventually proved successful in

identifying the [D]efendant as a potential source of DNA found at the

scene. However, the DNA sample is somewhat degraded, but a jury will

determine the weight to be given to the DNA evidence at trial. Further,

utilizing new DNA technology is not delaying to gain a tactical advantage

as the defendant contends. Rather, it is a conscientious way for the State to

identify a suspect and to avoid arresting someone before the evidence

supports that decision.

The Fifth and Fourteenth Amendments to the United States Constitution and

article I, section 8 of the Tennessee Constitution provide a criminal defendant with the

42

right to due process. State v. Gray, 919 S.W.2d 668, 671 (Tenn. 1996).

Before 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.

State v. Dykes, 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990); see State v. Utley, 956

S.W.2d 489, 495 (Tenn. 1997); United States v. Marion, 404 W. S. 307 (1971). Prejudice

to a defendant is the most critical factor. State v. Gilley, 297 S.W.3d 739, 755 (Tenn.

Crim. App. 2008).

The record in this case reflects that the offense occurred on March 6 or March 7,

1993, but the Defendant, who was the sole suspect from the time of the killing, was not

indicted for first degree premeditated murder until July 23, 2013. The Defendant has

established a lengthy pre-indictment delay that implicates the due process right to a fair

trial.

The Defendant must next establish that he sustained actual prejudice as a direct

and proximate result of the delay. Relative to prejudice, the Defendant offered that the

Chief Medical Examiner who had performed the victim’s autopsy had died during the

delay. His report was entered through the new medical examiner, but the defense was

unable to cross-examine Dr. Harlan about the fact that his medical license had been

revoked based on professional transgressions, including misidentifying victims,

incorrectly determining the cause of death, and concealing that he contaminated samples.

The Defendant said he also would have cross-examined Dr. Harlan about his failure to

estimate the victim’s time of death and inadequacies in his autopsy report. The

Defendant also offered that two police officers involved in the investigation, Detective

Bernard and Detective McElroy, had also died between the time of this offense and the

Defendant’s indictment.

The Defendant further asserts he was prejudiced by the delay because numerous

pieces of evidence had disappeared from the Metro PD property room before his

indictment. DNA evidence was completely consumed during the delay, and the crime

scene was altered when the house in which the murder occurred was completely

remodeled. The Defendant asserts the delay resulted in his inability to assert an alibi

defense because his employer could no longer provide the Defendant with his work

records.

We conclude that the delay did not prejudice the Defendant in this case. His

43

arguments, while compelling, do not amount to prejudice. Dr. Harlan’s report included

factual findings, which the Defendant’s investigator agreed could be interpreted by the

then-sitting medical examiner. The deceased law enforcement officers created reports

that did not contradict any of the other officers’ reports or testimony. The consumption

of the DNA evidence was a result of duplicative testing. There was no evidence the

house alterations prejudiced the Defendant and, finally, as to his work records, he

admitted that he was not working on March 7, the day this crime almost certainly

occurred. The Defendant said that he saw the victim alive at 6:00 p.m. on March 6 when

he went to her home and asked her for grocery money. He then said he went to the

grocery store and took his groceries home. He made no allegation that, later in the

evening after bringing groceries to his home on March 6, he went to work. Accordingly,

any work records for earlier in the day, before he says he saw the victim alive at 6:00

p.m., are not relevant to his defense.

In any event, the Defendant has failed to establish that the pre-indictment delay

was caused by the State in order to gain tactical advantage over or to harass the

Defendant. To the contrary, the evidence implies that the State would not proceed with

this case until it had some link between the Defendant and the crime scene.

Advancement in DNA technology meant that Cellmark could test the small amount of

DNA available under the victim’s fingernails and offer evidence that the Defendant was

the potential source of that DNA. Months after obtaining the Cellmark report, the State

sought and obtained an indictment against the Defendant. We conclude the Defendant

has not proven that he is entitled to a dismissal of his indictment based upon pre-

indictment delay.

We further note that the Defendant in his brief asks us to abandon the requirement

set forth by the United States Supreme Court in Marion, 404 U.S. 307 (1971) and the

Tennessee Supreme Court in Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990). He

contends the requirement that a defendant show the State caused a delay in order to gain a

tactical advantage places a daunting, almost insurmountable burden on the accused. This

court is bound by the decisions of the United States and Tennessee Supreme Courts.

Owens v. State, 13 S.W.3d 742, 764 (Tenn. Crim. App. 1999) (citing State v.

Middlebrooks, 995 S.W.2d 550 (Tenn. 1999)). We therefore may not overturn settled

precedent.

B. Post-Indictment Delay

The Defendant contends the trial court erred when it denied his motion to dismiss

based on a violation of his right to a speedy trial. He asserts the delay in his case, while

caused in part by his own attorneys, was attributable to the State because there was a

“systemic breakdown” of the Public Defender’s Office. The State counters that this was

44

a complex case, one in which it was appropriate for the Defendant’s attorneys to ask for

more time. The State asserts that there is no systemic breakdown in the Public

Defender’s Office and that the delay in the case is attributable to the Defendant.

With regard to the post-indictment delay, the trial court examined the factors

relevant to whether a delay over a year violated the Defendant’s right to speedy trial. The

trial court found:

Length of Delay

In this case, the Court finds the presumptive time period of over one

year has passed. The delay has been approximately three years and one

month between the time the [D]efendant was indicted to the current date

and twenty-nine months since his arraignment. The Court recognizes

where a case is simple and relatively easy to prosecute, delay will weigh

more heavily against the State because there is less excuse for delay.

Barker v. Wingo, 407 U.S. at 531. Here, simplicity is not present. This is a

complex, cold case with moving parts in terms of witnesses and DNA

evidence. However, this factor weighs in the [D]efendant’s favor.

Therefore, the Court will consider the remaining factors.

Reason for Delay

The [D]efendant contends that the State of Tennessee’s affirmative

decision to inadequately fund the Metro Nashville Public Defender’s Office

has created a systemic breakdown, and because of that breakdown the

[D]efendant’s right to a speedy trial has been violated. Further, the

[D]efendant asserts that this delay should be attributed to the State for the

lack of funding.

The Court disagrees with this contention. Because “the attorney is

the [Defendant’s] agent when acting, or failing to act, in furtherance of the

litigation,” delay caused by the defendant’s counsel is also charged against

the defendant. Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546,

115 L.Ed.2d 640 (1991). The same principle applies whether counsel is

privately retained or publicly assigned, for “[o]nce a lawyer has undertaken

the representation of an accused, the duties and obligations are the same

whether the lawyer is privately retained, appointed, or serving in a legal aid

or defender program.” Polk County v. Dodson, 454 U.S. 312, 318, 102 S.

Ct. 445, 70 L.Ed.2d 509 (1981). “Except for the source of payment,” the

relationship between a defendant and the public defender representing him

is “identical to that existing between any other lawyer and client.” Ibid.

Unlike a prosecutor or the court, assigned counsel ordinarily is not

45

considered a state actor. Polk County v. Dodson, 454 U.S. 312, 325, 102

S.Ct. 445, 70 L.Ed.2d 509 (1981).

However, the general rule attributing to the defendant delay caused

by assigned counsel is not absolute. Delay resulting from a systemic

“breakdown in the public defender system,” 955 A.2d, at 1111, could be

charged to the State. Cf. Polk County, 454 U.S., at 324-325, 102 S. Ct. 445.

Although the United States Supreme Court did not define the term

“systemic breakdown” in Vermont v. Brillon, 556 U.S. 81, 94 (2009), in

which the [D]efendant so heavily relies, this Court need not determine its

definition today. Delays caused by defense counsel are properly attributed

to the defendant, even where counsel is assigned. Id. Further, “any inquiry

into a speedy trial claim necessitates a functional analysis of the right in the

particular context of the case.” Barker v. Wingo, 407 U.S. 514, 522 (1972).

In the Court’s opinion, the facts and details of this particular case are

where the inquiry should be focused and where the decision properly rests.

According to both Georgia Sims and Kevin Griffith, they have not rendered

defective or unethical representation in every case. Kevin Griffith even

stated that he has done a fantastic job for some clients. Therefore, this

Court must look to the facts in this particular case to determine whether the

[D]efendant’s rights have been violated and not solely on the overall office

problems. Notwithstanding that inquiry, after review of the Spangenberg

study, affidavits detailing caseload information from the attorneys in the

Metropolitan Davidson County Public Defender’s Office, caseload

information submitted by the State, and the testimony from the attorneys

and Professor Lefstein, a legitimate question has been raised as to whether

the Metropolitan Davidson County Public Defender’s Office is understaffed

and or underfunded based on the sheer volume of cases.2 However, this

Court is not in a position to make that determination nor is it necessary in

this matter. What the Court can affirmatively say is that the underfunding

of the Metropolitan Davidson County Public Defender’s Office is not the

culprit of this delay and did not lead to the violation of the [D]efendant’s

right to a speedy trial.

FN2 Both the caseload statistics submitted by the

Metropolitan Davidson County Public Defender’s Office and

the State have inaccuracies or deficiencies. The caseload

information from the public defender’s office does not

account for cases that were assigned in the prior fiscal year

that are still pending or cases wherein an attorney acts as

46

“second chair.” The caseload statistics from the State, while

they do show pending cases assigned to the public defender

including those from prior years, the data only shows a

snapshot of cases assigned to the public defender on a single

day and not the entire year. Both compilations also rely on

humans to input the correct data into each system so the

element of human error is present.

From the record in this case, the trial has been delayed due to

multiple continuances acquiesced in or requested by the [D]efendant and

for his benefit. The [D]efendant was indicted on July 23, 2013. Georgia

Sims was appointed to represent the [D]efendant on the date the

[D]efendant was arraigned in April 2014. From the beginning, she worked

with Kevin Griffith because he could split the workload with her evenly. A

jury trial was set by agreement in June 2015. The [D]efendant did not

request a trial sooner than that. Nothing was filed to object to the trial date.

The [D]efendant did not object to the State’s request for a two (2) month

continuance to August 2015. In August 2015, the [D]efendant requested a

continuance in light of newly discovered evidence. After the August

continuance, [Ms. Sims] requested funds for another investigator. This

request was approved and supplemental requests for funding were also

approved by the Court . . . . The State and defense counsel picked a trial

date eight (8) months later. The Court was not made aware of any

objections. There was nothing filed to indicate an objection. The first

speedy trial motion was filed at the end March 2016. In April 2016, the

[D]efendant said he would agree to a continuance if he was let out of

custody. The [D]efendant did not object to the August or April

continuances in court. The [D]efendant never told the Court that he did not

want the public defenders as his lawyers. Mrs. Sims never told or asked the

Court to be relieved, and the [D]efendant declined new representation. The

trial was continued until September 19, 2016, and defense counsel assured

the Court they will be ready for trial.

This is a complex, cold case, a homicide. It is not uncommon for a

murder trial to be continued multiple times especially one that is twenty

years old. Georgia Sims and Kevin Griffith were appointed and it appears

from their time log they went to work as diligent attorneys would and as

any client would request of their attorney. (Exhibit 4, Reported Time for

2014-CC-869). To date, the attorneys have logged seven hundred sixty

hours and twenty-two minutes working on this case. (Exhibit 4, Reported

Time for 2014-CC-869).3 Both Professor Lefstein and Georgia Sims

47

emphasized the lack of resources available, specifically the lack of

investigators in the public defender’s office, but there are two investigators

assigned specifically to this case: 1) Glen Arnold from the public

defender’s office; and 2) Amber Treat from A-K Investigations.

FN3 This record does not appear to include the time spent by

Amber Treat investigating this matter. Based on the Court’s

orders granting funding for this Investigation, it appears to be

a significant amount of time. It also may not include jail

visits and any unlogged or untracked time.

In addition, Professor Lefstein did not provide a test to aid the Court in

determining whether the time spent by the attorneys in this case was

sufficient and appropriate. However, based on the proof before the Court,

even if the office is experiencing symptoms of a breakdown, there is not

one present in this matter.

The [D]efendant cites New Mexico v. Stock, 140 N.M. 676 (2006),

among others, in support of his position. However, this case involved a

defendant whose counsel failed to pursue the issue of his competency and

there was a complete lack of attention to the case by both the State and

defense counsel. Here, the [D]efendant is competent and acquiesced and or

requested the continuances. Additionally, these continuances were for his

benefit. Both the State and defense counsel have pursued this case

diligently. There was not a complete lack of attention, rather the opposite.

This case required time to properly investigate, prepare, and

eventually litigate. Considering the life of this case, the reasons for the

delay weigh against the [D]efendant and must be attributed to the

[D]efendant and not the State. A contrary conclusion by this Court could

encourage appointed counsel to delay proceedings by seeking unreasonable

continuances, hoping thereby to obtain a dismissal of the indictment on

speedy-trial grounds. Vermont v. Brillon, 556 U.S. 81, 93 (2009).

Assertion of Right

In February 2016, the [D]efendant filed a motion to be appointed co-

counsel and to proceed with trial in April. In March 2016, Mrs. Sims, on

the [D]efendant’s behalf, filed motion to dismiss or in the alternative to

continue the trial. The motion to dismiss before the Court is the

[D]efendant’s first assertion of his right to a speedy trial.4 It was brought to

the Court’s attention in March 2016. The transcript of that hearing

48

indicates the [D]efendant understood the continuance request and

acquiesced in that request. (Exhibit 12, p. 21) This factor weighs in favor

of the State.

FN4 If the assertion was made sooner, counsel could have

apprised the Court of the issues and new private counsel

could have been appointed in this matter.

Prejudice

Finally, the Court must consider the prejudice to the [D]efendant

caused by the delay. To show prejudice, the [D]efendant points to the

death of the Medical Examiner, Dr. Harlan, the retirement of multiple

police officers, neighborhood changes, fading memories, and incomplete

recordings. However, no specific proof of prejudice and how it negatively

impacts the [D]efendant was presented at the hearings. In addition, these

continuances have allowed this complex murder case to be properly

investigated and prepared for trial. Therefore, the [D]efendant has failed to

establish prejudice.

Conclusion

Based upon the foregoing analysis and in consideration of all of the

speedy trial factors, the [D]efendant’s motions are denied, and the Court

will allow this case to proceed to trial on September 19, 2016.

“The right to a speedy trial arises under the Sixth Amendment to the constitution

of the United States made applicable to the State by the Fourteenth Amendment . . . and

Article 1, § 9 of the Constitution of Tennessee . . . .” State v. Bishop, 493 S.W.2d 81, 83

(Tenn. 1973). The right to a speedy trial is “amorphous,” “slippery,” and “necessarily

relative.” Barker v. Wingo, 407 U.S. 514, 522 (1972). “‘The right of a speedy trial is

necessarily relative. It is consistent with delays and depends upon circumstances.’” Id.

at 522 (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905). In Barker, the United States

Supreme Court established that courts should engage in a “balancing test, in which the

conduct of both the prosecution and the defendant are weighed.” Id. at 529. Some of the

factors a court should weigh include “[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Id.

We review a trial court’s determination of whether a defendant’s right to a speedy

trial was violated under an abuse of discretion standard. State v. Hudgins, 188 S.W.3d

663, 667 (Tenn. Crim. App. 2005); State v. Easterly, 77 S.W.3d 226, 236 (Tenn. Crim.

App. 2001). Our review includes evaluating claims of a speedy trial violation by

considering the four-part balancing test set forth in Barker v. Wingo. See State v. Bishop,

49

493 S.W.2d 81, 83-85 (Tenn. 1977) (adopting the Barker analysis in Tennessee). The

Barker factors are: (1) the length of delay; (2) the reason for the delay; (3) the

defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant

because of the delay. Barker, 407 U.S. at 530; State v. Simmons, 54 S.W.3d 755, 758-59

(Tenn. 2001).

1. Length of Delay

The first factor we must consider is the length of delay. The length of delay is

both the threshold question in the speedy trial analysis and a factor to be weighed with

the other three Barker factors. State v. Wood, 924 S.W.2d 342, 347 (Tenn. 1996)

(utilizing the balancing analysis to determine that a thirteen-year delay in trial did not

violate the defendant’s right to a speedy trial). “‘Until there is some delay which is

presumptively prejudicial, there is no necessity for inquiry into the other factors that go

into the balance.’” State v. Baker, 614 S.W.2d 352, 355 (Tenn. 1981) (quoting Barker,

407 U.S. at 530). The reasonableness of the length of the delay depends on the

complexity of the case. Barker, 407 U.S. at 530. “[T]he presumption that the delay has

prejudiced the defendant intensifies over time.” Simmons, 54 S.W.3d at 759.

The trial court weighed this factor in favor of the Defendant. The Defendant was

indicted on July 23, 2013, and he was tried on September 19 - 23, 2016. While this delay

of three years and two months, as the Defendant concedes, “can be tolerated for a more

complex case,” a category into which this case clearly falls, this length of delay is

sufficient to trigger the speedy trial analysis. This period of delay is not necessarily

unreasonable compared to other cases. See Id.; compare Wood, 924 S.W.2d at 346

(thirteen-year delay); Doggett, 505 U.S. at 653 (six-year delay). We weigh this factor

slightly in favor of the Defendant.

2. Reason for the Delay

The reason for the delay generally falls into one of four 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.

Wood, 924 S.W.2d at 346-47 (applying Barker). In this case, the defense team,

consisting of government-appointed counsel, caused or acquiesced to several of the

delays, placing this case into the fourth category.

In Vermont v. Brillon, 556 U.S. 81 (2009), the United States Supreme Court

interpreted the Barker opinion discussing the reason for the length of delay in the context

of government-appointed counsel. The Court first instructed that “‘[I]n applying Barker,

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we have asked “whether the government or the criminal defendant is more to blame for

the delay.’” Brillon, 556 at 90 (quoting Doggett v. United States, 505 U.S. 647, 651

(1992). The Court stated that delay caused by the defense weighs against the defendant:

“[I]f delay is attributable to the defendant, then his waiver may be given effect under the

standard waiver doctrine.” Id. (citing Barker, 407 U.S. at 529). Importantly, this rule

ensures that defendants do not employ delay as a “defense tactic” because delays may

work to the accused’s favor in that witnesses may become unavailable or their memories

may fade. Id. The attorney representing the defendant is the defendant’s agent when

acting or failing to act in furtherance of the litigation, and delay caused by the

defendant’s counsel is also charged against the defendant. Id. This rule applies whether

defense counsel is privately retained or publicly appointed. Id. The Court pointed out,

however, that this rule is not absolute. Id. at 94. Delay resulting from a “systemic

‘breakdown in the public defender system’ . . . could be charged to the State.” Id.

(quoting Vermont v. Brillion, 955 A.2d 1108, 1111 (Vt. 2008)

The Court in Brillon did not expound on what qualified as a “systemic

breakdown” in the public defender’s office. It, however, found that the three-year delay

in trial, during which time six different attorneys represented Mr. Brillon, did not show

that Mr. Brillon was denied his constitutional right to a speedy trial. Brillon, 556 U.S. at

94 (weighing Mr. Brillon’s disruptive behavior heavily against him).

In 2013, the United States Supreme Court initially granted certiorari in a case

squarely on point to address “[w]hether a state’s failure to fund counsel for an indigent

defendant for five years, particularly where failure was the direct result of the

prosecution’s choice to seek the death penalty, should be weighed against the state for

speedy trial purposes.” Boyer v. Louisiana, 569 U.S. 1702 (mem) (2013). The court

ultimately dismissed the writ as “improvidently granted” in a per curiam order. In the

order the Court stated:

A State’s failure to provide adequate funding for an indigent’s

defense that prevents a case from going to trial is no different than [delay

resulting from a systemic breakdown in the public defender system and can

be charged to the State]. Where a State has failed to provide funding for

the defense and that lack of funding causes a delay, the defendant cannot

reasonably be faulted. See Barker, 407 U.S. at 531. Placing the

consequences of such a delay squarely on the State’s shoulder is proper for

the simple reason that an indigent defendant has no control over whether a

State has set aside funds to pay his lawyer or fund any necessary

investigation. The failure to fund an indigent’s defense is not as serious as

a deliberate effort by the State to cause the delay. But States routinely

make tradeoffs in the allocation of limited resources, and it is reasonable

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that a State bear the consequences of these choices.

Id. 569 U.S. at 246 (citation omitted).

Other courts have attempted to interpret the “systemic breakdown” phrase in

Brillon when faced with the inquiry of whether a defense counsel’s actions were

imputable to the State based upon a systemic breakdown in the public defender’s office.

One such case, Weis v. State, 694 S.E.2d 350, 355 (2010), cert denied Weis v. Georgia,

562 U.S. 850 (2010), discussed this issue in context of a three-and-one-half-year delay

between the defendant’s arrest and placement of his case on a trial calendar. That court

held:

Thus, although there were funding issues that had contributed to the

delay up to the point of November 26, 2007 hearing, the “public defender

system” had not broken down from the lack of funding at that point, as

there were attorneys available within the public defender system to

continue the case. Indeed, there can be no “systemic breakdown in the

public defender system” . . . when there are still attorneys within that

system who are available to represent the criminal defendant.

Id. Accord Phan v. State, 723 S.E.2d 876, 882-83 (2012).

In People v. Superior Court (Vasquez), 27 Cal. App. 5th 36 (Cal. App. Nov. 30,

2018), the California appellate court addressed whether a seventeen-year delay violated a

defendant’s right to a speedy trial where the defendant was confined for that period of

time. The court concluded that two to three years of that delay was caused by a

“systemic breakdown in the public defender system” and, considering that, along with the

oppressive nature of his confinement for 17 years, his limited ability to assert his right to

a speedy trial, and the presumptively prejudicial seventeen-year delay, the trial court did

not err when it dismissed the indictment against him. Id.

The Supreme Court of New Mexico attempted to interpret this phrase in 2017.

State v. Ochoa, 406 P.3d 505, 514 (N.M. 2017). In that case the court noted that other

courts, like Weis quoted above, have interpreted “systemic breakdown in the public

defender system” to describe problems that are not only institutional in origin, but

sufficiently serious to justify weighing the delay against the government. Ocha, 406 P.2d

at 514 (quoting Weis, 694 S.E.2d at 354-55 for the proposition that funding problems did

not amount to a breakdown of the entire public defender system when “lack of funding . .

. was not the sole factor contributing to the delay) and United States v. Young, 657 F.3d

408, 414-15 (6th Cir. 2011), which rejected the argument that the district court’s

untimeliness was a “systemic failure” that should weigh against the State). The Ochoa

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court went on to hold that a government furlough, which impacted one day of a three-day

jury trial and resulted in an additional two months, of a total two-year, delay was not the

type of “systemic breakdown” contemplated by the Brillon Court. (citing also State v.

Brown, 871 N.W.2d 867 (Wi. 2015) (a non-precedential case concluding that there was

no systemic breakdown when its public defender department left an unlicensed attorney

on a case for a short period of the delay).

Other cases have examined the phrase “systemic breakdown” in the public

defender’s office. Castellanos v. State, 366 P.3d 1279, 1301 (WY. 2016) (finding no

systemic breakdown when there was a 927-day delay, 357 days of which the defendant

was assigned counsel who was not qualified to try a capital case); State v. Redlich, 321

P.3d 82, 146 (Mt. 2014) (holding that a delay of 485 days between the defendant’s arrest

and trial did not violate his constitutional rights to a speedy trial even though it was

caused, in part by turnover at the Office of the Public Defender).

In State v. Ollivier, 312 P.3d 1, 14 (Wash. 2013), the Washington Supreme Court

found that a twenty-three-month delay did not violate the Defendant’s right to a speedy

trial, even though he objected to some of the continuances sought by his defense counsel.

In so doing, the court stated:

Many courts hold that even where continuances are sought over the

defendant’s objection, delay caused by the defendant’s counsel is charged

against the defendant under the Barker balancing test if the continuances

were sought in order to provide professional assistance in the defendant's

interests. E.g., Bergman v. Cates, No. EDCV 12-00339-AG, 2012 WL

5328717 (C.D. Cal. Aug. 10, 2012) (unpublished); Cox v. Warden, No.

1:10-cv-117, 2011 WL 1980169, at *5 (S.D. Ohio Apr. 26, 2011)

(unpublished); State v. Ward, 227 Kan. 663, 667, 608 P.2d 1351 (1980)

(defendant objected to continuances and argued that timing of trial was a

decision that must be left to the defendant; court disagreed, saying that

“[t]he matter of preparation and date of the trial and the type of defense

relied upon are clearly strategical and tactical decisions which require

trained professional skill and judgment which must rest with the lawyer”;

no violation of Sixth Amendment right to a speedy trial); Taylor v. State,

557 So.2d 138, 141-42 (Fla. Dist. Ct. App. 1990) (noting tension between

the right to speedy trial and the constitutional right to competent, prepared

counsel; finding no violation of the constitutional right to speedy trial

where counsel sought a continuance over defendant’s objections),

overruled on other grounds by Heuss v. State, 687 So.2d 823 (Fla. 1996);

State v. Taylor, 298 S.W.3d 482 (Mo. 2009) (counsel obtained

continuances over objection of defendant to prepare for trial; lengthy delay;

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defendant effectively asserted constitutional right to speedy trial; no

violation of Sixth Amendment); see also United States v. Brown, 498 F.3d

523, 531 (6th Cir. 2007) (delays resulting from defense counsel’s need to

prepare are attributable to the defendant); People v. Lomax, 49 Cal.4th 530,

556, 234 P.3d 377, 112 Cal. Rptr. 3d 96 (2010) (when defendant refuses to

waive time despite attorney’s need for time to more prepare, conflict

between statutory and constitutional rights to a speedy trial and Sixth

Amendment right to competent, adequately prepared counsel arises; thus,

when counsel seeks reasonable time to prepare and delay is for the

defendant’s benefit, a continuance over the defendant’s objection is

justified).

Id.

We begin our analysis with the principle that whether the Defendant’s due process

rights were violated because he did not receive a speedy trial is dependent on the facts

and circumstances of each individual case. The attorneys representing the Defendant in

this case testified that they provided excellent representation for some of their clients but

others “fell through the cracks.” Ms. Sims, as she should be, was very proud of some of

the work that she had done, and Mr. Griffith felt he had done a fantastic job for some of

his clients. We cannot overstate our respect for the representation provided by the

Nashville Public Defender and those in her office in the face of their heavy caseloads.

That said, our inquiry is not one based on whether the Nashville Public Defender’s Office

should receive additional funding. In this case, our inquiry is limited to whether lack of

funding led to a “systemic breakdown” of the Public Defender’s Office in this case, so as

to warrant a dismissal of the indictment against this Defendant.

The evidence presented shows the Defendant had consistent counsel from the time

of his arraignment until his trial. There were also two investigators assigned to his case,

and, at defense counsels’ request, additional funding was provided by the trial court for

the second investigator. Defense counsel and one of the investigators logged at least 760

hours of time on the Defendant’s case, and that time did not include the time spent by the

second investigator, whom the trial court said logged a “significant” amount of time on

the case.

The public defenders offered evidence regarding their caseloads, other supervisory

duties, and desire for more positions to better represent the multitude of clients that they

serve. While their requests seem reasonable in light of that evidence, it also appears that

they have performed well under the budget constraints in which they find themselves.

While the courts of Tennessee have never defined the term “systemic breakdown” in this

context, we find no evidence that the Davidson County Public Defender’s Office had any

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breakdown in this case, even with their funding constraints, and to the contrary provided

competent, thorough representation for the Defendant.

The record shows that the Defendant was arraigned on April 23, 2015, and his first

trial was set for June 2015. At the June 2015 setting, some of the State’s witnesses were

not present and by Ms. Sims’ testimony the defense was not ready for trial, so the

Defendant agreed to continue the case until August 2015. This two-month delay is

slightly more attributable to the State. Both parties were prepared to proceed at the

August trial date, but Ms. Sims said that she learned that there might be remaining DNA

evidence that she could have tested. She asked for a continuance in order to research this

issue and funds for another investigator, and the trial court granted both requests. The

trial was reset for April 2016. This continuance was in the Defendant’s best interest, so

that eight-month portion of the delay is attributable to him. Within this period, however,

the Defendant filed a motion to be appointed as co-counsel in February 2016 and a

motion to dismiss based upon speedy trial violation in March 2016. Ms. Sims informed

the trial court in April 2016 that she was unprepared for trial because of her workload,

and the trial court reset the case for September 1, 2016. During that time, the trial court

heard evidence on the speedy trial motion regarding both pre and post indictment delays.

According to Ms. Sims, in April 2016, the Public Defender shifted Ms. Sims and Mr.

Griffith’s caseloads to others, so that they could be prepared for trial and provide

adequate representation to the Defendant. By September, she was by all accounts fully

prepared and extremely effective during the trial, as was her co-counsel Mr. Griffith.

The need and justification for additional funding aside, the Public Defender’s

Office in this case operated in accordance with how an effective Public Defender’s Office

operates. Once the Defendant’s attorneys expressed their inability to provide the

Defendant’s case enough time, their caseloads were shifted so that they could adequately

prepare for his trial. The other members of the Public Defender’s Office were able to,

and did, accept the additional caseload to provide the Defendant’s attorneys with

adequate time to prepare. Had Ms. Sims expressed her needs earlier, presumably these

same actions could have been taken. We must separate the issue of whether the office is

adequately resourced from the issue of whether there was a “systemic breakdown” of that

office based on a lack of resources. In this case, and very likely because of the

commitment of all of the attorneys in the Public Defender’s Office, we conclude that the

thirty-eight month delay was not caused by a “systemic” or any other “breakdown” of the

Public Defender’s Office. Therefore, the delay, which was requested or acquiesced to by

the Defendant in or for his benefit, is attributable to the defense and the principal of

waiver applies. This factor weighs in favor of the State.

3. Assertion of the Right

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This third Barker factor requires us to determine whether and if so when, the

Defendant asserted his right to a speedy trial. In February 2016, the Defendant filed a

motion to be appointed as co-counsel. In March 2016, the Defendant’s counsel, on the

Defendant’s behalf filed a motion to dismiss, which was his first mention to the trial court

that he was asserting his right to a speedy trial. This was two years after he was

arraigned and after his counsel had requested an eight-month

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