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08/04/94 STATE TENNESSEE v. HAROLD W. GRAY

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT NASHVILLE


August 4, 1994

STATE OF TENNESSEE, APPELLANT,
v.
HAROLD W. GRAY, APPELLEE.

Wilson County. Hon. James O. Bond, Judge. (Dismissal of Indictment)

Summers, Scott, Tipton

The opinion of the court was delivered by: Summers

The State of Tennessee appeals from an order entered by the Wilson County Criminal Court dismissing the indictment against Harold W. Gray, defendant. On 15 September 1992, an indictment was returned charging the defendant with unlawful carnal knowledge of a female under 12 years of age, "on or about a day in early 1950. . . ." Code of Tenn. § 10784 (1932). Gray filed a motion to dismiss the indictment. After hearings on the motion, the court issued an order finding that the state failed to prosecute the defendant within the applicable statute of limitations. The court also found that the indictment violated Gray's right to a speedy trial under the Sixth Amendment and constituted a violation of his Fifth Amendment right to due process.

FACTS

The victim testified at the hearing on defendant's motion to dismiss. She stated that sometime in early 1950, when she was 8 years old, Gray sexually penetrated her. The defendant was 19 years of age at the time. The victim did not tell anyone until 26 March 1992, when she related the event to her cousin, Jean Stockton. The conversation occurred due to concern both women were experiencing over the defendant's granddaughter. When asked why she had not come forward with this information before, the victim responded, "for years I thought that I had done something that possibly caused him to do this to me. But over the years I realized that there's nothing that a young child can do to cause an adult to do this to them."

I.

In its first issue, the state argues that the trial court erred in dismissing the indictment based upon the running of the statute of limitations.

Tennessee Code Annotated section 40-2-101(e) provides that for an offense committed prior to 1 November 1989, the statute of limitations existing at the time of the offense shall govern. In the present case, the defendant was indicted for the offense of carnal knowledge of a child under 12 years of age. Code of Tenn. § 10784 (1932). *fn1 The indictment charged that the crime occurred sometime in early 1950. At that time, the statute of limitations for a particular offense was determined by its potential punishment. See Code of Tenn. §§ 11481 to 11484 (1932). For crimes in which the punishment could result in death or life imprisonment no statute of limitations existed. Code of Tenn. § 11481 (1932). The punishment for carnal knowledge of a female under the age of twelve was as follows:

Death by electrocution; provided, the jury before whom the offender is tried and convicted, may, if they think proper, commute the punishment for the offense to imprisonment in the penitentiary for life, or for a period of not less than ten years.

Code of Tenn. § 10781 (1932).

It would thus appear that no limitations period prohibits the defendant's prosecution. Gray, however, contends that subsequent penal legislation lessened the punishment for the offense of carnal knowledge thus making applicable a four-year statute of limitations. He further contends that the limitations period has run, and cites State v. Carrier, 822 S.W.2d 623, 624 (Tenn. Crim. App. 1991), which held that T.C.A. § 40-2-101(e) cannot revive offenses already barred by the statute of limitations.

We find the defendant's reliance on Carrier to be misplaced. The offense of carnal knowledge of a child under twelve years, which later became the offense of aggravated rape, was punishable by life imprisonment until 1989. *fn2 Throughout this time, Tennessee law has consistently provided that offenses punishable by life imprisonment have no period of limitations. *fn3

In 1989, the legislature reduced the maximum punishment for the offense of aggravated rape to 60 years. 1989 Tenn. Pub. Acts, ch. 591; T.C.A. §§ 39-13-502, 40-35-112. As a result, the limitations period in T.C.A. § 40-2-101(d) became applicable. Subsection (d) provides that for certain offenses committed against a child, including, inter alia, the offense of aggravated rape, the limitations period is either four years or the date the child attains the age of majority, whichever occurs later. T.C.A. 40-2-101(d). *fn4 When the legislature reduced the maximum punishment for the offense of aggravated rape, effective 1 November 1989, the four year statute of limitations began to run. *fn5 See Carrier, 822 S.W.2d at 624. The prosecution against Gray, however, commenced on 15 September 1992, and consequently, the statute of limitations does not bar the prosecution in this instance.

As an additional argument, the defendant cites Stinson v. State, 208 Tenn. 159, 344 S.W.2d 369 (Tenn. 1961) for the proposition that the repeal of a penal statute operates as a pardon of all offenses committed before the repeal and that prosecution thereunder is prohibited unless the right to prosecute is saved by a provision in the repealing act or by separate legislation. Defendant points out that the "carnal knowledge" statute under which he was indicted was repealed by the "Sexual Offenses Law of 1977." 1978 Tenn. Pub. Acts, ch. 429. He asserts that this repeal pardoned any offenses committed under prior law.

Defendant fails to take notice of the general penal savings statute which the legislature passed in 1968. 1968 Tenn. Pub. Acts, ch. 513, § 1. This statute provided that "any offense, as defined by [a repealed statute], committed while such statute . . . was in full force and effect shall be prosecuted under [such] statute . . . in effect at the time of the commission of the offense." T.C.A. § 39-114 (1975). The general savings statute, as amended, exists today at T.C.A. § 39-11-112. Accordingly, despite repeal of the carnal knowledge statute, the right to prosecute is saved. *fn6

Based on the foregoing, we respectfully find that the trial court erred in holding that the statute of limitations barred prosecution of the defendant.

II.

The state next contends that the trial court erred in finding that Gray's due process rights were violated by the delay in bringing prosecution. State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App. 1990), addressed the issue of when a delay between the commission of an offense and the commencement of adversarial proceedings violates a defendant's Fifth Amendment right to due process. The court in Dykes found that before a defendant is entitled to relief in this regard the proof must show: (1) that there was a delay, (2) that he sustained actual prejudice as a direct and proximate result of the delay, and (3) that the state intentionally delayed the prosecution in order to gain tactical advantage over or to harass the defendant. Dykes, 803 S.W.2d at 256; see also State v. Baker, 614 S.W.2d 352 (Tenn. 1981).

This issue can be resolved by turning to the third factor in Dykes, namely, whether the state intentionally delayed the prosecution in this instance. Both Gray and the trial court focused on the victim as the reason for delay. While we do not disagree in this regard, we believe that the court misapplied the law in finding that such a reason for delay could support dismissal of the indictment. Furthermore, there is no evidence presented showing that the state in any way contributed to the delay in prosecution. Gray's due process rights were not violated in this instance.

III.

In its final issue, the state contends that the trial court erred in determining that the defendant's Sixth Amendment right to a speedy trial was violated.

The facts show that the victim met with TBI agents in April of 1992. Appellant was indicted on 15 September 1992. He filed a motion to dismiss on October 29th, and the indictment was dismissed on 23 April 1993.

A defendant's right to a speedy trial is not affected by a delay between the commission of an offense and the commencement of adversarial proceedings. State v. Dykes, 803 S.W.2d at 255. The right to a speedy trial only attaches upon formal accusation against the defendant, either by arrest or grand jury action. United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459-63, 30 L. Ed. 2d 468 (1971); State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981). In the present case, the motion to dismiss was filed a little over one month after the return of the indictment. Such delay is insufficient, as a matter of law, to implicate a defendant's right to a speedy trial. Dykes, 803 S.W.2d at 256.

Conclusion

For the foregoing reasons, this Court respectfully reverses the order of the trial court dismissing the defendant's indictment and remands this case for further proceedings.

PAUL G. SUMMERS, JUDGE

CONCUR:

JERRY SCOTT, PRESIDING JUDGE

JOSEPH M. TIPTON, JUDGE


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