Dillon v. State

• Citation: 113 S.Ct. 1589,844 S.W.2d 139
• Parties: Thomas DILLON, Defendant-Appellant. v. STATE of Tennessee, Appellee.
• Decision Date: 16 November 1992
• Court: Supreme Court of Tennessee

Page 139

844 S.W.2d 139

Thomas DILLON, Defendant-Appellant. v. STATE of Tennessee, Appellee.

Supreme Court of Tennessee,

at Knoxville.

Nov. 16, 1992.

Rehearing Denied, Dec. 21, 1992.

Certiorari Denied March 22, 1993.

See 113 S.Ct. 1589.

Douglas A. Trant, Knoxville, for defendant-appellant.

Charles W. Burson, Atty. Gen. & Reporter, Rebecca L. Gundt, Asst. Atty. Gen., Nashville, for appellee.

OPINION

DROWOTA, Justice.

This case involves a "speedy trial" provision of the Interstate Compact on Detainers, T.C.A. §§ 40-31-101 to 108 (1990). Specifically, we must decide whether the statute's 120-day period for bringing a prisoner to trial was tolled by (1) the State's having obtained a continuance, or (2) the Defendant's inability to stand trial.

In June 1989, a Knox County Grand Jury returned a presentment charging Defendant Thomas Dillon with the first degree and felony murder of Keith Nolley in a Knoxville motel room. At the time of presentment, Defendant was in federal custody serving a sentence on other charges. On December 11, 1990, Defendant was brought from the federal correctional institute at Jessup, Georgia to stand trial on the Knox County murder charges. This transfer was effected pursuant to a request for temporary custody under the Interstate Compact on Detainers (the "Compact"). See T.C.A. § 40-31-101, art. IV (1990).

On December 14, 1990, Defendant was arraigned in Knox County Criminal Court and his trial set for February 11, 1991. On February 8, 1991, a hearing was held on Defendant's motion to suppress evidence allegedly seized in violation of his federal and state constitutional rights. On February 11, 1991, the original trial date, the trial court granted Defendant's motion to suppress and, upon the State's motion, reset the trial for April 1, 1991. On March 5, 1991, the trial court granted the State an interlocutory appeal on the suppression issue.

Also on March 5, 1991, an in-chambers discussion took place between the judge, the prosecutors, and counsel for Defendant. While the parties' accounts of this discussion differ, two facts are undisputed: First, counsel for Defendant was not given prior notice of the meeting; second, a verbatim record of the proceeding was not preserved, by court reporter or otherwise.

The following day, March 6, the trial court entered an order purporting to suspend the speedy trial provision of the Compact and continuing the case pending an appellate determination of the suppression issue.

On April 22, 1991, 130 days after Defendant was brought to Tennessee, Defendant moved to dismiss the presentment for the State's failure to commence trial within 120 days. On May 17, 1991, after a hearing, the trial court entered an order stating (1) the State failed to commence trial within 120 days of Defendant's arrival in Tennessee, (2) the court's March 6 order, purporting to suspend the 120-day provision, was not entered in compliance with the Compact, and that therefore (3) the presentment must be dismissed with prejudice and the Defendant returned to federal custody.

On May 20, 1991, the State appealed the dismissal and the Court of Criminal Appeals stayed Defendant's return to federal custody. On October 10, 1991, having consolidated the State's Rule 9 interlocutory appeal of the suppression order and Rule 3 appeal of the dismissal, the Court of Criminal Appeals reinstated the presentment, reversed the suppression order, and remanded the case for trial.

I.

Resolution of this appeal requires us to interpret several provisions of the Interstate Compact on Detainers, as enacted in Tennessee by T.C.A. §§ 40-31-101 to 108 (1990). This Compact has been adopted by the federal government, the District of Columbia, and 48 states. See 18 U.S.C.A. App., Interstate Agreement on Detainers, § 1, Historical Note (1985) (Mississippi and Louisiana do not participate).

The Compact establishes uniform procedures whereby a state may resolve its charges against another jurisdiction's prisoner. Because detainers adversely affect programs of prisoner treatment and rehabilitation, see generally Note, The Interstate Agreement on Detainers: Defining the Federal Role, 31 Vand.L.Rev. 1017, 1019-20 (1978), the Compact's purpose is to provide cooperative state procedures for the expeditious and orderly disposition of the charges underlying such detainers. See T.C.A. § 40-31-101, art. I. To this end, the Compact provides that when a prisoner is called to answer charges in another jurisdiction,

trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

Id. at art. IV(c). ¹ If a prisoner is not brought to trial within the specified time period, the charges against him must be dismissed with prejudice. See id. at art. V(c). Because of its remedial nature, the Compact is to be liberally construed in favor of the prisoners it was intended to benefit. See Nelms v. State, 532 S.W.2d 923, 927 (Tenn.1976).

The Compact provides for tolling of the 120-day period in two situations. First, the period is tolled by "any necessary or reasonable continuance" granted "for good cause shown in open court." See T.C.A. § 40-31-101, art. IV(c). Second, "running of [the Compact's speedy trial] periods shall be tolled whenever and for as long as the prisoner is unable to stand trial." Id. at art. VI(a). Because Defendant was not tried within 120 days after being brought to Tennessee, we must determine whether either of these tolling provisions is applicable.

II.

The Compact provides that "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." T.C.A. § 40-31-101, art. IV(c).

The parties agree that, on March 5, 1991, counsel for Defendant was approached in a courthouse hallway by the State prosecutors and asked to step into the trial judge's chambers. There then ensued a discussion respecting the State's request to continue Defendant's case during appellate review of the trial court's suppression order. The State urges that the continuance issued the following day was granted in accordance with the statutory requirement that "good cause [be] shown in open court." We disagree.

In order to effectively toll the 120-day period, the statute requires that the prisoner or his counsel be present during a judicial determination as to whether good cause has been shown for granting a continuance. Id. A continuance granted ex parte has no tolling effect. Defendants are thus given the right to appear and contest the State's assertion of good cause.

Here, the State filed no motion or otherwise apprised Defendant of its intention to seek a continuance. Instead, defense counsel was stopped in a hallway and asked to attend an impromptu discussion in chambers. Appearing thus without notice, Defendant had no opportunity to prepare a response to the State's request. We decline to adopt an interpretation of the Compact that renders Defendant's right to appear a mere formality. Because Defendant was denied the opportunity to prepare a reasoned response, the resulting continuance was not issued in accordance with the statutory requirements and thus had no tolling effect.

We note also the failure of the statutory requirement that the continuance be granted in "open court." "Open court" requires, at a minimum, that a verbatim record be made of the proceedings. ² See T.C.A. § 40-14-307(a) (1990). The State has an affirmative duty to abide by the statutory requirements and make a record on the question whether a continuance has been granted for good cause. See Johnson v. Stagner, 781 F.2d 758, 763 (9th Cir.1986). Although we decide the present issue based on lack of notice to Defendant, because there is no transcript of the in-chambers discussion, we would in any event be unable to properly exercise our appellate duty to review whether the State met its burden of showing good cause for a continuance.

III.

The Compact also provides that its speedy trial provisions "shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter." T.C.A. § 40-31-101, art. VI(a) (emphasis added). In State v. Moore, 774 S.W.2d 590, 597 (Tenn.1989), we recognized that the prisoner is "unable to stand trial" if he is absent from the jurisdiction. See also Fuente v. State, 549 So.2d 652, 656 (Fla.1989) (citing cases). Further, we agree that a prisoner is unable to stand trial while physically or mentally disabled. See Stroble v. Anderson, 587 F.2d 830, 838 (6th Cir.1978).

Moreover, a number of courts have held that a prisoner is unable to stand trial during "periods of delay occasioned by the defendant." See, e.g., United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir.1988); United States v. Roy, 771 F.2d 54, 59 (2d Cir.1985); State v. Bernson, 106 Or.App. 252, 255-56, 807 P.2d 309, 310-11 (1991). These cases have gone on to interpret "periods of delay occasioned by the defendant" to include time consumed by consideration of defendant's pretrial motions, see Nesbitt, 852 F.2d at 1516, as well as time taken by resolution of good-faith appeals from successful defense motions. See Roy, 771 F.2d at 59; Bernson, 106 Or.App. at 255-56, 807 P.2d at 310-11.

We find the interpretation placed on the phrase "unable to stand trial" by courts such as Roy and Bernson persuasive. In Bernson, the Court reasoned:

Failure to toll the time during the state's good faith appeal of a trial court's decision on a pretrial motion renders a normally appealable order final for all practical purposes .... [therefore] denying the prosecution its right to appeal what are often pivotal pretrial issues.

Bernson, 106 Or.App. at 255, 807 P.2d at 310....