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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
Submitted on Briefs January 7, 2003

STATE OF TENNESSEE v. JERRY BAXTER GRAVES
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Knox County
No. 69593 Richard R. Baumgartner, Judge

No. E2001-00123-SC-R11-CD - Filed May 27, 2003

We granted review to determine whether the trial court properly refused to dismiss the indictment and allow a second preliminary hearing where the first preliminary hearing was not recorded as required by Rule 5.1(a) of the Tennessee Rules of Criminal Procedure. The Court of Criminal Appeals concluded that the violation of Rule 5.1(a) did not prejudice the defendant and affirmed the convictions and sentences for felony murder and especially aggravated robbery. After reviewing the record and applicable authority, we hold that the failure to preserve an electronic recording or its equivalent of a preliminary hearing under Rule 5.1(a) requires the dismissal of the indictment and a remand for a new preliminary hearing unless the State establishes (1) that all material and substantial evidence that was introduced at the preliminary hearing was made available to the defendant and (2) that the testimony made available to the defendant was subject to cross-examination. Because this standard has been satisfied in the present case, we affirm the Court of Criminal Appeals

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