State v. Drew v. Saunders

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1999 April 22, 1999

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9712-CR-00584 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON . FRAN K G. C LEM ENT , JR., DREW V. SAUNDERS, ) JUDGE ) Appellee. ) (Dism issal of Indic tment)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLEE: FOR THE APPELLANT:

LIONEL R. BARRETT, JR. JOHN KNOX WALKUP Washington Square Two Attorney General and Reporter Suite 418 222 Se cond A venue, N orth DARYL J. BRAND Nashville, TN 37201 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

VICTOR S. JOHNSON District Attorney General

GEORGE R. BONDS Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue, N orth Nashville, TN 37201

OPINION FILED ________________________ REVERSED; REMANDED.

DAVID H. WELLES, JUDGE

OPINION

The State of Tennessee appeals the trial court’s dismissal of an indictment for DUI ag ainst De fendan t, Drew V . Saund ers. Defe ndant urges this Cou rt to affirm the dismissal, arguing that the State exhibited prosecutorial vindictiveness in violation of his right to due process. The State, however, denies vindictiveness, contending that the actions taken by the assistant district attorney constitute d part of the natural ple a barga ining proc ess. Fur thermo re, the Sta te argues that the trial court improperly dismissed the indictment based upon the court’s perception of a lack of sufficient evidence to support the indicted charge of DUI.

I. FACTS

The record reflects that Park Ranger E.J. Kirby attempted to stop Defendant after obse rving him drive arou nd a ba rricade b locking e ntrance to Centennial Park at 2:00 a.m. on September 27, 1996, a time when the park was closed to visitors. By affidavit appended to the State’s motion to reconsider, Kirby attested that Defenda nt initially stopped and the n drove away. Kirby effected another stop, a t which time the ranger discovered that Defendant smelled of alcoho l, his eyes w ere bloo dshot, an d his spe ech wa s slurred.

Defendant reported to Kirby that he had consumed seven or eight drinks in the previous hour, around 1:30 a.m. He reported to Kirby that he had attempted to drive th rough Cent ennia l Park b ecau se, in K irby’s words, “he knew he had ha d too m uch to dr ink and w as afraid o f being sto pped by police if he

-2-drove on West End Avenue.” Kirby administered the horizontal gaze nystagmus test, and on the basis of his findings, requested a DUI unit to perform breathalcohol testing on Defen dant. Th e dispatc her repo rted bac k that no D UI units were av ailable tha t night.

Ranger Kirby attested that because he could not leave his post at Centennial Park tha t night to take Defendant downtown, he issued Defendant a misdemeanor citation for reckless driving by intoxication. In addition, he required Defendant to call a friend to drive him home. When this driver arrived, Kirby ensure d that the d river was lice nsed a nd not into xicated.

Defendant was indicted by the Davidson County Grand Jury for one count of reckless driving and one count of DUI. On August 28, 1997, Defendant moved the trial court to dismiss the count of the indictment charging DUI on the basis of prosecutorial vindictive ness . Follow ing an eviden tiary he aring, th e trial court dismissed the charge of DUI, stating that “upon recommendation of the Attorney Gen eral, it is ordered by the Co urt that Coun t two of this ca use be . . . dismiss ed.” 1

At the evidentiary hearing on De fendan t’s motion to dismis s the indictm ent, the defense presented testimony by Anthony Adgent, Defendant’s counsel during the plea negotiations. Adgent testified that during negotiations with the assistant district attorney, General Bret Gunn agreed to accept a plea of guilty to reckless driving, so long as Defendant agreed to perform forty hou rs of community service

1 It is clear from the record and from the brief filed by the State that the State did not recommend, but instead “vigorous[ly] oppos[ed],” dismissal of this count.

-3-in addition to other requirements. Defendant informed Attorney Adgent that he could not perform the public service and therefore could n ot accept the p lea offer. According to Adgent, when he told General Gunn that Defendant could not accept the terms of the plea offer and would request a preliminary hearing, Gunn “became somewhat agitated and pointed his finger in [Adgent’s] face and said, unless your client pleads guilty to reckless driving today and if you have a preliminary hea ring I’ll []indict him for D.U.I.”

II. ANAL YSIS

A.

This case is govern ed in part by Bordenkircher v. Hayes, 434 U.S. 357 (1978), in which the United States Supreme Court held that “the course of conduct engaged in by the prosecutor . . . which n o more than openly presented the defend ant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteen th Amen dment.” Id. at 365. The Court further stated, “In our system , so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and wh at charg e to file or bring before a grand ju ry, genera lly rests entirely in his discretion.” Id. at 364.

Likewise, in United S tates v. G oodw in, 457 U.S . 368 (19 82), the d efenda nt, after having rejected a plea offer and invoking his right to a jury trial, was indicted on more serious c harges arising from the sam e inciden t. Id. at 370-71. The Goo dwin Court explained the Bordenkircher outcom e as follow s:

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An initial indictment—from which the prosecutor embarks on a course of plea n egotia tion— does not ne cess arily define the extent of the leg itimate interes t in prosecution. For just as a prosecutor may forgo legitim ate charges already brought in an effort to save the time and exp ense o f trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.

Id. at 380.

In Goo dwin, the Court reversed a decision by the Court of Appeals for the Fourth Circuit which adopted a presumption of vindictiveness because the circumstances at issue in th at case “g ave rise to a genuine risk o f retaliation.” Id. at 372. In so hold ing, the Supre me Co urt stated that “a change in the charging decision made after an initial trial is completed is much more likely to be impro perly motivated than is a pretrial decision .” Id. at 381. Thus, “[a] prosecutor shou ld remain free befo re trial to exercise the broad discretion entrusted to him to determine the extent of the societal intere st in prosecution.” Id. at 382. Finally, the Court also no ted, “This Co urt in Bordenkircher made clear that the mere fact that a defenda nt refuses to plea d guilty and forces the governm ent to prove its case is insufficient to warrant a presumption that subsequent changes in the charging de cision are unjustified.” Id. at 382-8 3.

Our supreme court spoke on the issue of p rosec utorial v indictive ness in State v. Phipps, 959 S.W .2d 538 (Te nn. 1997), a case in which the State sought the death pena lty upon the retr ial of charges for which the defendant had previously been senten ced to life im prisonm ent. Fac tually, Phipps is quite distinct from the case at bar, yet its rationale is instructive. In Phipps, the court held that “a rebuttable pre sumption o f prosecutorial vindictivene ss may a rise if

-5-the circumstances of a case pose a ‘realistic likelihood’ of prosecutorial retaliation.” Id. at 546. Furthermore,

In assessing whether a ‘realistic likelihood’ of prosecutorial retaliation exists, courts must consider whether the right asserted by the defendan t would result in dup licative expenditures of prosecutorial resourc es, or req uire the S tate to do o ver ag ain what it thought it had already done correctly once. . . . When the circumstances demonstrate that the prosecutor has ‘a personal stake’ or an interest in self vindication, or when institutional biases militate against retrial of a decided question, the balance weigh s in favor of recognizing the presumption. . . . Likewise, the presumption is espec ially warran ted if the pro secuto rial decision to increase the charge or sentence is made after an initial trial is completed rather than in a p retrial conte xt.

Id. (citing Goo dwin, 457 U.S. at 38 3). From the instructions of the United States Supreme Court and the Tennessee Supreme Court, we find no basis for presuming prosecutorial vindictiveness in the pretrial setting of this case.

B.

Absent a presump tion of vin dictiven ess, w e next r eview the trial c ourt’s decision to dismiss Defendant’s indictment for DUI based upon actual vindictiveness. Questions conce rning the credibility of the witnesses, the weight and value to be given the evidence, and all factual issues raised by the evidence are resolved by the trier of fa ct, not this C ourt. State v. Pappas, 754 S.W.2d 620, 623 (T enn. C rim. App . 1987). In th is case, the trial court foun d,

The evidence before me is that there was a not necessarily unusual give and take betwee n the . . . assistant district attorne y gene ral in [general sessions] court and the attorney for the d efend ant. T here’s nothing wrong a t all with a person stating their [sic] position clearly, nothing wrong with rais ing voices though I prefer a different approach myself. But there is absolutely nothing wrong with that and there’s no thing wro ng . . . that if they believe based upon the facts and circumstances of that case that th e State is justified in saying if you don’t a ccep t this offer we will seek m ore severe charges.

-6-W e conclude that the evidence does not preponderate against this finding by the trial court.

Defen dant, through counsel, argued at the hearing on his motion to dismiss that

if the State . . . had heard the preliminary hearing and had said, you know, this really . . . should have been a D.U.I. I’m going to indict it as a D .U.I. it wo uld be perfectly within his right to do that but I think that since it’s unrefuted that he said have a preliminary hearing and we’ll have you indicted fo r D.U.I., I think that under this set of facts, that this is a ra re cas e, that th is mo tion for prosecutorial vindictiveness is established.

The law as establishe d by Bordenkircher, as illuminated by Goo dwin, and as recogn ized by the trial court is clea rly counte r to Defen dant’s arg umen t.

C.

Although the trial court found no impropriety in the State’s conduct during plea negotiations with Defendant, the judge nevertheless gran ted D efend ant’s motion to dismiss the indictment, stating,

The problem in this ca se is there is absolutely no evidence whatsoeve r before me today to justify a D.U.I. charge. Nothing. Zero. Zip. The proo f suggests tha t the driver, the defenda nt, drove around a barrier. The proof before me that I have heard says that no one saw him drive erratically. No one saw him weaving. No one saw him speeding. As a matter of fact, the evid ence that I’ve hea rd affirma tively says he was no t speed ing, on an d on an d on. Obviously, if the matter went to trial there might be other evidence but I haven’t heard any and I have to make a decision on what I he ard toda y.

W e conclud e that the tria l judge’s ru ling was e rroneou s. Defendant cannot, by moving to dismiss the indictment, force the trial court to cond uct a “m ini-trial” in which the State must present its proof on the merits of the charge of DUI or be

-7-cut short in its attempt to prosecute. As the United States Supreme Court stated in Costello v. United States, 350 U.S . 359 (19 56),

If indictments w ere to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule wou ld be that b efore trial on the me rits a defendant c ould always ins ist on a kind of prelimin ary trial . . . .

Id. at 363. F or this re ason , “[a]n ind ictme nt . . . , if valid on its face , is enoug h to call for trial of the charge on th e merits.” Id.; see United States v. Calandra, 414 U.S. 338, 34 5 (1974 ); State v. Gonzales, 638 S.W.2d 841, 845 (Tenn. Crim. App. 1982) (holding that “indictments are not open to challenge on the ground that there was inad equate or incom petent e vidence before th e grand jury to support it”).

For the foregoing reasons, we conclude that the trial court erred by dismissing Defen dant’s D UI indictm ent. The dismissal is therefore reversed, and this case is remanded to the trial court for further proceedings.

____________________________________ DAVID H. WELLES, JUDGE

-8-CONCUR:

___________________________________ JOE G. RILEY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE

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