IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 16, 2004 Session

CHRISTOPHER LEE TUTTLE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2000-D-2259 Steve Dozier, Judge

No. M2003-02984-CCA-R3-PC - Filed March 2, 2005

The petitioner, Christopher Lee Tuttle, appeals as of right the judgment of the Davidson County

Criminal Court dismissing his petition for post-conviction relief from his convictions for drugrelated offenses and effective forty-year sentence. The petitioner contends (1) that the state breached

his plea agreement which undermined the voluntariness of his guilty plea and (2) that the state

engaged in prosecutorial misconduct by acting vindictively and violating Rule 8(a), Tenn. R. Crim.

P., requiring mandatory joinder. We affirm the trial court’s denial of post-conviction relief.

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

JOSEPH M.TIPTON,J., delivered the opinion of the court, in which THOMAS T.WOODALL and ALAN

E. GLENN, JJ., joined.

Peter J. Strianse, Nashville, Tennessee, and Kimberly S. Hodde, Madison, Tennessee, for the

appellant, Christopher Lee Tuttle.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and John C. Zimmerman, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner was indicted on December 14, 2000, for multiple drug offenses and, pursuant

to an agreement, pled guilty on April 15, 2002, to conspiracy to sell more than 300 pounds of

marijuana, possession of more than 300 pounds of marijuana with intent to sell, possession of more

than 70 pounds of marijuana, and five counts of money laundering. In exchange, the petitioner

received an effective sentence of forty years as a Range I, standard offender. On November 12,

2002, the Davidson County Grand Jury returned a second indictment against the petitioner for two

counts of conspiracy to commit the offense of money laundering and three counts of money

laundering. In his petition for post-conviction relief, the petitioner argued that the state breached the
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plea agreement by contemplating new charges and continuing its investigations at the time of his

guilty plea. He asserted that the state’s actions rendered his guilty plea involuntary, unknowing, and

unintelligent and that the state engaged in prosecutorial misconduct by acting with vindictiveness

and in violation of Rule 8(a), Tenn. R. Crim. P. Following two evidentiary hearings, the trial court

denied post-conviction relief. 

At the first hearing, Metro Police Officer Philip Taylor testified that he had been assigned

to the 20th Judicial District Drug Task Force in 1976 and that he began working as an investigator

in December 2001 or January 2002. He said that he was involved in the investigation of the

petitioner’s case at its inception but that the case was turned over to another agency after the

petitioner’s arrest in August 2000. He said that in April 2002 he was asked to assist again with an

investigation involving the petitioner. He said the police executed a search warrant on May 2, 2002,

for the residence which the petitioner had shared with his wife and mother-in law before his

incarceration. He said that he had conducted surveillance of the residence during the week before

execution of the warrant and that he was not aware of any other investigations relating to the

petitioner’s activities being conducted at that time. 

Officer Taylor said that his May 2002 investigation was focused on the proceeds generated

by the marijuana trafficking charges filed in 2000 and that he believed thousands of dollars in

proceeds remained hidden. He said that he was not involved in a search for the funds in April 2002

and that, as far as he knew, no one else had been assigned the task. He said he became involved

again with the case at the end of April 2002 pursuant to a conversation he had with Assistant District

Attorney General John Zimmerman. He said that they had discussed where the money the petitioner

made while distributing marijuana could be hidden and that they noted Lisa Tuttle, the petitioner’s

wife, and Janet Simpson, the petitioner’s mother-in-law, continued to make payments on the car and

the house mortgage and generally maintain their lifestyle. He said they decided at that time to obtain

a search warrant for the residence to discover the source of the funds. He admitted the officers

involved with the case always suspected “there was more cash out there,” but he said no one had

approached him with the idea of searching for it until the end of April 2002. On cross-examination,

he said that before the execution of the search warrant in May 2002, he was not aware of any

evidence that the petitioner was engaged in money laundering activities. He said the search revealed

evidence of unusual expenditures by Lisa Tuttle and Janet Simpson, $330,000 in cash, piles of

clothing with the price tags still on them, and letters from the petitioner accusing Lisa of spending

two million dollars since he became incarcerated. 

The petitioner’s trial attorney testified that he represented the petitioner before his arrest in

August 2000 through his guilty plea on April 15, 2002. He said that initially the petitioner was not

interested in the state’s offer but that the petitioner became more interested in the latter part of March

and April 2002. He said that concerns for family increased the petitioner’s interest in accepting the

state’s terms but that he thought the offer was not a very good deal. He said Mr. Zimmerman sent

him an e-mail transmission which outlined the plea offer and ultimately became the terms and

conditions of the agreement. He said he conveyed the offer to the petitioner with a follow-up letter.

He said that according to his understanding, the plea would be in full and complete satisfaction of
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all charges that could be brought in connection with this investigation and that this understanding

was indicated by the language in his follow-up letter which stated they wanted to “make our peace

for forty years.” He said no one had informed him that the state was continuing its investigation into

money laundering activities and attempting to locate the proceeds at the time the plea negotiations

were occurring. He said that if the state had evidence concerning additional money laundering

offenses in April 2002, it was not communicated to him. He said that this information was necessary

to make an informed decision concerning the plea and that if these circumstances were made known

to him, the petitioner would not have accepted the agreement. He said that the petitioner believed

the plea would “end his problems with the State of Tennessee,” at least those that the state was aware

of as of April 15, 2002, and that their intent was to “have a global settlement.” He said the petitioner

was never under the impression that if he accepted the agreement and forty-year sentence he could

keep the money he made by selling marijuana. 

At the second hearing, Metro Police Officer Mike Garbo testified that he worked as an

investigator for the 20th Judicial District Drug Task Force in March and April 2002 and that he was

asked to assist with follow-up work on the petitioner’s case. He said that on March 25, 2002, he

interviewed a doctor who had briefly employed the petitioner’s mother-in-law and photographed

some evidence but that he had no involvement with or any knowledge of investigations concerning

the petitioner. On cross-examination, he said he did not believe that his interview of the doctor was

related to the petitioner. Reading from his report, Officer Garbo said that the doctor had hired Janet

Simpson as a babysitter in February 2000 and that in May 2000 she asked the doctor if he would hide

approximately $30,000 for her. According to the doctor, she was trying to hide money from her

husband, and he declined to help her.

MetroPoliceDepartment Officer Rigsby testified that he worked for the 20th JudicialDistrict

Drug Task Force and that he participated in the investigations which led to the indictment of the

petitioner in 2002. He said that he was aware of the trial pending in 2002 and that he participated

in investigations concerning the petitioner’s marijuana suppliers. He said he had a conversation with

the petitioner’s attorney after the petitioner pled guilty and before the execution of the search

warrant. He said that he asked him if the petitioner would be interested in a sentence reduction in

exchange for information about his assets but that the petitioner was not interested. He said he was

inquiring into the location of illegally obtained assets and not conducting an investigation of money

laundering activities at that time. He said that after the petitioner was arrested in August 2000, he

conducted several interviews of the petitioner’s family but that the primary focus of his investigation

had shifted to discovering the identity of the petitioner’s suppliers. He said he learned of Officer

Taylor’s investigation into the petitioner’s money laundering activities aftertheyseized the $330,000

in cash and the letters concerning the petitioner’s wife’s expenditures. This concluded the proof.

The trial court denied the petitioner post-conviction relief. With regard to the petitioner’s

contention that the second indictment violated the rule concerning mandatory joinder and was a

product of vindictive prosecution, the trial court found no proof that the state was contemplating the

additional charges before the petitioner pled guilty to the offenses in the first indictment. The trial

court found that the state had suspicions but no evidence sufficient for grand jury action. It noted
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the petitioner’s attorney testified that he was under the impression the offer made by Mr.

Zimmerman was a “global” offer of settlement and that the plea would end the petitioner’s exposure

to further criminal liability. It noted, however, that the e-mail transmission between Mr. Ray and

Mr. Zimmerman did not mention further investigations or a bar to future prosecution. The trial court

found that the plea offer was a “global” settlement based on the information known to the state at

that time and that, subsequent to the offer and plea, the state acquired evidence of additional crimes.

Under the circumstances, it found the presumption of vindictiveness was not warranted in the

petitioner’s case andwas not convinced a realistic likelihood of prosecutorial retaliation existed. The

trial court credited the testimony of the officers who failed to indicate that ongoing investigations

existed concerning money laundering of the proceeds from drug sales by the petitioner. It found the

investigative reports and related testimony upon which the petitioner relied were suggestive at best

and did not conclusively establish that the state was aware of any assets other than those previously

seized. The court concluded that the state was not guilty of prosecutorial vindictiveness or “holding

back” and that the second indictment did not have to be joined pursuant to Rule 8, Tenn. R. Crim.

P.

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-

103. The petitioner’s allegations must be proven by clear and convincing evidence. See T.C.A. §

40-30-110(f). Once the trial court has ruled upon a petition, its findings of fact are conclusive on

appeal unless the evidence in the record preponderates against them. Wallace v. State, 121 S.W.3d

652, 656 (Tenn. 2003). This court may not reweigh or reevaluate the evidence or substitute its

inferences for those drawn by the post-conviction court. State v. Nichols, 90 S.W.3d 576, 586

(Tenn. 2002). Questions concerning the credibility of witnesses and the weight to be given their

testimony are for resolution by the post-conviction court. Id. (citing Henley v. State, 960 S.W.2d

572, 579 (Tenn. 1997)). 

I. BREACH OF PLEA AGREEMENT AND VOLUNTARINESS OF PLEA

The petitioner contends that by seeking a second indictment based upon violations which

were investigated and known to the state during plea negotiations, the state breached the plea

agreement. The state responds that it did not possess evidence of additional crimes committed by

the petitioner at the time of his guilty plea and that the plea agreement did not bar future

investigations or prosecutions.

In Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 1709 (1969), the Supreme Court stated: 

A plea of guilty is more than a confession which admits that the

accused did various acts; it is itself a conviction; nothing remains but

to give judgment and determine punishment. Admissibility of a

confession must be based on a “reliable determination on the

voluntariness issue which satisfies the constitutional rights of the

defendant.” 
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Id. 395 U.S. at 242, 89 S. Ct. at 1711-1712 (quoting Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct.

1774, 1786 (1964)). A defendant pleading guilty waives several constitutional rights, including his

privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront

his accusers. A guilty plea which is not voluntary and knowing has been obtained in violation of due

process and is void. Id. n.5. “[W]hen a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499 (1971).

The petitioner’s attorney testified that the e-mail transmission sent to him by Mr. Zimmerman

outlined the plea offer which ultimately became the terms and conditions of the agreement and that

he conveyed the offer to the petitioner. Although he testified that the plea would be in full and

complete satisfaction of all charges that could be brought in connection with the state’s investigation,

the e-mail included in the record does not contain language indicating this was contemplated.

Rather, it gives information regarding the counts, sentences, fines, fees and forfeiture. The

petitioner’s attorney said that he sent the petitioner a follow-up letter. It stated the following:

You had consistently rejected this forty (40) year offer, which I full

well understand, up and until this point, but when faced with placing

Lisa and Janet in more jeopardy by their having to testify at your trial

you instructed me to seek out Mr. Zimmerman and try to make our

peace for forty years.

The letter also fails to contain language specifically barring future investigation or prosecution.

Instead, it suggests that the petitioner’s motivation to plead guilty was based on his desire to avoid

unpleasant consequences for his family. The petitioner’s attorney testified that the language “make

our peace for forty years” indicated the petitioner’s intention that the plea would be in full and

complete satisfaction of all charges that could be brought. We do not believe that this language is

sufficient to indicate the petitioner’s intent. 

The plea agreement was reduced to writing using a standard form to set forth its terms and

scope. The portions of the agreement left blank to allow for modifications and specifications were

filled in and are devoid of language to indicate that the parties contemplated any bar to future

investigations or prosecutions. The handwritten specifications relate only to sentence lengths and

list those counts of the indictment to which the petitioner pled guilty. All blank lines were filled in,

with the exception of the line requiring a signature from the Attorney for State. 

Post-conviction relief requires the petitioner to establish that his or her conviction is void or

voidable because of an abridgement of a constitutional right and prove his allegations by clear and

convincing evidence. See T.C.A. §§ 40-30-103, -110(f). The petitioner claims he believed that by

pleading guilty, “he was fully satisfying Davidson County’s prosecutorial interest in him.” He

claims that the state deceived him and that the deception undermined his ability to enter a knowing,

voluntary and intelligent plea. When evaluating the knowing and voluntary nature of a guilty plea,

the United States Supreme Court has held that “[t]he standard was and remains whether the plea
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represents a voluntary and intelligent choice among the alternative courses of action open to the

defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). In this case, the

petitioner was required to prove by clear and convincing evidence that but for the plea being in full

and complete satisfaction of all charges that could be brought in connection with the state’s

investigation, he would not have pled guilty. Because he did not testify, we have only the testimony

of the petitioner’s attorney and the written agreement. The petitioner’s argument that he would not

have pled guilty except for the opportunity to limit future investigations and prosecutions was

weakened by his choice not to testify and does not necessarily demonstrate that his decision was not

the product of a free and rational choice. He was represented by competent and experienced counsel.

His attorney testified that he did not think the state’s offer was a good deal and that he counseled the

petitioner against accepting the offer.

In any event, the evidence presented by the petitioner at the hearing fails to prove that the

offenses in the second indictment were known to the appropriate prosecuting official at the time the

petitioner pled guilty. The testimony of Officers Taylor and Garbo indicated that they had no

knowledge of any investigations into the petitioner’s criminal activities at the time of his guilty plea.

Officer Rigsby testified that he learned of Officer Taylor’s investigation into the petitioner’s money

laundering activities after they seized the $330,000 in cash and the letters on May 2, 2002. The

second indictment alleged twenty crimes, five counts involving the petitioner. Count one alleged

that the petitioner committed a conspiracy offense during January 2001 to May 2, 2002: count two

alleged a conspiracy offense was committed during May 3, 2002 to September 30, 2002; count three

alleged a money laundering offense committed on December 5, 2001; count eight alleged a money

laundering offense committed on May 1, 2002; and count seventeen alleged a money laundering

offense committed in September 2002. Counts one and three alleged offenses committed during

periods of time which occurred before the petitioner pled guilty. The other three offenses were

committed afterward. 

We conclude that the agreement did not contemplate a bar to future investigations or

prosecutions and, therefore, that the state did not breach the agreement by presenting the second

indictment to the grand jury. We also conclude that the petitioner failed to prove by clear and

convincing evidence the guilty plea did not represent a voluntary and intelligent choice among the

alternative courses of action open to him.

II. PROSECUTORIAL MISCONDUCT

The petitioner contends that in seeking a second indictment based upon violations which

were investigated and known to the state during plea negotiations, the state engaged in prosecutorial

misconduct by acting with vindictiveness and in violation of Rule 8(a), Tenn. R. Crim. P., requiring

mandatory joinder of offenses. The state responds that the petitioner failed to present evidence the

state had proof of the offenses in the second indictment before his plea and, thus, there was no proof

that it acted out of vindictiveness and no requirement the indictment be joined. 
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As we stated, post-conviction relief is only warranted when a petitioner establishes that his

or her conviction is void or voidable because of an abridgement of a constitutional right. T.C.A. §

40-30-103. Prosecutorial misconduct is not necessarily a justiciable issue in a post-conviction

proceeding unless it denies a defendant a constitutional right to due process. However, we have

concluded that the evidence fails to prove that the offenses in the second indictment were known to

the appropriate prosecuting official at the time the first indictment was returned or the guilty plea

was entered. Therefore, we conclude that the state did not act with vindictiveness and that no due

process right of the petitioner’s was violated. 

The issue relating to the state’s violation of Rule 8(a), Tenn. R. Crim. P., requiring mandatory

joinder, is likewise without merit. A violation of this rule would not establish that the petitioner’s

convictions were either void or voidable because of an abridgement of a constitutional right. The

petitioner’s remedy would be to dismiss the second indictment, not vacate his convictions.

Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE