### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 16, 200 4 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, appea ls as of right the judgment of the D av idson Count y Criminal Court dismissing his petition for post-conviction relief from his c onvi ction s for d rugrelated offenses and effective forty -year sentence. The petitioner

contends (1) that the state breached his plea ag

reemen t which undermine d the volun tariness o f his guilty

plea and (2) that t he state engaged in prosec utorial mi sconduc t by

acting vindictive ly a

nd violatin

g Rule 8(a), Te nn. 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

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which T HOMAS T. W OODA LL and A LAN E. G LENN , JJ., joined.

Peter J. Strianse, Nashville, Tenne ssee, and Kimberly S. Hodde, Madison, Tennessee, for the appellant, Christopher Lee Tuttle.

Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Ge neral; Victor S. Johnson, III , District Attorney Gene ral; and John C. Zimmerman, Assistan t District Attorney Gene

ral, 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 se ll more than 300 pounds o f marijuana, possession of more than 300 pounds of marijuana with intent to sell, possession of more than70 pounds of marijuana, and five counts of money laundering. In ex change, the petitioner received an effective sentenc e o f f or ty y ears 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 conspi ra cy t o commit the offense of money laundering and three counts of money laund ering. In his

petition for post-conviction relief, the petitioner argued tha t the state breached the-2-

plea agreement by

contemplating new charge s an d continuing its investi gations at the time

of his guilty plea. He asserted that the state’s actions rende red his guilty plea

involuntary, unknowing, a nd unintelligent

and that t

he state engag ed in pros ecutori al mi scon duct 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 tha t he had been assigned to the 20th Judicial District Drug Task Force in 1976 and that he began working as an investig ator inDecember 2001 or January 2002. He said that he was inv olved in the investigation of the petitioner’s case at

its incept

ion but tha

t the cas e was turne d 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 searc h warrant on

May 2, 2002, for the residence which the petitioner had shared with his wif

e and moth er-in la

w befor e his incarceration. He said that he had conducted surveillance of the residence during the week before execution of the warrant and tha t he was n ot a ware 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 g enerated by the marij u ana tra fficking charg es filed i

n 2000 and

that he be lieved th ousands o f dollars i n proceeds remained hidden. He said that he was not involved in a searc h for the funds in April 2002 and th at, as far as he knew, no one else had be en assigned the task. He said he beca me 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 w here the money the petitioner made while dist

ributing marijuana could

be hidden and that

they noted L

isa Tuttle, the petitioner’s wife, and Janet Simpson, the petitione r’s mothe r-in-la w, contin ued to mak

e pay ments on the car and the house mortga ge and generally maintain their lifestyle. He sa id they decided at that time

to obtain

a search warr ant for the reside nce to dis cover th e source of the fu nds. He a

dmitted the

offic er s involved with t he case

alw ays suspected “

there was more cash out there,” but he sa id no one had approached

him with the

idea of s earchi

ng for i tuntil 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 r evealed evidence of un

usua l exp enditu

res by L isa Tuttle and Janet Simpson, $330,000 in cash, piles of clothing with the price tags still on them, and letters f rom the pe

titioner a ccusing Lisa of spending two million dollars since he became incarcerated.

The petitioner’s trial attorney testified that he represented the petitioner before his arre st 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 par t of March and April2002. 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 se nt him an e-mail transmission which o utlined the plea offer and ultimately became the terms and conditions of the agreement. He said he conveye d the offer to the petitioner with a follow-up letter. He said that according to his understanding, the plea would be infull and complete satisfaction of-3-

all charges that could be

brough t in connection with this investigation and that this understanding

was indi cated b y the langu age in his follow-up letter which stated they wanted to “make our peace for forty ye ars.” H e said no o

ne had inf ormed him t

hat the sta te was co ntinuing its investig ation into money laundering activities and attempting to locate the proc eeds at the time the plea negotiations

were occurr

ing. He said that i f the stat

e had evidence c oncerni

ng addi tio na l m on ey l aundering offenses inApril 2002 , it was not communic ated to hi

m. 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 believe d the plea wou

ld “end hi s problem s with

the State of Tennessee,” at least those that the state was a ware of as of Apr il 15, 2002, and that t

heir inte nt was to “have a global settlement.” He said the petitioner

was never under the impression that if he accepted the agree ment and forty-y

ear sentence hecould keep the money

he made by se lling marijuana.

At the second hearing, Metro Police Officer Mike Garbo testified that he worke d as an investigator

for the 20th Judicial District Drug Task Force in Marc h and April 2002 and that he was asked to assist with follow -up work on the pet

itioner’ s c ase. Hesa id 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 concer ning the petitioner. Oncross-examination, he said he did not believe that his interview of the doctor was related to the petitioner. Reading from his report, Officer Ga rbo said that the doctor had hired Janet Simpson as a babysitter in F ebruary 2000 and that in May 2000 she a sked the doctor if he would hide approximatel y

$30 ,000 for her. According to the doctor, she was trying

to hide money from her husband, and he declined to help her.

Metro Police D epartme

nt Offic er Rigsby te stified th at he wor ked for t he 20th Judic ia l District Drug Task Force and that he participated in the inve stigations which led to the indic tme nt of the petitioner in 2002. He said that he was aware of the trial pending in 2002 and that he participated ininvestigations concerning the petitioner’s marijuana suppliers. He said he ha

d a conve rsation w ith the petitioner’s attorney

after the pet itioner pl ed guilty a nd before the execution of the search

warran t. He said that he ask

ed him if th e petitioner would be inter ested in a sentenc e reduc tion in exch ange for info rmation a bout his assets but

that the petitioner was not interested. He said he was inquiring into the location of illegally obta ined 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 foc

us of his investigation had shifted to

discover ing the i dentity

of the pe titio ner’ s suppliers. He said he learned of Officer Taylor’s investigation into the petitioner’s money laundering activi ties after they seize d the $330,000 in cash and the letters concerning the pe titioner’s wife’s expenditures. This concluded the proof.

The trial court denied the petitioner post-c onvi ction relief. With regard to the petitioner’s contentionthat t he seco nd in dictm ent vi olate d the r ule co ncerni ng m andatory jo inder an d was a product of vindictive prosecution, the trial court found no proof that the state was contemplating the additional charges before the pe titioner pled guilty to the off

enses in the first indictment. The trial court found that the state had suspicions but no evidence sufficient for grand jury

action. It noted-4-

the petitione

r’s attor ney testifie d 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. I t noted, how ever, that the e-mail transmission between Mr. Ray and Mr. Zimmerman did not mention further investigations or a bar to future prose cution. The trial court found that the p lea off

er was a “globa l” settle ment base d on the inf

ormation k

nown to the state at that time and that, subse quent to th e offer and plea , the state

acquired evidenc e of addi

tional cr imes. Under the circumstances, it found the presumption of vindictiveness wa s not warra nted in the petitioner’s case an d was not convi nced a realistic likelihood of prosecutorial retaliation existed. The trial court cred it ed the testimony of the off icers who failed to indicate that ongoing investig ations existed concerning money laundering of

the proceeds from drug sales by the petitioner. It found

the investigative reports and related testimony upon which the petiti oner re lied wer e sugg estive a

t best and did not con

clusively establish that the st

ate was a ware of any assets other than t

hose previous ly seized. The cour

t conclud ed that th e state w as not gu ilty of prosecutorial vindictiveness or “holding back” and that

the second indictment did not have to be joined pursuant to Rul e 8, Tenn . R. Crim. P.

Post- convictionrelief is only war ranted when a petitioner establishes that his or her convictionis void or v oidable because of an abridgeme

nt 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. § 4 0-30- 110(f). Once the trial court has ruled upon a petition, its findings of fact are conclusive on appeal unless the

evidenc e in the r

ecord pr eponder ates ag ainst

them. Wallace v . State , 121 S.W.3d 652, 656 (Ten

n. 2003). This cour

t may not rewe igh or r

eevalua te th e evidence o r substitut e its inferences for those drawn by the po st-convi ctio n court. State v. N ichols , 90 S.W.3d 576, 586 (Tenn. 2002). Questions concer ning the credibi lity

of witnes ses and th e weig ht to be g iven thei

r testimony are for resolution by

the post-conviction court. Id. (ci ting Hen ley v. State , 960 S.W.2d 572, 579 (Tenn. 1997)).

I. BREACH OF

PLEA AG

REEMENT AN

D VOLUNTA

RINESS OF P

LEA

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

were investig ated and

known to th e state

du ring plea negotiations, the state brea ched the plea agreement. The

state responds that

it did not possess evidence of additional crimes committed by the petiti oner at the time of his guilty plea a nd that the plea agreement did not bar future investig ations or

prosecu tions.

In Boykin v. Alaba

ma , 395 U.S. 2 38, 89 S. Ct. 1 709 (1969 ), the Supr eme Court

stated:

A plea of guilty

is more tha n a con fession which admits that the accused did vario us acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. Admissibility of a confession

mus t be ba sed on a “reliable determination on the volunt ariness

issue which satisfies the constitutional rights of the defendant.”-5-

Id. 395 U.S. at 242, 89 S. Ct. at 171 1-171 2 (quo ting Jackson v. Denno , 378 U.S. 3 68, 387, 84 S.Ct. 1774, 1786 (1964)). A defendant pleading guilty

waives severa

l constitut ional rig hts, inclu ding his p rivil ege against compulsory self-incrimination, his right to trial by jur y, and his rig

ht to confront his accuse rs. 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 signific ant de gree on a pr omise or agreement

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

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

The pe titioner’s attorn ey 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 convey

ed the of fer to the petit ioner. Although he testified that the plea would be in full and complete satisfac tion of all charg es that c ould be br

ought in c onnection with the s tate’s in vest igati on, the e-mail includedin the record does not contain languag e indicating this was contemplated. Rather, it gives inf

ormation regarding the counts, sentenc es, fines, fees and forfeiture. The petit ioner ’s att orney sai d that he sen t the p etit ioner a foll ow-up lett er. It st ated t he fol lowi ng:

You had cons istently

rejecte d th is for ty (

40) y ear off er, whic h I fu ll 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. Zimmerm an an d t ry to make our peace f or forty ye ars.

The letter also fails to cont ain la ngu age specifically barring future investigation or prose cution. Instead, it sugg ests that the petitioner’s motivation to plead guilty was base d on his des ire to av oid unpleasant

consequences for

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

our peace for forty

years” ind icated the pe titioner’s intention that the plea would be in full and complete satisfaction

of al l cha rge s that coul d be b roug

ht. We do not beli eve that

this lang uage is sufficient to indicate the petitioner’s intent.

The plea agreement was

reduced to writing using a standard f orm to set forth its terms and scope. The portions of

the agreement left blank to allow for modifications and specifications were filled in and ar

e devoid o f langu

age to i ndicate that th e p arties 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 wer e filled in, with the exception of the line requiring a signature f rom the Attorney for

State.

Post-conviction relief requires the petitioner to establish that his or her conviction is void or voidable because of an abridgeme nt 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 pleadi ng guilty, “he

was fully satisfy

ing Davidson County’s prose cutorial interest in him.” He claims that the state deceived him and that the deception undermined his ability to e nter a know ing, voluntary and intelligent plea. When evaluating the knowing and voluntary natur

e of a guilty plea , the United Sta

tes Supre me Court ha s held tha

t “[t]he standa rd was and remains whether the plea-6-

repres ents a volunta

ry and intel l igent cho ice among the alternative courses of action open to the defendant.” North Carolina v. Alford , 400 U.S. 2 5, 31, 91 S. C t. 160, 164 (1970). In this case, the petitioner was req uired to prove by

clear a nd convincing ev

idence t hat but fo r the ple a being

in full and complete satisfaction of all charges that c ould be brought in connection with the state’s investigation, he wo ul d n ot ha ve pl ed gu il ty. Be ca us e h e d id no t t es ti fy, we have only the testimony of the petitioner’s attorney

and the written agreement. The petitioner’s argument that he would not have pl e d guilty except for the opportunity to limit future investigations and prosec utions was weakened by his choice

not to testify and doesnot necessarily de monstrate that his decision was not the product of a free and rational choice . He was represented by competent and

experienced cou

nsel. 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 of fer.

Inany 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 te s timony of Officers Tay

lor and Garbo indicated that they had no knowl edge of any

investig ations into

the petitioner’s criminal activities at the time of his guilty plea. Officer Rigsby testified that he le arned of Office r Tay lor’s inve stigation into the petitioner’s money la under ing activities after they seized the $330,000 in cash and the letters on May 2, 2002. The second indictment alleg ed tw enty crimes, five counts involving the petitioner. Count one alleged that the petiti oner com

mitted a c onspirac

y of fense during January 2001 to Ma y 2, 2002: count two alleged a conspiracy

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

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

committed

on May 1, 2002; a

nd count se

venteen all eged a m oney launder ing offense committed in September 2002. Counts one and three alleged offenses committed during pe riods of time which occurred before the pe titioner pled guilty. The othe r three offenses we r e committed afterward.

We conclude that the agreement did not contemplate a bar to future investigations or prosecutions and, therefore, that the s tate did n ot breach the agree ment by presenting

the second indictmentt o th e 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 alterna tive courses of action open t o him.

II. PROSECUTORIAL MISCONDUCT

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

were investig ated and

known to th e state d

uring pl ea neg otiations, 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 fa iled 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.-7-

As we state d, post-c onviction relief i s only

warranted

when a pe

titioner e stablishe s that his

or her conviction is void or voidable because of an abridge ment of a constitutional right. T.C.A. § 40-30-103. Prosecutorial misconduct is not necessarily a justiciable issue in a post-conv ictio n proceeding

unles s it den ies a defendant a constitutional right to due process. Howe ver, we have concluded

that the evidence fails to prove that the offe nses in the

second in

dictment w ere know

n to the appropr

iate pro secuting

officia l at the time

the first indictm ent was re turned or the guilty plea

was entered. Theref

ore, we conclude that the st

ate did no t act with

vindictive

ness 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 manda tory joinder, is likewise without merit. A violation of this rule would not establish that the petitioner’s convictions were e ither void or voidab le beca

use of an abridgement of a constitutional right. The petitione r’s reme dy would be to d ismiss the s econd ind

ictment, n

ot vacat e his conv

ictions.

Based on the foregoing and the

record as a whol e, we af

firm the j udgmen

t of the tr ial cour t.

___________________________________ JOSEPH M. TIPTON, JUDGE