# FILED January 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01-9701-CR-0 0008 ) ) Sumner County v. ) ) Jane W. Wheatc raft, Judge ) ) (Accessory after the Fac t to ) Second Degree Murder) ROBERT ALLEN McKENZIE, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Justin Johnson John Knox Walkup Attorney at Law Attorney General & Repor ter 2131 Murfreesboro Road, Suite 205 500 Charlotte Avenue Nashville, TN 37217 Nashville, TN 37243-0497 Ellen H. Pollack Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Tom P. Thompson, Jr. District Attorney General Pro Tempore P.O. Box 178 Hartsville, TN 37074-0178 John D. Wootten, Jr. Assistant District A

ttorney General P.O. Box 178 Hartsville, TN 37074-0178

OPINION FILED:_______________________________

__ REVERSED AND DISMISSED Joe B. Jones, Pre siding Judge1 State v. Spur lock , 8 74 S.W.2d 602 (Tenn. Crim. App.), per . app . denied , (Tenn.

1993); State v. Marshall , 845 S.W.2d 228 (Tenn. Crim. App.), per . app . denied , (Tenn. 1992). 2 

## O P I N I O N

The issue which this co urt must resol ve is whether the statute of limit ations commences in an accessory after the fact prosecution when (a) the crime is committe d or (b) the principal offender is convicted. The tri al court found thestatute of limitations does not commence until the principal offender is convicted. The defend an t contends the statute of limitations commences when the crime of accessory after

the fact is committed. After a thorough review of the record, the brie fs submitted by the parties, an d the law p ertaining to the issue presented for rev iew, it is the opini on of this court the statute of limitationscommenced to run in this prosecution for accesso ry after the fact when the offense was c ommitted. Therefore, the judgment of the tr ial court is rever

sed and the prosecution is dismissed since the prosecution was barred by the statute of limitat ions. On the evening of February 20, 1989, Lonnie Mal one was murdered in Sumner County. The investigating o f ficers s uspected Robert Spurlock and Ronnie Marshall murdered Malone. However,the office rs were unable to find any evidence which li nked either Spurlock or Marshall

to the murder. Appro ximately fourteen months after the murder, the officers obtained a series of stateme nts fro m Henry Jun ior “Skully” Appl e. The statements were taken be tween Apri l 27, 1990, and April 30, 1990. Apple’s statements linked Spurlock and Marshall to Malone’s murder. The Sumner County Grand Jury indicted Spurlock and Malone on May 9, 1990, for first degree murder. Spurlockand Ma lone were t ried separately. Both w ere convicted of first deg ree murder and were sentenced to life in the Department of Correction. This court reversed both convictions and remanded both cases to the trial court

for a new

trial. 1 Spurlock was tried a second time. He was convi cted of murder in the second degree. While Spurlock’s case was pending in this court, the district attor ney general pro tempore disco vered neither Spurlocknor Marshall murdered Malone. In September of 1995, an investigation r evealed thatMichael Dancer, Billy Perry, and the defendant were involved in Malone’s murder in some manner. Shortly thereafter,the prosecut i ons against Spurlock and Marshall were2 Tenn. R. Crim. P. 37(b)(2)(i); Tenn. R. App. P. 3(b)(2). 3 terminated. The Sumner County Grand Jury returned a presentment charg ing Michael Dancer with f irst degr ee murder for killing M alone. On March 5, 1996, the g rand jury returned a p resentmentcharging the defendant wi th the offense of accessory after the fact t o firs t degree murder. The relevant portion of the presentmen t states:

ROBERT ALLEN McKENZIEheretofore on or about the 20th day of February, 1989, . . . after the commission of the felony of murder by Michael Dan cer, and with knowl edge or reasonable ground to believe that Michael D ancer committed said felony, and with intent t o hinder the arrest, trial, conviction or p un ishment of Michael Dancer, did unlawfully and feloniou sly provide and aid in prov iding Michael Dancer

with means of avoiding arrest, tr ial, convictionor punishment, and thus committ ed the offens e of acces

sory af ter the f act of a felony.
The d efendant filed a motion to dismiss the pr esentment on the ground the prosecution for the offense alleged in the indic tment, accessory after

the fact, was barred because the statute of limitations had expired . When the trial court denied the motion, holding the statute of limitations for this offense commenced when Dancer w as convicted of murder in the second degree,th e de fendant entered into a plea agreement w ith the State of Tennessee. Subsequently, the defendant entered a plea of guilty to accessory afterthe fact to second degree mu rder, a Cla ss E felo ny. The trial court found the defendant was a Range I standard offender and imposed a Range I sentence o f confinementfor two (2) years in the Department of Correction in c onformity with the plea agreement. The se ntence i n this case was to be ser ved concurrently to a sentence the defendant was serving for the commission of an unrelated offense. The assistant district attorney general a nd the trial court agreed to permit the defendant to reserv e a certified question of law, whether the prosecution was barred by the statute of limitations. 2 The record reveals that Dancer, the principal, was convicted of murder in the second degree after pleading guilty to the offense. This conviction occu rred approxim ately two months prior to the hearing on the defendant’s motion to dismiss the presentment.3 Tenn. Code Ann. § 39-1-306 (Repl. 1982).
4 Tenn. Code Ann. § 39-1-307 (Repl. 1982).
5 Monts v. State , 214 Tenn. 171, 192, 379 S.W.2d 34, 43 (1964); State v. Hoosier , 631 S.W.2d 474, 476 (Tenn. Crim. App.), per . app . denied , (Tenn. 1982); see Pennington v. State , 478 S.W .2d 892, 897 (Tenn. Crim. App. 1971), cert
. denied , (Tenn. 1992) (“An accessory after the fact is not an accomplice.”).

6 State v. Hodgki nso n , 778 S.W.2d 54, 63 (Tenn. Crim. App.), per . app . denied , (Tenn. 1989); Hoosier , 631 S.W.2d at 476.

7 Tenn. Code Ann. § 39-1-306 (Repl. 1982).
8 Baker v. State , 184 Tenn. 503, 506, 201 S.W .2d 667, 668 (1947).
9 Tenn. Code Ann.§ 39-1-306 (Repl. 1982).
10 Tenn. Code Ann. § 39-1-306 (Repl. 1982). 4 I.

Prior to the enactment of

the Tennessee CriminalSentencing Reform Act of 1989, being an accessory after the fact to a felony was a cri minal offense. 3 The punishment for this offense was a fine not to exceed $1,000 and confinement in the penitentiary for a term not to exceed five (5) y

ears, or, in the discretion of the trial court, confinement in a county workhouse or jail for a term not to exceed one (1) year. 4 The offense of accessory after the fact was a separate and di stinct crime from the felony committed by the perpetrator of the fel ony. 5 Accesso ry after the fact was not a lesser included offense of the felony c ommitted by the perpetrator of the crime. 6 Before an accused could be convic ted of being an accessory a fter the fact to a felony, the State of Tennessee was required to prove the elements of th e offense beyond a reasonable doubt. The elements of the offense w ere: 1.) A felony was committed by the principal offender; 7 2.) All of the elements of the felony had been consummated; 8 3.) The accused knew or there was a reasonable basis for theaccused t o believe the principal offender committed the of fense and was subject to being arrested, indicted, or convict ed of th e felony; 9 4.) The accused harbored, concealed, or aided the principa l offender; 10 5.) The intent of the accused in assisting the principal off ender was for the purpose11 Tenn. Code Ann. § 3 9-1-306 (Repl. 1982). The q uestion of intent is a matter to

be decided by the trier of fact fro m the evidence andreasonable inferences which may be drawn from the evidence. Webster v. State , 544 S.W.2d 922, 924 (Tenn. Crim. App.), cert
. denied (Tenn. 1976).

12 Wilson v. State , 190 Tenn. 592, 596, 230 S.W.2d 1014, 1016 (1950)
13 Tenn. Code Ann. § 39-1-307 (Repl. 1982).
14 Tenn. Code Ann. § 40-2-101 (Repl. 1982). 5 of helping him avoid or es cape arrest, trial, conv

iction or punishment; 11 and 6.) The p rincipal o ffend er was convic ted of th e felony. 12 In thi s case, the defendant admitted these element s of accessory after the fac t existed whe n he entered his plea of guilty to the offense. This court must now con side r when the statute of limitations commenced in this case.

II.

As previousl

y stated, the crime

of accessory after the fact is a felony. The maximum punishmentfor this offense was a fine not to ex ceed $1,000 and confinement in the Department of Correction for a term not to exceed f ive (5) years. 13 The statute in effect when this offense was c ommitted provided that

the prosecution forcrimes punishable by co nfinement for a term not to exceed five (5) years w as required to be commenced within two (2) years. 14 The statute provided:

(a) Any person may beprosecuted, tried and punished for any offense punishable w ith death or by imp risonm ent in the penitentiary during life, at any time after the offense shall have been committed. (b) Prosecutions

for any offense punishable by imprisonment in the penitentiary when the punishment is expressl y limited to five (5) years or

less, shall be commenced within two (2) years next after the commencement of the offense. . . . * * * * * (c) Prosecution for

any offense punishable by imprisonmentin the penitentiary other than as specified in subsection (a) or (b), shall be commen ced within four (4) years nex

t aft er t he commission of the offense.
In the context of this case, the relevant language of the statute is “ shall be15 Owens v. State , 908 S.W.2d 923, 92 6 (Tenn. 1995).
16 Owens , 908 S.W.2d at 926; see Hicks v. State , 945 S.W.2d 706, 707 ( Ten n. 1997); State v. Davis , 940 S.W.2d 558, 56 1 (Tenn. 1997); State v. Sliger , 846 S.W.2d 262, 263 (Tenn. 1993).

1 7 R oberson v. University of Tennessee , 912 S.W.2d 746, 747 (Tenn.), per . app . denied (Tenn. 1995).

18 Austin v. Memphis Publ’ g Co. , 655 S.W.2d 146, 14 9 (Tenn. 1983).
19 Roberson , 912 S.W.2d at 747.
20 See , e.g. , Blankenship v. State , 223 Tenn. 158, 165, 443 S.W .2d 442, 445 (1969); Stubbs v. State , 216 Tenn. 567, 576, 393 S.W.2d 150, 154 (1965); State v. Gauldin , 737 S.W.2d 795, 798 (Tenn. Crim. App.), per . app . denied , (Tenn. 1987). 6 commenced within tw o (2) years next after the commission of the off ense .” (Emphasis added). It must be noted that the statute does not distinguish between principal of fenders, aiders and abettors, accesso ries before the fact, and accessor y after the fact. The determination of the certified question in this case hinges uponthe intent of the Tennessee General Assembly w hen this statute was enacted
.

A.

The polestar of statutory cons truction is the intent

of the legislature when a statute wasenacted. 15 A court’s rol e in the inte rpretati on of a st atute is t o “ascert ain and gi ve effect to the legislative intentwithout unduly restricting or expanding a statute’s coverage beyond itsintended scope.” 16 The common la w rules of constru ction developed through the years are aids w

hich assist a court in mak ing this determination. 17 The intentof the legislature is t o be deri

ved from

the face of the sta

tute if th e verbiage contained within the four corners of the statute is plain, clear, and unambiguous. 18 In other words, “[u]nambi guous statutes must be constr ued to mean what they say.” 19 In this case, the languag e of the statute in question is plain, clear, and unambiguous. B.

The word “shall” when used in a statute mandates th e provisions of the statute. 20 In the context of this case, the Ten nesse e General Assembly req uired the State of21 State v. Hen ry , 834 S.W.2d 273, 275-76 (Tenn. 1992); State v. Davidson , 816

S.W.2d 316, 318 (Tenn. 1991); State v. Comstock , 205 Tenn. 389, 393, 326 S.W.2d 669, 671 (1959); State v. Shaw , 1 13 Te nn . 5 36 , 5 38 , 82 S .W. 480 (1904); State v. White , 939 S.W.2d 113, 115 (Tenn. Crim. App. 1996); Morgan v. State , 847 S.W.2d 538, 542 (Tenn. Crim. App.), per . app . denied (Tenn. 1992); State v. Seagra ves , 83 7 S.W.2d 615, 619 (Tenn. Crim. App.), per . app . denied (Tenn. 1992); State v. Tidwell , 775 S.W.2d 379, 389 (Tenn. Crim. App.), per . app . denied (Tenn. 1989); State v. Hix , 696 S.W.2d 22, 25 (Tenn. Crim. App. 1984); State v. Thorpe , 614 S.W.2d 60, 65 (Tenn. Crim. App. 1980); State v. House , 2 Shannon’s Cases 610, 611 (1877). In State v. Messamore , 937 S.W.2d 916, 91 9 (Tenn. 1996), the supreme court stated that if the statute of limitations was tolled by other means than an indictment , presentment, or information, this rule doe s not apply. Thus, if the pros ecution was commenced timelyby other means (e.g.,an arrest warrant or an affidavit of complaint), but the charging instrument is notreturned until after the expiration of the statute of limitations, the state is not require

d to allege why the statute of limitations was tolled.
22 Davidson , 816 S.W.2d at 321; Comstock , 205 Tenn. at 393, 326 S.W.2d at 671; Shaw , 113 Tenn. at 538, 82 S.W. at 480; Seag raves , 837 S.W.2d at 619; Tidwell , 775 S.W.2d at 389-90; House , 2 Shannon’s Cases at 611. 7 Tennessee to commence a p rosecution punishable b y imp ris onment for a term not exceeding five (5) years ”next after the co mmissio n of t he offense.” In other words, the State of Tennessee was required t o commence the prosecution within two (2) year s after the defendant committ e d the offense of accessory after the fact. Since the offense was alleged to have occurr

ed on February 20, 1989, and the presentment was returned on March 5, 1995, it is obvious the prosecution against th e defe ndant was not commenced within two (2) years“next after the commission of the offense” as mandated by the statute. This court must now determine i f there were any facts which tolled the runni ng of the statute of limitations in this case.
C.

When a prosecution is commenced by a presentmen t after the expiration of the statute of limitations, the State of Tennessee must allege i n the presentment and prove the specific facts which the state contends tolled the running of the statute of limita tions. 21 If the presentment

does not allege and prov e sufficient facts, or

any facts, which the Sta te of Tennessee contends tolled the statute of li mitations, the accused may not be convicted of the offense alleged in the presentment. Conse qu ently, such a presentment must be dismissed. 2223 State v. Pearson , 858 S.W.2d 879, 887 (Tenn. 1993).
24 Id
. 8 An accused may waive the statute of limitations as a defe nse. 23 However, the waiver must be knowingly, voluntarily, and i ntelligently entered;and it must appear on the face of the record that the accused did in fact w aive this defense. 24 In this case, the record is devoid of any facts which would indicate the defendant waiv ed the statute of limitations defense. To the contrary, the defendant asserted this defense by filing a motion to dismiss the pr esentment on this ground. He also reserved a certi fied question of law

with th e approval of the trial court and the assistant dis trict attorney gener

al so he could litigate the issue of wh ether the statute of limitations had expired before the presentment was returned. Here, the presentment does not allege any facts, which, if establis hed, would toll the commencementof the statute of limitations. Therefore, the judgment of the trial court must be reversed and the prosecution for accessory after the fact dismissed.

D.

The holdi n g in this case is not i ntended as a criticism of Gener al Thompson, who served as Attorney General Pro Tempor e after the reversalof the convictions and remand fornew trials in the Spurlock and Marshall cases . In other words, he did not initiate the original prosecution. The presentment in this case was submitted to the Sumner County Grand Jury after General Thompson di scovered Spurlockand Marshall were not the individuals who murdered Malone. Gener al Thompson notified defense counsel that their respecti ve c lients did n ot murder the victim, the requisite pleadings were filed in the trial court, the prosecutions were d ismissed as to Spurlock and Marshall, and the

presentments were returned against

Dancer and the defendant. General Thompson is tobe commended for his diligence i n continuing to investigate the Malone murder, his frankness with defense counsel after he w as satisfied their clients did not commit the murder, and his effort to prosecute those individuals who were in fact responsible for Malone’s murder. His actions in this regard showed strict compliance with25 Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.2d 1314, 1321 (1935).

26 State v. Fields , 7 Tenn. 140, 145046 (1823); In Re Death of Reed , 770 S.W.2 d 557, 560 (Tenn. Crim. App.), per . app . denied (Tenn. 1989). 9 the ethics

of his offi ce and th e duty o f a district attorney general established by the United States Supreme Court 25 and the Tennessee Supreme Court. 26

__________________________________ ________

_ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________ WILLIAM M. BARKER, JUDGE

______________________________________ JOE G. R ILEY, JUDGE