# FILED April 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1999 STATE OF TENNESSEE, ) 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 CRIMIN AL COURT OF DAVI DSON COUNTY
FOR THE APPELLEE : FOR THE APPELLANT : LIONEL R. BARRETT, J R. JOHN KNOX WALKUP Washington Square Two Attorney Generaland Reporter Suite 418 222 Se cond A venue, N orth DARYL J. BRAND Nashvill e, TN 37201 Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attor ney General GEORGE R. BONDS Assistant Distri ct Attor ney General Washington Square, Suite 500 222 Se cond A venue, N orth Nashvill e, TN 37201
OPINION FILED ________________________ REVERSED; R EMANDED. DAVID H. WELLES , JUD GE-2- 

# OPINION

The State of Tennessee appeal s the tri al court’ s dismissal of an indi ctment forDUI ag ainst De fendan t, Drew V . Saund ers. Defe ndant urges t his Cou rt to affirm the dismissal, arguing that the State exhibited prosecutorial vi ndictiveness in violat ion of hi s right t o due process. The State, however , denies vindicti veness, contending t hat the act ions taken by the assistant distri ct attorney constitute d part of the natural ple a barga ining proc ess. Fur thermo re, the Sta te argues tha t the trial court improperly

dismissed the indict ment 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 thepark was closed to visitors . Byaffidav it appended to the State’ s motion to r econsider, Kirby attested that Defenda nt initially stopped and the n dro ve awa y. Kirby effected another stop, a t which tim e the r anger discover ed 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 previ ous hour, around 1 :30 a.m. He repor ted to Kirby tha t he ha d 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 i f he1 It is clear from the record and from the brief filed b y the State

that the State did not recommend, bu

t instead “v

igorous[ly

] oppos[ed],”

dismissal

of this coun

t. -3- drove on West End Avenue.” Kirby administered the horiz ontal gaze nystagmus test, and on the basis of his fi ndings, reque sted a DUI unit to perform breathal cohol 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 att

ested that because he could not leave his

pos t at Centennial Park tha t night to take Defendant downtown, he issued Defendant a misdemeanor citati on for reckl ess drivi ng by intox icatio n. In addi tion, herequired Defendant to calla friend t o drive hi m 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 Davids on County Grand Jury for one count of rec kle ss drivi ng an d onecoun t of DUI. On August 28, 1997, Defendant moved the trialcourt to di smiss the count of the indi ctment chargi ng DUI on the basis of prosecutori al vindictive ness . Follow ing an eviden tiary he aring, th e tria l cou rt dismissed the charge of DUI, stati ng that “upon r ecommendation of the At torney Gen eral, it is ordered by the Co urt t ha t Coun t two of this ca use be
. . . dismiss ed.” 1

At the eviden tiar

y hearing on De fendan t’s motion to dismis s the indictm ent, the defense prese nted testi mony by Anthony Adgent, Defendant’s cou nsel duri ng the plea negoti ations. Adgent testified that during negotiati ons with t he assistant district attorney, General Bret Gunn agreed to accept a plea of guilty to reckless drivi ng, so long as Defendant agreed to perform forty hou rs of community service-4-

in addit ion to other requi rements. Defendant informed Attorney Adgent t hat he could not perform the public serv ice and therefore could n ot accept the p lea offer. Accor ding to Adgent, when he t old General Gunn that Defendant could n o t accept the terms of

the plea of

fer and would request a prelimin ary heari ng, Gunn “became somewhat agitated and pointed hi s finger i n [Adgent’s]face and said, unless your cli ent pl eads guilty to reckl ess drivi ng 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 , 4 34 U.S. 357 (1978), in which t he United States Sup reme Co urt held t hat “the cour se of conduct engaged in by t he prosecutor . . . which n o more than openly pr esented the defend ant with the unpleasant alternat ives of f

orgoing trial or f

acing 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 , s o long as the prosecutor has probable cause to beli eve that t he accused committed an offense defined by statute, the decision whet her 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 U nited S tates v. G oodw in , 457 U.S . 368 (19 82), the d efenda nt, after having rej ected a plea of fer and inv

oking his right to a jury trial , was indi cted
o n more serious c harges arising from the sam e inciden t. Id. at 370-71. The Goo dwin Court explai ned the Bordenkircher outcom e as follow s:-5- An initi al indi ctment—from which the pr os ecu tor embarks on a course ofplea n egotia tion— does not ne cess arily define th e extent of the leg itimate interes t in prosecution . For just as a prosecutor may forgo legitim ate charges already br ought in an ef

fort to save the ti me and exp ense o f trial, a prosecutor may file additionalcharges if an init ial expect

ation that

a defendant woul d plead guilty to lesser charges proves unf

ounded. Id. at 380.

In Goo dwin , the Court rever sed a decision by the Court of Appeals for t he Fourth Circuit

which adopted a pr esumption of vi ndicti veness because the circumstancesat 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 th at “a change i n the charging decision made after an i nitialtrialis completed i s much more likel y to be impro perly motivated than is a pretrial decision .” Id. at 381. Thus, “[a] pr osecutor shou ld remain free befo re trial to exercise t he broad discretion entrusted to him to determine theextent 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 it s case is insuf

ficien t to warr

ant a presumpti on that subsequent changes in the charging de cision are unjustified.” Id. at 382-8 3.

Our supreme court spoke on the iss ue 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 o f charges for whi ch the defendant had previou sly been senten ced to life im prisonm ent. Fac tually, Phipps is quite distinct from the case at

bar, yet its rat ionale i s instruc tive. In Phipps , the court h eld that “a rebuttable pre sumption o f prosecutorial vindictivene ss may a rise i f-6-

the circumstances of a case pose a ‘rea listi c likel ihoo d’ of prosecutori al retaliation.” Id. at 546. Furt hermore, In assessing whether a ‘reali st ic li kelihood’of prosecutorial retali ation exists, courts must consi der whether t he right as serted by the defendan t would result in dup licative expenditure s o f prosecutori al resourc es, or req uire the S tate to do o ver ag ain what it thought i t ha d alr eady done correct ly once. . . . When the circumstancesdemo nstra te that t he prosecutor has ‘a personal stake’ or

an interestin self

vindicat ion, or when i nstitut ional bi ases militate against retrialof a decided question, the balanceweigh s in favor of recognizi ng the presumpti on. . . . Likewise, the presumption is espec ially warran ted if the pro secuto rial decision to increase t he charge or sentence is made after an init ial trial is completed r ather than in a p retrial conte xt. Id. (citi ng Goo dwin , 457 U.S. at 38 3). From the inst ructions of the United States S upre me Court and the Tennessee Supr eme Court, we fi nd no basis for presuming prosecutorial v indict iveness i n the pretrial set ting of t his case.

B. Absen t a pres ump tion of vin dictiven ess, w e next r eview the trial c ourt’s decision to dismiss Defendant’s i ndictment for DUI based upon actual vindicti veness. Questions conce rning the credibility of the wit nesses, the wei ght and value to be g iven the ev idence, and all factual issues rai sed 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 befo re me is that there was a not necessari ly unusual give and take betwee n the . . . assistant di strict attorne y gene ral in [general sessions] court and th e 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 in g v oices though I prefer a di fferent approach myself. But there is absolutel y nothing wr ong with that and there’s no thing wro ng . . . that if t hey b elieve basedupon the facts and circumstances of that cas e that th e State is justified in saying if you don’t a ccep t this offer we will seek m ore severe charges.-7-

We conclude that

the evidence does not preponderate against t his fi nding by the trial court.

Defen dant, thr

ough cou nsel , ar

gued at t he he ari ng on his mo tion to dism is s that if the State . . . had heard the preli minary heari ng and had said, y ou know, this real ly . . . sho uld have been a D.U.I. I’ m going to indict it as a D .U.I. it wo uld be perfectly withi n his ri ght to do that but I thi nk thatsince it’s unrefuted t hat he said have a prelimi nary heari ng and we’ll have you indicted fo r D.U.I., I think t hat under thi s set of facts, thatthis is a ra re cas e, that th is mo tio n for prosecutorial vindict iveness i s establi shed. The law as establishe d by Bordenkircher , as illuminated by Goo dwin , and a s recogn ized by the trial court is clea rly counte r to Defen dant’s arg umen t.

C. Although the tri al court foundno impropriet y in the State’s conduct during plea negotiati ons with Defendant , the judg e nevertheles s gran ted D efend ant’s motion to di smiss the indi ctment, stating,

The problem in this ca se is there is a bsolutely no evidence w hatsoeve r before me today to justi fy a D.U.I . charge. Not hing. Zero. Zip. The proo f suggests tha t the driver, the defenda nt, drove around a barrier . The proof before me that I ha ve heard says t hat no one saw him drive errati cally. 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 mat t er went to t rial t here might be ot her evidence but I haven’t heard any and I have to make a deci sion on what I he ard toda y.

We conclud e that the tria l judge’s ru ling was e rroneou s. Defendant canno t, by moving to dismiss the indi ctment, for ce the tri al court to cond uct a “m ini-trial” in which the State must present i ts proof on the me rits of t he cha rge o f DUI or be-8-

cut short in its attempt to p rosecute. 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 inad equate or incompetent evidencebefore the gr and jury, the result ing delay woul d be great indeed. The result of such a rule wou ld be that b efore trial on the me rits a defe ndant 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 t hat “indi ctments are not open to chall enge on the ground t hat there was inad equate or incom petent e vidence before th e grand jury to support it”).

For the f or egoing reasons, we conclude that the tri al court erred by dismissing Defen dant’s D UI indictm ent. The dismissal i s therefor e reversed, and this case is remanded to the tr ial court for further proceedings.

____________________________________ DAVID H. WELLES , JUD GE-9-

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ JOHN EVER ETT WILLI AMS, J UDGE