FILED

April 22, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1999 

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9712-CR-00584

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. FRANK G. CLEMENT, JR.,

DREW V. SAUNDERS, ) JUDGE

)

Appellee. ) (Dismissal of Indictment)

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 Second Avenue, North DARYL J. BRAND

Nashville, TN 37201 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

VICTOR S. JOHNSON

District Attorney General

GEORGE R. BONDS

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue, North

Nashville, TN 37201

OPINION FILED ________________________

REVERSED; REMANDED.

DAVID H. WELLES, JUDGE
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OPINION

The State of Tennessee appeals the trial court’s dismissal of an indictment

for DUI against Defendant, Drew V. Saunders. Defendant urges this Court 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

constituted part of the natural plea bargaining process. Furthermore, the State

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 observing him drive around a barricade blocking entrance 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 Defendant initially stopped and then drove away. Kirby effected

another stop, at which time the ranger discovered that Defendant smelled of

alcohol, his eyes were bloodshot, and his speech was 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 through Centennial Park because, in Kirby’s words, “he knew

he had had too much to drink and was afraid of being stopped by police if he
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.

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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 Defendant. The dispatcher reported back that no DUI units

were available that night. 

Ranger Kirby attested that because he could not leave his post at

Centennial Park that 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

ensured that the driver was licensed and not intoxicated. 

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 vindictiveness. Following an evidentiary hearing, the trial court

dismissed the charge of DUI, stating that “upon recommendation of the Attorney

General, it is ordered by the Court that Count two of this cause be . . .

dismissed.”1 

At the evidentiary hearing on Defendant’s motion to dismiss 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 hours of community service
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in addition to other requirements. Defendant informed Attorney Adgent that he

could not perform the public service and therefore could not accept the plea 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 hearing I’ll []indict him for D.U.I.” 

II. ANALYSIS

A.

This case is governed 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 no more than openly presented

the defendant 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 Fourteenth Amendment.” 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 what charge to file or bring before a grand jury, generally rests

entirely in his discretion.” Id. at 364.

Likewise,in United States v. Goodwin, 457 U.S. 368 (1982), the defendant,

after having rejected a plea offer and invoking his right to a jury trial, was indicted

on more serious charges arising from the same incident. Id. at 370-71. The

Goodwin Court explained the Bordenkircher outcome as follows: 
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An initial indictment—from which the prosecutor embarks on a

course of plea negotiation—does not necessarily define the extent

of the legitimate interest in prosecution. For just as a prosecutor

may forgo legitimate charges already brought in an effort to save the

time and expense of 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 Goodwin, 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 that case “gave rise to a genuine risk of retaliation.” Id.

at 372. In so holding, the Supreme Court stated that “a change in the charging

decision made after an initial trial is completed is much more likely to be

improperly motivated than is a pretrial decision.” Id. at 381. Thus, “[a] prosecutor

should remain free before trial to exercise the broad discretion entrusted to him

to determine the extent of the societal interest in prosecution.” Id. at 382. Finally,

the Court also noted, “This Court in Bordenkircher made clear that the mere fact

that a defendant refuses to plead guilty and forces the government to prove its

case is insufficient to warrant a presumption that subsequent changes in the

charging decision are unjustified.” Id. at 382-83. 

Our supreme court spoke on the issue of prosecutorial vindictiveness in

State v. Phipps, 959 S.W.2d 538 (Tenn. 1997), a case in which the State sought

the death penalty upon the retrial of charges for which the defendant had

previously been sentenced to life imprisonment. Factually, Phipps is quite

distinct from the case at bar, yet its rationale is instructive. In Phipps, the court

held that “a rebuttable presumption of prosecutorial vindictiveness may arise if
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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 defendant would result in duplicative expenditures of

prosecutorial resources, or require the State to do over again 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 weighs in

favor of recognizing the presumption. . . . Likewise, the presumption

is especially warranted if the prosecutorial decision to increase the

charge or sentence is made after an initial trial is completed rather

than in a pretrial context.

Id. (citing Goodwin, 457 U.S. at 383). 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 presumption of vindictiveness, we next review the trial court’s

decision to dismiss Defendant’s indictment for DUI based upon actual

vindictiveness. Questions concerning 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 fact, not this Court. State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987). In this case, the trial court found, 

The evidence before me is that there was a not necessarily unusual

give and take between the . . . assistant district attorney general in

[general sessions] court and the attorney for the defendant. There’s

nothing wrong at all with a person stating their [sic] position clearly,

nothing wrong with raising voices though I prefer a different

approach myself. But there is absolutely nothing wrong with that

and there’s nothing wrong . . . that if they believe based upon the

facts and circumstances of that case that the State is justified in

saying if you don’t accept this offer we will seek more severe

charges.
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We conclude that the evidence does not preponderate against this finding by the

trial court. 

Defendant, 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 would 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 for D.U.I., I think that under this set of facts,

that this is a rare case, that this motion for prosecutorial

vindictiveness is established.

The law as established by Bordenkircher, as illuminated by Goodwin, and as

recognized by the trial court is clearly counter to Defendant’s argument. 

C.

Although the trial court found no impropriety in the State’s conduct during

plea negotiations with Defendant, the judge nevertheless granted Defendant’s

motion to dismiss the indictment, stating,

The problem in this case is there is absolutely no evidence

whatsoever before me today to justify a D.U.I. charge. Nothing.

Zero. Zip. The proof suggests that the driver, the defendant, 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 evidence that I’ve heard

affirmatively says he was not speeding, on and on and 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 heard today. 

We conclude that the trial judge’s ruling was erroneous. Defendant cannot,

by moving to dismiss the indictment, force the trial court to conduct a “mini-trial”

in which the State must present its proof on the merits of the charge of DUI or be
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cut short in its attempt to prosecute. As the United States Supreme Court stated

in Costello v. United States, 350 U.S. 359 (1956), 

If indictments were 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 would be that before trial on the merits a defendant could

always insist on a kind of preliminary trial . . . .

Id. at 363. For this reason, “[a]n indictment . . . , if valid on its face, is enough to

call for trial of the charge on the merits.” Id.; see United States v. Calandra, 414

U.S. 338, 345 (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 inadequate or incompetent evidence before the grand jury to support

it”).

For the foregoing reasons, we conclude that the trial court erred by

dismissing Defendant’s DUI indictment. The dismissal is therefore reversed, and

this case is remanded to the trial court for further proceedings.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

JOHN EVERETT WILLIAMS, JUDGE