# FILED

Au gust 15, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JUNE 1997 SESSION

STA TE OF TENN ESSEE, ) ) C.C.A . No. 02C01- 9701-CC-00001 Appellee, ) ) TIPTON COUNTY VS. ) ) HON. JOSEPH H. WA LKER, III ) JUDGE MARTIN T HOMAS TERRELL, ) ) (Aggravated Kidnap ping) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : C. MICHA EL ROBBIN S (on appe al) JOHN KNOX WALKUP 202 S. Maple Street, Ste. C Attorney Gen eral & Repor ter Coving ton, Tennessee 38019 DEBORA H A . TULLIS GAR Y F. ANTR IC AN (t ri al on ly) Assistant Att orney Gener al Distric t Public Defender 450 James Roberts on Parkway P.O. Box 700 Nashvil le, Tennessee 37243- 0493 Somervill e, Tennessee 38068 ELIZABETH T. RICE DAV ID S. ST OC KT ON (tr ia l o nl y) Distric t Attorney General Assistant Publ ic Defender 131 A Industrial R oad WALTER FREELA ND Coving ton, Tennessee 38019 Assistant D istrict A ttorney Gener

al 302 Market St. Somervill e, Tennessee 38068

OPINION FIL ED: _________________

AF FIRMED

JOE G. RI LEY, JUDGE

OPINION2 The defendant, Martin Thomas Terrell, appea ls as of rig ht a jury convicti on of aggravated kidnapping , burglar y, reckl ess endangerment with a dead ly w eapon, and drivingon a revoked or suspended l icense. Alth ough the defendant poses the issue solely as insufficiency

of the evidence for the aggr avated kidnapp ing conv iction, there are two true issues presented for our

review : 1) whethe r his const itutional r ight to due process was vi olated when t he Distri ct Attorney General chose to indict upon especially

aggrav ating kidnap ping instead of attempted aggr avated robber

y; and 2) whether the evidence i s sufficient to sustain the agg ravated ki dnapping conv iction. Finding no error, the judgment of the trial court is AFFIRMED.

FACTS The relevant facts which are undisputed i n this case i nvolve the breaking and entering of the C reekmore Pig gly Wiggly in Covi ngton, Tennessee. The defendant and another man gai ned entry to the store by prying open a metal door i n the garden center. Randy

Hazelr ig, the stor

e manager, and J erry Gr iffin, another employee, arrived to open the store for business, and the defendant and the second man hid. They later j umped out and ordered Hazelri g to open the sa fe and ordered Gri ffin not to move. Alt hough no guns were dis played, the t wo men threate ned to shoot Hazelri g and Griffin i f their orders were not fol lowed. Griffin was a ble to back out the front door and r un across the street to call the police. W ith a sledgehammer in hand, the defendan t forced Hazelrig into the office to open the safe . As Hazelrig attempted to open the saf e, he triggered an alarm which apparently scar

ed the two men. The second man said, “[h]it that m- --f--- i n the head and let’s g et out of here.” When Hazelr ig looked up , both men had fled the store. The police arrived as the men were driving away and a high speed chase ensued. The defendant was apprehended when he stopped the car and started to run away on foot. The other man was never apprehended.1 Although indicted for especially aggravated kidnapping , the defendant was ac tu al ly convi cted o f the l esser o ffense of aggrav ated k idnap ping. 3 At trial, H azelrigand Griffin testi fied with regard to the ab ove events . Linda Gamblin, a criminal investigator, also provided testimon y. She stated that she took a statement from the defendant i n which he admitted his in volvement in this cr iminal episode. The d efens e di d not

offer any pro of.

DUE PROCES S VIOLA TION
By indict ing the defendant for e specially aggrav ated kidnapping 1 instead of attempted aggravated robbery, the def endant argues the district attorney violated his constitutional right to due process. S pecifically , defendant contends he w as unlawfully indicted by the district attorney general. We must first note that this is sue has been waived becaus e it was not raised in the motion for new

trial. Tenn. R. App. P. 3(e) . Nevert heless, we will address the merits of this i ssue. Prosecutori al Discretion

It has been often recognized t hat “prosecuto rial disc retion in the charging process is very broad.” Quillen v . Crocket , 928 S. W.2d 47, 51 (Te nn. Cr im. App. 1995)( citing Cooper v. State , 847 S.W .2d 521, 536 (Tenn . Crim. App. 1992)). “So long as

the prosecutor

has probable cause to believe that the accused committed an offense, the deci sion whether to prosecute, and what charge to bring before a grand j ury gener ally re sts entirel y wi thin the discr etion of the prosec ution,” limited only

by certai n constitution al constrai nts. State v. Lunati , 665 S.W.2d 739, 746 (Tenn. Crim. App. 1983); Blackledge v. Perry , 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 ( 1974) (Due Pr ocess may be implicated if a p rosecutor vindicti vely i ncreases a char ge to a felony

after a misdemeanant has prevail ed on appeal). The district attorney general is answerable to no sup erior and has virtually2 The full indictmen t included especi ally

aggr avated k idnaping , burgla

ry , reckle ss endangerment with a deadly weapon, and driving on a revoked or suspe nded license. Ho we ve r, ou r a tt en ti on fo cu se s o n t he ch ar ge of ag gr av at ed ki dn ap in g s in ce it is th e o nl y charge the def

endant c ontests. 4 unbridled dis cretion in de termining w hether to prosec ute and for what offense. Dear born e v. State , 575 S.W.2d 259, 262 (Tenn. 1978); see also State v. Gi lliam , 901 S.W.2d. 385, 389 (Tenn. Crim. App. 1995). After breaking into the store, the defendant, while holding a sledgeha mmer, forced the victim to go to the store’s of fice, some twelve feet away. On these facts, the distric

t attorney general char ged the defendant w ith especial ly agg ravated kidnap ping. 2 As noted above, we will not interfere with a district attorney general’s charging process absent some constituti onal viol ation. The distr ict attorney general properly sought an ind ictment for this offense. The record does not reflect any abuse of discreti on on behalf of the distr ict attorney general. This issue is

without merit. State v. Antho ny In arguingthat the especi ally ag gravated kidnapping c harge vi olates due process, the de fendant principal ly reli es upon State v. Antho ny , 817 S.W.2d 299 (Tenn. 1991). The defendant con tends that the aggravated kidnapping which occurred in this case was incidental to the uncharg ed attempted agg ravated ro bbery. By contrast, the issue r aised in Anthony

was w hether a defendant coul d be convicted of both armed robb ery and aggravated kidnapping growing out of a single criminal episode. Our Supreme Cou rt held that a double jeopa rdy analysis is inadequate to r

esolve thi s issue and anal yzed the issue as one i nvolvi ng due process. The issue is whether the conf inement, movemen t, or detention is essentially

incidental t o the accompanyi ng felony and is not, therefore, sufficient to support a separate conviction f or kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution an d is, therefore, sufficient to support such a convicti on. Anthony , 817 S.W.2d at 306. According ly, the Anthony analysis applies w hen there are multiple or du al convic tions consistingof a felony5

that would i nherently i nvolve a kidnapping and the defendant is con victed of both. W hereas Anthony

addresses the question of which convictions may constitu tionally stand, the question presented i n this appeal concerns w hether a kidnappi ng convicti on alone may st and. In this ca se, the district a ttorne y general in h er discret ion chos e to cha rge especially

aggrav ated kidnapping and not attempted ag gravated robbery. A prosecutor may

choose, consi stent wit h Anthony , to charge only kidna pping wh en confronted by factual scenarios contemplated by t he Supreme Court in Anthony

. State v. Ri cky Mi chael Dixon , C.C.A. No . 03C01-9504-C R-00121, sli p op. at 7, Hamilton County , (Tenn. Crim App. filed October 15, 1996, at Knox

ville) perm. to appeal granted ( April 14, 1997). Conseq uently, Anthony is inappli cable to this case. In fact, Anthony

would not h ave been v iolated had this defendant been indicted for both charges and yet conv icted of only aggravated kidnapping

.

SUFFICIENCY OF THE EVIDENCE
The defendant argues theevidence i s insufficient to sustain the ag gravated kidnapping conviction. As stated above, the defendant contends the aggrav ated kidnapping w

as essentiall y incident al to the uncharged attempted ag gravated robbery. Where sufficiency of the evidence is challen ged, the rel evant question for an appellate court

is whethe r, after vi ewing t he evidence i n the light most favorable t o the prosecution , any rati onal trier of fact could have found t he essential el ements of the crime or crimes beyond a reasonable do ubt. Tenn. R. App. P. 13(e); Jack son v. Virginia , 443 U.S. 307 ( 1979); State v . Abra ms , 935 S.W .2d 399, 401 (Tenn . 1996). The weight and credibil ity of the w itnesses' testimony are mat ters entrust ed exclusiv ely to the j ury as the triers of fact. State v. Sheffield , 676 S.W.2d 542 (Tenn. 1984); State v. Brewer , 932 S.W .2d 1, 19 (Tenn. Crim. App . 1996). A defendant commits the off ense of aggravated kidnapping who knowingly6

removes or confines another unl awfully so as to inter fere substantiall y wi th the other’s li berty w hile the defendant is in possessi on of a deadly weapon or threatens the use of a deadly

weapon. Tenn. C ode Ann. § 39-13-30 4(a)(5). False imprisonment is used as the basic offense f or the kidnapping statutes. This statute bro adly addres ses any si tuation wher e there is an i nterference w ith another’s li berty. See Tenn. Code Ann. § 39- 13-302, SentencingCommission Comments. As suc h, this case u ltimately hinges upon w hether the removal of the victim i nterfered substanti ally w ith his li berty. The facts, as stated ab ove, involve the defendant a nd another man order ing Hazelrig to open the safe. The def endant and the seco nd man said they would shoot him if their orders were not fo llowed. The defenda nt, with a sledgehammer in his hand, forced H azelrigto go to the office, twelve feet away, and open the safe. When Hazelrig did not

immediately

open the safe, the second man told the defendant to “hit that m---f--- in the head and let’s get out of here.” The alarm sounded and the two men fled. The above proof is

more than sufficient for a reasonable j uror to concl ude beyond a reas onable doubt that the defendant knowing ly and unlaw fully removed Hazelrig from one location to anothe r location so as to substantially interfere with his liberty while the defendant was in possession of a deadly weapon. This issue is without mer it. The judgment of the trial court is AFFIRMED.

_______________________ JOE G. RILEY , JUDGE
CONCUR:

_________________________ PAUL G. SUMM ERS, JUDGE7

_________________________ DAVID H. WELLES, JUDGE