### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE Submitted on Briefs January 7, 2003

STATE OF TENNESSEE v. JERRY BAXTER GRAVES

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County No. 69593 Richard R. Baumgartner, Judge

No. E2001-00123-SC-R11-CD - Filed May 27, 2003

We granted review to determine whether the trial court properly refused to dismiss the indictment and allow a second preliminary hearing where the first preliminary hearing was not recorded as required by Rule 5.1(a) ofthe Tennessee Rules ofCriminal Procedure. The Court of Criminal Appeals concluded that the violation of Rule 5.1(a) did not prejudice the defendant and affirmed the convictions and
sentences for felony murder and especially aggravated robbery. After reviewing the record and applicable authority, we hold that the failure to preserve an electronic recording or its equivalent of a preliminary hearing under Rule 5.1(a) requires the dismissal of the indictment and a remand for a new preliminary hearing unless the State establishes (1) that all material and substantial evidence that was introduced at the preliminary hearing was made available to the defendant and (2) that the testimony made available to the defendant was subject to cross-examination. Because this standard has been satisfied inthe present case, we affirmthe Court of Criminal Appeals ’ judgment.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed

E. Riley Anderson, J., delivered the opinion of the court, in which Frank F. Drowota, III, C.J., and Adolpho A.Birch, Jr., and William M. Barker, JJ., joined. Janice M. Holder, J., filed a concurring opinion.

Jerry B. Graves, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, AssistantAttorney General; Randall E. Nichols, DistrictAttorney General; and Scott G. Green, AssistantDistrictAttorney General, forthe appellee, State of Tennessee.

OPINION

BACKGROUND

The sole issue raised in this appeal is the remedy for an admitted violation ofRule 5.1(a) ofthe Tennessee Rules ofCriminal Procedure, which requires that the evidence of witnesses introduced at a preliminary hearing shall be preserved by electronic recording or its equivalent and made available to the

Page 1defendant.

The defendant, Jerry B. Graves, and Takeita M. Locke were separately indicted for felony murderand especially aggravated robbery foractions arising out ofevents that occurred on October 17, 1998, inKnox County, Tennessee. The trial court initially dismissed the indictment against Graves after finding that he had not been afforded a preliminary hearing. Following a preliminary hearing in Knox County General Sessions Court, Graves was again indicted for first degree felony murder and especially aggravated robbery on December 2, 1999. The defendant Graves then fileda pretrial motion asking that the new indictmentbe dismissed and that the case be remanded for a second preliminary hearing on the grounds that the initial hearing had not been preserved electronically in accordance with Rule 5.1(a) of the Tennessee Rules of Criminal Procedure. 1 The trial court overruled the motion and the case proceeded to trial.

In the meantime, in a separate earlier trial, Locke had been convicted of felony murder and especially aggravated robbery and sentenced to life imprisonment on the felony murder conviction and twenty years on the especially aggravated robbery conviction. State v. Locke
, 90 S.W.3d 663 (Tenn. 2002). Witnesses Karen Verklas, Robert Richards, and Adam Faw alltestified at Locke ’ s trial.

Thefollowing evidence was introduced againstGraves at his trial.

According to the testimony ofAdam Faw, in the early morning hours ofOctober 17, 1998, the defendantGraves, Takeita Locke, ChristinaMartin, and Faw drove around Knoxville inFaw ’ s van while drinking alcohol and smoking marijuanalaced withcocaine or crack. Aftera few hours, Graves directed Faw to go to an apartment inMontgomery Village so that he could rob someone. Upon arrival, Graves gotoutof the van carrying Faw ’ s pistol and headed towards an apartment. Robert Richards testified thathe, Karen Verklas, and the victim, Chuck Newman, were hanging
outin Verklas ’ apartment when Graves kicked in the door. After Graves knocked the apartment door
open, he forced Newman into the kitchen, and backed him up against the stove. Richards said that he initially thought the defendant was only playing, but then he heard the defendant repeatedly saying “ give

methe money. ” Richards testified thatwhen Newman refused, Graves wrestled Newman onto the living

roomcouch and started beating him on the head while continuing to demand money. At the same time, Locke was also trying to pry the victim ’ s hands open. Richards unsuccessfully tried to pull Graves offof Newman, afterwhich he left the apartment to find help. Once outside, he found Verklas, who had fled the apartment to call 911. Richards testified that he saw Graves and Locke leave the apartment and overheard Graves tell Locke thatthe victimhad at least $150. 2

Faw testified that Graves and Locke came running out of the apartment building and got back into his van. Faw noticed thatGraves had blood allover his arms and jacket. When Faw asked Graves if he had gotten anything, Graves responded thathe had gotten $50.

The defendant Graves testified and conceded that he had beaten Newman with a pistol and stabbed him

witha knife. He claimed thatNewman took crack cocaine from him and refused to pay for it. Newman eventually died fromthe stab wound to his chest.

Based on the foregoing evidence, the jury convicted defendant Graves of felony murder and especially aggravated robbery, and he was later sentenced to life imprisonment and twenty-three years respectively.

Following his conviction, the defendant fileda motion fornew trial again arguing that the failure to electronically record the preliminary hearing violated Rule 5.1(a). The trial court denied the motion after stating:

Page 2[A]pparently, [the preliminary hearing] was not preserved. I am not questioning that. So I thinkthe question is pretty clear and pretty distinct here forthe [appellate courts] to address

– but what you did have in this

case thatyou don ’ t

have inmany other cases is the opportunity to review the testimony ofthese witnesses from several hearings. I mean, we had the prior trial in which [Locke] was tried

– both Mr. Richards and Ms. Verklas testified inthatcase.

[The prosecutor] reminds me thatyou had this statement of Mr. Richards that was given to the police that was available to you and for impeachmentpurposes, the testimony at a previous hearing. So I think, if there was ever a case in which the harmless error analysis should apply, this is thatcase.

Inaddition to this verbatimstatement, the trial court also noted thatRichards, the State ’ s primary witness, had testified prior to the defendant Graves ’ trial inLocke ’ s juvenile transfer hearing.

Although the Court of Criminal Appeals affirmed the trial court ’ s judgment in all respects, its decision withrespect to the violation of Rule 5.1(a) was unclear. On the one hand, the court stated that the trial court did not err in refusing to remand for another preliminary hearing. On the other hand, however, the court relied on State v. Carter
, 970 S.W.2d 509, 512 (Tenn. Crim. App. 1997), and State

v. Butts
, 640 S.W.2d 37, 38 (Tenn. Crim. App. 1982), and stated thatthe failure to produce a recording of the preliminary hearing was error, butharmless.

We granted the defendant ’ s application forpermission to appeal.

ANALYSIS

The defendant argues that the trial court committed reversible error in denying the motion for a

new trial because the sole remedy for a violation of Rule 5.1(a) of the Tennessee Rules of Criminal Procedure is a dismissal of the indictment and a remand to the General Sessions Court for a new preliminary hearing. The State concedes that Rule 5.1(a) was violated, yet maintains that the remedy does notinclude a rightto have the indictmentdismissed and a new preliminary hearing ordered. Instead, the State argues that the court must assess the potential prejudice to the defendant and then determine whetherdismissal is warranted underthe particularfacts of the case.

We begin our analysis with Tennessee Rule of Criminal Procedure 5.1(a), which provides as follows: Theevidence of the witnesses is notrequired to be reduced to writing by the magistrate, or under the magistrate ’ s direction, and signed by the respective witnesses; but the proceedings shall be preserved by electronic recording or its equivalent and when the defendant is subsequently indicted such recording shall be made available for listening
to by the defendant or defendant ’ s counsel to the end that they may be apprised of

the evidence introduced upon the preliminary examination.

As the language indicates, the purpose ofRule 5.1(a) is to notify and make available to a defendant or defense counsel the evidence introduced at the preliminary hearing by preserving an “ electronic recording

orits equivalent. ” The rule, however, states no sanction or remedy for a failure to prepare, preserve, or

Page 3make available such a recording.

Although this Court has never addressed this issue, we note that the Court ofCriminal Appeals has held thatthe failure to comply withRule 5.1(a) may be subject to a harmless error analysis when the defendantis notprejudiced by the lackofthe recording. State v. Carter
, 970 S.W.2d 509, 512 (Tenn. Crim. App. 1997); State v. McBee
, 644 S.W.2d 425, 427 (Tenn. Crim. App. 1982); State v. Butts
, 640 S.W.2d 37, 38 (Tenn. Crim. App. 1982). The Court of Criminal Appeals has also defined harmless

error inthis context to be when “ [t]he evidence contained in the record is so compelling on the question of the defendant ’ s guilt

[that] a recording of

the preliminary hearing would nothave aided defense counsel in [the] cause. ” State v. Bohanan
, 745 S.W.2d 892, 896 (Tenn. Crim. App. 1987). However, where the error is notharmless, the proper remedy is forthe trial court “ to dismiss the indictment and remand to the General Sessions Court fora second preliminary hearing. ” Carter
, 970 S.W.2d at 512.

The parties have offered two different solutions for addressing a violation of Rule 5.1(a). The defendant ’ s brightlineapproach would depart fromthe Court ofCriminal Appeals ’ holdings and instead require a dismissal ofthe indictment and a remand for a new preliminary hearing in all cases where the recording required by Rule 5.1(a) has not been preserved. The State, on the other hand, would follow the Court of

Criminal Appeals ’ holdings that a violation ofRule 5.1(a) may be harmless error where the defendantfails to establish prejudice.

Although Rule 5.1(a) provides no guidance as to the remedy to be applied for a violation of its terms, we believe that the appropriate procedural remedy must be tailored to the express language and
purpose ofthe rule. Rule 5.1(a) is clearly a mandatory rule as illustrated by its requirements that “ the proceedings shall be preserved by electronic recording or its equivalent ” and that “such record shall be made available ” to the defendant or defense counsel. Tenn. R. Crim. P. 5.1(a) (emphasis added); see also State v. Lowe
, 811 S.W.2d 526, 527 (Tenn. 1991) ( “ Itis academic that the use ofthe word ‘ shall ’ in a statute is indicative of a mandatory legislative intent. ”). Moreover, as noted above, the stated
purpose ofthe rule is to “ apprise[] the [defendant or defendant ’ s counsel] of the evidence introduced
upon the preliminary examination. ” Tenn. R. Crim. P. 5.1(a). The purpose ofthe rule is underscored by the importance of the preliminary hearing in general. In McKeldin v. State
, 516 S.W.2d 82, 85-86 (Tenn. 1974), for example, we recognized that the Tennessee preliminary hearing is a “ critical stage ” of the criminalprosecution and thatits importance to the defense as a discovery tool could not be ignored. Id. In addition, the preliminary hearing is generally the first opportunity the defense has to confront and cross-examine witnesses underoath. See id.
Accordingly, the language and purpose ofthe rule dictate that the critical issue must be whether the defense has been apprised of the evidence introduced at the preliminary hearing by receiving the same information as an “

electronic recording or its equivalent. ” 3 The State ’ s failure to preserve an electronic recording or its equivalent ofa preliminary hearing under Rule 5.1(a) therefore requires the dismissal of the indictment and a remand for a new preliminary hearing, unless the State establishes (1) that all material and substantial evidence thatwas introduced at the preliminary hearing was made available to the defendantand (2) thatthe testimony made available to the defendant was subject to cross-examination. See State v. Bolden
, 979 S.W.2d 587, 590 (Tenn. 1998). 4 In short, although automatic dismissal ofthe indictmentis not required, the proper analysis should not simply focus on whether a violation ofthe rule

was harmless error based on the degree of the evidence of

guilt.

Applying this test, we conclude that the trial court properly found that a dismissal of the indictmentand a remand foranother preliminary hearing was not required because the defendant Graves had available all the substantive evidence that was introduced at his preliminary hearing, which was subject to cross-examination. Accordingly, the purpose and language of Rule 5.1(a) of the Tennessee Rules ofCriminal Procedure was satisfied. Specifically, the defendant Graves had available before his

Page 4trial the transcript from defendant Locke ’ s juvenile transfer hearing, as well as the transcript ofLocke ’ s

trial, during which all ofthe State ’ s key witnesses against him testified. The defendant therefore had a transcript of

the testimony of

allthe individuals who would testify againsthim at his trial and the testimony

was elicited in an adversarial setting that included cross-examination. Moreover, the defendant possessed and utilized in cross-examination at his trial a statement which Richards, the State ’ s primary witness, made to police regarding the incident. Giventhe evidence made available to the defendant inthis
case, the trial court did noterr inrefusing to dismiss the indictment based on a violation ofRule 5.1(a) of the Tennessee Rules of Criminal Procedure. Accordingly, we affirm the Court of Criminal Appeals ’ judgment.

CONCLUSION

After reviewing the record and applicable authority, we hold that the failure to preserve an electronic recording or its equivalent ofa preliminary hearing under Rule 5.1(a) requires the dismissal of the indictmentand a remand fora new preliminary hearing unless the State establishes (1) that all material and substantial evidence that was introduced at the preliminary hearing was made available to the defendantand (2) thatthe testimony made available to the defendant was subject to cross-examination. Because this standard has been satisfied inthe present case, we affirm the Court of Criminal Appeals ’ judgment. It appearing that the defendant-appellant, Jerry Baxter Graves, is indigent, costs of this appeal are taxed to the State of Tennessee.

____________________________________ E. RILEY ANDERSON, JUSTICE

Page 5