IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs at May 21, 2014

STATE OF TENNESSEE v. VANESSA COLEMAN

Appeal from the Criminal Court for Knox County

No. 86216D Jon Kerry Blackwood, Judge

No. E2013-01208-CCA-R3-CD - Filed December 9, 2014

D. KELLY THOMAS, JR., J., concurring.

I write separately because I feel it is necessary to adequately address the federal grand

jury issue as presented by the Defendant in her appellate brief. The majority notes that the

Defendant moved to dismiss the presentment under Rule 6(j)(6) of the Tennessee Rules of

Criminal Procedure, arguing that her subpoena to testify before the federal grand jury barred

her state court prosecution. I do not disagree that Rule 6(j)(6) “applies only to proceedings

in state grand juries within the State of Tennessee.” However, the Defendant’s argument

both in her interlocutory appeal, and as presented in this direct appeal, is that the federal

authorities were acting as agents of the Knox County District Attorney General’s office.

Specifically, she notes that the charges against her arose from a joint investigation between

State and federal authorities. She continues, by virtue of this joint investigation, the federal

authorities were acting as agents of the Knox County District Attorney General when they

subpoenaed her to testify before the federal grand jury regarding her knowledge and

participation in the crimes against the victims, thereby, triggering the immunity protection

afforded by Rule 6(j)(6). In my opinion, to ignore the agency issue, ignores the issue

presented by the Defendant.

The Defendant argues that the advisory commission comments to the rule support her

argument. The following comment is included therein:

This rule grants immunity only to those witnesses compelled to testify by the

district attorney general, or the district attorney general’s assistant or agent, by

virtue of subpoena or order of the judge.

Tenn. R. Crim. P. 6, Advisory Comm’n Cmts. (emphasis added). She also cites to State v.

McCollum, (Tenn. 1995), wherein our supreme court held that there was no distinction
between witnesses testifying under subpoena requested by the grand jury foreperson or those

testifying by virtue of subpoena requested by district attorney general. 904 S.W.2d 114, 117

(Tenn. 1995). The McCollum court explicitly rejected the notion that Rule 6 grants

immunity only to the witness who appears pursuant to a subpoena requested by the district

attorney general, finding such an interpretation to be “illogical, restrictive, and violative of

the very essence of the rule.” Id. The court continued, “Were we to apply [the immunity

protection of Rule 6] only when the witness was subpoenaed at the request of the district

attorney general, . . . immunity could easily be subverted by ensuring that the official request

for a subpoena came from a source other than the district attorney general[,]” providing “a

mechanism for evading the requirements of fair play and due process.” Id.

However, under the facts of this case, the Defendant was not compelled to testify

before the federal grand jury. The Defendant never invoked her Fifth Amendment privilege

against self-incrimination before testifying for the federal grand jury. Although not cited by

the Defendant, the advisory commission comments also state that the immunity protection

of Rule 6 is “triggered by the refusal of a witness to testify before the grand jury.” See Tenn.

R. Crim. P. 6(j)(5) & (6). Such a refusal was not made, and the Defendant was not

compelled to testify. Therefore, in my opinion, it is unnecessary to decide whether a federal

authority, conducting a joint investigation with a county’s district attorney general, could be

declared an agent of that district attorney general office’s, as such is not dispositive of the

case. I agree with the majority that the Defendant is not entitled to relief on this issue.

D. KELLY THOMAS, JR., JUDGE