### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE May 24, 2000 Ses sion
STATE OF TEN

NESSEE v. KEN

NETH BRYAN

HARRIS
Appeal from the Co

urt of Criminal Appe

als Criminal Court for Wilson County Nos. 96-0710, 96-0710A, 96-0710B Bobby Capers, Judge

No. M1998-00325-SC-R11-CD - Filed December 13, 2000

We grant permission to appeal as requested by Kenneth Bry an Harris in order to review the judgment of the Court of Criminal Appeals. The Court of Criminal Appeals found that the trial court

had erred in making the following rulings: (1) overruling the State’s motion to enter a nolle prosequi on an indictmentfor aggravated assault; (2) dismissi ng asuperseding indictment for attempted first degree murder and aggravated assault; and (3) reversing the district attorney general pro tempore ’s rejection of the defendant’s application for pretrial diversion on the original indictment. Accord ingly, the Courtof Criminal Appeals reversed each ruling and remanded the cause to the trial court for further proceedings.

After ca reful consideration, we conclude that the trial court erred in overruling the State’s motion for a nolle prosequi on the original indictment. We conclude also that the trial court erred in dismissing the sup

erseding in

di ctment for attempted first degree murder and aggrava ted assault. Moreover, because the superseding indictment contains a count charging H arris with an offense for which pretrial diversion is not available, we need not consider the question of pretrial diversion. Based on these c onclusions, we affirm the decision of the Court of Criminal Appeals and remand the cause

to the trial court f

or proceedings on the supersedin g indictment.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed and Remanded

A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the cour

t, in which E. R ILEY A NDERSON , C.J., F RANK F. D ROWOTA , III, J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined.

Frank Lanno

m, Lebanon, Te

nnessee, for the

appellant, Kenne

th Bryan H

arris.

Paul G. Summers, Attorney General and Reporter, M ichael E. M oore, Solicitor Ge neral, Kim R. Helper, Assistant Attorney General, Tom P. Thompson, Jr., District Attorney General, and William Reed, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION1 The record in this c ase is u

nusuall y meager. All proc eedings were conducted in t he absence of an off

icial reporter; w e have no v erbatim tran script.

2 Tenn. Cod e Ann. § 8-7-106 (a) (1993 Re pl.) provides:

If the district

attorney general . . .

is disqualified f

rom acting, . . . the court shall appoint some other attorney to supply such

district attorney general’s place temporaril y. The acts of s

uch distri

ct attorney general pro tem shall be a s valid as i

f done by the regu

lar officer,

and the distr

ict attorney pro tem shall be entitled to the same privileges, and em oluments.

3 The Latin phrase “

nolle pros

equi ” literal

ly means “I am u

nwillin g to prosecute. ” Korematsu v. United St ates , 584 F. Supp. 1 406, 14 10 (N.D . Cal. 1984). This Cou rt defi ned nolle pros

equi “as being a formal entry of record by the attorney- general by which he decla res that he will no long er prosecute th

e case.” Dearbo rne v. State , 575 S.W.2d 259, 263 (Tenn. 1978).
-2- I. Facts and Procedural History

Our factual synopsis will be

very brief because of the scant record before us 1 and because of
our remand of the case for further proceedings. The salient fac ts gleaned from the record are that Kenneth Bryan Ha

rris , the defendant, shot a neighbor three times. One of the bullets severed the victim’s spinal cord, resu

lting in permane

nt paralysi

s below the shoulder

s. On March 18, 1996, the grand jury returned an indictment charging Harr is with aggravated assault. Becaus e the dis trict attorney general was disqualified, the trial court appointed, o n May 14, 1996, a district attorney general pro tempore

to prosecute the case. 2 On November 12, 1996, Harris ap plied for pretrial diversion, and the trial court ordered the preparation o f a pre-sentence report. While the original indictmentand the application for pretrial diversion were pending, the district attorney general pro tempore re-submitted the case to the grand jury. Upon re-submission, the g rand jury returned, on December

10, 1996, an i ndictment in two counts: attempted first degree murder and aggravated assault.

On May 8, 1997, the district attorney

general pro tempore

sought leave of the court to enter
a nolle prosequi 3 on the original indictment. Harris responded eleven months later, on March 31, 1998, opposing the nolle prosequi and noting that the application for pretrial diversion had not been acted upon. The district

attorney g

eneral pro tempore , also on March 31, 1998, filed a letter in which he rejected Harris’s application for pretrial diversion.

On April 14, 1998, the trial court entered two orders. In the first, t he trial court re

fused to allow a nolle prosequi of the original indictme nt. In the sec

ond, the trial cour

t, apparently acti ng sua sponte , dismissed the super seding indictmen

t. Despite the request of the district attorney general pro tempore for written findings of

fact and conclu

sions of law, no wri

tten response

was filed by the trial
co urt. On M ay 6, 1998, the trial court considered Harris’s writ of certiorar i to review the district attorney general pro tempore ’s denial of pretrial diversion. The trial court found the denial unsupported by th e evidence and entered an order granting Harr is pretrial diversion. On direct appeal, the Court of Criminal Appeals vacated each of the three orders entered by the trial court and remanded the case.4 See Tenn. C ode Ann . § 40-15-105(a) (1)(B)(i) (c) (Supp. 1999) (providi ng in pert

inent pa rt that a prosecut

ion may not be suspended by pretrial diversion when the defendant is charged wit h a Class A or B felony).

5 As a preliminary m atter, Harris ch allenges the time liness of the State’s a ppeal. L ike t he Court of Crimin al Appeals, we conclude

that the i nterests of justice

merit our consi

deration of t

he substanti

ve issues i

n this case ; therefor

e,
we need not d iscuss whether the notice of ap peal was time ly filed. See Ten n. R. App . P. 4(a); State v. Burrow , 769 S.W.2d 510, 511 (

Tenn. Cri

m. App. 1989)(“The n

otice of appeal can be

waived by

this Court ‘ in the int

erest of jus

tice’ . . . without regard t

o whether it is the defendant or t he state seeking waiver.”).
-3- We find that the trial court erred in refusing to nolle prosequi the original indictment and in dismissing the superseding indic tment. Thus, we remand the case to the trial court with the superseding indictment as the sole viable indictment. Because of our conclusions, it is unnecessary for us to address the pr

etrial diversion i

ssue other than to

say that the order granting pretrial diversion
was linked to

the original indictment, which has now been nolled , and that Harris is not eligible for pretrial diversion under the superseding indictment because it contains a count charging him

with
a Class A fel ony. 4 It results that the cause is remanded to the trial court where the case shall proce ed
on the superseding indictment to trial or othe r appropriate disposition, with all proceedings to be conducted in the presence of an official court reporter.

II. Standard of Review

The decision whether

to dismiss an indictm

ent l ies within the discr

etion of the trial c

ourt. Statev. Benn , 713 S.W.2d 308, 311 (Tenn. 1986) (discussing dismissal of indictments by the trial court under Tenn. R. Crim

. P. 48(b)). Appellate courts “may not interfere wi

th a ruling made w

ithin the discretionary powers of the trial court absent

clear abuse.” See State v. Street , 768 S.W.2d 703, 709 (Tenn. Crim. App. 1988). Therefore, we will not disturb the decision of the trial court absent an abuse of discretion.

III . Analysis

The dispositive issue in t

his case is

subject to misstatement. True, we are reviewing three rulings of the trial court–two of which concern indictments. Howe

ver, the rulings

(or at least those pertaining to the indi ctments) ar e inter-dep endent and i nextricab ly linked. Toge ther, the ru lings accomplish

a single purpos e : forcing the Sta te to prosecute th

e charge sele

cted by the t

rial court. Thus, the core issue is

whether and to

what extent, under the circumstances here presented, the trial court may determine which charge(s) the State must prosec ute. 5

A. Denial of the Sta

te’s Motion to

Nolle Prosequi the Original Indictment

Under commo n law, the State wa s free to nolle prosequi a case at any time after a formal ch arge had be en made by indictment or information. See 4 Wayne R. LaFave et al., Criminal Procedure § 13.3 (1999). However, over time, the need to check this “unbridled discretion” resulted in legislation and rules of

court such as Ten

n. R. Crim. P. 48(a), which provides that the State “may by leave of court

file a dismissal of an indictment . . . and the prosecution shall thereupon terminate.”-4-

(Emphasis

added). T hus, und er modern law, “when a criminal prosecution has gone bey ond the chargingstage, that is to say, after indictment is returned, the matter [is considered to have] left the [sole] domain of the prosecutor and . . . entered into t he realm of the court.” Pace v. State , 566 S.W.2d 861, 868 (Tenn. 1978) (Henry, C.J., concurring).

The analysis established to consider a motion to nolle prosequi seeks to balance the need to allow prosecutors the freedom to exercise legitimate discretion withthe need to prevent abuse of the power to dismiss. While Rule 48(a) grants the trial court some control ov e r the prosecutor’s discretionary

powers, that cont

rol is limited . The federal courts, interpreting virtually identical “leave of the court” language found in Fed. R. Crim. P. 48(a), have stated:

the phras e “by l eave of court” . . . was intended to modify and condition the absolute power of the Executive, con

sistently with the Framer’s concept

of Separation of Powers, by erecting a check on the abuse of Executive prerogatives. But this is not to say that the Rule
was intended to confer on the Judi ci ary the pow er and authority

to usurp or interfere with the good faith exercise of the Executive power to take care that t

he laws are fait

h fully e xe cuted. The rule was not promulgated

to shift absolute po

wer from the Exec

utiv e to the Judicial Branch. Rather, it was inte nded as a power to check power. The Executive remains the abs olute judge of whether a prosecution should be initiated andthe first

and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pendingprosecutions should notbe judicially disturbed unless clearly c

ontrary to m

anifest public interest

. United States v. Cowan , 5 24 F.2d 504, 513 (5 th Cir. 1975) (emph

asis added); see also State v. Landers , 723 S.W.2d 950, 953 (Tenn. 1987) (applying the “manifest pub

lic interest” tes

t to analysis of Tenn. R. Crim. P. 48(a)).

Gi ven the hi gh threshold that the trial court must meet before overruling the prosecutor’s decision to nolle prosequi an indictment, the broad discretion granted t o the t rial court in other circumstances,

such as evidentia

ry rulin gs, is i napplicable her

e. In order f

or appellate cou

rts to affirm that the trial court’s discretionary power to deny a motion to nolle prosequi is used only when the public interest is at stake, the trial court should provide a clear showing of its reasons for denying the motion and should ensure tha t the reasons are

made part of the r

ecord. In thi

s case, the trial court preserved no such showing on the record. The record does not reflect

any manife

st public interest sufficient to merit the trial court’s restraint of the State’s discre

tion; indeed, the tr

ial court seems to have merely

substituted its judgment for th e State’s rega

rding which of th

e two indictments sh

ould be purs ued. Such a unilateral check of prosecutorial discretion, without apparent or articulated justification, is beyond the trial court’s authority. There fore, we conclude that the trial court abused its discretion in denying the State’s motion to nolle prosequi the original indi ctment.6 See United Sta tes v. Edwards , 777 F.2d 644, 649 (11th Cir. 1985 ).
-5- B. Dismissal of the Superseding Indictment

Under the United States Constitution and the law of Ten nessee, the State is given broad discretion over the control of criminal prosecutions. As stated by the United States Supreme Court in Bordenkircher

v. Hayes , “so long as the prosecutor has probable cause to believe that the accused committed an offense . . ., the decision whether or not to prosecute, and what charge to file or bring before a grand jury

, generally

rests entirely within his discretion.” 434 U.S. 357, 364, 98 S. Ct. 663, 668 (1978). The decisions of our Co urt similarly

provide that the Sta

te has the “so le d uty, aut hor ity, and discretion to prosecute criminal matters.” State v. Spradlin , 12 S.W.3d 432, 436 (Tenn. 2000); Ramsey v. Town of Oliver S prings , 998 S.W.2d 207, 209-10 (Tenn. 1999).

The power to seek a superseding indictment lies within this broad discretion of the State. A super seding indictment is an indictment obtained without the dismissal of a prior indictmen t. 4 1 Am. Jur. 2d Indictme

nts and Informations § 54 (1995). Where there has been no jeopardy on the first indictment, a grand jury may r eturn a new indictment against an accused even though another indictment is pending. Id. ; see also United States v. Eshkol , 108 F.3d 1025, 1027 (9th Cir. 1997). Although the State may

not bring a super

seding indictmen

t to harass or intimid

ate the accused, 6 a legitimate decision to

bring a superseding indictment is uniquely within the State’s authority

. Thus, the S tate may obtai n a supersed ing indict ment at any tim e prior to t rial witho ut dismis sing t h e pending indictme

nt and may the

n select the indic

tment under which

to proceed at tri

al.
Though broad, th

e discretion of th

e State is not infinite. The Tennessee Rules of Criminal Procedure authorize the tria l court to dismiss an indictment under certain circumstances. For example, Tenn. R. Crim. P. 48(b) preserves the accused’s right to a speedy tr ial by prov iding that the trial cou

rt may d ismiss an in

dictment “ [i]f

there is unnecessary delay in presenting the charge to
a grand jury against a defendant who ha s been held to answer to the t rial court, or if t here is unnecessary

delay in bringing a defendant to trial . . . .” I n addition, Tenn. R. Crim. P. 12(b)(2) implicitly allows the trial court to dismiss a defective indictment wh e n a motion is made pr ior to trial. Finally, if a defendant is indicted while a preliminary hearing is pending, the trial court may dismiss the indictment on the defendant’s motion. Tenn. R. Crim. P. 5(e). Notably, of these rules, only Rule 48(b) seems to provide for sua sponte dismissal by th

e trial court. I

n contr ast , the trial court’s authority

under Rule 12(b)(2) and

Rule 5(e) is ordina

rily enable

d by motion of a

party. While we need not decide here

whether the tria

l court has any

authority outside of the provisions of Rule 48(b) to dismiss indictments on its own motion, it is evident that such a

dismissal would be a

highly unusual event that would require the trialcourt to provide, on the record, clear justification for such a decision.

The record before us does not suggest unne cessary de

lay in the proceeding

s such as would justify the trial

court acting un

der Rule 48(b) to

dismiss the superseding indictment. Nor does the record incl ude a motion by either counsel to dismiss the superseding indictment. Moreover, the attemp tby the distric

t attorney g

eneral pro tempore

to ascertain the basis for the trial court’s7 The other count char ges Harris wit

h aggravated ass ault, puni shable eith er as a Class C o r Class D felo ny. See Tenn. Code Ann. § 39-13-10 2 (1997 Repl.).
-6- dismissal of the indictment was fully thwarted by the trial court’s

rejection of his r

equest for written findings of fact and conclusions of law. Thus, we are left with no other conclusion but that the trial court acted sua sponte

in dismissing the sup

erseding indict

ment. Absent s ome i ndication of unnecessary

delay, a de

fect in the indictm

ent, or some

articulable reason for dismissal, a sua sponte decision to dismiss the indictme nt clearly was beyond the authority of the trial court and c

onstitutes, therefore, an abuse of discretion.

Because we conclude that the trial court abused its discretion in dismissing the superseding indictment, we affirm the judg ment of t he Court of Criminal Appeals reinstat

ing that indictmen

t. We remandthe cause (thesuperseding indictment) to the trial court, where the matter shall proceed to trial or other appropriate disposition.

C. Pretrial Diversion

Harris’s application for pretrial diversion was filed under the original indictmen

t. We have concluded

that the State shoul

d have been allow

ed to nolle prosequi that

indictment, and thus we no longer needto address the pretrial diversion question. Furthermore, as a result of our rul ing t oda y, the only indictment still viable on reman d contains a count charging Ha

rris with attempte

d first degree murder, 7 a

Class A felony . As long as that c harge remains , Harris is not elig ible for pretrial diversion. See Tenn. Code Ann. § 40 -15-105( a)(1)(B)(i)(c) (Supp. 1999) (providing in pertinent part that a prosecution may not be suspended by pretrial diversion when the defend

ant is charged

with
a Class A or B felony). Thus, it is unnecessary for us to address whethe

r the trial court a

bused its discretion in reversing the district attorn ey gener al pro tempore ’s rejection of Harris’s application for pretrial diversion.

IV. Conclusion

For the foregoing reasons, we conc lude that the trial court abused its di

scretion both in denying the State’s motion to nolle prosequi the original indi ctment chargin g only ag gravated assa

ult and in dismissing the sup erseding indict

ment for attempte

d first deg ree murder and aggravated assault. Accordingly, the judgment of the Court of Criminal Appeals is affirmed as he rein modified. We remand the case to the trial court for further proceedings in accordance with this opinion. Costs of this appeal ar

e taxed to Kenneth B

ryan Harr is.

___________________________________ ADOLPHO A. BIRCH, J R., JUSTICE