State v. Drew v. Saunders

CourtCourt of Criminal Appeals of Tennessee
DecidedApril 22, 1999
Docket01C01-9712-CR-00584
StatusPublished

This text of State v. Drew v. Saunders (State v. Drew v. Saunders) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Drew v. Saunders, (Tenn. Ct. App. 1999).

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1999 April 22, 1999

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9712-CR-00584 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON . FRAN K G. C LEM ENT , JR., DREW V. SAUNDERS, ) JUDGE ) Appellee. ) (Dism issal of Indic tment)

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 Se cond A venue, N orth DARYL J. BRAND Nashville, TN 37201 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

VICTOR S. JOHNSON District Attorney General

GEORGE R. BONDS Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue, N orth Nashville, TN 37201

OPINION FILED ________________________

REVERSED; REMANDED.

DAVID H. WELLES, JUDGE OPINION

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

for DUI ag ainst De fendan t, Drew V . Saund ers. Defe ndant urges this Cou rt 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

constitute d part of the natural ple a barga ining proc ess. Fur thermo re, the Sta te

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 obse rving him drive arou nd a ba rricade b locking e ntrance 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 Defenda nt initially stopped and the n drove away. Kirby effected

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

alcoho l, his eyes w ere bloo dshot, an d his spe ech wa s 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 th rough Cent ennia l Park b ecau se, in K irby’s words, “he knew

he had ha d too m uch to dr ink and w as afraid o f being sto pped by police if he

-2- 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 breath-

alcohol testing on Defen dant. Th e dispatc her repo rted bac k that no D UI units

were av ailable tha t night.

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

Centennial Park tha t 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

ensure d that the d river was lice nsed a nd not into xicated.

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 vindictive ness . Follow ing an eviden tiary he aring, th e trial court

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

Gen eral, it is ordered by the Co urt that Coun t two of this ca use be . . .

dismiss ed.” 1

At the evidentiary hearing on De fendan t’s motion to dismis s 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 hou rs of community service

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.

-3- in addition to other requirements. Defendant informed Attorney Adgent that he

could not perform the public service and therefore could n ot accept the p lea 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 hea ring I’ll []indict him for D.U.I.”

II. ANAL YSIS

A.

This case is govern ed 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 n o more than openly presented

the defend ant 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 Fourteen th Amen dment.” 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 wh at charg e to file or bring before a grand ju ry, genera lly rests

entirely in his discretion.” Id. at 364.

Likewise, in United S tates v. G oodw in, 457 U.S . 368 (19 82), the d efenda nt,

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

on more serious c harges arising from the sam e inciden t. Id. at 370-71. The

Goo dwin Court explained the Bordenkircher outcom e as follow s:

-4- An initial indictment—from which the prosecutor embarks on a course of plea n egotia tion— does not ne cess arily define the extent of the leg itimate interes t in prosecution. For just as a prosecutor may forgo legitim ate charges already brought in an effort to save the time and exp ense o f 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 Goo dwin, 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 th at case “g ave rise to a genuine risk o f retaliation.” Id.

at 372. In so hold ing, the Supre me Co urt stated that “a change in the charging

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

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

shou ld remain free befo re trial to exercise the broad discretion entrusted to him

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

the Court also no ted, “This Co urt in Bordenkircher made clear that the mere fact

that a defenda nt refuses to plea d guilty and forces the governm ent to prove its

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

charging de cision are unjustified.” Id. at 382-8 3.

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Related

United States v. Calandra
414 U.S. 338 (Supreme Court, 1974)
Bordenkircher v. Hayes
434 U.S. 357 (Supreme Court, 1978)
State v. Pappas
754 S.W.2d 620 (Court of Criminal Appeals of Tennessee, 1987)
State v. Gonzales
638 S.W.2d 841 (Court of Criminal Appeals of Tennessee, 1982)

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State v. Drew v. Saunders, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-drew-v-saunders-tenncrimapp-1999.