IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 25, 1999
JUNE 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9712-CC-00531
Appellee, * BLOUNT COUNTY
VS. * Honorable D. Kelly Thomas, Jr., Judge
JOHN HENRY MELSON, JR., * (Criminal Impersonation; Habitual Motor Vehicle Offender; DUI--Third Offense) Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
KEVIN W. SHEPHERD PAUL G. SUMMERS 404 Ellis Avenue Attorney General & Reporter Maryville, TN 37804 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
MICHAEL L. FLYNN District Attorney General
PHILIP H. MORTON Assistant District Attorney 363 Court Street Maryville, TN 37804
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge OPINION
The defendant, John Melson, was convicted by a Blount County jury of
violation of the Motor Vehicle Habitual Offender’s Act, a Class E felony, criminal
impersonation, a Class B misdemeanor, and driving under the influence of an
intoxicant, third offense, a Class A misdemeanor. The defendant appeals these
convictions, contending that:
(1) His indictments were fatally flawed; (2) the trial court improperly instructed the jury; and (3) he was entitled to a dismissal of his indictments based upon the denial of a preliminary hearing.
After careful review of the defendant’s claims, we AFFIRM the judgment of the
trial court.
BACKGROUND
Tennessee Highway Patrol Officer Danny Thomas testified that on
January 9, 1996, he observed the defendant’s car dangerously weaving and
exceeding the speed limit. Officer Thomas then stopped the defendant. Upon
approaching the defendant, Officer Thomas observed a strong odor of alcohol
about the defendant. The defendant submitted to and failed a field sobriety test.
The defendant was then arrested. Asked for identification, the defendant stated
that he did not have a driver’s license and supplied the officer with a false name.
The defendant was then charged with the instant offenses.
On October 14, 1997, the matter came for a jury trial in Blount County.
After the jury had been sworn and as the state called its first witness, Officer
Thomas, the defendant objected to all testimony relating to the events of January
9, 1996, on the grounds of irrelevance and immateriality. Specifically, the
defendant pointed out that the indictments upon which the charges were brought
stated the date of the offense as January 1, 1996; therefore, he argued that any
testimony about events occurring January 9, 1996, was irrelevant.
-2- The trial court took the defendant’s objection into consideration and
allowed both the defendant and the state time to submit relevant legal authority
and argument. Unpersuaded by the defendant’s argument, the trial court,
without amending the indictments, proceeded with the trial and allowed
testimony relating to January 9, 1996. The defendant, again noting his objection,
cross-examined the state’s witnesses and presented one witness, the
defendant’s father. At the conclusion of the trial, the jury returned verdicts of
guilty on all charges and assessed fines. The trial court then sentenced the
defendant to five years as a persistent offender on the charge of driving while
restriction in effect, six months on the charge of criminal impersonation, and
eleven months and twenty-nine days on the charge of driving under the influence
of an intoxicant.
ANALYSIS
Fatally Flawed Indictment
The defendant contends that his indictments were fatally flawed due to
the recitation of January 1, 1996, as the date of the offense rather than the
correct date of January 9, 1996. We begin our analysis with two general
propositions upon which both the defendant and the state agree: first, “[u]nless a
special date is essential or time is critical to the case, the time of an offense
alleged in the indictment is not material,” State v. Hardin, 691 S.W.2d 578, 580
(Tenn. Crim. App. 1985), and second, “the actual date of the commission of the
offense may be different than that charged in the indictment so long as the proof
establishes that the offense occurred prior to the finding and returning of the
indictment. . . .” State v. Chance, 778 S.W.2d 457, 462 (Tenn. Crim. App. 1989).
In the instant case, the issue is whether the variance is “material” when the proof
established that the offense occurred prior to the finding and returning of the
indictment. Materiality in this context is determined by the impact the variance
had upon the defendant’s “substantial rights.” State v. Mayes, 854 S.W.2d 638,
-3- 640 (Tenn. 1983); see also Berger v. United States, 295 U.S. 78 (1935).
Specifically, a variance does not prejudice a defendant and is thus immaterial
“(1) if the indictment sufficiently informs the defendant of the charges against him
so that he may prepare his defense and not be misled or surprised at trial, and
(2) if the variance is not such that it will present a danger that the defendant may
be prosecuted a second time for the same offense.” Mayes, 854 S.W.2d at 640.
Applying this standard, we cannot find that the defendant’s substantial
rights were prejudiced. First, the defendant was well aware that the charges
brought related to the events of January 9, 1996. The defendant was arrested
but once in the relevant time period, and that was on January 9, 1996. The
defendant met Officer Thomas, named in the indictment, but once, and that was
on January 9, 1996. The defendant’s arrest warrants recited but one date, and
that was January 9, 1996. Further, the defendant’s counsel presented a defense
entirely unrelated to the date of the offense.1 The defense counsel himself
conceded that both he and the defendant knew the indictment was in error and
that January 9, 1996, was the date intended. Second, the variance places the
defendant in no danger of a second prosecution for the same offense, as the
state presented proof at trial that related to the events of January 9, 1996. See
State v. Goins, 705 S.W.2d 648 (Tenn. 1986). Double jeopardy would bar
another prosecution for the same incident. Therefore, we conclude that this
variance does not fatally flaw the indictment.
Jury Instructions
Defendant next contends that the trial court improperly instructed the jury
regarding the indictment. The disputed instruction states: “The State is not
required to show these offenses occurred on the date alleged in the indictment,
1 Defendant sought to establish that, rather than intoxication, a pre-existing medical condition , nam ely serious f oot prob lems , impac ted his pe rform ance o n the field so briety test.
-4- only that the offenses occurred prior to 9/30/96, the date the Grand Jury returned
the indictment.”
We recognize that a defendant has a constitutional right to a correct and
complete charge of law, see State v. Teel, 793 S.W.2d 236, 249 (Tenn 1990),
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 25, 1999
JUNE 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9712-CC-00531
Appellee, * BLOUNT COUNTY
VS. * Honorable D. Kelly Thomas, Jr., Judge
JOHN HENRY MELSON, JR., * (Criminal Impersonation; Habitual Motor Vehicle Offender; DUI--Third Offense) Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
KEVIN W. SHEPHERD PAUL G. SUMMERS 404 Ellis Avenue Attorney General & Reporter Maryville, TN 37804 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
MICHAEL L. FLYNN District Attorney General
PHILIP H. MORTON Assistant District Attorney 363 Court Street Maryville, TN 37804
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge OPINION
The defendant, John Melson, was convicted by a Blount County jury of
violation of the Motor Vehicle Habitual Offender’s Act, a Class E felony, criminal
impersonation, a Class B misdemeanor, and driving under the influence of an
intoxicant, third offense, a Class A misdemeanor. The defendant appeals these
convictions, contending that:
(1) His indictments were fatally flawed; (2) the trial court improperly instructed the jury; and (3) he was entitled to a dismissal of his indictments based upon the denial of a preliminary hearing.
After careful review of the defendant’s claims, we AFFIRM the judgment of the
trial court.
BACKGROUND
Tennessee Highway Patrol Officer Danny Thomas testified that on
January 9, 1996, he observed the defendant’s car dangerously weaving and
exceeding the speed limit. Officer Thomas then stopped the defendant. Upon
approaching the defendant, Officer Thomas observed a strong odor of alcohol
about the defendant. The defendant submitted to and failed a field sobriety test.
The defendant was then arrested. Asked for identification, the defendant stated
that he did not have a driver’s license and supplied the officer with a false name.
The defendant was then charged with the instant offenses.
On October 14, 1997, the matter came for a jury trial in Blount County.
After the jury had been sworn and as the state called its first witness, Officer
Thomas, the defendant objected to all testimony relating to the events of January
9, 1996, on the grounds of irrelevance and immateriality. Specifically, the
defendant pointed out that the indictments upon which the charges were brought
stated the date of the offense as January 1, 1996; therefore, he argued that any
testimony about events occurring January 9, 1996, was irrelevant.
-2- The trial court took the defendant’s objection into consideration and
allowed both the defendant and the state time to submit relevant legal authority
and argument. Unpersuaded by the defendant’s argument, the trial court,
without amending the indictments, proceeded with the trial and allowed
testimony relating to January 9, 1996. The defendant, again noting his objection,
cross-examined the state’s witnesses and presented one witness, the
defendant’s father. At the conclusion of the trial, the jury returned verdicts of
guilty on all charges and assessed fines. The trial court then sentenced the
defendant to five years as a persistent offender on the charge of driving while
restriction in effect, six months on the charge of criminal impersonation, and
eleven months and twenty-nine days on the charge of driving under the influence
of an intoxicant.
ANALYSIS
Fatally Flawed Indictment
The defendant contends that his indictments were fatally flawed due to
the recitation of January 1, 1996, as the date of the offense rather than the
correct date of January 9, 1996. We begin our analysis with two general
propositions upon which both the defendant and the state agree: first, “[u]nless a
special date is essential or time is critical to the case, the time of an offense
alleged in the indictment is not material,” State v. Hardin, 691 S.W.2d 578, 580
(Tenn. Crim. App. 1985), and second, “the actual date of the commission of the
offense may be different than that charged in the indictment so long as the proof
establishes that the offense occurred prior to the finding and returning of the
indictment. . . .” State v. Chance, 778 S.W.2d 457, 462 (Tenn. Crim. App. 1989).
In the instant case, the issue is whether the variance is “material” when the proof
established that the offense occurred prior to the finding and returning of the
indictment. Materiality in this context is determined by the impact the variance
had upon the defendant’s “substantial rights.” State v. Mayes, 854 S.W.2d 638,
-3- 640 (Tenn. 1983); see also Berger v. United States, 295 U.S. 78 (1935).
Specifically, a variance does not prejudice a defendant and is thus immaterial
“(1) if the indictment sufficiently informs the defendant of the charges against him
so that he may prepare his defense and not be misled or surprised at trial, and
(2) if the variance is not such that it will present a danger that the defendant may
be prosecuted a second time for the same offense.” Mayes, 854 S.W.2d at 640.
Applying this standard, we cannot find that the defendant’s substantial
rights were prejudiced. First, the defendant was well aware that the charges
brought related to the events of January 9, 1996. The defendant was arrested
but once in the relevant time period, and that was on January 9, 1996. The
defendant met Officer Thomas, named in the indictment, but once, and that was
on January 9, 1996. The defendant’s arrest warrants recited but one date, and
that was January 9, 1996. Further, the defendant’s counsel presented a defense
entirely unrelated to the date of the offense.1 The defense counsel himself
conceded that both he and the defendant knew the indictment was in error and
that January 9, 1996, was the date intended. Second, the variance places the
defendant in no danger of a second prosecution for the same offense, as the
state presented proof at trial that related to the events of January 9, 1996. See
State v. Goins, 705 S.W.2d 648 (Tenn. 1986). Double jeopardy would bar
another prosecution for the same incident. Therefore, we conclude that this
variance does not fatally flaw the indictment.
Jury Instructions
Defendant next contends that the trial court improperly instructed the jury
regarding the indictment. The disputed instruction states: “The State is not
required to show these offenses occurred on the date alleged in the indictment,
1 Defendant sought to establish that, rather than intoxication, a pre-existing medical condition , nam ely serious f oot prob lems , impac ted his pe rform ance o n the field so briety test.
-4- only that the offenses occurred prior to 9/30/96, the date the Grand Jury returned
the indictment.”
We recognize that a defendant has a constitutional right to a correct and
complete charge of law, see State v. Teel, 793 S.W.2d 236, 249 (Tenn 1990),
and a right to have every issue of fact raised by the evidence and material to the
defense submitted to the jury on proper instructions, see Poe v. State, 212
S.W.2d 413 (Tenn. 1963). Accordingly, this court will invalidate a charge that,
when read as a whole, fails to fairly submit the legal issues or misleads the jury
to the applicable law. See State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim.
App. 1994).
We conclude that the disputed instruction correctly states the law.
Further, we conclude that the instruction creates no risk of confusing or
misleading the jury. Therefore, the trial court’s instruction is proper.
Denial of Preliminary Hearing
Defendant next contends that he was denied his right to a preliminary
hearing as mandated by Rule 5(d) of the Tennessee Rules of Criminal
Procedure. Accordingly, he seeks dismissal of his convictions.
In the instant case, defendant was arrested on January 9, 1996, prior to
indictment. Arrest warrants were issued January 9, 1996, from the Blount
County General Sessions Court. Indictments were issued later from the Blount
County Circuit Court on September 30, 1996. No preliminary hearing on the
arrest warrants was held before the indictments issued. On October 26, 1996,
after the indictments issued, however, the defendant filed a motion to remand
the matter to the Blount County General Sessions Court. The defendant
-5- subsequently withdrew this motion. Therefore, no preliminary hearing on the
arrest warrants was ever held.
The defendant’s issue regards a violation of Rule 5 of the Tennessee
Rules of Criminal Procedure, which states in applicable part:
Any defendant arrested prior to indictment or presentment . . . shall be entitled to a preliminary hearing upon [his] request therefor, whether the grand jury of the county be in session or not. If the defendant is indicted during the period of time in which his preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at the defendant’s own request or that of the prosecutor, the defendant may dismiss the indictment upon motion to the court. Provided, however, that no such Motion to Dismiss shall be granted after the expiration of thirty days from the date of the defendant’s arrest.
Tenn. R. Crim. P. 5(e). The defendant had thirty days from his arrest January 9,
1996, to file a motion to dismiss and request a preliminary hearing. The
defendant identifies nothing in the record that indicates he filed such a motion in
the allotted time. Further, this Court’s review of the technical record revealed no
such filing nor any indication of bad faith on behalf of the State which would
allow for an extension. See Moore v. State, 578 S.W.2d 78 (Tenn. 1979).
Accordingly, we find that the defendant failed to properly request a preliminary
hearing and conclude that the issue is without merit.
CONCLUSION
Accordingly, we AFFIRM the decision of the trial court.
______________________________ JOHN EVERETT W ILLIAMS, Judge
-6- CONCUR:
___________________________ JOHN H. PEAY, Judge
____________________________ DAVID G. HAYES, Judge
-7-