State v. Knight

616 S.W.2d 593, 1981 Tenn. LEXIS 443

• Court: Tennessee Supreme Court
• Decided: May 11, 1981
• Status: Published

Opinions

OPINION

HARBISON, Chief Justice.

During defendant’s trial before a jury upon an indictment for embezzlement, the trial judge, sua sponte, decided that the venue was improper and dismissed the indictment. Upon appeal by the State, the Court of Criminal Appeals held that the venue was proper and that the trial judge was in error in ordering a dismissal. It remanded the case for retrial. This Court granted the defendant’s application for permission to appeal to consider his contention that another trial under these circumstances would violate the double jeopardy clauses of the constitutions of Tennessee and of the United States.

The appellant, Arlie Knight, delivered and sold ice cream products for a company having its offices in Knox County. His sales route was in adjacent Blount County. Upon completing a sale, appellant was required to write a receipt or sales ticket, leaving one copy with the customer and accounting for the sale by returning the original at the end of each day to his employer’s offices in Knox County.

Appellant was indicted in Knox County for embezzlement. T.C.A. § 39-4232. A jury was impaneled and sworn, and the State offered its first witness, Mr. James Alexander, president of appellant’s employer. This witness testified that appellant received the ice cream products each day in Knoxville before servicing his Blount County route. Appellant allegedly presented false sales tickets or receipts for two supermarkets located in Blount County. He delivered the originals of these tickets to the home office in Knoxville at the end of the day.

At the conclusion of the cross-examination of this witness, the trial judge asked the jury to retire. He stated that he would like to “hear from the attorneys” on the issue of venue, which had not previously been raised. The prosecutor argued that venue in Knox County was proper. Defense counsel did not meet this issue squarely; instead he urged that a judgment of acquittal should be entered because of an alleged fatal variance between the elements of the crime charged in the indictment and the evidence offered by the State. He did not expressly make a motion for dismissal on grounds of improper venue. However, in the course of his argument, defense counsel stated:

“Now he cannot show that any of these elements happened in Knox County, Tennessee. We say the State hasn’t got a case in Blount or Knox County as a result of this indictment .... ”

The trial court denied defense counsel’s motion for acquittal on grounds of a variance. He stated, however, with respect to the venue question:

“I don’t believe that the State has proved venue in Knox County but it has proved venue in Blount County. Because of that, without even a motion, the Court would have to say that we are in the wrong county trying this.”

During further argument on the issue, counsel for the defendant renewed three times his motion for judgment of acquittal on the ground of a variance. Counsel stated, “Your Honor, we are insistent that the Court enter a judgment of acquittal.” The Court replied:

“I am not going to enter a judgment of acquittal. I am going to dismiss the case on the fact that the state is in the wrong [county].”

Counsel for defendant stated:

“The defendant excepts to the Court’s ruling, not as to the venue question, but as to the indictment.”

Defense counsel did not at any time object to the dismissal of the indictment for improper venue.

Preserving prior statutory rules on the same subject, the Tennessee Rules of Criminal Procedure provide for concurrent venue in different counties if one or more elements of an offense are committed in one county and other elements in another. Tenn.R.Crim.P. 18(b). A single element may occur in more than one county.

Embezzlement is defined by statute as (1) a fraudulent (2) conversion to one’s own use (3) by an officer, employee or clerk (4) of money or property (5) in his possession or care by virtue of his employment. T.C.A. § 39 — 4232.

The trial judge was correct in concluding that venue could have been laid in Blount County. By virtue of his employment, appellant received the proceeds of sales of products in that county. In addition, the conversion may have occurred in that county, since appellant sold the goods and allegedly falsified the receipts and converted the money. Also, the element of fraudulent intent may have been evidenced by appellant’s actions in Blount County.

On the other hand, however, additional elements of the crime clearly occurred or continued to exist in Knox County. The conversion may just as reasonably be viewed as having occurred there, since appellant allegedly failed to account there for the funds which he had received. See Hopper v. State, 205 Tenn. 246, 326 S.W.2d 448 (1959) (county employee cashed embezzled checks outside the county and failed to account for them inside the forum county); Lambeth v. State, 3 Tenn.Cas. (3 Shannon) 754 (1877) (railway express company employee took custody of packages in Mississippi and failed to account for them upon arrival in Tennessee). Further, the employer’s Knox County offices were the site of the employment relationship. The alleged element of fraudulent intent was also evidenced by appellant’s actions in Knox County-

Since there was concurrent venue in Knox and Blount Counties, we agree with the Court of Criminal Appeals that the case was incorrectly dismissed.

With respect to appellant’s objection to a retrial, it is clear that jeopardy attaches once a jury is impaneled and sworn in a court having jurisdiction. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).¹ The essence of the prohibition against double jeopardy is not that a defendant may incur a greater risk of being found guilty in a second trial than he had in the first, or that the second trial may be conducted prejudicially, but rather that he would risk conviction for an offense for which he has already been placed on trial and in jeopardy. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970).

The United States Supreme Court has explained the principle as follows:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.” Abney, supra, at 661-62, 97 S.Ct. at 2041-42, quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 1979 (1957).

Since the jury had been impaneled and sworn and the first witness had testified, appellant clearly was placed in jeopardy in the present case.

Nevertheless, there are exceptions to the prohibition against double jeopardy. Retrial may be permitted if the termination of the proceedings was caused by error or misconduct of the defense counsel and there was no feasible alternative to halting the proceedings. For example, improper remarks by defense counsel that could taint the outcome of the case have been held to necessitate retrial. See Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In the present case, the dismissal was not caused by misconduct on the part of appellant or of his attorney.

Retrial is also permissible, however, if the defendant through his counsel actively sought or consented to premature termination of the proceedings. United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Seiber v. State, 542 S.W.2d 381, 385 (Tenn.Crim.App.1976). In such a case the accused has deliberately elected to forego his right to have guilt or innocence determined by the first trier of fact. Thus, in United States v. Scott, supra, where counsel moved to dismiss two counts of an indictment on the ground that defendant was prejudiced by pre-indictment delay, and where the motion was granted at the end of trial, a subsequent trial for those charges was held not to be barred upon principles of double jeopardy.

The Court of Criminal Appeals held that the present case was governed by United States v. Scott, supra. After careful consideration, we are of the opinion that its decision was correct. Although defense counsel did not actually seek dismissal upon grounds of improper venue, he did in fact seek dismissal upon other grounds and, at a minimum, cannot be said to have objected to the erroneous action of the court in dismissing for lack of venue. Indeed, at one point, he concurred therein and urged that no elements of the crime had been shown to have been committed in the county where the indictment was returned. Certainly counsel sought to have the prosecution dismissed on grounds not involving guilt or innocence. He actively sought such dismissal and in no sense did he seek to preserve appellant’s right to have trial on the merits occur before the jury which had been impaneled to try the case.

The trial judge apparently interrupted the State’s case in chief before the State had rested. He abruptly dismissed the prosecution without hearing all of the State’s proof, upon grounds of improper venue. Although defense counsel apparently acquiesced in this action and at one point seemed to join in it, his primary insistence was that there was a fatal variance between the indictment and the proof — another ground which would not have involved guilt or innocence and which would not have prevented a retrial had it been granted. See State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491 (1970), appeal dismissed sub nom. Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972); Wilson v. State, 200 Tenn. 309, 292 S.W.2d 188 (1956). In the Brooks case, supra, the case had gone to trial, proof had been introduced and the trial judge had then dismissed the proceedings because he found a fatal variance between the indictment and the proof. Defendant was then retried and convicted. The Court of Criminal Appeals held that the second prosecution was barred on principles of double jeopardy. This Court reversed, and the United States Supreme Court, after granting certiorari, dismissed the appeal upon the ground that the case primarily involved “rules of criminal pleading peculiar to the State of Tennessee” rather than principles of double jeopardy.

In the present case the motion of counsel for the defendant was as improper as the action of the trial judge, inasmuch as the State had not closed its case. At that point the defendant sought dismissal of the indictment and of the trial in Knox County upon grounds which would not have prevented his retrial. We therefore are constrained to the view that he did indeed “consent” to the dismissal and desire to obtain it, even though the trial judge acted upon a different ground. As previously stated, the record shows that counsel for appellant did not except or otherwise object to the venue ruling made by the trial judge.

Jeopardy had attached in this case and the accused had the right, if he had insisted upon it, to have the case proceed to a conclusion on the merits. When he joined in and actively sought dismissal, however, it does not seem to us that he is entitled to rely upon principles of double jeopardy. As stated by the United States Supreme Court in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the concept of double jeopardy rests upon the principle that the state should not be allowed to make repeated efforts to convict an individual for an alleged offense. In the Scott case, the Court said:

“But that situation is obviously a far cry from the present case, where the Government was quite willing to continue with its production of evidence to show the defendant guilty before the jury first impaneled to try him, but the defendant elected to seek termination of the trial on grounds unrelated to guilt or innocence. This is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.” 437 U.S. at 96, 98 S.Ct. at 2196.

The judgment of the Court of Criminal Appeals is affirmed. The cause is remanded for trial on its merits in Knox County, where it originated and where venue was properly laid.

Costs incident to the appeal are taxed to appellant, Knight. All other costs will abide the results in the trial court.

FONES, COOPER and DROWOTA, JJ., concur. BROCK, J., dissents.

1 . Of course, any ruling that in substance amounts to an acquittal triggers the protections against double jeopardy and bars retrial. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1977); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Whitewell v. State, 520 S.W.2d 338 (Tenn.1975). The Court of Criminal Appeals correctly held in this case that the dismissal for lack of venue was not a ruling on the sufficiency of the evidence or on the merits of the case and did not amount to an acquittal.